SCMR 2020 Judgments

2020 S C M R 1523

[Constitutional Court of South Africa]\

Present: Mogoeng, C.J., Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J

AB and another---Applicants

Versus

PRIDWIN PREPARATORY SCHOOL and others---Respondents

Case No. CCT 294/18, decided on 17th June, 2020.

Per Theron, J; Jafta, Khampepe, Ledwaba AJ, Madlanga and Mhlantla, JJ. concurring; Nicholls AJ, Mogoeng CJ, Cameron and Froneman, JJ reaching the same conclusion but with their own reasoning.

(a) Fundamental rights---

----Children's right to basic education---Scope---Independent (private) schools---Parents (admission) contracts---Termination clause---Clause in the contract which allowed the independent (private) school to terminate a contract between them and parents 'for any reason'---Constitutionality---[Per Theron, J [Majority view]: Decision by independent school to cancel the Parent Contract in the present case was unconstitutional due to the failure to afford the parents an opportunity to be heard on the best interests of the children, in breach of Ss. 28(2) & 29(1)(a) of the Constitution (of South Africa)---In addition, the decision of termination was unconstitutional as, absent a fair process, it was self-evidently and objectively not in the best interests of the children and, moreover, in violation of the school's obligation not to interfere with the children's right to a basic education, in the absence of any appropriate justification]---[Per Nicholls AJ (Minority view): Impugned termination clause of the Parent Contracts between the independent school and the parents was unconstitutional, contrary to public policy and unenforceable to the extent that it purported to allow the school to cancel the Parent Contracts without following a fair procedure---Child's basic education should not be terminated without an appropriate and substantively fair procedure]---[Per Cameron and Froneman, JJ (Minority view): Sections 28(2), 29(1)(a) & 29(3) of the Constitution imposed on independent schools that provided basic education at least the negative obligation not to diminish or interfere with a child's right to basic education---Impugned clause was unconstitutional, contrary to public policy, and hence unenforceable]---[Per Khampepe, J: Conspectus of obligations that arose from constitutional, international and legislative instruments led to the ineluctable conclusion that not only was the independent school under the negative obligation to not interfere in children's right to basic education without a fair process, but it also had the obligation to consider the children's rights to have their views heard on the matter of their removal from school, and to offer this opportunity to them, either in person or through a representative.]

The applicants were parents of two children that commenced their schooling at an independent (private) school. The applicants concluded identical contracts (Parent Contracts) with the School, a pre-requisite for the admission of the applicants' children. Clause 9.3 of the Parent Contract provided that the school was entitled to cancel the Parent Contract at any time, for any reason, on a full school term's written notice. Due to certain series of incidents involving misconduct by the applicants, in particular, the father of the children, the relationship between the school administration and the applicants soured. Resultantly the headmaster of the school, terminated the Parent Contracts on notice in writing to the applicants, in terms of clause 9.3 of the Parent Contracts.

Per Theron, J; Jafta, Khampepe, Ledwaba AJ, Madlanga and Mhlantla, JJ. concurring: In the present case, although the children had left the independent school in question by the time the case reached the Constitutional Court (of South Africa), it was still in the interests of justice to grant leave to appeal and adjudicate present matter for various reasons; first, the present case raised important and complex legal questions about the constitutional rights of learners under sections 28(2) and 29(1)(a) of the Constitution and the corresponding constitutional duties of independent schools; secondly, the relief sought by the applicants would have broad practical effect because Clause 9.3 of the Parent Contract was a generic clause applied by independent schools across the country; third, the precedent set by the courts below had far broader implications for the rights of learners at independent schools, which were not confined to the school in question or the use of Clause 9.3, and these judgments also stood in conflict with the Constitutional Court's jurisprudence; fourth, the Constitutional Court had been presented with extensive argument from the applicants, as well as the school. In addition, a voluntary association that represented the interests of more than 750 independent schools, and of which the subject school was a member intervened and was joined as a party in the High Court below. It had actively participated in the present matter. Two amici curiae, the Centre for Child Law and Equal Education, had also participated in present proceedings. Finally, this was the first time that the Constitutional Court had an opportunity squarely to address the rights of learners at independent schools. It was also a rare opportunity, not because of the scarcity of rights violations in independent schools, but because of the difficulties and costs involved in litigating these matters to the appellate and apex levels. Most parents and learners in the applicants' situation would not have the resources to bring a matter before the Constitutional Court.

In the present case, the Court was confronted with the constitutional validity of a decision purportedly taken in the exercise of a power conferred by contract. In subjecting private power to constitutional control, section 8(2) of the Constitution recognised that private interactions had the potential to violate human rights and to perpetuate inequality and disadvantage. Independent schools, like the one in the present case, were not exempt from constitutional obligations and the demands for transformation of private relations.

Independent school did not dispute that it was bound by section 28(2) of the Constitution to ensure that a child's best interests were of paramount importance in every matter concerning the child. The appropriate enquiry in relation to the duty in section 28(2) of the Constitution was whether the school sufficiently considered the best interests of the affected children when it took the decision to terminate the Parent Contract. A determination of what was in the best interests of children in a particular instance was a balancing exercise, to be undertaken in light of all relevant factors. School, being bound by section 28(2) of the Constitution, was required to accord the best interests of the applicants' children paramount importance. Once this was so, it was unclear how the school could justify a decision not to afford the applicants an opportunity to make representations on whether cancellation would be in the best interests of their children and how best to safeguard their interests. School's failure to afford the applicants, or the children, an opportunity to be heard in relation to the best interests of the children was plain from the case record. There was no general requirement for an oral hearing, in that section 28(2) of the Constitution did not specifically create an obligation for an oral hearing. Section 28(2) only required that a fair process be followed by an independent school when it took a decision that affected the rights of children to a basic education. Once the school decided to terminate the Parent Contract, which decision - to put it at its lowest - had a profound effect on the rights and interests of the children, it was required, at least, to give the applicants a fair opportunity to be heard on whether the decision was in the best interests of their children. In particular, it ought to have sought representations on whether termination was consistent with the rights and best interests of the children and how best to protect their interests. The children also had a self-standing right to have their views heard on the issue, either in person or through a representative.

The effect of the school's decision to terminate the Parent Contract was that the children had to leave the school. In this context, the school was obliged to hear the applicants, at least, on whether cancellation was in the children's best interests, given the likely disruption to their education and wellbeing. These were children who had known no other school and had formed strong bonds with their teachers and friends. It was no answer for the school to claim that a hearing would have made no difference to the decision.

The school failed to explain the process it undertook to determine what was in the best interests of the children. A mere statement by the school that a balancing of rights had been undertaken was insufficient and did not satisfy the obligations created by section 28(2) of the Constitution. That the best interests of the children had been given due consideration should be objectively evident. This was not evident in the present case.

Section 29(1)(a) of the Constitution spoke about the right of children to be educated and section 29(3) mentioned the freedom given to independent schools to provide education. In providing that education, independent schools were to fulfil their negative obligation in terms of section 29(1)(a) and not obviate children's rights to basic education enjoyed pursuant to their enrollment at the school. The children's attendance at the independent school was a result of the agreement concluded between the parents and the school, as reflected in the Parent Contract. However, the children's enjoyment of the right to a basic education flowed directly from the Constitution. The right to a basic education was independent of the contract and arose as a result of the fact that the children were, at the time, receiving a basic education.

In the circumstances of the present matter, the obligation on the school, pursuant to the provisions of sections 28(2) and 29(1)(a) of the Constitution included the duty to inform the parents of its intention to terminate the Parent Contract. School was further obliged to afford one or both of them an opportunity to make representations on the best interests of the children, the impact this could have on the children's right to an education and possible steps that could have been taken to ameliorate any interference with their right to a basic education. This would have discharged the school's obligation to protect the children's rights to a basic education and placed the school in a position to give proper consideration to the best interests of the children, and make a decision that was procedurally and substantively fair.

School's decision to terminate the Parent Contract was unconstitutional due to the failure to afford the applicants an opportunity to be heard on the best interests of the children, in breach of sections 28(2) and 29(1)(a) of the Constitution. In addition, the decision was unconstitutional as, absent a fair process, it was self-evidently and objectively not in the best interests of children and, moreover, in violation of school's obligation not to interfere with the boys' right to a basic education, in the absence of any appropriate justification. Decision to terminate the Parent Contract was invalid and should be set aside.

The decision to terminate the Parents Contract was constitutionally invalid, in that it breached the constitutional rights of the applicants' children. These rights did not arise from the contract, but from the Constitution itself. Adjudication of the matter on such basis rendered it unnecessary to engage with the applicants' alternative challenge, made on public policy grounds, to the enforcement of clause 9.3. [Majority view]

Per Nicholls, AJ; Mogoeng CJ, Cameron and Froneman, JJ. concurring (Minority view): The children had left the school in question by the time the present case reached the Constitutional Court (of South Africa). Therefore, it would not be in the interests of justice for the Court to determine whether the headmaster's decision to terminate the Parent Contract was invalid. However, what would have practical and far-reaching effects was a pronouncement on the constitutionality of clause 9.3 and the enforcement thereof. To such extent, and to such extent only, it was in the broader public interest for the Constitutional Court to make a decision on such point alone. [Minority view]

In the present case, there was nothing facially offensive or unconstitutional about clause 9.3 of the Parent Contracts. However by providing education to children, the independent schools assumed constitutional duties and obligations that inhibited the free exercise of contractual rights. In the present case, these were the best interests of the child as entrenched in section 28(2) of the Constitution and the right to basic education as protected in section 29(1)(a) of the Constitution.

Perusal of section 29 of the Constitution (of South Africa) revealed that clearly, there was no general positive duty on private entities to provide education, basic or otherwise. Section 29(3) made it plain that they may establish and maintain independent educational institutions. And when they did so these independent educational institutions provided, at least in a literal sense, "education". They must maintain standards not inferior to those at comparable public educational institutions. There was thus nothing textually, either in section 29(1)(a) or section 29(3) of the Constitution, that militated against holding that independent schools established under section 29(3) of the Constitution assumed constitutional education obligations towards those children who were educated in them. Every institution, elite or non-elite, that provided non-secondary or non-tertiary education was necessarily simultaneously engaged in providing those attending it a basic education. Independent (private) schools could not be enclaves of power immune from constitutional obligations.

The content of independent school's obligations under the Constitution was circumscribed. It did not extend to a positive duty to continue providing education at the private institution. But, once an independent school provided basic education, it was then required to ensure that the right to basic education of children attending the independent school was not negatively infringed. That would occur, for instance, where no independent opportunity to be heard was afforded before a decision was made to discontinue that education.

Governing Body of the Juma Musjid Primary School v Essay NO [2011] ZACC 13; 2011 JDR 0343 (CC); 2011 (8) BCLR 761 (CC) ref.

In the present case, the independent school had a negative duty not to impair or diminish the children's right to a basic education. In addition, there should be no interference with the rights already enjoyed by the children, except where there was proper justification for that interference.

Jaftha v Schoeman; Van Rooyen v Stoltz [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) at para 33; Minister of Health v Treatment Action Campaign (No 2) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC) at para 46; and Government of the Republic of South Africa v Grootboom [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) at para 34 and Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC) (Hoërskool Ermelo) ref.

While contracts freely and consciously entered into must be honoured, the contractual autonomy of parties was curtailed when dealing with the right of basic education and the best interests of the child. In these instances, the enforcement of the contract must be subject to the constitutional precepts because of the direct applicability of rights in the Constitution. Even if the more general public policy approach was preferred, the result would effectively be the same: it was against public policy to enforce a contractual claim that infringed the constitutional rights of children who were not parties to the contract.

Schools that provided basic education were under a constitutional duty not to diminish the right to basic education and at all times to act in the best interests of the child. In most circumstances, this would entail, alerting the parents involved to the proposed termination; providing reasons therefor; and affording an opportunity for a fair and appropriate hearing. Of course, this would entail giving the children themselves the opportunity to express their views on a matter that concerned them, where this would be appropriate. In certain circumstances, what would be reasonable and fair would be to hear their teachers, parents, another intermediary, or even a collection of the same. However, after a hearing, the best interests of the other children at the school, or any other relevant consideration, may well prevail.

The constitutional requirement was that there should be both substantive and procedural fairness before any child was excluded from a school. In the present case Clause 9.3 of the Parent Contract between the applicants and the independent school was unconstitutional, contrary to public policy and unenforceable to the extent that it purported to allow the school to cancel the Parent Contracts without following a fair procedure. A child's basic education should not be terminated without an appropriate and substantively fair procedure.

Per Cameron and Froneman, JJ; concurring with Nicholls, AJ [Minority view]: Under the common law, private parties, like independent schools, had no obligation to provide basic education nor, where they did provide it, did they owe any obligation to children not to diminish or interfere with that right. This meant that the provision of private education to learners attending private schools was regulated entirely by principles of contract - including contractual autonomy. Sections 28(2), 29(1)(a) and 29(3) of the Constitution (of South Africa) now imposed on independent schools that provided basic education at least the negative obligation not to diminish or interfere with a child's right to that basic education. This now was the right that protected basic education.

In applying provisions of sections 28(2), 29(1)(a) and 29(3) of the Constitution to private parties like independent schools, the applicable constitutional provisions were section 8(1) and section 8(2) of the Constitution. There was no legislation that directly gave effect to the right that protected basic education where independent schools already provided it. There was, however, at least the negative obligation not to diminish or interfere with a child's right to a basic education where an independent school provided basic education. This was a new rule that did not exist under the common law or in terms of any legislation. How far did protection of this right by independent schools go? It could not be absolute. Finding that its content required fairness, not only in process-fairness, but also in substance-fairness, before children attending a private school may be required to leave, complied with the requirement in section 8(3)(b) of the Constitution that any limitation upon a newly-established common law right must accord with the limitations provision in the Bill of Rights [Chapter Two of the Constitution of South Africa].

Per Khampepe, J: Jafta, Ledwaba AJ, Madlanga, Mhlantla and Theron, JJ. concurring [Majority view]: Default or starting position should be that the child concerned was given an opportunity to make representations. In the present case the children concerned had a self-standing right to have their views heard on the matter, either in person or through a representative.

Independent schools were bound by section 28(2) of the Constitution, which provided that a child's best interests were of paramount importance in every matter concerning that child. Section 28(2) required that, before an independent school may enforce a termination provision in a Parent Contract in a particular case, it must have due consideration of the best interests of the individual child who would be removed from the school. Section 28(2) also formed a standard that was expected of conduct which affected children in general. In this case, it prescribed that the conduct of independent schools, generally, in terminating Parent Contracts (and thereby interfering with the basic education of children) must be done in accordance with the "best interests of the child" standard required by section 28(2).

Section 28(2) standard of the best interests of the child included a procedural right of children to be heard and participate in the decision affecting their lives. In the context of removing a child from their school, the right of the child to make representations and participate in the decision making process, in accordance with their age and maturity, was of utmost importance. Such right was sourced in section 28(2) of the Constitution and buttressed by the Children's Act, 2005, case-law and international law. Children's Act, 2005 unequivocally adopted the position that children should be involved in decisions affecting their lives by expressing their views and participating, where possible and appropriate, in these decisions. Section 10 of the Children's Act, 2005 went further than the position under international law, in that it applied horizontally and therefore also bound private actors, which would include independent schools and parents, to consider the views of the children before a decision about their lives was made.

Removing a child from their school was a major life-changing event for a child and, therefore, the child should be afforded the opportunity to have their views and wishes given due consideration.

In the present case, not only was the independent school under the negative obligation to not interfere in the children's right to basic education without a fair process, but it also had the obligation to consider their rights to have their views heard on the matter, and to offer this opportunity to them, either in person or through a representative. That obligation recognised the dignity and humanity of the children by ventilating the concerns, frustrations and aspirations of two independent, young human beings who had been caught up in a fracas not of their doing.

Per Nicholls, AJ:

(b) Appeal---

----No live controversy between the parties remaining---Mootness---Justiciability of issue---Interest of justice test---Scope---General principle was that an application was moot when a court's ruling would have no direct practical effect---Courts existed to determine concrete legal disputes and their scarce resources should not be frittered away by entertaining abstract propositions of law, however engaging---Typically, the apex Court would not adjudicate an appeal if it no longer presented an existing or live controversy, and would refrain from giving advisory opinions on legal questions which were merely abstract, academic or hypothetical and had no immediate practical effect or result---However, "mootness" was not an absolute bar to deciding an issue; the question was whether the interests of justice required that it be decided---In class actions or public interest litigation, the decisions pertaining to the rights contained in the Constitution could have a far-reaching practical effect on many others---Interests of justice test, to determine mootness, provided that the discretion of the court to decide the issue irrespective of its mootness was based upon a number of factors which included, but were not limited to, considering whether the order may have some practical effect, and if so, its nature or importance to the parties or to others; the importance and complexity of the issue; the fullness or otherwise of the arguments advanced; and whether a judgment would resolve disputes between different courts---Prospects of success were an additional consideration, which, although important were not decisive in determining whether it would be in the interests of justice to adjudicate the matter, notwithstanding its mootness.

Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (2) SA 329 (CC); 2019 (3) BCLR 383 (CC) at para 7; National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) at para 21 and JT Publishing v Minister of Safety and Security [1996] ZACC 23; 1997 (3) SA 514 (CC); 1996 (12) BCLR 1599 (CC) at para 15; President of the Republic of South Africa v Democratic Alliance [2019] ZACC 35; 2019 JDR 1753 (CC); 2019 (11) BCLR 1403 (CC); Sebola v Standard Bank of South Africa Ltd [2012] ZACC 11; 2012 (5) SA 142 (CC); 2012 (8) BCLR 785 (CC) at para 32; Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (Langeberg Municipality) at para 11; POPCRU v SACOSWU [2018] ZACC 24; 2019 (1) SA 73 (CC); 2018 (11) BCLR 1411 (CC) at para 44; Mankayi v AngloGold Ashanti Ltd [2011] ZACC 3; 2011 (3) SA 237 (CC); 2011 (5) BCLR 453 (CC) at para 20; National Education Health and Allied Workers Union v University of Cape Town [2002] ZACC 27; 2003 (3) SA (1) (CC); 2003 (2) BCLR 154 (CC) at para 25 and S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) at para 12; MEC for Education, Kwazulu-Natal v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (Pillay) ref.

(c) Contract---

----Contractual terms---Unconscionability and enforcement---Pacta sunt servanda, principle of---Scope---Public policy---All contractual agreements between private parties were governed by the principle of pacta sunt servanda, unless they offended public policy---Where it was alleged that constitutional values or rights were implicated, public policy must be determined by reference to the values embedded in the Constitution, including notions of fairness, justice and reasonableness---Application of public policy in determining the unconscionableness of contractual terms and their enforcement must, where constitutional values or rights were implicated, be done in accordance with notions offairness, justice and equity, and reasonableness could not be separated from public policy---Public policy took into consideration the necessity to do simple justice between individuals and was informed by the concept of ubuntu (humanity)---What public policy was, and whether a term in a contract was contrary to public policy, must be determined by reference to such values; this left space for enforcing agreed bargains (pacta sunt servanda), but at the same time allowed courts to decline to enforce particular contractual terms that were in conflict with public policy, as informed by constitutional values, even though the parties may have consented to them.

Per Theron, J:

(d) Appeal---

----No 'existing or live controversy' between the parties remaining---Mootness---Justiciability of issue---Matter was moot if it no longer raised an "existing or live controversy" between the parties, such that the Constitutional Court's order would have no practical effect or result---Mootness was not an absolute bar to the justiciability of an issue---Constitutional Court (of South Africa) had a discretion to entertain an appeal, even if moot, where it was in the interests of justice to do so---Constitutional Court had identified a number of considerations in answering the question of whether it was in the interests of justice to hear an appeal that was moot; these included the nature and extent of the practical effect that any possible order might have and the importance and complexity of the issue.

(e) Maxim---

----Audi alteram partem---Representation---Scope---Opportunity to make representations would be effective only if it related to the decision to be made and if this was made clear to the affected parties.

Sokhela v MEG for Agriculture and Environmental Affairs, KwaZulu-Natal 2010 (5) SA 574 (KZP) at para 58 ref.

(f) Fair trial---

----Fair hearing---Denial of a fair hearing could not be excused merely because one party asserted that their mind was made up and that a hearing would have made no difference.

My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31; 2016 (1) SA 132; 2015 (12) BCLR 1407 (CC) at para 176, citing John v Rees [1969] 2 All ER 274 (CH) at 402 ref.

G Marcus SC and C McConnachie instructed by Knowles Husain Lindsay Incorporated for Applicant.

A Franklin SC and A Bishop instructed by Webber Wentzel for Respondents Nos. 1 - 3.

M Stubbs instructed by Bowman Gilfillan Incorporated for Respondent No. 5.

I Cloete instructed by Centre for Child Law: Amicus Curiae No.1.

L Zikalala and N Nyembe instructed by Equal Education: Amicus Curiae No.2.

2020 S C M R 1722

[Constitutional Court of South Africa]\

Present: Khampepe ADCJ, Froneman J, Jafta J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ

BEADICA 231 CC and 3 others---Applicants

Versus

TRUSTEES FOR THE TIME BEING OF THE OREGON TRUST and 2 others---Respondents

Case No. CCT 109/19, decided on 17th June, 2020.

Per Theron, J; Khampepe ADCJ, Jafta, Majiedt, Mathopo AJ, Mhlantla and Tshiqi, JJ concurring. [Majority view]

(a) Contract---

----Contractual terms--- Enforcement--- Good faith--- Comparative jurisprudence on the role of 'good faith' in enforcement of contractual terms.

Hesselink "The Concept of Good Faith" in Hartkamp et al Towards a European Civil Code 4th ed (Kluwer Law International BV, The Netherlands 2011) 619 at 619; Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433 (Interfoto) at 439F-G; Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) at para 124 per Leggatt J.; British Telecommunications v Telefonica O2 [2014] UKSC 42 at para 37 and Braganza v BP Shipping [2015] UKSC 17 at para 30; See, for example, Sheikh Tahnoon Bin Saeed Bin v Kent [2018] EWHC 333 (Comm) at para 174; Aktieselskabet Dansk Skibsfinansiering v Brothers [2000] 3 HKCFAR; Bhasin v Hrynew 2014 SCC 71; Viven-Wilksch "Good Faith in Contracts: Australia at a Crossroads" (2019) 1 Journal of Commonwealth Law 273 at 273-4; Burger King Corp v Hungry Jack's Pty Ltd (2001) 69 NSWLR 558; Alstom Ltd v Yokogawa Australia Pty Ltd (No 7) [2012] SASC 49 and Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 (Vodafone) ref.

(b) Contract---

----Contractual terms--- Enforcement--- Public policy--- Role of the Constitution (of South Africa), concepts of public policy, fairness, reasonableness, justice and 'ubuntu' with regard to enforcement of contractual terms.

The determination of public policy was rooted in the Constitution (of South Africa) and the objective, normative value system it embodied. Constitutional rights applied through a process of indirect horizontality to contracts. The impact of the Constitution on the enforcement of contractual terms through the determination of public policy was profound. A careful balancing exercise was required to determine whether a contractual term, or its enforcement, would be contrary to public policy.

Napier v Barkhuizen [2005] ZASCA 119; 2006 (4) SA 1 (SCA) (Barkhuizen SCA) ref.

Public policy imported values of fairness, reasonableness and justice. Concept of 'ubuntu', which encompassed these values, was also recognised as a constitutional value, inspiring the constitutional compact, which in turn informed public policy. These values formed important considerations in the balancing exercise required to determine whether a contractual term, or its enforcement, was contrary to public policy. While these values played an important role in the public policy analysis, they also performed creative, informative and controlling functions in that they underlay and informed the substantive law of contract. Many established doctrines of contract law were themselves the embodiment of these values. In addition, these values played a fundamental role in the application and development of rules of contract law to give effect to the spirit, purport and objects of the Bill of Rights [Chapter two of the Constitution of South Africa].

Constitutional Court (of South Africa) recognised the necessity of infusing law of contract with constitutional values. This required courts to exercise both resourcefulness and restraint.

While abstract values provided a normative basis for the development of new doctrines, prudent and disciplined reasoning was required to ensure certainty of the law. Abstract values did not provide a free-standing basis upon which a court may interfere in contractual relationships.

Domestic law (of South Africa) had always, to a greater or lesser extent, recognised the role of equity (encompassing the notions of good faith, fairness and reasonableness) as a factor in assessing the terms and the enforcement of contracts. Indeed, it was clear that these values played a profound role in law of contract under the constitutional dispensation. However, a court may not refuse to enforce contractual terms on the basis that the enforcement would, in its subjective view, be unfair, unreasonable or unduly harsh. These abstract values had not been accorded autonomous, self-standing status as contractual requirements. Their application was mediated through the rules of contract law; including the rule that a court may not enforce contractual terms where the term or its enforcement would be contrary to public policy. It was only where a contractual term, or its enforcement, was so unfair, unreasonable or unjust that it was contrary to public policy that a court may refuse to enforce it.

The enforcement of contractual terms did not depend on an individual judge's sense of what fairness, reasonableness and justice required. To hold otherwise would be to make the enforcement of contractual terms dependent on the idiosyncratic inferences of a few judicial minds. This would introduce an unacceptable degree of uncertainty into the law of contract. The resultant uncertainty would be inimical to the rule of law.

(c) Contract---

----Contractual terms--- Enforcement--- Public policy--- Principles governing the judicial control of contracts through the instrument of public policy, stated.

Following are the principles governing the judicial control of contracts through the instrument of public policy:

(i) Public policy demanded that contracts freely and consciously entered into must be honoured;

(ii) A court would declare invalid a contract that was prima facie inimical to a constitutional value or principle, or otherwise contrary to public policy;

(iii) Where a contract was not prima facie contrary to public policy, but its enforcement in particular circumstances was, a court would not enforce it;

(iv) The party who attacked the contract or its enforcement bore the onus to establish the facts;

(v) A court would use the power to invalidate a contract or not to enforce it, sparingly, and only in the clearest of cases in which harm to the public was substantially incontestable and did not depend on the idiosyncratic inferences of a few judicial minds; and

(vi) A court would decline to use this power where a party relied directly on abstract values of fairness and reasonableness to escape the consequences of a contract because they were not substantive rules that may be used for such purpose.

AB v Pridwin Preparatory School [2018] ZASCA 150; 2019 (1) SA 327 (SCA) (Pridwin) at para 27 ref.

(d) Contract---

----Contractual terms---Enforcement---"Pacta sunt servanda", principle of---Scope and significance.

The principle of 'pacta sunt servanda' gave effect to the central constitutional values of freedom and dignity. In general public policy required that contracting parties honour obligations that had been freely and voluntarily undertaken. Pacta sunt servanda continued to play a crucial role in the judicial control of contracts through the instrument of public policy, as it gave expression to central constitutional values.

Contractual relations were the bedrock of economic activity and economic development was dependent, to a large extent, on the willingness of parties to enter into contractual relationships. If parties were confident that contracts that they entered into would be upheld, then they would be incentivised to contract with other parties for their mutual gain. Without this confidence, the very motivation for social coordination was diminished. It was indeed crucial to economic development that individuals should be able to trust that all contracting parties would be bound by obligations willingly assumed.

The protection of the sanctity of contracts was thus essential to the achievement of the constitutional vision of society. Indeed, such vision would be imperiled if courts denuded the principle of pacta sunt servanda. However pacta sunt servanda was not the only, nor the most important principle informing the judicial control of contracts. The requirements of public policy were informed by a wide range of constitutional values. There was no basis for privileging pacta sunt servanda over other constitutional rights and values. Where a number of constitutional rights and values were implicated, a careful balancing exercise was required to determine whether enforcement of the contractual terms would be contrary to public policy in the circumstances.

(e) Contract---

----Contractual terms---Enforcement ---"Perceptive restraint", principle of---Scope.

According to the principle of 'perceptive restraint' a court must exercise perceptive restraint when approaching the task of invalidating, or refusing to enforce, contractual terms. It was encapsulated in the phrase that a "court will use the power to invalidate a contract or not to enforce it, sparingly, and only in the clearest of cases".

AB v Pridwin Preparatory School [2018] ZASCA 150; 2019 (1) SA 327 (SCA) (Pridwin) at para 27(v) ref.

This principle followed from the notion that contracts, freely and voluntarily entered into, should be honoured. Constitutional Court (of South Africa) recognised the approach that the power to invalidate, or refuse to enforce, contractual terms should only be exercised in worthy cases. However, courts should not rely upon this principle of restraint to shrink from their constitutional duty to infuse public policy with constitutional values. Nor may it be used to shear public policy of the complexity of the value system created by the Constitution. Courts should not be so recalcitrant in their application of public policy considerations that they failed to give proper weight to the overarching mandate of the Constitution. The degree of restraint to be exercised must be balanced against the backdrop of constitutional rights and values. Accordingly, the "perceptive restraint" principle should not be blithely invoked as a protective shield for contracts that undermined the very goals that the Constitution was designed to achieve. Moreover, the notion that there must be substantial and incontestable harm to the public before a court may decline to enforce a contract on public policy grounds was alien to the law of contract.

Per Theron, J; Khampepe ADCJ, Jafta, Majiedt, Mathopo AJ, Mhlantla and Tshiqi, JJ concurring: Froneman, Victor, AJ and Madlanga, JJ. dissenting.

(f) Contract---

----Contractual terms---Enforcement---Public policy, fairness and reasonableness---Ground of public policy upon which a court may refuse to enforce a contractual terms---Scope---[Per Theron, J (Majority view): Public policy imperative to enforce contractual obligations that had been voluntarily undertaken recognised the autonomy of the contracting parties and, in so doing, gave effect to the central constitutional values of freedom and dignity---Such imperative provided the requisite legal certainty to allow persons to arrange their affairs in reliance on the undertakings of the other parties to a contract, and to coordinate their conduct for their mutual benefit---With respect to enforcement of a term, notions of unfairness, unreasonableness or unduly harsh consequences were abstract values which had not been accorded autonomous, self-standing status upon which a court may interfere in contractual relationships]---[Per Froneman, J (Minority view): In cases where constitutional values or rights were alleged to be implicated in the application of public policy in the invalidation or enforcement of contractual clauses, the notions of fairness, reasonableness and simple justice between persons were the unmediated standards against which the validity of the clauses or their enforcement was judged---[Per Victor, AJ (Minority view): Adjudication of fairness in contract could not be plucked from a set of neutral legal principles---'Ubuntu' was an important value which stood alongside other values such as good faith, fairness, justice, equity, and reasonableness---Characterising ubuntu as an adjudicative value in reaching substantive fairness between contracting parties, would achieve a constitutionally transformative result---Furthermore, the recognition of ubuntu in interpreting contracts would not undermine the concept of certainty and contractual autonomy]

The applicants were four close corporations that entered into franchise agreements with the second respondent (Sale's Hire) to operate Sale's Hire franchised businesses for a period of ten years. They acquired their businesses in terms of a black economic empowerment initiative financed by the third respondent (National Empowerment Fund) and coordinated by Sale's Hire. The applicants operated their businesses from premises leased from the first respondent (Oregon Trust), as required in terms of their franchise agreements with Sale's Hire. The leases were intended to run for an initial period of five years, but conferred on the applicants an option to renew the leases for a further period of five years. The renewal clause in the lease agreements provided that the option to renew be exercised by giving notice six months before the termination of the lease. The applicants did not exercise their renewal options within the requisite time and purported to exercise them only after the time period for doing so had expired. First respondent (Oregon Trust) alleged that the options to renew had lapsed and the lease agreements had terminated. The applicants instituted urgent proceedings in the High Court against the respondents, Sale's Hire and Oregon Trust, seeking an order declaring that their renewal options had been validly exercised and prohibiting Oregon Trust from evicting them. Oregon Trust brought a counter-application for the applicants' eviction. The High Court held that the strict terms of the lease agreement should not be enforced. The termination of the leases would result in the applicants losing their businesses as well as the failure of a black economic empowerment initiative. On appeal the Supreme Court of Appeal held that there were no considerations of public policy that rendered the renewal clause unenforceable. The Supreme Court of Appeal replaced the High Court's order with an order dismissing the application and directing the eviction of the applicants from the leased premises.

[Per Theron J. (Majority view): The public policy imperative to enforce contractual obligations that had been voluntarily undertaken recognised the autonomy of the contracting parties and, in so doing, gave effect to the central constitutional values of freedom and dignity. This imperative provided the requisite legal certainty to allow persons to arrange their affairs in reliance on the undertakings of the other parties to a contract, and to coordinate their conduct for their mutual benefit. While an explanation provided by a party for not complying with a term of the contract was not the only relevant consideration, it was critical in the overall assessment of whether enforcement of the term would be contrary to public policy in all the particular facts and circumstances of a case.

The only reasons advanced by the applicants for their failure to comply with the terms of the renewal clauses were that they were not sophisticated business people and not fully apprised of their rights and obligations regarding their options to renew the leases. The terms of each lease governing termination and renewal were clear and easy to understand. Each lease provided the exact termination date and the renewal clause provided that the lessee must provide written notice of its exercising of its renewal option "at least six (6) months prior to the termination date". These terms appeared in simple, uncomplicated language, which an ordinary person could reasonably be expected to understand.

The inescapable inference was that there were no circumstances that prevented the applicants from complying with the terms of the renewal clauses in the leases. The clauses were favourable to the applicants. The only inference to be drawn was that the applicants simply neglected to comply with the clauses in circumstances where they could have complied with them. Applicants had failed to discharge the onus resting on them to demonstrate that in the circumstances of the present case, the enforcement of the clauses would be contrary to public policy.

The applicants submitted that the enforcement of the renewal clauses would be contrary to public policy, as it would lead to the failure of a black economic empowerment initiative financed by the National Empowerment Fund with public money. Such harsh outcome alone, absent an explanation for their failure to comply with the terms of the renewal clauses, could not constitute a sufficient basis to hold that the enforcement of the clauses would be contrary to public policy. The applicants were afforded an opportunity to run their own businesses through the financial support of the Fund and the administrative and technical support of Sale's Hire. The possible failure of this commendable black economic empowerment initiative was attributable entirely to their unexplained failure to comply with the renewal clauses.

Conduct of the respondent-Trust could not be held to be similar to snatching at a bargain or exploiting a mere technical slip on the part of the applicants. The applicants' failure to exercise their right of renewal within the requisite notice period resulted in the termination of the lease agreements by effluxion of time. There was no cancellation of the lease agreements on the part of the Trust. Instead, the termination occurred automatically by operation of the clear terms of the lease agreements regarding the termination date, in the absence of a valid renewal.

The National Empowerment Fund was established to facilitate the redress of economic inequality that resulted from unfair discrimination against historically disadvantaged persons.

The applicants have not shown that the failure of their businesses, in these circumstances, would unjustifiably undermine substantive equality enshrined in section 9(2) of the Constitution. To hold that the failure of a black economic empowerment initiative financed by the Fund rendered the enforcement of the renewal clauses deleterious to the constitutional value of equality would have the undesirable result of defeating the Funds own objects. This was because the effect of such a finding would increase the risk of contracting with historically disadvantaged persons who benefitted from the Fund. If the applicants were to succeed, it would establish the legal principle that enforcement of a contractual term would be inimical to the constitutional value of equality, and therefore contrary to public policy, where enforcement would result in the failure of a black economic empowerment initiative. This could, in turn, deter other parties from electing to contract with beneficiaries of the Fund, or force beneficiaries to offset the increased risk by making concessions on other contractual aspects during contract negotiations. These outcomes would, in effect, undermine the very objects that the Fund and section 9(2) of the Constitution sought to achieve.

The applicants have failed to discharge the onus of demonstrating that the enforcement of the impugned contractual terms would be contrary to public policy. It was fatal to the applicants' case that they did not adequately explain why they did not comply with the terms that they sought to avoid. In any event, the public policy considerations advanced by the applicants were insufficient to demonstrate that it would be contrary to public policy to enforce the terms they sought to avoid. Appeal was dismissed with costs.

Per Froneman, J. (Minority view): Application of public policy in determining the unconscionableness of contractual terms and their enforcement must, where constitutional values or rights were implicated, be done directly in accordance with notions of fairness, justice and equity, and reasonableness, which could not be separated from public policy. Public policy took into consideration the necessity to do simple justice between individuals and was informed by the concept of 'ubuntu'. Question as to what public policy was and whether a term in a contract was contrary to public policy must be determined by reference to the said values.

Regarding the finding that applicants failed to explain why they did not comply with the notice clause in the lease agreement, they did in fact provide an explanation, which was that they were unsophisticated and not versed in the niceties of the law. Such explanation was not contradicted by any direct evidence, but was supported by circumstantial evidence to back up their contention. Their lack of sophistication was illustrated by the content of the renewal notices, none of which were written by lawyers. Furthermore, it was common cause that applicants were not businesspeople, but former employees of respondent-Sale's Hire. They acquired their businesses in terms of a black economic empowerment initiative that sought to facilitate "business ventures pioneered and run by historically disadvantaged persons" and their bargaining power as franchisees in terms of the franchise agreement was unequal to that of the franchisor. Their prejudice in losing their businesses was obvious, against that of the franchisor who stood to lose nothing. Order of High Curt should be reinstated in circumstances of the case.

Per Victor, AJ (Minority view): Important value of concept of ubuntu had to be acknowledged on an equal footing for its operation under the Constitution. Philosophical foundations of ubuntu were not new but originated from time immemorial and should be acknowledged as forming a part of the entire jurisprudential heritage including commercial heritage. One of the integral considerations or values of public policy in determining commercial contracts was 'ubuntu', which was an important value that stood alongside values such as good faith, fairness, justice, equity, and reasonableness. Whilst these latter constitutional values went a long way in addressing fairness in the law of contract, the constitutional value of 'ubuntu' added a value of substance. 'Ubuntu' together with the other values, formed a transformative basis in the adjudicative process when deciding whether to set aside an unfair contractual term or its unfair enforcement. 'Ubuntu' together with the other underlying values such as fairness and justice, was one of the central values of jurisprudence generally when adjudicating fairness in contract. Characterising 'ubuntu' as a substantive constitutional value in the law of contract lead to a more context-sensitive basis in its adjudication and facilitated a constitutionally transformative result. Value of 'ubuntu' in adjudicating contractual fairness had to be emphasized as it had a greater and context-sensitive reach, especially where there was inequality in the bargaining power between the parties.

O Regan J stated in Mkontwana v Nelson Mandela Metropolitan Municipality [2004] ZACC 9; 2005 (1) SA 530 (CC); 2005 (2) BCLR 150 (CC) at para 81 and Hutchison and Siliquini-Cinelli "Beyond Common Law: Contractual Privity in Australia and South Africa" (2017) 12 Journal of Comparative Law 49 at 75 ref.

The additional scrutiny of commercial contracts through the prism of 'ubuntu', was but a more focused legal methodology to achieve justice as between two parties. It did not exclude or undermine certainty in contract. It remained a central consideration in harmony with the other values. The recognition of 'ubuntu', in interpreting contracts would not undermine the traditionally highly prized jurisprudential concept of certainty and contractual autonomy.

Adjudicating fairness in a contract could not be done within a set of neutral legal principles. It would ultimately be based on an underlying moral or value choice.

In the present case, the franchise and lease agreements were concluded within the context of the overarching principle of commercial empowerment of previously disadvantaged persons. The contracting parties in this case were not equal in levels of experience. Mr Sales of respondent-Sale's Hire had concluded a cooperation agreement with the National Empowerment Fund (NEF). This Fund provided loans to black-owned entities. This enabled the applicants to borrow money so that they could own and operate Sale's Hire franchise businesses. In concluding this contract with the NEF, Mr Sales as the sole member of respondent-Sales Hire, enjoyed a substantial financial benefit. In return Sale's Hire had an obligation to provide ongoing training, business support and mentorship to the applicants. Sale's Hire's contractual obligations to the Fund in this regard, were clear. Mr Sales as the sole member, was the face of Sale's Hire and among his responsibilities, was the responsibility to negotiate the best rental deal possible for the businesses. The renewal of the rental agreements would also fall within his obligations of ongoing training, business support and mentorship. He was also a trustee of the respondent-Oregon Trust, the landlord in the present case.

Mr Sales took no steps to advise the applicants to renew the lease agreement timeously. Instead, in conflict with his obligations, he was instrumental in launching the eviction of the applicants on behalf of the Oregon Trust. The facts in the case showed that the applicants did not have the kind of business experience in renewing contracts for leased premises. As part of Sales Hire's obligations, it was incumbent on Mr Sales to attend to training, business support and mentorship and this would have included assisting the applicants in timeously renewing the leases. It was not a situation where they were negligent or forgot to give notice to renew. They were not versed in the sphere of the law of contract. In light of Mr Sales' conflict of interest and his participation in evicting the applicants, he could not be said to have been acting in a bona fide manner towards the applicants. Whilst the agreement may be fair on its face, it was the implementation phase of the same which would render the eviction of the applicants unfair and contrary to the spirit of 'ubuntu' and the other values. The eviction of the applicants in these circumstances would fail to take into consideration the interests of both parties and the original purpose of the contract, being the empowerment of historically disadvantaged persons in commerce.

Per Froneman, J; Madlanga, J concurring (Minority view):

(g) Contract---

----Contractual terms---Enforcement---Fairness and reasonableness---Regulation of unfairness in contract law involved making an underlying moral or value choice within the objective value system of the Constitution---Further guidance should be provided on how such objective values could possibly be translated into practical application---Purpose of court must be to delineate reasonably certain, practical and objective legal principles and rules to guide prospective contracting parties---In so doing the caricature of rogue judges imposing their own subjective and arbitrary opinions of what was fair and reasonable upon unsuspecting litigants must be dispelled---Such approach was best achieved by recognising that the individualism of the law of contract was one that had always taken account of the reasonable expectations of the parties to the contract as well as those of the wider community; this could be done in a manner that ensured objective, reasonable practicality and certainty. [Minority view]

(h) Contract---

----Contractual terms---Enforcement---Public policy---Fairness, justice, equity and reasonableness---Scope---"Pacta sunt servanda", principle of---Application of public policy in determining the unconscionableness of contractual terms and their enforcement must, where constitutional values or rights were implicated, be done directly in accordance with notions of fairness, justice and equity, and reasonableness, which could not be separated from public policy---Public policy took into consideration the necessity to do simple justice between individuals and was informed by the concept of 'ubuntu'---Question as to what public policy was and whether a term in a contract was contrary to public policy must be determined by reference to the said values --- Such approach left space for pacta sunt servanda to operate, but at the same time also allowed courts to decline to enforce contractual terms that were in conflict with constitutional values even where the parties consented to them---In cases where constitutional values or rights were alleged to be implicated in the application of public policy in the invalidation or enforcement of contractual clauses, the notions of fairness, reasonableness and simple justice between persons were the unmediated standards against which the validity of the clauses or their enforcement was judged. [Minority view]

Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) at paras 27 to 29; Bredenkamp v Standard Bank of SA Ltd [2010] ZASCA 75; 2010 (4) SA 468 (SCA); Botha v Rich N.O. [2014] ZACC 11; 2014 (4) SA 124 (CC); 2014 (7) BCLR 741 (CC); NUMSA obo Nganezi v Dunlop Mixing and Technical Services (Pty) Ltd [2019] ZACC 25; 2019 (5) SA 354 (CC); 2019 (8) BCLR 966 (CC); Maphango v Aengus Lifestyle Properties (Pty) Ltd [2012] ZACC 2; 2012 (3) SA 531 (CC); 2012 (5) BCLR 449 (CC) and The Business Zone 1010 v Engen Petroleum Limited [2017] ZACC 2; 2017 JDR 0259 (CC) and 2017(6) BCLR 773 (CC) ref.

(i) Contract---

----Contractual terms---Enforcement---Good faith---Scope---Common law notion of good faith underlay contract law and it embodied concepts of justice, reasonableness and fairness---Freedom of contract was not the only principle of law of contract, nor was good faith; they both complemented each other. [Minority view]

BJ Manca SC and GGM Quixley instructed by ME Mohamed Attorney-at-Law for Applicants.

J Muller SC and HL Du Toit instructed by De Klerk and Van Gend Incorporated for the First and Second Respondents.

2020 S C M R 875

[High Court of Australia]\

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

STATE OF NEW SOUTH WALES---Appellant

Versus

BRADFORD JAMES ROBINSON---Respondent

[2019] HCA 46

Decided on 4th December, 2019.

(On appeal from the Supreme Court of New South Wales)

Per Bell, Gageler, Gordon and Edelman, JJ; Kiefel, CJ, Keane and Nettle, JJ dissenting.

Criminal trial---

----Arrest without warrant---Police, powers of---Legality---Where at time of arrest police officer had not formed intention to charge arrested person, and had also not formed intention to present such person before a Magistrate/authorised officer to be dealt with according to law---Whether arrest in such circumstances was lawful---[Per Kiefel, CJ, Keane and Nettle, JJ (Minority view): Legislative history of S. 99 of the Law Enforcement (Powers and Responsibilities) Act, 2002 (NSW) ('the Act') showed that the arresting police official did not need to have 'formed an unqualified intention to charge the suspect at the time of arrest---Only purpose for which a person may be arrested under S. 99(1) was to take him or her before an authorised officer/Magistrate to be dealt with according to law---[Per Bell, Gageler, Gordon and Edelman, JJ (Majority view): Police officer did not have the power to arrest a person without a warrant, if at the time of the arrest, the officer had no clear intention of charging the arrested person---Arrest under S. 99 of the Act could only be for the purpose, as soon as was reasonably practicable, of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for that offence---Requirement for the police officer to have an intention to bring a person before an authorised officer meant, as a matter of substance, a requirement to have an intention to charge that person---To arrest an individual merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with the crime was an arrest for an improper purpose and was unlawful].

Respondent attended a police station in response to attempts by police to contact him. Upon attendance he was immediately arrested, without warrant, for breach of an apprehended violence order. The respondent was offered, and accepted, the opportunity to participate in a record of interview. He was released without charge after the interview. Respondent commenced proceedings against the State claiming damages for wrongful arrest and false imprisonment. At trial, the arresting police official admitted that, in addition to not believing at that time of the arrest there was enough evidence to charge the respondent, he was only going to make a decision to charge the respondent depending on what the respondent said in the interview. The District Court Judge rejected respondent's claim for unlawful arrest and accepted the arresting officer's evidence holding that section 99(1)(a) of Law Enforcement (Powers and Responsibilities) Act, 2002 (NSW) ('the Act') only required a "suspicion on reasonable grounds"; that a decision whether to charge the respondent depended on what he said in the interview and that, at the time of the arrest, he had not decided to charge him. The Court of Appeal overturned this decision finding that the police officer must have the necessary intention to arrest at the time of charging the person in question.

[Per Kiefel, CJ, Keane and Nettle, JJ (Minority view):

Section 99(1) of Law Enforcement (Powers and Responsibilities) Act, 2002 (NSW) ('the Act') provided that police officer may, without warrant, arrest person if police officer suspects on reasonable grounds that person was committing or had committed offence and police officer was satisfied that arrest was reasonably necessary for one or more specified reasons. Further section 99(3) of the said Act provided that police officer who arrested person under section 99 must, as soon as was reasonably practicable, take person before authorised officer to be dealt with according to law. As section 99(3) made clear, a police officer who arrested a person under section 99(1) on reasonable suspicion of committing or having committed an offence must, as soon as was reasonably practicable, take the person before an authorised officer to be dealt with according to law. Consequently, the only purpose for which a person may be arrested under section 99(1) was to take him or her before an authorised officer/Magistrate to be dealt with according to law. Once a person had been lawfully arrested under section 99 for the purpose of taking him or her before an authorised officer to be dealt with according to law, the person may be detained for the investigation period for the purpose of investigating whether he or she committed the offence for which he or she had been arrested, and only then be taken before an authorised officer to be dealt with according to law or alternatively dealt with by other means or released.

Bales v Parmeter (1935) 35 SR (NSW) 182 at 189 and North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 586-588 [22]-[25] ref.

Fact that an arresting officer had not at the time of arrest definitely determined that the arrested person would be charged with the offence for which the person was arrested did not mean that the arrest was not for the purpose of taking the person before an authorised officer to be dealt with according to law.

An arrest for the purpose of taking the arrested person before an authorised officer did not cease to be for that purpose by reason only that it was recognised at the time of arrest that, following investigation of the person's involvement in the offence for which the person was arrested, it may emerge that the arresting officer's suspicion of the person's involvement in the offence was not sufficiently borne out for the person to be charged, or that the person should be dealt with by other means, or that the person should be released. So long as an arresting officer's state of mind at the time of arrest was that the person would be taken before an authorised officer to be dealt with according to law unless, by reason of investigation of the person's involvement in the offence during the investigation period, it emerged that the arresting officer's suspicion was not sufficiently borne out to charge the person or that the person should be dealt with by some other means or released, the arrest was for the purpose of taking the person before an authorised officer to be dealt with according to law.

Regarding the degree of certainty of guilt required to charge a suspect, the requirement of reasonable grounds to suspect was very limited and nothing like as much as a prima facie case. Reasonable grounds to suspect should not be equated with the state of belief required to charge a suspect. The "incoherence" between what was required to comprise reasonable grounds to suspect and reasonable and probable cause to charge may be resolved by treating the obligation to take an arrested person as soon as practicable before an authorised officer as a separate obligation imposed by law once an arrest had taken place.

Hussien v Chong Fook Kam [1970] AC 942 at 948; George v Rockett (1990) 170 CLR 104 at 115-116; Williams v The Queen (1986) 161 CLR 278 at 299 and Robinson v New South Wales [2018] NSWCA 231 at [160] ref.

District Court Judge was right to hold that respondent's arrest in the present case under section 99 of the Act was not rendered unlawful by reason of police official not having formed an unqualified intention to charge the respondent at the time of arrest. The orders of the Court of Appeal should be set aside]. [Minority view]

[Per Bell, Gageler, Gordon and Edelman, JJ (Majority view):

Present case concerned the question whether a police officer had the power to arrest a person, without warrant, under section 99 of the Law Enforcement (Powers and Responsibilities) Act, 2002 (NSW) ("the Act") when, at the time of the arrest, the officer had not formed the intention to charge the arrested person. The answer to such question was "no".

An arrest could only be for the purpose of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for an offence. An arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with a crime was an arrest for an improper purpose and was unlawful. Arrest could not be justified where it was merely for the purpose of questioning.

(1935) 35 SR (NSW) 182 at 188-190 ref.

Section 99(1) of the Act stipulated conditions for arrest without a warrant, namely that "the police officer suspects on reasonable grounds that the person is committing or has committed an offence" [section 99(1)(a)] and that "the police officer is satisfied that the arrest was reasonably necessary for any one or more" of specified reasons [section 99(1)(b)]. But that power was exercisable only for the purpose of taking the person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for that offence [section 99(3)]. Thus a police officer who arrested a person under section 99 must, as soon as was reasonably practicable, take the person before an authorised officer to be dealt with according to law. This requirement under section 99(3) was a requirement that took effect immediately upon arrest. To comply with such requirement in section 99(3) immediately upon arrest, a police officer must at the time of arrest have an intention to take the person, as soon as was reasonably practicable, before an authorised officer to be dealt with according to law to answer a charge for that offence. If there was no intention to comply with the requirement in section 99(3), the arrest was unlawful. And a requirement for the police officer to have an intention to bring a person before an authorised officer meant, as a matter of substance, a requirement to have an intention to charge that person.

Williams (1986) 161 CLR 278 at 295-296, 298 ref.

Reasonable suspicion required an arresting constable to have reasonable grounds for suspicion of guilt. This was less than reasonable and probable cause for prosecution. The former was the necessary intention at the time of arrest. The latter was the necessary intention when making a decision to prefer a charge and then preferring it. The requirement of an intention to charge at the time of arrest did not import, 'to the time of arrest', a requirement to have the mental state required at the time of charging. All that it meant was that there was an intention to meet the requirements for charging 'at the time of charging', which was to take place as soon as was practicable after the arrest, unless it emerged after the arrest that there was not sufficient basis to bring a charge. And in that circumstance, the arrest should be discontinued.

A v New South Wales (2007) 230 CLR 500 at 525 [71] and Williams (1986) 161 CLR 278 at 300 ref.

In the present case the arresting officer had no intention, at the time of the arrest, of bringing the respondent before an authorised officer to be dealt with according to law unless it emerged subsequent to the arrest that there was sufficient reason to charge him. Arresting officer did not have the power to arrest the respondent, without warrant, under section 99 of the Act when, at the time of the arrest, the arresting officer had not formed the intention to charge the respondent. The arrest of the respondent was unlawful. Appeal was dismissed. [Majority view]

J K Kirk SC with P D Herzfeld for the Appellant (instructed by McCabe Curwood Pty Ltd)

D R J Toomey SC with D C Morgan and D J Woodbury for the Respondent (instructed by Foott, Law & Co Solicitors)

2020 S C M R 939

[High Court of Australia]\

Present: Bell, Keane, Nettle, Gordon and Edelman, JJ

WILLIAM RODNEY SWAN---Appellant

Versus

THE QUEEN---Respondent

[2020] HCA 11

Decided on 18th March, 2020.

(On appeal from the Supreme Court of New South Wales)

Criminal trial---

----Murder---Chain of causation---'Novus actus interveniens'---'Substantial or significant cause of death'---Scope---Accused assaulted victim causing serious injuries and severe deterioration in quality of life of victim---Victim subsequently suffered a fracture which required possible life saving surgery---Decision was made not to perform life-saving surgery due to the poor quality of victim's life and as a result the victim died---Question was whether there was sufficient evidence to convict the accused for the murder of victim on basis that victim's low quality of life resulting from assault caused the decision not to undergo surgery, and whether conduct of accused was a "substantial or significant cause of death"--- Held, that it was sufficient (for conviction) that the effects of the assault substantially or significantly contributed to the decision which, in turn, prevented the surgery that was reasonably expected to save victim's life---Decision not to perform surgery and only continue palliative treatment was based substantially or significantly upon the persistent, long-term, and catastrophic effects of the assault---Victim's severe cognitive decline as a result of the assault was operative at the time of his death---Assault by accused upon the victim was a sufficiently substantial or significant cause of the death to justify a conviction for murder.

The victim, was an active, independent and relatively healthy 78-year-old man. In April 2013, the accused and his accomplice broke into victim's apartment and severely attacked him with a machete. Victim suffered severe, traumatic, life-threatening injuries to his brain, face, kidneys and his chest and spent four months in hospital, where after he was transferred to a nursing care facility where his condition was so poor that he was unable to undertake any daily living activities. Victim lacked any real capacity to understand what was happening around him, or even to recognise people and was unable to feed himself and suffered from double incontinence. In July 2013, the victim developed serious pneumonia, which was treated aggressively and successfully. After this treatment, his son signed a directive that his father was not to be resuscitated in the event of a similar life-threatening event. Between September and December 2013, victim's condition in the nursing home was so poor that he was unable to physically or mentally engage in any daily living activities. In December 2013, eight months after the attack on him, victim fell at the nursing home, which caused a fracture of the neck of his femur (a broken hip). He was transferred to a hospital where a decision was made in consultation between the doctors and his son that no operation to repair the fracture was to be performed. Rather, the victim was to be treated with palliative care, knowing that he would probably die. This decision was based upon the singularly poor quality of victim's life since the attack upon him. There was evidence that operations on hip fractures have a high success rate. Victim died five days later and a post-mortem examination of his body disclosed that the cause of death was fatty deposits in the blood vessels and heart that were a direct and frequent result of a fracture of the femur. At trial the defence argued that the two accused men were not responsible for the death because of intervening events that they were not responsible for; namely, the fall at the nursing home and the subsequent decision not to provide the victim with life-saving surgery. The prosecution argued that the fall was a direct result of the poor physical and mental condition that victim was in as a result of the attack, and that the decision not to operate on him was also a direct result of his poor physical and mental condition for which the two accused were responsible. Accused and his accomplice were convicted by the jury of murder. Court of appeal also took the view that it was open to the jury to reason that the low quality of life caused by the assault was the reason that when he was hospitalized with a fractured hip a decision was made not to undertake surgery that would reasonably have been expected to save his life, which, in turn, resulted in death.

Section 18(1)(a) of the Crimes Act 1900 (NSW) provided for the circumstances in which murder shall be taken to have been committed. Those circumstances relevantly included "where the act of the accused, ... causing the death charged, was done ... with intent to ... inflict grievous bodily harm upon some person". In the present case there was no dispute that the requirement that the act of the accused cause the death charged required the jury to be satisfied that the act of the accused was "a substantial or significant cause of death" or a "sufficiently substantial" cause. Such formulation, recognised that boundaries must be drawn for legal responsibility; not every act that was necessary for death to occur was sufficient for the imposition of legal responsibility for the death.

(1991) 172 CLR 378 at 411-412, see also at 398, 423, 442; Osland v The Queen (1998) 197 CLR 316 at 325 [16]; Patel v The Queen (2012) 247 CLR 531 at 553 [75]; Gillard v The Queen (2014) 88 ALJR 606 at 612 [24]; 308 ALR 190 at 197; Timbu Kolian v The Queen (1968) 119 CLR 47 at 68-69; quoting Pollock, The Law of Torts, 6th ed (1901) at 36 and Royall v The Queen (1991) 172 CLR 378 at 411, 423, 440, 448 ref.

There are cases where an accused would be legally responsible for a death even if the act of the accused was not, by itself, necessary for the victim's death but was instead one of the conditions which were jointly necessary to produce the event. [p. 949] B

For the prosecution to succeed on the ground of causation it was necessary for there to be proof beyond reasonable doubt of the three facts: first, surgery upon the victim was available and would reasonably have been expected to save his life; second, that the victim or his son had made a decision that such available surgery should not be undertaken; and third, that the decision to refuse surgery was motivated by victim's low quality of life due to the assault rather than due to other, unrelated considerations. [p. 952] C

Regarding the first fact, there was expert evidence of doctors available on record to suggest that surgical treatment would usually be successful for a person of the victim's age and such surgery would reasonably have been expected to be successful. With regard to the second fact, hospital notes available on record suggested that a positive decision not to operate but provide palliative care was made by the victim's son in consultation with doctors, who gave weightage to such decision. Finally for purposes of establishing the third fact it was sufficient that the effects of the assault substantially or significantly contributed to the decision which, in turn, prevented the surgery that was reasonably expected to save victim's life. The inference was irresistible that the decision was taken to treat palliatively rather than surgically based substantially or significantly upon the persistent, long-term, and catastrophic effects of the assault. Even putting to one side the persistent physical effects of the assault, the cognitive decline suffered by the victim, leading to his inability to communicate properly, to express himself, and to relate to people, was described by his doctor as the "most important thing". Victim's severe cognitive decline as a result of the assault was operative at the time of his death. Appeal filed by accused was dismissed accordingly.

B J Rigg SC with T Quilter for the Appellant (instructed by O'Brien Hudson Solicitors).

L A Babb SC with T L Smith SC and B K Baker for the Respondent (instructed by Solicitor for Public Prosecutions (NSW)).

2020 S C M R 1

[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 and 2306 to 2309 of 2016 and Civil Miscellaneous Applications Nos. 1254-K and 8973 of 2018 and Civil Petition 2312-L of 2018, decided on 17th January, 2019.

(Against the impugned judgment dated 04.07.2016 passed by the learned High Court of Sindh in Constitutional Petition No. D-1692/2011, etc. and dated 03.04.2018 passed by the learned Lahore High Court in I.C.A. No. 1359/2017)

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

(a) Constitution of Pakistan---

----Art. 270AA, Cls. 8 & 9---Transfer of certain hospitals and a national museum from the Federation to the Provinces in light of the Eighteenth Amendment to the Constitution---Constitutionality---Jinnah Postgraduate Medical Center, Karachi ("JPMC"); National Institute of Cardiovascular Diseases, Karachi ("NICVD"); National Institute of Child Health, Karachi ("NICH"); National Museum of Pakistan, Karachi ("NMP"); and Sheikh Zayed Postgraduate Medical Institute, Lahore ("SZPMI")---[Per Ijaz ul Ahsan, J (Majority view): Transfer of said Institutions from the Federal to the Provincial Government was unconstitutional, in that the Institutions did not fall within the Concurrent Legislative List as required by Cl. (8) read with Cl. (9) of Art. 270AA of the Constitution---Implementation Commission, which was constituted to implement and give effect to the provisions of the Eighteenth Amendment to the Constitution, went beyond its constitutional mandate in such regard---Consequently, any purported transfer/devolution of the said Institutions (to the Provinces) by the Federal Government and the subsequent notifications and orders issued pursuant thereto were unlawful and of no legal effect---Order accordingly.

(b) Constitution of Pakistan---

----Fourth Sched.---Legislative Lists, interpretation of---Said Lists must be liberally construed and given the widest possible meaning and amplitude---Principles of interpretation with respect to Legislative Lists stated.

Following are the principles of interpretation with respect to Legislative Lists in the Constitution:

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

(ii) In construing the words in an Entry conferring legislative power on a legislative authority, the most liberal construction should be put upon the words;

(iii) While interpreting an Entry in a Legislative List it should be given widest possible meaning and should not be read in a narrow or restricted sense;

(iv) Each general word in an Entry should be considered to extend to all ancillary or subsidiary matters which could fairly and reasonably be said to be comprehended in it;

(v) If there appeared to be apparent overlapping in respect of the subject-matter of a legislation, an effort had to be made to reconcile the Entries to give proper and pertinent meaning to them;

(vi) A general power ought not to be so construed so as to make a particular power conferred by the same legislation and operating in the same field a nullity;

(vii) Legislation under attack must be scrutinized in its entirety to determine its true character in pith and substance; and

(viii) After considering the legislation as a whole in pith and substance, it had to be seen as to with respect to which topic or category of legislation in the various fields, it dealt substantially and directly and not whether it would in actual operation affect an item in the forbidden field in an indirect way.

Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 ref.

(c) Constitution of Pakistan---

----Arts. 9, 142(c), 247 & Fourth Sched., Pt. I, Entries Nos. 15, 16---National Institute of Cardiovascular Diseases (Administration) Ordinance (I of 1979), S. 6---Transfer of certain hospitals and a national museum from the Federation to the Provinces in light of the Eighteenth Amendment to the Constitution---Constitutionality---Jinnah Postgraduate Medical Center, Karachi ("JPMC"); National Institute of Cardiovascular Diseases, Karachi ("NICVD"); National Institute of Child Health, Karachi ("NICH"); National Museum of Pakistan, Karachi ("NMP"); and, Sheikh Zayed Postgraduate Medical Institute, Lahore ("SZPMI")---[Per Ijaz ul Ahsan, J (Majority view): Entry No.16 of Part I to Fourth Schedule of the Constitution ('Entry No. 16' of the Federal Legislative List) had two basic requirements; first, the agency or institute in question must be "federal"; and second, such federal agency or institute must be for the purposes of research, professional training, technical training, or the promotion of special studies---Jinnah Postgraduate Medical Center, Karachi ("JPMC") was a federal agency/institute and therefore satisfied the first limb of Entry No.16 of the Federal Legislative List---As regards the second limb, the hospital and institute aspects of 'JPMC' were interdependent and mutually supporting---Bearing in mind that legislative lists ought to be construed liberally and be given the widest amplitude possible, 'JPMC' did fall within Entry No.16---National Institute of Cardiovascular Diseases, Karachi ("NICVD") was also a federal agency/institute---Research/training aspect of 'NICVD' was not ancillary or incidental to the functioning of the hospital and therefore, it too fell within Entry No.16---Admittedly, the National Institute of Child Health, Karachi ("NICH") was separated from JPMC in the year 1990 and made an attached department of the Federal Ministry of Health, thereby satisfying the first limb of Entry No.16 being a federal agency/ institute---While NICH had hospital facilities, it was an established fact that it was also a teaching/training institute offering various degrees/diplomas including 'FCPS', 'MCPS', nursing programs and paramedical courses---Furthermore, 'NICH' also had facilities for clinical research, resulting in the production of numerous research papers in the relevant field---Like 'JPMC' and 'NICVD', such aspects as a whole brought 'NICH' within the purview of the second limb of Entry No.16---Prior to its purported transfer/devolution, National Museum of Pakistan, Karachi ("NMP"), was a museum controlled/ financed by the Federation and therefore squarely fell within the ambit of Entry No.15 of Part I to Fourth Schedule of the Constitution---In any case, there was no relevant entry in the Concurrent Legislative List within which 'NMP' would fall---Features of the 'Resolution' dated 29.05.1986 through which the Sheikh Zayed Postgraduate Medical Institute, Lahore ("SZPMI") was established made it clear beyond any doubt that it was a federal agency/institute in terms of Entry No.16 of the Federal Legislative List---Objectives/functions of the 'SZPMI' as identified in the Resolution showed that it had a predominant research/training aspect which was far from ancillary or incidental to the functioning of Sheikh Zayed Hospital, Lahore and therefore, without any doubt 'SZPMI' fell within Entry No.16---Besides, at the time of the purported transfer to the Province, the administrative control of 'SZPMI' along with its staff and equipment vested with the (Federal) Ministry of Health and was given to the Cabinet Division, therefore falling strictly within the domain of the Federal Government (i.e. Cabinet Division), it could not have been transferred to the Provincial Government through the impugned notification which mentioned that the "Prime Minister has been pleased to order transfer of administrative control of…" 'SZPMI' to the Provincial Government---Prime Minister alone did not have the power or authority to make such transfer without the approval of the Federal Cabinet---Even otherwise there was nothing on record to indicate that the said transfer was approved by the Federal Cabinet---Transfer of 'SZPMI' to the Province was clearly in excess of the powers available to the Prime Minister under the Constitution, the law and the Rules of Business, 1973---Entry No.37 of the Federal Legislative List allowed the Federal Government to exercise its executive authority with respect to works, lands and buildings vested in it or in its possession (apart from military, naval or air force works) but with a caveat, that if such works, lands and buildings were situated in a Province, then they shall be subject to Provincial legislation unless Federal law provided for otherwise---Intention behind the 18th Amendment to the Constitution could not have been to prevent the Federal Government from opening healthcare facilities in any of the Provinces, for concluding so would be tantamount to attributing absurdity to a constitutional provision---Declaration to the effect that the Institutions in question had been transferred by the Federal Government to the Provinces without following due process of law, application of mind and in a mechanical manner did not by any stretch of the imagination impugn upon or encroach the Provincial autonomy granted by the Constitution---Furthermore 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 an athema for the concept of Federalism--- Supreme Court declared the transfer/devolution of JPMC, NICVD, NICH, NMP and SZPMI (to the Provinces) to be unconstitutional, without lawful authority and of no legal effect]---[Per Maqbool Baqar, J (Minority view): Hospitals, along with public health, fell exclusively within the provincial domain---Research and training were the most essential components of the public health, without which, the obligation to provide quality and affordable healthcare could not be discharged, dispensed and fulfilled, it would therefore not be fair to say that health related research education and training could not lawfully form part of a "hospital" and/or "public health", in the context of the distribution of legislative, hence executive powers in a federal dispensation---Classifying a general hospital as of the category falling under Entry No.16 of the Federal Legislative List, for its conducting research and/or imparting professional or technical training in the fields of health sciences would dissuade hospitals owned and operated by the provincial governments from pursuing such activities, for a fear of being so branded, and thus being taken over by the Federal Government---Scope and extent of the "right to life", as protected under Art. 9 of the Constitution was so wide spread that it embraced almost every aspect and facet of human existence---Allowing the federation to assume power and authority under such a rubric would, thus, hardly leave anything for the provincial government to undertake, discharge, or fulfil, jeopardizing the nation's collective odyssey towards greater provincial autonomy---In the present case, primary character and nature of 'JPMC' was that of a tertiary care public hospital---Research, education and training activities were made possible at 'JPMC' because of it being a hospital, and that too, with at least twenty eight different departments for treatment of as many diseases and ailments and their different strands---Not all the departments and facilities at 'JPMC' were being used for imparting education and training---Perusal of S. 6 of National Institute of Cardiovascular Diseases (Administration) Ordinance, 1979, showed that the core function/purpose of 'NICVD' was that of a cardio vascular hospital, while training and research were employed merely as tools and means to achieve and realize such purpose---Said Ordinance of 1979, was no impediment in the transfer of 'NICVD'; firstly for the reason that the Ordinance did not exist in the eyes of law, having been promulgated by the federal government beyond its constitutional mandate and in violation of the restriction placed on it by means of Art. 142(c) of the Constitution, as hospitals and public health never fell within the legislative sphere of the federation and had always, exclusively remained provincial subjects---More significantly, the impugned transfer of the institute to the Province, though made belatedly, was in compliance with the constitutional mandate, as prescribed by Art. 274 of the Constitution---National Institute of Child Health, Karachi ("NICH") had developed into a five hundred bed children hospital, where teaching and training was carried out merely as an ancillary activity]---Order accordingly. (d) National Institute of Cardiovascular Diseases (Administration) Ordinance (I of 1979)---

----S. 6---National Institute of Cardiovascular Diseases (Sindh Administration) Act, 2014 (IV of 2015), Preamble ---Constitution of Pakistan, Fourth Sched., Pt. I, Entry No. 16 --- National Institute of Cardiovascular Diseases (Sindh Administration) Act, 2014, vires of---Provincial Assembly had passed the National Institute of Cardiovascular Diseases Act, 2014 ("the 2014 Act"), which was basically replica of the National Institute of Cardiovascular Diseases (Administration) Ordinance, 1979---Said Ordinance appeared to have been enacted to displace 'the 2014 Act'---Said Act of 2014, which was an attempt to overturn a Federal law and nullify the same, was unconstitutional, particularly considering the fact that the National Institute of Cardiovascular Diseases, Karachi ("NICVD") fell within the domain of the Federal Government---Supreme Court suspended the 2014 Act and directed that such suspension shall be subject to other directions of the Court, which shall apply in all respects to 'NICVD', and nothing in the Provincial Law (i.e. the 2014 Act) nor in the suspension thereof shall in any manner hinder, restrict, impede or otherwise affect the return and restoration of 'NICVD' to the Federation---Order accordingly.

(e) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Right to healthcare---Right to life undoubtedly entailed the right to healthcare which meant that everyone had the right to the highest attainable standard of physical and mental health and this comprised of access to all kinds of medical services including but not limited to hospitals, clinics, medicines and services of medical practitioners which must not only be readily available and easily accessible to everyone without discrimination, but also of high standard---Federal Government had an obligation to carry out all necessary steps to ensure realization of this goal.

State of Punjab and others v. Mohinder Singh Chawla and others (1997) 2 SCC 83 and State of Punjab and others v. Ram Lubhaya Bagga and others (1998) 4 SCC 117 ref.

(f) Constitution of Pakistan---

----Arts. 97, 137, 142, Pt. II, Chapt. 1 & Fourth Sched.---Fundamental Rights, enforcement of---Federal Government, duty of---Scope---Federal Government was not absolved from conferring the fundamental rights contained in the Constitution upon its citizens and the State was required to enforce such rights---Such duty prevailed, notwithstanding the respective domain of Federal and Provincial executive authority as determined by the respective Federal and Provincial legislative competence in light of the provisions of Arts. 97, 137 & 142 of the Constitution read in conjunction with the Federal Legislative List---Such duty transcended and surpassed other provisions of the Constitution and could not, in any circumstance whatsoever be curtailed or abridged.

Liaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others PLD 2012 SC 224 ref.

(g) Jinnah Sindh Medical University Act (XXIII of 2013)---

----Ss. 2(h), 2(i), 2(j), 2(k), 4(1), 4-A & 22---Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation Standards) Regulations, 2018, Reglns. 2(f), 3(1), 5(1), 5(2), 9, 14 & Appendix I, Cls. 21, 22, 23, 24 & 25---Practical difficulties that would be faced by Jinnah Sindh Medical University ("JSMU") in case, Jinnah Postgraduate Medical Center, Karachi ("JPMC"), National Institute of Cardiovascular Diseases, Karachi ("NICVD"), and National Institute of Child Health, Karachi ("NICH") were reverted to the Federation from the Province---In view of such practical difficulties and in order to protect the interests of students and faculty members of Sindh Medical College ("SMC"), the Supreme Court gave a grace period of six months to Jinnah Sindh Medical University ("JSMU") and issued certain directions to the Federal and Provincial Governments to ensure that (post reversion to the Federation) 'JSMU' complied with provisions of Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation Standards) Regulations, 2018---Supreme Court issued directions in such regards.

(h) Constitution of Pakistan---

----Arts. 9 & Fourth Sched., Pt. I, Entries Nos. 15, 16---National Institute of Cardiovascular Diseases (Administration) Ordinance (I of 1979), S. 6---Transfer of certain hospitals and a national museum from the Federation to the Provinces in light of the Eighteenth Amendment to the Constitution---Constitutionality---Supreme Court declared the transfer/devolution of Jinnah Postgraduate Medical Center, Karachi ("JPMC"); National Institute of Cardiovascular Diseases, Karachi ("NICVD"); National Institute of Child Health, Karachi ("NICH"); National Museum of Pakistan, Karachi ("NMP"); and, Sheikh Zayed Postgraduate Medical Institute, Lahore ("SZPMI") (to the Provinces) to be unconstitutional, without lawful authority and of no legal effect and gave certain directions to that effect.

Supreme Court after declaring the transfer/devolution of Jinnah Postgraduate Medical Center, Karachi ("JPMC"), National Institute of Cardiovascular Diseases, Karachi ("NICVD"), National Institute of Child Health, Karachi ("NICH"), National Museum of Pakistan, Karachi ("NMP"), and Sheikh Zayed Postgraduate Medical Institute, Lahore ("SZPMI") 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) Till such time as the exercise (of transfer from Provinces to the Federal Government) was not completed, all matters pertaining 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, disbursements, outlays and expenditures, including disbursements relating to the payment of salaries, pensions and such-like matters;

(iii) Within 90 days of present judgment, the Federal and Provincial Governments and all concerned and related authorities, entities, bodies, departments, establishments and officers shall complete all matters relating to the return of JPMC, NICVD, NICH and the NMP from the Province to the Federation such that the position of these Institutions was restored, to the maximum extent possible, to the status quo ante, being in relation to JPMC, NICVD and NICH the position as on 29-06-2011, and in relation to the NMP the position as on 05-4-2011, and such restoration and return shall include the actual resumption by the Federation of all financial obligations in relation to the Institutions and all serving or retired officers, employees or servants thereof;

(iv) If such exercise could not be completed within 90 days, the Federal Government or the Provincial Government may apply to the Court for an extension and such extension may be granted for such period or periods as the Court deemed appropriate but such period(s) shall not in the aggregate exceed 90 days;

(v) Once the exercise was complete, the Federal and Provincial Governments shall file an appropriate joint statement (duly supported by the necessary and relevant record) before the Court, which may give such notice of the same to such persons or parties as it deemed appropriate, and may thereafter and thereupon make a declaration that the exercise had been completed;

(vi) If in completing such exercise, it was not possible to restore the status quo ante in respect of any Institution in any material respect, then any concerned party may make an appropriate application to the Court, which may issue such directions and make such orders as were deemed expedient and appropriate thereon, but in such manner and to such extent as was consistent with the expeditious restoration of the Institution from the Province to the Federation;

(vii) The Province shall be entitled to a suitable reimbursement/ adjustment from/with the Federation of all disbursements and financial outlays made and expenditures incurred from the date of the transfer/devolution of the Institutions to the Province from the Federation till the date of the return and restoration thereof from the Province to the Federation and/or the actual resumption of financial obligations in relation thereto by the Federation, being disbursements and financial outlays made and expenditures incurred by the Province that it would not have made or incurred but for the devolution/transfer.

(viii) In case the Province and the Federation are unable to resolve any matter that shall be deemed to be a dispute between them and the aggrieved party shall be entitled to its remedies in accordance with the Constitution and the law.

Per Maqbool Baqar, J; dissenting

(i) Words and phrases---

----"Federalism", concept of---Salient features of federalism stated.

(j) Constitution of Pakistan---

----Arts. 97, 137, 142 & Fourth Sched.--- Legislative Lists, interpretation of---Federalism, concept of---Scope---Spirit and soul of federalism, was the distribution of legislative powers between the federation and the province, with its core being provincial autonomy---Interpretation of constitutional provisions should thus be in consonance with the said principle, rather than in a manner that encroached upon the space reserved for the provinces---Scope of an entry in the Federal Legislative List should not be expanded or enlarged in a manner that infringed provincial autonomy---Nature and character of the Constitution carried great significance and was of utmost relevance in construing the legislative entries and determining the scope and extent of the subjects assigned by it to the Federation and the Provinces---Court should therefore avoid an expansive construction of a federal legislative power which rendered redundant or nugatory the legislative field, power and authority assigned to the provinces, either expressly or as residuary, thus undermining provincial autonomy.

(k) Constitution of Pakistan---

----Pt. II, Chapt. 1 [Arts. 8 to 25]---Fundamental rights, enforcement of---Obligation of State---"State"---Meaning---State had guaranteed the protection of Fundamental rights enshrined in the Constitution---Nonetheless, one must resist conflating the State with the federal government as the provincial and also the local governments too constituted the State---State's obligation with regard to fundamental rights was, therefore, to be fulfilled and discharged by all tiers of the government and all organs of the State as per their power, authority, obligation, and competence, strictly as prescribed under the Constitution---Under no notion could any of the said governments be stripped of their rights, authority, or power, nor could they be exempted from discharging or fulfilling their prescribed obligations.

(l) Judgment---

----Dissenting note---Significance and scope---While a dissenting note had no legal force, the purpose of such endeavour was to appeal to the brooding spirit of the law in the hope that what may be dissent today becomes the law tomorrow.

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/2016).

Salahuddin Ahmed, Advocate Supreme Court and Prof. S.M. Tariq, V.C. JSMU, Karachi for Appellants (in C.A. No.2306/2016).

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

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

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

Barrister Umaima Anwar, Advocate (with permission of the Court) for Respondents (in C.A. No.125-K/2016).

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

M. Iqbal Chaudhry, Advocate-on-Record for Respondents (in C.A. No.127-L/2016).

Abdul Rauf Rohaila, Advocate Supreme Court for Respondents (in C.A. No.2306/2016).

Sajid Ilyas Bhatti, Addl. A.G.P., Khurram Saeed, Addl. A.G.P., Capt. (Retd) Zahid Saeed, Secy. M/o NHSR&C, Asif Sohail, Dir. Litigation M/o NHSR&C and Raja Abdul Ghafoor, AOR for HEC for Respondents (in C.A. No.2306/2016).

Hamid Khan, Senior Advocate Supreme Court, Ahmed Awais, A.G. Punjab and Qasim Ali Chohan, Addl.A.G. Punjab for Respondents (in C.P. No.2312-L/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.

2020 S C M R 69

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Qazi Muhammad Amin Ahmed, JJ

Raja ARSHAD MEHMOOD---Petitioner

Versus

Mst. MALIHA MALIK and others---Respondents

Constitutional Petition No. 31 of 2019, decided on 8th November, 2019.

(Under Article 186-A of the Constitution of the Islamic Republic of Pakistan, 1973 - transfer of case from Islamabad High Court to any other High Court)

Constitution of Pakistan---

----Art. 186-A---Criminal Procedure Code (V of 1898), S. 497(5)---Anti-Terrorism Act (XXVII of 1997), S. 7---Power of Supreme Court to transfer case from one High Court to another---Scope---Petitions for cancellation of bail---Transfer of petitions to another High Court---Present case required hearing by a Division Bench, but three out of four available Judges in the [Islamabad] High Court had recused to hear the case, either on their own or on the request of the parties, on more than one occasion---In the presence of available Judges, there was no option for the [Islamabad] High Court to once again attend the plea without leaving the parties remediless, therefore, it was expedient as well as in the interest of justice to withdraw the cases from [Islamabad] High Court and transfer the same to [Peshawar] High Court for disposal in accordance with law---Constitutional petition was allowed accordingly.

Muhammad Ahsan Bhoon, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Faisal Siddiqui, Advocate Supreme Court for Respondents with Respondents Nos. 1 and 3 in person.

2020 S C M R 72

[Supreme Court of Pakistan]

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

BASHEER AHMED and others---Appellants

Versus

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

Civil Appeal No. 1057 of 2010, decided on 4th December, 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)---

----Ss. 20 & 21 [as applicable in erstwhile State of Bahawalpur]---Succession to tenancy---Tenancy granted to sons of deceased-tenant to the exclusion of daughters---Succession of tenancy rights after death of sons---Scope---Upon death of original tenant his two sons succeeded to the tenancy rights to the exclusion of three daughters in terms of S. 20 of the Colonization of Government Lands (Punjab) Act, 1912 ('the Act')---When both sons died in 1940, then under the provisions of S. 21(b) of the Act the succession was determined as though the original tenant had died, the succession being treated as having opened up at that time---Furthermore, at that time the relevant rules of the Islamic law of inheritance were applied---In those terms, all of original tenant's heirs (including in particular the three daughters) then became entitled to a share---Legality---One of the daughters (i.e. the plaintiff) had brought her suit for share in tenancy rights after both of herbrothers had died---Question of plaintiff's claim to a share in the tenancy rights that devolved from her father, was to be governed by S. 21 and not S. 20 of the Act, and in terms of the general law of inheritance relating to Muslims---Plaintiff was entitled, as a daughter, to an appropriate share in the tenancy (devolving from her father, whatsoever form the tenancy might have taken); of course that also meant that the plaintiff was not entitled to any share in the tenancy from her uncle (i.e. father's brother).

Mst. Imam Bibi v. Allah Ditta and others PLD 1989 SC 384 applied.

Umar Din and another v. Mst. Sharifan and another PLD 1995 SC 686 distinguished.

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 and 8).

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

2020 S C M R 78

[Supreme Court of Pakistan]

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

FAROOQ AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 110 of 2016 and Criminal Miscellaneous A. No.380 of 2015, decided on 9th June, 2015.

(On appeal from the judgment and order of the Lahore High Court, Multan Bench, Multan, dated 21.1.2015 passed in Criminal A. No. 342-ATA of 2014, Reference No. 4-ATA of 2014)

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

----Ss. 6(1)(b) & 7---Penal Code (XLV of 1860), S. 302(b)---Act of terrorism, qatl-i-amd---Reappraisal of evidence---Murder committed due to previous enmity---Provisions of Ss. 6 & 7 of the Anti-Terrorism Act, 1997, not attracted in a case of personal enmity---Held, that at a point between the Sessions Court and its canteen the accused along with co-accused persons fired at the deceased and killed him---Alleged motive for the crime was that the deceased had murdered a brother of one of the co-accused---Motive of the crime was thus previous enmity---Accused was arrested on the spot and the weapon of offence was also recovered from him---Nothing was available on the record to show that the accused wanted to create fear or insecurity or terror in or around the Court premises---After shooting the deceased the accused did not offer resistance and was arrested by the police along with the weapon of offence---Since the accused had committed the offence to avenge the murder committed by the deceased, his action would not fall under the ambit of S. 6 of the Anti-Terrorism Act, 1997---Conviction of accused under S. 7 of the Anti-Terrorism Act, 1997 was set aside, in circumstances.

Basharat Ali v. Special Judge, Anti-Terrorism Court PLD 2004 Lah. 199 ref.

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

----Ss. 6 & 7---Act of terrorism --- Murder committed due to personal enmity---Provisions of Ss. 6 & 7 of the Anti-Terrorism Act, 1997 would not be attracted if the murder was committed to avenge private enmity.

Basharat Ali v. Special Judge, Anti-Terrorism Court PLD 2004 Lah. 199 ref.

Kh. Muhammad Haris, Advocate Supreme Court for Petitioner.

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

Muhammad Munir Peracha, Advocate Supreme Court for the Complainant.

2020 S C M R 82

[Supreme Court of Pakistan]

Present: Gulzar Ahmed,Faisal Arab and Sajjad Ali Shah, JJ

KARACHI CIRCULAR RAILWAY AND LOCAL TRAIN IN KARACHI: In the matter of

Constitutional Petition No. 9 of 2010 and Criminal Original Petitions Nos. 7-K and 19-K of 2017 and Civil Misc. Applications Nos. 6206 of 2013 and 1552-K of 2018, C.M.A. 1600-K of 2018 and C.M.As. 22-K, 23-K, 59-K, 101-K, 311-K, 394-K, 423-K, 425-K, 459-K, 460-K/2019 and Criminal Misc. Applications Nos. 121-K, 124-K, 132-K of 2017, 111-K, 8-K, 19-K, 20-K, 25-K, 32-K, 38-K, 44-K, 52-K, 59-K, 71-K, 72-K, 95-K, 199-K, 214-K and 229-K of 2018 and Crl. M.As. 01-K, 2-K and 26-K of 2019, decided on 6th August, 2019.

(a) Karachi Development Authority Order (P.O. No. 5 of 1957)---

----Art. 45---Constitution of Pakistan, Art. 184(3)---Matter regarding Karachi Circular Railway and local train in Karachi---Report submitted by Secretary/Chairman, Ministry of Railways, was found by the Supreme Court to be unsatisfactory---Matter was adjourned to next date of hearing with the directions that a proper and comprehensive report shall be furnished before the Supreme Court about the operation of the two trains in question plus other railway facilities that had been devised by the Provincial Government, and that the Provincial Government shall also submit a report before the Court about initiation and operation of tramway in Karachi as no report on such aspect was available.

(b) Karachi Development Authority Order (P.O. No. 5 of 1957)---

----Art. 45---Constitution of Pakistan, Art. 184(3)---Matter regarding buildings adjacent to Park--- Revenue Department had no power whatsoever to grant lease of 99 years for the buildings in question under any law and further the very grant of purported lease by the Revenue Department was contrary to the order dated 28-11-2012 passed by five members Bench of the Supreme Court in Suo Motu Case No. 16 of 2011, by which the Revenue Department was prohibited from making any mutation, allotment, transfer or conversion of State's land or keeping any transaction or entries in record of rights and it was further observed that any such mutation of the state land in record of rights would be deemed to be a nullity and expose the Deputy Commissioner/ DCO of the relevant district/case to contempt proceedings---Supreme Court directed that the Chairman and Secretary of the Horticulture Society were to appear on next date of hearing with a report concerning the land in question, and that Chairman, National Accountability Bureau ("NAB") shall also submit a report about status of the land in question, since the matter was dealt with by NAB but at some stage for no reason it had been terminated.

(c) Karachi Development Authority Order (P.O. No. 5 of 1957)---

----Art. 45---Constitution of Pakistan, Art. 184(3)---Matter regarding occupation of footpaths, roads, parks, playgrounds occupied by the [Sindh] Police and Pakistan Rangers---Relevant officials of both said institutions requested for time to ensure that all such occupation was cleared--- Supreme Court directed that a report in this regard would be submitted by them before the Court within a period of two weeks.

(d) Karachi Development Authority Order (P.O. No. 5 of 1957)---

----Art. 45---Constitution of Pakistan, Art. 184(3)---Matter regarding illegal occupation of footpath and roads by some foreign consulates in front of their offices/residences---Provincial Government had warned such foreign consulates to vacate the illegal occupation but on account of non-assistance from the foreign offices no further progress was being made---Supreme Court directed that the Attorney General shall appear on the next date with a report from the Foreign Secretary regarding such very aspect of the matter.

(e) Karachi Development Authority Order (P.O. No. 5 of 1957)---

----Art. 45---Constitution of Pakistan, Art. 184(3)---Matter regarding construction of a water reservoir site and recreational park---Land for the scheme allocated to surrounding societies for use as residential and commercial plots---Legality---Relevant gazette notification under which the water reservoir site and recreational park were proposed only provided for establishing the same on an already existing scheme comprising of about 62 acres and zoned as an open space in the Master Plan of the city (Karachi)---Clearly the Scheme in question was not created under the said gazette notification as it already existed under the Master Plan---Only its utilization as water reservoir and recreation park was proposed thereunder---Irrespective of the fact whether the water reservoir or recreation park was created or not in terms of the said gazette notification the 62 acre land in question zoned as open space in the Master Plan and could not have been utilized or allocated to any of the surrounding societies for use as residential or commercial plots---From the text of the notification showed it was also apparent that only the areas surrounding the park were part of (Karachi) Cooperative Housing Societies Union and another Co-operative Housing Society, thus question was as to how any of these societies could subsequently claim that the land in question fell within the areas granted to them---Hence none of the allottees of any society could have any legitimate claim on any part of park which was zoned as open space in the Master Plan of the city (Karachi) and had to be entirely utilized for the proposed public park---Application filed by the applicant was not entertainable for that no lawful interest of the applicant was shown to exist in the Park---Application was dismissed accordingly.

In Attendance:

2020 S C M R 90

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Yahya Afridi, JJ

CHAIRMAN, FEDERAL BAORD OF REVENUE, ISLAMABAD and another---Appellants

Versus

Mrs. NAUREEN AHMED TARAR and others---Respondents

Civil Appeals Nos. 1219 to 1222 of 2015 and Civil Appeals Nos. 248 to 251 of 2018, decided on 20th February, 2019.

(On appeal from the judgment/order dated 30.07.2015 passed by Federal Service Tribunal, Islamabad in Appeals Nos. 460(R)CS to 461(R)CS of 2013)

(a) Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990---

----Rr. 6(2) & 7(4) [as amended on 28-04-2001]---Inter-se seniority amongst probationers after Final Passing Out Examination---Legitimate expectancy, principle of---Scope---Amendment to service rules during an ongoing probationary course affecting substantive right of the probationers---Through an amendment dated 28-04-2001 in the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990, ('the Rules') the number of attempts availed by a probationer to clear the specialized training examinations was added as one of the criteria for determining seniority---Constitutionality---Seniority in service was a valuable right and probationers had a legitimate expectancy that the probationary service law prevalent at the time when they entered their probation shall remain in force until their confirmation---Principle of legitimate expectancy aimed at enforcing fairness and preventing arbitrariness---Ranking of passing probationers on the basis of the number of their attempts made to clear the prescribed examinations imposed a penal liability through loss of seniority---Change in law by the amendment in the Rules, caused adverse consequences for the probationers---Such consequences infringed the legitimate expectancy of the serving probationers by altering the legal dispensation under which firstly, their service rights were determined for the future and secondly, for the rules under which the probationers commenced their probationary training---Though procedural in content, the amendment affected a substantive right of the probationers, namely, their seniority in the batch and in this respect by altering an accrued status, the said amendment had retrospective effect---Resultantly it was burdensome to implement the amendment upon the probationers who had already entered their probationary period prior to the enforcement of the said amendment---Additionally one of the examinations envisaged in the Rules, namely, the Specialized Training Programme (STP), could not be held---Such failure made the categorization of the total result on the basis of number of examination attempts to be irrational and lopsided---Circumstances of incomplete examinations to test the probationers and the enforcement of the disputed amendment to an ongoing probationary course, had resulted in harsh and untenable consequences both in law and fact---Supreme Court held that Rules in their (unamended) form as at the commencement of the probationary period in July, 1998 shall remain applicable for reckoning the seniority of the probationers on the completion of their probation, and the Federal Government needed to apply its mind to remove the salient anomalies highlighted by the Service Tribunal that existed in the application and implementation of the Rules.

(b) Civil service---

----Legitimate expectancy, principle of---Scope---Advantage or benefit derived from a competent legal dispensation, departmental practice or established procedure that had been extended to and enjoyed by a person may legitimately be expected to remain available unless notice or opportunity to defend or adjust his position was given to that person.

Regarding pensionary benefits of the Judges of Superior Courts PLD 2013 SC 29; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Union of India v. Hindustan Development Corporation AIR 1994 SC 988 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants (in C.As. 1219 - 1220 of 2015 and C.As. 248-251 of 2018).

Mahmood Ahmed Qazi, Advocate Supreme Court for Appellants (in C.As. 1221-1222 of 2015).

Respondent No. 1 in person (in C.As. 1219 and 1221 of 2015).

Ch. Abdul Sattar, Advocate Supreme Court for Respondents Nos. 20-21 (in C.As. 1219 and 1220 of 2015).

Ex parte for Respondents Nos. 3, 5, 7, 13, 17-19, 22 and 23 (in C.As. 1219-1220 of 2015).

Rana Asif Saeed, Advocate Supreme Court for Respondent No.1 (in C.As. 1220 and 1222 of 2015).

Mehmood Ahmed Qazi, Advocate Supreme Court for Respondents Nos. 2, 4, 6, 8-12, 14-16 (in C.As. 1219-1220 of 2015).

Ch. Abdul Sattar, Advocate Supreme Court for Respondents Nos.11 and 12 (in C.A. 1221 of 2015).

Ex parte for Respondents Nos. 2-10 and 13 (in C.A. 1222 of 2015).

Ch. Abdul Sattar, Advocate Supreme Court for Respondents Nos. 10 and 11 (in C.A. 1222 of 2015).

Ex parte for Respondents Nos. 2-9 and 12-14 (in C.A. 1222 of 2015).

M. Shoaib Shaheen, Advocate Supreme Court for Respondent No. 1 (in C.As. 248-251 of 2018).

Kh. M. Farooq, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos.7-8 (in C.As. 248-250 of 2018).

Kh. M. Farooq, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 5 and 6 (in C.A. 251 of 2018).

2020 S C M R 98

[Supreme Court of Pakistan]

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

HOUSE BUILDING FINANCE COMPANY LIMITED---Appellant

Versus

MUHAMMAD IRFAN KHAN and others---Respondents

Civil Appeal No. 86-K of 2018, decided on 4th September, 2019.

(On appeal from the judgment dated 26.11.2018 passed by High Court of Sindh, Karachi in C.P. No. D-5773 of 2016)

Constitution of Pakistan---

----Art. 25---Civil service---Salary---Discrimination, plea of---Distinct categories of employees---Salary and allowances of 'Workmen' and 'Officers/Executive staff' revised on basis of different criteria---Legality---Financial exigency did empower the employer to consider different yardstick for revision in the salary of different categories of its employees---All employees could not claim to be treated alike irrespective of their grades, domain and class---Clear distinction existed between the employees covered by the labour laws (i.e. workmen') and other statutory dispensation vis-a-vis employees in 'Executive and Officers' cadre---For good governance grouping by the employer of its employees serving in lower Basic Pay Scales into one category and those serving in higher Basic Pay Scales to another category for the purpose of granting greater monetary benefit, could not be challenged on ground of arbitrariness or unreasonable classification and as violative of Art. 25 of the Constitution.

Sail Ex-employees Association v. Steel Authority of India Ltd. and others 2010 (124) FLR 410; Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad 1997 SCMR 1026; Farman Ali v. State 1997 SCMR 1026 = 1997 PLC (C.S.) 903; V. Markendeya and others v. State of Andhra Pradesh and others (1989) 3 Supreme Court Cases 191; Ajay Hasia v. Khalid Mujib AIR 1981 SC 487 and E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 555 ref.

Munir A. Malik, Senior Advocate Supreme Court, Ghulam Qadir Jatoi, Advocate-on-Record, Tariq Rehman, Head HR, Malik Nasir Ayaz, Head Legal and Zulfiqar Ali, Manager Legal for Appellant.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court for Respondents.

2020 S C M R 103

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Munib Akhtar, JJ

KAFYAT ULLAH KHAN---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, ISLAMABAD and another--Respondents

C.P. No. 3090 of 2017, decided on 16th October, 2019.

(Against the judgment dated 26.05.2017, passed by the Federal Service Tribunal, Islamabad in Appeal No. 2094(R)CS/2015)

Constitution of Pakistan---

----Art. 212(3)---Civil service---Absence from duty---Dismissal from service---Period of absence from service treated as leave without pay---Double penalty---Contention of petitioner-civil servant that when the penalty of dismissal from service was awarded to him, the further order by which his absence period of 9 months and 13 days was treated as leave without pay would amount to double penalty upon him---Contention by Provincial Law Officer that in similar situations the Supreme Court in different cases had held that the penalty of dismissal from service could be maintained even though the absence had been treated as leave without pay---Leave to appeal was granted by the Supreme Court to consider and decide the issue in question as there appeared to be some conflict in the judgments of the Supreme Court on the point in issue.

Lahore Development Authority and others v. Muhammad Nadeem Kachloo and another 2006 PLC (C.S.) 294; Imtiaz Ahmed Lali v. Returning Officer and 3 others PLD 2008 SC 355 and Water and Power Development Authority and others v. Shan Elahi 1998 SCMR 1890 ref.

Malik Matee Ullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Sajid Ilyas Bhatti, Additional A.-G. and Sajid Cheema, Inspector Legal, ICT for Respondents.

2020 S C M R 105

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Ijaz ul Ahsan and Munib Akhtar, JJ

CHIEF COMMISSIONER INLAND REVENUE REGIONAL (RTO) PESHAWAR---Appellant

Versus

PAPER WORLD (PVT.) LTD. AMANGARH, NOWSHERA---Respondent

Civil Appeals Nos. 2440-2441 of 2016, decided on 1st October, 2019.

(On appeal from the Order dated 26.02.2015 passed by the Peshawar High Court, Peshawar in C.R. No. 79-P and C.M. 36 of 2010 and F.E.R. No. 80 of 2010)

Sales Tax Act (VII of 1990)---

----S. 40A [as it then was in the year 2004]---Evasion of sales tax---Search without warrant---Raid and search at a premises other than the business or manufacturing premises or registered office of tax payer---Legality---Statement recorded for purposes of subsection (1) of S. 40A of the Sales Tax Act, 1990 ('the Act') was in substantial compliance with the requirements thereof---Matters such as serial number or office order, or name of informer were not, as such, required by the provision to be set out under the said statement---Fact that the raid was conducted within one day of the receipt of information served only to show that there was urgency in the matter, and not as wrongly concluded by the High Court that there was sufficient time to obtain a warrant from the concerned Magistrate in terms of S. 40 of the Act---Record recovered from the raid was indeed that of the respondent-tax payer, and related to its business matters and was supportive of the case sought to be made against it, i.e., of clandestine removal of goods and evasion of tax---Respondent never explained as to why such record was found at a premises that the respondent itself claimed was "abandoned and vacant", i.e., at other than its place of business or manufacture or registered office, or any other place where it could be reasonably expected or plausibly explained that the record could be maintained---In such circumstances, where the tax department was operating on the basis of a secret tip-off, the concerned officer could reasonably conclude that the record and material might be removed at any moment---Hence, the ingredients for invoking S. 40A of the Act existed in the facts and circumstances of the present case---Appeal filed by tax department was allowed accordingly.

Collector of Sales Tax and Central Excise and another v. Mega Tech (Pvt.) Ltd. 2005 SCMR 1166 distinguished.

Ghulam Shoaib Jally, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Tariq Khan Hoti, Advocate Supreme Court for Respondent.

2020 S C M R 111

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

ABDUL KARIM---Petitioner

Versus

NASIR SALIM BAIG and others---Respondents

Civil Petition No. 815-K of 2016 and C.R.P. 19-K of 2017, C.M.A. No. 391-K of 2017 in C.R.P. No. 19-K of 2017, decided on 22nd January, 2019.

(a) Karachi Building and Town Planning Regulations, 2002---

----Chapt. 19---Sindh Buildings Control Ordinance (V of 1979), S. 4---Amenity plots meant for parks, playgrounds and other amenity use as per the original Master Plan converted for commercial use---Legality---Houses in the city were being converted to allow for marriage halls, shopping malls, petrol pumps/CNG stations etc.---Besides, there were encroachments upon amenity plots and change in the use of amenity plots---Supreme Court directed that the Director General (DG) of the Provincial Buildings Control Authority ('the Authority') shall take steps to have all such plots which were originally meant for residential purposes, amenity plots and playgrounds restored to their original position and remove all illegal and unlawful construction on such plots; that from present day there was a complete ban on Master Plan Department of the Authority or any other authority of the City Government or Provincial Government on allowing change in the use of land; that conversion of residential houses and amenity plots meant for parks, playgrounds and other amenities, shall not be allowed for commercial use for marriage halls, markets, shopping malls, apartments, marquees, petrol pumps/CNG stations etc; that such complete ban in cessation of conversion of residential plots, amenity plots shall apply all across the city (Karachi) including cantonment areas; that no authority shall approve any conversion including pending ones; that all conversions allowed by these authorities shall be reviewed and all efforts shall be made to ensure that the land which was originally provided in the Master Plan of the city was restored to that status; that the Authority shall not approve any multistoried building plans on residential plots meant for residential houses and amenity plots and all such approvals given by the Authority shall be reviewed and any building constructed in violation of original Master Plan in the city shall be restored to its original position; that the Provincial Environmental Department and all other Government Departments shall ensure that city was restored to according to its original Master Plan and no deviation from it should be allowed to be made; that all constructions which were illegally and unlawfully made in the city shall be reviewed by the Authority within a period of one month and a report in such respect shall be submitted to the Supreme Court, which should recommend the solution as to how these illegal and unlawful constructed buildings could be demolished and the plot/land put to its original use and as to how the people, who were occupying such buildings, would be compensated and provided alternate accommodation by the Authority from the funds generated by its own staff---Matter adjourned.

(b) Karachi Building and Town Planning Regulations, 2002---

----Chapt. 19---Amenity plots---Provincial Government, duty of---Scope---Government had to ensure that reasonably safe and good living was provided to the people of the city with all amenities which were essential to be provided by the State by building and zoning the city in appropriate manner with playgrounds, schools, colleges, universities and hospitals easily accessible to the citizens with roads and transport.

Ghulam Rasool Mangi, Advocate-on-Record for Petitioners.

Raja Qasid Nawaz Khan, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondents.

Kashif Paracha, DAG, Muhammad Sarwar Khan, Additional Advocate-General, Dr. Saeed A. Qureshi, Focal Person, Government of Sindh, Mehtab Hussain, Assistant Manager Legal, KE, Asadullah Khan, MD, KW&SB, Chenzeb, Law Officer, KW&SB, Muqadas Hyder, SSP City South, Akram Arain, SHO P.S. Baghdadi, Hizbullah Sheikh, DD Lyari, SBCA, Ejaz Malik, Deputy Director/Incharge, Lyari Town, SBCA, Iftikhar Ali Kayani Khan, DG SBCA, Aqeel Ahmed Chishti, Accounts Officer, A.G. Sindh, Syed Jamil Ahmed, Advocate Supreme Court, Zia Arif Janjua, Law Officer, Pakistan Rangers and Shahid Jamil Khan, Principal Law Officer, SBCA on Courts' Notice.

2020 S C M R 116

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Qazi Muhammad Amin Ahmed, JJ

ABDUL HAQ and others---Petitioners

Versus

The STATE---Respondent

Criminal Petitions Nos. 29-Q, 56-Q of 2015 and Jail Petition No.306/2015 and Cr. P. 30-Q and J.P. No. 305 of 2015, decided on 7th November, 2019.

(Against judgment dated 25.05.2015 passed by High Court of Balochistan, Quetta passed in Cr. Appeals Nos. 368, 370 and 371 of 2013)

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

----S. 6(2)(e)---Penal Code (XLV of 1860), S. 365-A---Kidnapping or abduction for ransom---Reappraisal of evidence---Benefit of doubt---Alleged abductee returned home on his own with some marks of violence on his wrist and ankle joints, and disclosed to the Investigating Officer that he was let off 3/4 days before his return---Abductee, in his statement before a Magistrate, did not mention the date of his return---Prosecution's reliance on the injuries endured by the abductee, allegedly during his captivity faded into insignificance, particularly in the absence of duration thereof in the medico legal certificate---Complainant, who was the real brother of the abductee, appeared in the witness box but did not point his finger on the accused persons---Complainant being the real brother of the abductee, was expected to bring on record the information subsequently shared with him by the abductee---Abductee massively improved upon his previous statements and was duly confronted with his deviations---Abductee also admitted his acquaintance with one of the accused persons, his co-villager, while evasively avoiding a query regarding pendency of different civil and criminal cases instituted by said accused persons against the abductee as well as the complainant---Similarly, in his examination-in-chief, the abductee did not name another accused person as being one of the culprits; while denying litigation between the two families, he however, admitted that both the accused persons in question were real brothers inter se, and lived in the same neighbourhood---No importance could be attached to the identification parade, conducted under magisterial supervision in such backdrop---In the totality of circumstances, the prosecution case was not free from doubt---Convictions of accused persons and life time sentences awarded consequent thereupon could not be sustained merely on the basis of some superficial healed wounds, genesis whereof was also shrouded in mystery of time and space---Petitions for leave to appeal, were converted into appeals and allowed and accused persons were acquitted of the charge.

Ahsan Rafique Rana, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in Cr. Ps. Nos. 29-Q and 30-Q of 2015).

Nemo for Petitioners (in Cr. P. No. 56-Q of 2015).

Abdul Rauf Lahri, Advocate Supreme Court for Petitioners (in J.Ps. Nos. 305 and 306 of 2015).

Baqar Shah, Additional Prosecutor-General Balochistan for the State.

2020 S C M R 119

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

NAWAB SIRAJ ALI and others---Petitioners

Versus

The STATE through P.G. Sindh and A.G. Sindh---Respondent

Criminal Petitions Nos. 724, 784 and 785 of 2019, decided on 17th September, 2019.

(Against the judgment dated 13.5.2019 passed by the High Court of Sindh at Karachi in Crl. Spl. A.T.As. Nos. 19, 24 and 25 of 2013 and Crl. Rev. No. 40 of 2014)

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, acts of terrorism---Supreme Court granted leave to appeal to consider the submissions of the accused petitioners that it was not a pre-planned or pre-mediated occurrence and whole of the situation developed at the spur of the moment; that the ocular account so furnished by the eye-witnesses was full of material contradictions and dishonest improvements which had shaken their credibility and their presence at the spot had also not been established; that the medical evidence also did not support the ocular account furnished by two of the prosecution witnesses; that it was a late night occurrence and not a single piece of evidence suggestive of the present case falling under the Anti-Terrorism Act, 1997 had been produced; that crime empties once sent to Forensic Science Laboratory were taken back about seventeen days later and only submitted after alleged recovery of weapon; that there was no direct motive against the accused persons; that a compromise had also been effected between the parties but the same could not be materialized because of the conviction of accused persons under S. 7 of the Anti-Terrorism Act, 1997, which was a non-compoundable offence.

Muhammad Bilal v. The State and others 2019 SCMR 1362; Amjad Ali and others v. The State PLD 2017 SC 661 and Farooq Ahmed v. State and another 2020 SCMR 78 ref.

Mehmood Akhtar Qureshi, Advocate Supreme Court and Muhammad Kasim Mirjat, Advocate-on-Record for Petitioners (in Crl. P. 724 of 2019).

Raja Rizwan Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Crl. P. 784 of 2019).

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court for Petitioners (in Crl. P. 785 of 2019).

Saleem Akhtar Buriro, Additional P.-G. Sindh for the State (in all cases).

2020 S C M R 121

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Sajjad Ali Shah, JJ

ABDUL KARIM and another---Petitioners

Versus

NASIR SALIM BAIG and others---Respondents

C.P. No. 815-K of 2016 and C.R.P. No. 19-K of 2017 in C.P. 815-K of 2016 and C.M.A. No. 391-K of 2017 in C.R.P. 19-K of 2017 and Criminal P. No. 102-K of 2018, decided on 24th January, 2019.

(Application for Intervener on behalf of Aslam and others)

(a) Karachi Building and Town Planning Regulations, 2002---

----Chapt. 19---Land use classification---Amenity plots meant for parks, playgrounds or other amenities occupied and allowed to be used for commercial purposes like marriage halls, markets, shopping centers, apartments, petrol pumps and CNG stations etc.---Legality---State's lands belonging to various agencies including Provincial and Federal Governments had been encroached upon and occupied illegally and on them huge constructions had been made---Similarly there were Railways lands on which too, encroachments and constructions had been made---Even Karachi Circular Railway lands had been occupied because of which it was no more in operation---Provincial Advocate General stated that there would be a Cabinet Meeting of Provincial Chief Minister on the subject and it would be done within two weeks and a comprehensive report would be submitted to the Supreme Court along with original un-amended master plan of the city (Karachi)---Matter adjourned.

(b) Cantonment Land Administration Rules, 1937---

----R. 4---Cantonment land---Commercial activities---Marquees built on Cantonment land---Legality---All cantonment lands meant for cantonment purposes were to be used only for cantonment purposes and not for any other use---Supreme Court directed that a report shall be called from the Cantonment Boards of City (Karachi) on the issue; that Chairmen and Director Lands, Cantonment Boards (Karachi) along with Cantonment Executive Officers shall be in attendance on the next date of hearing, who were to submit reports to the court about the removal of all sort of commercial activities from the cantonment lands more particularly certain marriage halls and marquees---Matter adjourned.

Ghulam Rasool Mangi, Advocate-on-Record for Petitioners (in C.P. 815-K of 2016 and C.R.P. 19-K of 2017).

Raja Qasid Nawaz Khan, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record/Advocate Supreme Court for Respondents (in C.P. 815-K of 2016 and C.R.P. 19-K of 2017).

Raja Qasid Nawaz Khan, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record/Advocate Supreme Court for Petitioners (in Criminal P. No. 102-K of 2018).

Kashif Paracha, D.A.G., Salman Talibuddin, Advocate-General Sindh, Muhammad Sarwar Khan, Additional Advocate-General, Syed Mumtaz Ali Shah, Chief Secretary Sindh, Dr. Saeed A. Qureshi, Focal Person, Government of Sindh, Mehtab Hussain, Assistant Manager Legal KE, Asadullah Khan, MD, KW&SB, Chanzeb, Law Officer, KW&SB, Muqadas Hyder, SSP City South, Akram Arain, SHO P.S. Baghdadi, Hizbullah Sheikh, DD Lyari, SBCA, Ejaz Malik, Dputy Director/Incharge, Lyari Town, SBCA, Iftikhar Ali Kayani Khan, DG SBCA, Aqeel Ahmed Chishti, Accounts Officer, A.G. Sindh, Syed Jamil Ahmed, Advocate Supreme Court; Zia Arif Janjua, Law Officer, Pakistan Rangers; Shahid Jamil Khan, Principal Law Officer, SBCA, Mazhar Ali, AIG Legal, R.B. Qureshi for LU, Jamil Ahmed Baloch, Additional Director KDA, Iftikhar Ali Shahwani, Commissioner Karachi, Aftab Memon, Member LU, Muhammad Hussain Sayed, Senior Member BOR and Khalid Hyder Shah, Secretary Local Government on Court's Notice.

2020 S C M R 124

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Yahya Afridi, JJ

SAJJAD ALI---Petitioner

Versus

VICE-CHANCELLOR through Registrar University of Malakand at Chakdara, Dir Lower and others---Respondents

Civil Petition No. 3107 of 2018, decided on 24th October, 2019.

(On appeal against the judgment of Peshawar High Court, Mingora Bench dated 28.05.2018, passed in Writ Petition No. 290-M of 2013)

Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----Ss. 10 & 12 [as amended by the Khyber Pakhtunkhwa Disabled Persons (Employment and Rehabilitation) (Amendment) Act, 2012---Establishments to employ disabled persons--- Disability quota, calculation of---Provisions of S. 10 of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 ('the Ordinance') mandated that not less than two percent of the total number of persons employed by an establishment at any time shall be disabled persons---Under S. 10 of the Ordinance the quota for disabled persons in an establishment was calculated on the basis of the total number of persons employed by the establishment and not on the basis of the number of posts advertised at a given time---To give effect to S. 10, S.12 of the Ordinance must also be given full effect---Under S. 12, a disabled person desirous of getting employed had to ensure that his name was registered with the Employment Exchange of the area---Additionally, the Provincial Council was to assess the nature of functional disability of the person and also as to his aptitude and the nature of work he was fit to do and if the Provincial Council was of the view that the disabled person was fit to work it shall inform the Employment Exchange, indicating the nature of work for which he may be employed---Total quota of 2% calculated on the basis of the fixed number of the employees in an establishment was then given effect through the information collected by the Employment Exchange with the assistance of the Provincial Council---Calculating the quota under S. 10 would not lead to much result if the exercise under S. 12 had not been undertaken, especially regarding the nature of work a disabled person was fit to perform.

Nasir Mahmood, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Rehman Ullah, Advocate Supreme Court along with Rauf Khattak, A.D (SWD) KPK for Respondent No.1.

2020 S C M R 128

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Qazi Muhammd Amin Ahmed, JJ

DAD MUHAMMAD---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 36-Q of 2012, decided on 6th November, 2019.

(Against judgment dated 25.4.2012 passed in Balochistan High Court, Quetta in Cr. Appeal No. 375 of 2009 along with M.R. No.25 of 2009)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused was alleged to have been complicit in the murder of his daughter, who was allegedly strangulated to death by her brother and husband---No piece of evidence was found on record to even obliquely connect the accused with the crime---Evidence of discovery of dead body, in the wake of a disclosure, when examined in its totality also failed to sustain the charge inasmuch as it was prosecution's own case that the deceased was deceitfully taken to the venue where after she was murdered, and buried in a graveyard---In such circumstances it was intriguing as to why the co-accused persons after they had surreptitiously accomplished their purpose, disinterred the corpse, so as to dump it once again in a well---Witness of discovery of dead body, did not utter a single word about any disclosure---Volume and standard of evidence, even otherwise, was far from being sufficient to sustain the capital charge---Accused entered the witness-box on oath in disproof of the charge, and with vehemence, denied his complicity in the crime and prosecution encountered him merely with bald suggestions alone---In this backdrop, it would be grievously unsafe to maintain the conviction without potential risk of error---Petition was converted into appeal and allowed and the accused was acquitted of the charge.

Ms. Aisha Tasneem, Advocate Supreme Court for Petitioner.

Baqar Shah, Advocate Supreme Court/State Counsel for the State.

2020 S C M R 131

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Ijaz ul Ahsan, JJ

Messrs ZAK RE-ROLLING MILLS (PVT.) LTD.---Petitioner

Versus

APPELLATE TRIBUNAL INLAND REVENUE and others---Respondents

Civil Petition No. 2727 of 2019, decided on 17th October, 2019.

(Against judgment dated 11.04.2019 of Islamabad High Court, Islamabad passed in STR No. 25 of 2017)

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

----S. 3(1A) [as existed prior to 01-07-2017]---Sales Tax Special Procedures Rules, 2007, R. 58H---Steel-melter/Re-rolling mill---Taxable supplies made to unregistered persons---Levy of further sales tax under S. 3(1A) of Sales Tax Act, 1990---Permissibility---Payment of sales tax under a specific assessing procedure envisaged in R. 58H of the Sales Tax Special Procedures Rules, 2007, did not exempt or save the tax-payer from levy of further tax under S. 3(1A) of the Sales Tax Act, 1990.

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

----S. 47---Constitution of Pakistan, Art. 185(3)---Petition for leave to appeal before the Supreme Court---Pleas/arguments raised---Scope---Petitioner raised pleas/points before the Supreme Court which were not raised in the Reference application before the High Court nor were noted in the impugned judgment of the High Court---Such pleas were at best untested second thoughts---Under Art. 185(3) of the Constitution, the Supreme Court dealt with (only) questions of law that had been urged before the forum below.

M. Naeem Qazi, Advocate Supreme Court for Petitioner.

Babar Bilal, Advocate Supreme Court for Respondents.

2020 S C M R 132

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Yahya Afridi, JJ

PHOENIX SECURITY (PVT.) LIMITED---Petitioner

Versus

PIR MUHAMMAD and others---Respondents

Civil Petitions Nos. 4719, 4752-4759, 4791-4795 of 2017, decided on 3rd October, 2019.

(On appeal against Order dated 17.10.2017 passed by the Lahore High Court, Rawalpindi Bench in Writ Petitions Nos. 2803 to 2806 and 3000 to 3002 of 2014 and 303 to 309 of 2015)

(a) Punjab Shops and Establishments Ordinance (VIII of 1969)---

----S. 5(1)(ix)---Persons not covered under the Punjab Shops and Establishments Ordinance, 1969 ('the Ordinance')---Scope---'Watchmen'---Whether 'security guards' employed by a private company were watchmen, and hence not covered under the Ordinance---Held, that according to dictionary meanings term 'watchman' included a security guard, as both the terms, "watchman" and "security guard", were synonymous to each other and in the nature of their duties also---By virtue of S. 5(1)(ix) of the Ordinance, "security guards" stood excluded from the application of the Ordinance and thus they could not claim any benefit provided in the said Ordinance.

Black's Law Dictionary, Sixth Edition; Oxford Advanced Learner's Dictionary, New 8th Edition and Oxford Thesaurus of English, Third Edition ref.

(b) Payment of Wages Act (IV of 1936)---

----S. 2(vi)--- "Wages"--- Definition--- Scope--- Wages for weekly holidays and overtime---Such wages were covered under the definition of wages provided under S. 2(vi) of the Payment of Wages Act, 1936.

(c) Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---

----Schedule, Standing Orders 8(1)(b) & 12(6)---Employees of a private company---Double rate of wages for weekly holidays and overtime, claim for---No contract or custom or usage for paying double rate of wages---Held, that the evidence available on record made it clear that the employees were entitled to payment of wages for weekly holidays and overtime---Employees admitted that they had been paid wages by the employer for the work performed by them on weekly holidays and also for overtime---Such admission could be considered as a contract between the employer and employees or a custom and usage where the employer had been obtaining work from the employees on weekly holidays and also made them work overtime, but at the same time paid the employees for it---Employees in their evidence had not stated anywhere that there was a contract between them and the employer or there was a custom or usage of paying double the rate of wages for working on weekly holidays or for overtime---Employees, in the present case, were not entitled to claim wages for weekly holidays and overtime at double the rate of wages---Petitions for leave to appeal were converted into appeals and allowed accordingly.

Shahid Anwar Bajwa, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Petitioner (in all cases).

Abdul Rehman Qadir, Advocate Supreme Court, Kh. Muhammad Arif, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Respondent No.1 (in all cases).

2020 S C M R 146

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Ijaz ul Ahsan, JJ

Messrs PAK GULF CONSTRUCTION COMPANY (PVT.) LTD., ISLAMABAD---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Finance, Ministry of Finance, Islamabad and others---Respondents

Civil Petition No. 3224 of 2019, decided on 29th October, 2019.

(Against the judgment dated 03.06.2019 passed by the Islamabad High Court, Islamabad in Writ Petition No. 271 of 2018)

Capital Value Tax Rules, 1990---

----R. 4--- Finance Act (V of 1989), S. 7(4)--- In house sale/purchase/transfer of immoveable property at offices of private real estate developers/companies---Capital Value Tax (CVT), payment of---Collecting authority---Scope---Petitioner, a private limited company, was engaged in the business of constructing and selling units/flats/apartments through sale agreements---Petitioner received a notice from the tax authorities alleging that it had transferred various properties/flats/apartments to its customers, therefore, a specified sum was payable by it as Capital Value Tax (CVT)---Pleas raised by the petitioner were that the tax authorities had no jurisdiction to declare the petitioner as a collecting authority being attesting and transferring authority, and that the petitioner being a private limited company was not an attesting/transferring authority and was not under any legal obligation to collect and pay any CVT---Held, that S. 7(4) of the Finance Act, 1989 provided that CVT was required to be collected by the person responsible for registering or attesting the transfer of the asset in respect of which the tax was payable at the time of registering or attesting the transfer---Asset included immoveable property and structures thereon---Liability to pay was on the purchaser at the time when the transfer in her/his/its name took place and the responsibility to collect the same was on the person/authority, registering or attesting such transfer---Authority to collect CVT vested with the registration authority namely, the Registrar of Documents, however, during recent years with the development of co-operative housing societies and statutory authorities engaged in the business of development and sale of real estate, a methodology of transferring immovable property had evolved, whereby properties were transferred privately without involving the Registrar of Documents---Such private transfers were designed to avoid transactional costs, taxes and duties which in turn led to higher turnover of such properties for investment purposes---Such societies, statutory authorities and even limited liability companies (such as the petitioner) adopted various modes of undertaking such transfers including issuance of transfer letters, allotment letters, agreements to sell and other similar documents which did not require registration---Consequently, despite multiple sale transactions where immovable property may change hands variously by way of such sale transactions, the exchequer did not receive any amount by way of Stamp Duty, Registration Fee and CVT---In the present case, the petitioner had admitted that it entered into agreements to sell with buyers, received the full sale consideration and issued documents evidencing such transaction---On the basis of the said transaction the buyer was put into possession of the immovable property by the petitioner whereafter the buyer had the option to apply to the relevant Development Authority, which was the regulatory authority for specified areas of the city and inter alia maintained the records of the properties within its jurisdiction, to enter the name of such buyer in its records for regulatory purposes---Relevant Development Authority did not register or attest the agreement to sell---Methodology adopted by the petitioner was, in all material terms the same as a co-operative societies which had been obligated to collect CVT at the time of transfer of properties amongst the members---Sale, purchase, transfer and other similar transactions were undertaken between the petitioner-company which was the owner of the immovable assets and buyer in whose favour the transfer took place, therefore, it was only logical that the petitioner should be obligated to collect CVT from the purchaser and deposit it with the Federal Government---Totality of the transaction had the effect of transfer of the property in favour of a buyer and as such brought the petitioner within the purview of S. 7(4) of the Finance Act, 1989 read with R. 4 of the Capital Value Tax Rules, 1990---Consequently, if the petitioner had failed to collect CVT from the person/entity liable to pay the same, being the registering agency and or attesting authority it was obligated to pay the same to the Federal Government---Petition for leave to appeal was dismissed accordingly and leave was refused.

Hafiz M. Idrees, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Baber Bilal, Advocate Supreme Court for Respondents.

2020 S C M R 153

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Mazhar Alam Khan Miankhel, JJ

NIAMATULLAH KHAN ADVOCATE and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No. 9 of 2010 and Criminal Original Petitions Nos. 7-K, 19-K of 2017 and Civil Misc. Applications Nos. 6206 of 2013, 1552-K of 2018, C.M.A. 1600-K/18 and C.M.As. 22-K, 23-K, 59-K, 101-K, 311-K, 394-K, 423-K, 425-K, 459-K, 460-K/2019 and Criminal Misc. Applications Nos. 121-K, 124-K, 132-K of 2017, 111-K, 8-K, 19-K, 20-K, 25-K, 32-K, 38-K, 44-K, 52-K, 59-K, 71-K, 72-K, 95-K, 199-K, 214-K, 229-K of 2018 and Crl. M.As. Nos. 01-K, 2-K, 26-K of 2019, decided on 9th May, 2019.

(a) Constitution of Pakistan---

----Art. 184(3)---Matter regarding operation of circular train in Karachi city---Secretary, Railway assured the Court that the works for the circular railway would be completed within a period of fifteen days from present day and thereafter the Provincial Government would take over the said project and run the trains both circular as well as the local---Supreme Court directed that the Provincial Government shall ensure that circular railway as well as the local railway were operational within one month's time; that the Provincial Chief Minister, Mayor of Karachi city, Provincial Chief Secretary, the Commissioner of the city and the Railways Authorities shall ensure that such schedule of operation of circular as well as local train was adhered to and its service was made available to the people of Karachi city within this period without fail and whatever assistance was required the Federal Government, Planning Division, shall give its input and ensure that the train was made operational within this period---Matter adjourned.

(b) Constitution of Pakistan---

----Art. 184(3)---Matter regarding operation of circular train in Karachi city---Removal of encroachments from railways land---Thousands of residents were residing on the encroached land and doing their business---Such state of affairs had been brought about by the railway itself---Supreme Court directed that the railways authorities shall ensure that the removal of encroachment would be carried out but the people who were dispossessed or dislocated from this operation were accommodated appropriately and for this purpose the railways was to take assistance from the Federal as well as the Provincial Government and also from the Mayor of the city; that wherever these encroachers were going to be settled, proper amenities of modern living shall be provided to them and such place shall not be allowed to become another slum in the city; that in this regard proper consultation with city planners and developers should be obtained in advance and all engineering concerns as well as the environmental authorities be taken on board; that it was expected that such shifting would be done on top priority by all authorities within a period of one year; that progress report in this regard shall continuously be given by the Mayor of the city, Provincial Chief Secretary, the City Commissioner, as well as the Secretary, Railway, and that such report shall be made available to the Court on the next date of hearing---Matter adjourned.

(c) Constitution of Pakistan---

----Art. 184(3)---Matter regarding construction of a building adjacent to Aladin Park on Rashid Minhas Road (Karachi)---Land on which building in question was being constructed was claimed by several parties including the Evacuee Trust Board, Board of Revenue and Horticulture Society---Supreme Court directed that construction of the said project shall immediately be stayed from present day and all relevant authorities of the government shall ensure that no further construction on the said project was made rather the possession of it was to be taken over by the City Commissioner, who shall ensure that no person entered the said premises until the issue pertaining to its ownership was decided, and that persons claiming ownership of the said project be issued notice for appearance on the next date of hearing---Matter adjourned.

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

---S. 21(1)---Constitution of Pakistan, Art. 140-A---Infrastructure of the city---Mayor, powers of---Plea of city Mayor that as regards the overall infrastructure of the city, he had no power with him to do any work for that all his powers which were originally mentioned in the Sindh Local Government Act, 2013, through amendment, had been taken over by the Provincial Government itself; that now the Provincial Government was running the city itself through its own Secretaries including Secretary, Home who was doing the development work of the city, and that his financial powers had also been taken away and all income of the city was being received by the Provincial Government---Held, that Secretaries of the Provincial Government who were supposed to look after the whole of the Province to attend to their respective work had been allowed to work for the development of the city---No one had informed the Court that such activity of the Secretaries of the Provincial Government was legal, proper and permissible by the law---Supreme Court directed that the Provincial Chief Secretary shall file a proper report before the Supreme Court explaining as to why the local government in the city had been made functionless for that it was not prepared to take responsibility in respect of any of the development work in the city---Matter adjourned.

(e) Constitution of Pakistan---

----Art. 184(3)---Matter regarding occupation of road footpaths by police and Ranger officials---Supreme Court directed the Provincial Inspector General of Police and the Director General Rangers to appear before the Court along with their respective reports on the next date of hearing ensuring that footpaths of roads were not used for any sort of construction---Matter adjourned. (f) Constitution of Pakistan---

----Art. 184(3)---Matter regarding occupation of road footpaths outside hospitals and hotels---Pedestrian rights---Scope---No footpath could be occupied by any entity including entities working for social purposes and all such occupations were to be removed---Supreme Court directed that occupations of the footpath and open land in front of different hospitals should be cleared and the city should be made walkable in that pedestrian rights had to be protected; that the city Government shall ensure that proper bridges for pedestrians were constructed all over the city for safe crossing of the roads; that road signs including zebra crossing, roads lines, road furniture and all other road requirements were to be met in accordance with law and the standard of requirements; that open spaces and service streets and roads occupied by commercial organizations, shops, hotels shall be removed and their use shall be restored, and that the Provincial Chief Minister Sindh shall implement present order and report compliance---Matter adjourned.

(g) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope---Supreme Court was not bound by any of the orders passed by the High Court---In case the Supreme Court found that any illegality had been committed and such illegality came within the provisions of the Art. 184(3) of the Constitution, the Supreme Court could strike down any of the orders and terminate the proceedings pending before the High Court.

(h) Constitution of Pakistan---

----Art. 184(3)---Matter regarding encroachment upon and illegal construction on land allotted for Kidney Hill Park in Karachi city---Fake and falsified allotment and lease documents and stay orders obtained on basis thereof---Supreme Court directed that the Commissioner, Karachi Metropolitan Corporation shall examine all record pertaining to the Hill Park and its land and ensure that the whole land of the park was restored for park purposes and no part of it was allowed to be occupied by any person; that if any illegal fraudulent allotment and lease was found, the Commissioner shall immediately take action against such allottee/lessee and ensure its removal from such occupation including the construction that may have been made---Matter adjourned.

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

----Sched. II---Bus rapid transit line known as 'Green line" under construction in Karachi city---Company established by the Federal Government for construction work on the Green line---Legality---Planning, development and maintenance of inter district roads, bridges, street lights and storm water drains and also the traffic engineering were the functions of the City Government in terms of Schedule II to the Sindh Local Government Act, 2013---No approval of the City Government had been obtained for planning, development and maintenance of the Green Line nor any traffic engineering aspect of it had been examined and approved by the City Government , which was a serious issue that needed to be addressed by the relevant parties in order to ensure that whatever work was done in the city of Karachi was in accordance with law and not against the mandate of the law---Any work done against the mandate of law was liable to have serious effects and consequences---Matter adjourned. (j) Constitution of Pakistan---

----Art. 184(3)---Matter regarding demolition of Sea Breeze Tower, Karachi---Said building had already been declared as dangerous and its demolition had also been ordered but for years together the building had not been demolished---Supreme Court directed that the Director, Cantonments Land shall ensure that the building was demolished so that valuable lives of the people were not lost in case the building collapsed at any time, and that a report in this regard would be made available by the Director, Cantonments/Military Lands to the Supreme Court on the next date of hearing---Matter adjourned.

(k) Constitution of Pakistan---

----Art. 184(3)---Matter regarding illegal construction on Young Men's Christian Association (YMCA) playground, Karachi---No one had the authority to occupy a playground and it was to be used for the purposes of playground and nothing else---Supreme Court directed that in no circumstances YMCA playground could be used for commercial exploitation and it shall be used for the betterment and development of the people of Karachi city, and that city Commissioner shall ensure that all construction and occupation on the playground shall be removed without fail and the same was to be done within a period of two days---Matter adjourned.

(l) Constitution of Pakistan---

----Art. 184(3)---Matter regarding encroachments on government lands, parks, playgrounds and other amenity lands---Supreme Court directed that a report be filed by the Provincial Chief Secretary, city Commissioner, Commissioner of Karachi Metropolitan Corporation, Director General, Karachi Development Authority and all other civic agencies including Director General, Layari Development Authority and Director General, Malir Development Authority regarding removal of encroachments from government lands, parks, playgrounds and all other amenity lands; that a comprehensive report regarding such removal of encroachments be filed with up to date data supported by satellite maps; that Director General Sindh Building Control Authority shall ensure that all illegal constructions were removed, however, if any building was residential accommodating a large number of people in it with families, then coordinated steps shall be taken to ensure the rehabilitation of such people---Matter adjourned.

(m) Constitution of Pakistan---

----Art. 184(3)---Matter regarding marriage hall built on land belonging to Pakistan International Airlines (PIA)---Relevant official of PIA appeared before the Supreme Court and made a categorical statement that marriage hall on the land of PIA planetarium shall immediately be demolished and the planetarium would be revived---Supreme Court directed that the Chief Executive Officer of PIA shall ensure that all lands allotted to PIA for its own use were not exploited commercially and in this regard he shall submit a report to the Court on next date of hearing giving full details about the land allotted to PIA---Matter adjourned.

(n) Karachi Port Trust Act ( Bombay Act VI of 1886)---

----Preamble---Matter regarding land belonging to Karachi Port Trust (KPT)---Supreme Court directed Chairman KPT to be present in court on next date of hearing with report signed by him that all port lands were used for port purposes and in accordance with Karachi Port Trust Act, 1886; that no land whatsoever of the port shall either be sold/transferred, leased, allotted to any person or its employee and whatever allotment, lease or transfer had taken place was to be immediately cancelled and reverted back to the port---Matter adjourned.

(o) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope---Under said jurisdiction the Supreme Court could not entertain a private and individual issue.

In Attendance:

Anwar Mansoor Khan, Attorney General for Pakistan, M. Zahid Ibrahim, Additional DAG, Kafil Ahmed Abbasi, DAG, Brig. (R) Shaoib Ammer, Secretary, DHA, Shahid Jameel Khan, PLO, SBCA, Sameer Ghazanfar, Advocate Supreme Court, Malik Ejaz, Director SBCA, K.A. Wahab, Advocate-on-Record, Khaleeq Ahmed, Advocate Supreme Court, Chanzeb, Law Officer, Water Board, Rasheed A. Rizvi, Senior Advocate Supreme Court, Dr. Saeed Ahmed Qureshi, Focal Person, Chief Secretary, Arshad M. Tayebaly, Advocate Supreme Court, Azhar Muqeem, LO, AMC, Rizwan Ahmed Siddiqui, Advocate Supreme Court, Ms. Sabiha Parveen, in person, Khalid Javed Khan, Advocate Supreme Court, Khawaja Sham ul Islam, Advocate Supreme Court, Shahab Sarki, Advocate Supreme Court, Ismael Shaheedi, in person, Zakir Hussain Khashkheli, Advocate Supreme Court, Qadir H. Sayeed, Advocate Supreme Court, Mazhar Ali B. Chohan, Advocate-on-Record, Waseem Akhtar, Mayor, Karachi, Suhai Aziz, S.P. City Town, Abdul Rehman, Advocate Supreme Court, Manzoor Ali, DLM State Life, Farrukh Taimoor, Secretary, Railways, Hafeez Ullah, Dir. Railway Land Lahore, Manzoor Ali Shah, D.S. Pak-Railway, Karachi, Mazhar H. Alvi, SP Legal, Junaid Ahmed, D.S. Encroachment Clifton, Waqar Hussain, Dir. Sindh EPA, Col. Irfan Siddiqui, Pakistan Coast Guards, Lt. Col. Abbas Raza, Pakistan Coast Guards, Maj. Haris Saleem, Pakistan Coast Guards, Fayyaz, Law Officer, PIA, Muhammad Riaz, App. Officer, Customs, M. Aslam Ch., Legal Advisor, Karachi Cantonment, Sarfraz Ahmed, Assistant Dir. ASF, Iftikhar Shahwani, Com. Karachi, Iftikhar Qaim Khani, D.G. SBCA, Abdul Qadeer Mangi, D.G. KDA, Dr. Saifur Rehman, M.C. KMC, Nisar Ahmed, Chief Eng. KIDCL, Mushtaq Meriah, Principal, YMCA, Hassan Mazahir, Secretary Gymkhana, Brig. (R) Shoaib Amer, Secretary DHA, Aija Mazhar, Chief Opp. Officer PIA and Khalid Saleem, Law Officer CAA.

2020 S C M R 168

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

MIR MUHAMMAD and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Criminal Petitions Nos. 4029, 4070, 4092, 4110, 4111, 4112 and 4131 of 2019, decided on 26th November, 2019.

(Against order dated 5.11.2019 passed by High Court of Sindh at Sakhar in C.Ps. Nos. D-364/2019, D-365/2019, D-1408/2016, D-837/2016, D-892/2016, D-1905/2016, D-1825/2016, D-241/2015 and D-2088/2014, respectively)

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

----S. 9--- Misappropriation of funds by officials of irrigation department and contractors---Pre-arrest bail, refusal of---On a complaint alleging violation of rules as well as embezzlement in a project the High Court directed a probe, on the basis whereof, physical verification by the experts found non-execution of various planks of the project as well as partial completion of the work, which was much less than the required standards---In this backdrop, mala fides could not be attributed to the initiation of proceedings against the accused persons---While refusing (anticipatory) bail to the accused persons, the High Court had provided an option to them to conveniently vindicate their position sooner rather than later by directing the Accountability Court to conclude their trial within a period of three months---View taken by the High Court being well within the remit of law did not call for interference---Petition were dismissed, leave to appeal was refused and relief of pre-arrest bail was denied.

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

----S. 498---Pre-arrest bail, grant of---Scope---Grant of pre-arrest bail was an extraordinary remedy, essentially rooted into equity; it was a judicial power which was to be cautiously exercised with a view to protect the innocent from the horrors of abuse of process of law, in prosecutions initiated by considerations and for purposes stained with mala fide---Said judicial protection was not to be extended in every run of the mill criminal case, with pleas structured on bald denials and parallel stories.

Muhammad Munir Paracha, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No.4029 of 2019).

Shahab Sarki, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in C.Ps. Nos.4070, 4131 of 2019)

Aftab Alam Yasir, Advocate Supreme Court for Petitioners (in C.P. No.4131 of 2019).

Qasim Mir Jat, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.P. No.4092 of 2019).

Syed Qalb-i-Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in C.Ps. Nos.4110-4112 of 2019).

Syed Nayyar Abbas Rizvi, Prosecutor General NAB for the NAB (in all cases).

2020 S C M R 171

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

Messrs KUWAIT NATIONAL REAL ESTATE COMPANY (PVT.) LTD. and others---Petitioners

Versus

Messrs EDUCATIONAL EXCELLENCE LTD. and another---Respondents

Civil Petition No. 1444 of 2019, decided on 19th September, 2019.

(Against order dated 06.03.2019 of the Lahore High Court, Lahore passed in Civil Revision No. 253698 of 2018)

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

----S. 12---Suit for specific performance of agreement to sell---Pre-requisites---Deposit of sale consideration in court---Party seeking specific performance of an agreement to sell was essentially required to deposit the sale consideration amount in Court---By making such deposit the plaintiff demonstrated its capability, readiness and willingness to perform its part of the contract, which was an essential pre-requisite to seek specific performance of a contract---Failure of a plaintiff to meet the said essential requirement disentitled him to the relief of specific performance, which undoubtedly was a discretionary relief.

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

----O. XII, R. 6---Judgment on admission---Admission---Scope---In order to invoke the provisions of O. XII, R. 6, C.P.C. it was absolutely necessary that the admission relied upon be clear, unambiguous, unqualified and unequivocal, and further that the purported admission had to be read as a whole; one could not be allowed to rely on a part (of the admission) ignoring the rest.

Zahid F. Ebrahim, Advocate Supreme Court for Petitioners.

Mustafa Ramday, Advocate Supreme Court for Respondent No.1.

Ali Masood Hayat, Advocate Supreme Court for Respondent No. 2.

2020 S C M R 178

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Munib Akhtar, JJ

ABDUL KHALIQUE---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 707 of 2019, decided on 22nd August, 2019.

(Against the judgment of the High Court of Sindh, Circuit Court, Hyderabad dated 20.05.2019 passed in Criminal Appeal No. S-89 of 2017)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused was alleged to have inflicted dagger blows on the body of the deceased---Trial Court sentenced the accused under S. 302(b), P.P.C. and sentenced him to imprisonment for life---High Court maintained the sentence awarded by Trial Court---Held, that though there was delay of about sixteen hours in lodging the FIR but the fact remained that it had come on record that complainant had sent a cousin of deceased, whose name was also given in the FIR, to the police station for issuance of letter for medical treatment of then injured deceased from the hospital---In this respect a rapat was also recorded by the police on the day of occurrence and a letter was also issued with the signatures of relevant police official to the Medical Officer for conducting medical examination of deceased and for issuance of medico-legal certificate---Doctor who medically examined the deceased in injured condition stated in his examination in chief that deceased was brought by his relatives, who informed him that one of his cousins had gone to police station for obtaining the letter, whereupon the doctor started examination of the deceased---Delay in lodging the FIR, in circumstances, had reasonably been explained by the prosecution---Even otherwise, the first priority of kith and kin of deceased was to save his life and they tried to do so by first taking him to a local hospital, wherefrom he was referred to a hospital at another city---Even in this process, they reported the matter to police and obtained official letter of police for medical examination of deceased---All the three eye-witnesses remained consistent on all the material aspects so far as role of accused of causing dagger blows on the person of deceased was concerned---Though the complainant was declared hostile, but to the extent of accused, his testimony endorsed the statements of other two eye-witnesses---Medical evidence adduced by the doctor who medically examined the deceased in an injured condition and the other doctor who conducted autopsy on the dead body of deceased supported the ocular account---During the course of investigation, a dagger was recovered on the pointation of the accused, which was blood-stained---Prosecution had successfully proved its case against the accused beyond reasonable doubt---Courts below had already taken a lenient view by not awarding sentence of death to the accused, which, in the circumstances of the case was justified---Petition for leave to appeal was dismissed and leave was refused.

Mahmood Akhtar Qureshi, Advocate Supreme Court and Muhammad Kassim Mirjal, Advocate-on-Record for Petitioner.

Hussain Bakhsh Baloch, Additional PG for the State.

2020 S C M R 182

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Ijaz ul Ahsan and Munib Akhtar, JJ

COMMISSIONER OF INCOME TAX (LEGAL) REGIONAL TAX OFFICER, PESHAWAR---Appellant

Versus

SAFEER JAN---Respondent

Civil Appeal No. 1127 of 2011, decided on 5th November, 2019.

(Against judgment dated 26.05.2009 passed by the Peshawar High Court, Peshawar in T.R. No. 85 of 2007)

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

----S. 12(18)---Income chargeable to tax---Scope---Partnership firm---Gift deeds---Whether gift amounts received by one partner from other partners in the firm/AOP (Association of persons) could be added by the tax officer under S. 12(18) of the erstwhile Income Tax Ordinance, 1979 ('the Ordinance')---Held, that plain reading of S. 12(18) of the Ordinance showed that the said provision was attracted when loans, advances and gifts were received in cash---In the present case, however, admittedly, no cash exchanged hands---Members of the partnership firm/AOP had only authorized the respondent-partner to withdraw a certain amount from their share in the AOP; as such no cash had been paid or received, which fact had clearly been mentioned in the gift deeds executed between the partners---Transaction was ex facie reflected in book entries made in the records of the AOP---Further, the language of the gift deeds was clear that the amount gifted was liable to be withdrawn by the donee (respondent) from the share of donors in the AOP, which further lent support to the finding that only a right was given to the respondent to withdraw the amounts in question from time to time from the share of the donors in the AOP and that no transaction which could be interpreted as immediate and actual transfer of funds had taken place---Provisions of S. 12(18) of the Ordinance were not attracted in the present case---Appeal was dismissed.

Rehman Ullah, Advocate Supreme Court for Appellant.

Syed Mudassar Ameer, Advocate Supreme Court for Respondent.

2020 S C M R 185

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

MUHAMMAD JAWED HANIF KHAN and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU SINDH and others---Respondents

Civil Petitions Nos. 302, 579 and 580 of 2019, decided on 27th November, 2019.

(Against order dated 14.12.2018 passed by High Court of Sindh at Karachi in C.Ps. Nos. D-5118, D-4279 of 2018 and D-2569 of 2016)

(a) Civil service---

----Void/illegal orders of superiors---Non-valid defence---Compliance by a civil servant with void or illegal orders/directions, issued by his superiors, could not be received as a valid defence nor such a plea could absolve him from the fall out of consequences of an illegal act---Primary responsibility of a civil servant was to the Republic and not to his superiors or political masters of the time; he was viably entrenched by statutory protections and, thus, was required by law to maintain his independence as well as subservience to the law.

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

----S. 9---Corruption and corrupt practices---Bail, grant of---Rule of consistency---Allegation against the accused was that in his capacity as the Chairman, Karachi Port Trust, he instrumented regular appointment of hundreds of stipend employees in derogation of the rules, costing public exchequer a vast sum of money---Plea of accused that he was simply following the command of the then Federal Minister for Ports and Shipping, issued in pursuance to an announcement/ directive of the then Prime Minister calling for regularization of all temporary employees in Karachi Port Trust---Held, that role of accused in the impugned transaction, was an issue to be essentially settled by the Accountability Court on the strength of evidence alone---High Court had already allowed pre-arrest bail to two co-accused persons, who were Human Resource Managers at Karachi Port Trust, on the grounds that they, being at a lower rung, haplessly followed Ministerial directions passed on through proper channel and as such determination of their culpability was consequent upon recording of evidence---Although such grounds for granting extra-ordinary protection of pre-arrest bail did not commend approval, however the only expedient option in the present case was the status quo of equality (i.e. to follow the rule of consistency)---Accused was granted bail in circumstances.

Munir A. Malik, Senior Advocate Supreme Court and Muhammad Kassim Mirjat, Advocate-on-Record for Petitioners (in C.P. No.302 of 2019).

Sittar Sahil, Special Prosecutor NAB and Ausaf Talpur, Deputy Director NAB for Petitioners (in C.Ps. Nos.379 and 580 of 2019).

Sittar Sahil, Special Prosecutor NAB and Ausaf Talpur, Deputy Director NAB for Respondents (in C.P. No.302 of 2019).

Khaleeq Ahmad, Advocate Supreme Court for Respondent No.1 (in C.P. No.579 of 2019).

S.M. Iqbal, Advocate Supreme Court for Respondent No. 1 (in C.P. No.580 of 2019).

2020 S C M R 188

[Supreme Court of Pakistan]

Present: Gulzar Ahmad and Munib Akhtar, JJ

SHAMS UR REHMAN---Petitioner

Versus

MILITARY ACCOUNTANT GENERAL, RAWALPINDI and another---Respondents

C.P. No. 4439 of 2017 and C.M.A. No. 8554 of 2017, decided on 18th October, 2019.

(Against the order dated 17.10.2017, passed by the Federal Service Tribunal, Islamabad in R.P. No. 176 of 2017 in Appeal No.394(P)CS/2015)

Civil service---

----Higher selection grade (BPS) granted due to fault of department---Whether salary and benefits paid due to such fault/error could be recovered---Locus poenitentiae, principle of---Estoppel---Petitioner (civil servant) was appointed as senior auditor in BPS-11---Subsequently petitioner was erroneously granted selection grade BPS-15 and started getting pay of such selection grade---Once the department realized its mistake, it reverted the petitioner back to BPS-11 and sought recovery of salary and benefits paid to him on the principle of locus poenitentiae---Held, that for almost 9 years the petitioner served in selection grade BPS-15 and received the emoluments and benefits of such post---Selection grade BPS-15 was granted to the petitioner by the department itself and the petitioner apparently had no role in obtaining such post---When the petitioner performed the work of a higher post of selection grade BPS-15 for almost 9 years, then on the principle of locus poenitentiae the benefits paid to him, could not be recovered as said principle would not apply---Further the principle of estoppel would be applicable in the present case against the department from recovering the emoluments and benefits of BPS-15 from the petitioner---Petition for leave to appeal was converted into appeal and allowed.

Engineering-in-Chief Branch through Ministry of Defence and another v. Jalaluddin PLD 1992 SC 207 and Mst. Sajida Javed v. Director of Secondary Education, Lahore Division and others 2007 PLC (C.S.) 364 ref.

Mrs. Misbah Gulnar Sharif, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Sajid Ilyas Bhatti, Additional A.G. and Imran Feroze, D.R. AAO, Litigation for Respondents.

2020 S C M R 192

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

SUFYAN NAWAZ and another---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 201 of 2015 and Criminal Petition No. 322-L of 2015, decided on 21st October, 2019.

(Against the judgment of the Lahore High Court, Lahore dated 05.03.2015 passed in Criminal Appeal No. 2787 of 2010 and Murder Reference No. 4 of 2011)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Presence of alleged eye-witnesses at place of occurrence doubtful---Non-recovery of empties from the spot---Unexplained delay of about ten hours in autopsy of deceased alone created dent in the prosecution story so far as presence of eye-witnesses at the place of occurrence was concerned---Complainant of the FIR stated that the fire shot by the co-accused hit the deceased on the back of his chest, whereas the complainant of the private complaint made material improvements by stating that such fire shot hit the deceased on the front of his chest---Complainant of the private complaint while appearing before the Trial Court stated that he was a cultivator; that he used to remain at his fields round the clock and would come to the village as and when needed---Said complainant admitted that in his statement before police, he had not assigned any reason for coming to village on the day of occurrence---In such circumstances, complainant was, by all means, a chance witness and his presence at the spot at the relevant time was not free from doubt---Motive alleged by the prosecution had already been disbelieved by the courts below---High Court had discarded the recovery of pistol from the accused on the ground that the investigating agency was not able to collect any empty from the spot and the report of Forensic Science Laboratory was confined only to working condition of that pistol---Prosecution had failed to prove its case against the accused beyond reasonable doubt, in circumstances---Jail petition was converted into an appeal and allowed and the conviction and sentence of accused were set aside by acquitting him of the charge framed against him.

Miss Nighat Saeed Mughal, Advocate Supreme Court for Petitioners (in Jail Petition No. 201 of 2015).

Syed Karamat Ali Naqvi, Advocate Supreme Court for Petitioners (in Criminal Petition No. 322 of 2015).

Ch. M. Sarwar Sindhu, Additional PG Punjab for the State.

2020 S C M R 196

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Qazi Muhammad Amin Ahmed and Amin-ud Din Khan, JJ

MUHAMMAD BOOTA---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1121 of 2017, decided on 2nd December, 2019.

(Against judgment dated 21.9.2017 of the Lahore High Court, Multan Bench passed in Cr. A. No. 482 of 2014)

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

----R. 6---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics--- Report of Government Analyst---Protocols/procedure---Confirmatory forensic conclusions to establish narcotic character of a substance must be supported by the protocol/procedure mandated by R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Non-compliance of R. 6 would render the report of the Government Analyst inconclusive, suspicious and untrustworthy and would not meet the evidentiary assumption attached to such report.

The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039 ref.

Shahid Azeem, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, Deputy Prosecutor-General Punjab for the State.

2020 S C M R 197

[Supreme Court of Pakistan]

Present: Faisal Arab and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD AFZAL (DECD.) through L.Rs. and others---Appellants

Versus

MUHAMMAD BASHIR and another---Respondents

Civil Appeal No. 528-L of 2012, decided on 20th November, 2019.

(Against the judgment dated 17.09.2009 of the Lahore High Court, Lahore passed in R.S.A. No. 58 of 2008)

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

----Arts. 17 & 81---Transfer of Property Act (IV of 1882), S. 54---Admission of execution by party to attested document---Scope---Sale agreement---One of the attesting witnesses of sale agreement not produced---Inconsequential---Sale agreement had been attested by two witnesses---Omission to produce one of the said attesting witness was of no legal consequence in terms of Art. 81 of the Qanun-e-Shahadat, 1984---Article 81 was an exception to the general rule that where a document was required by law to be attested the same could not be used in evidence unless two attesting witnesses were called for the purposes of proving its execution---Reading of Art. 81 showed that where the execution of a document was admitted by the executant himself, the examination of attesting witnesses was not necessary---Appeal was dismissed.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Mt. Hira Bibi and others v. Ram Hari Lal and others AIR 1925 Privy Council 203 and Sheik Kachu v. Muhammad Ali Mahmud AIR 1927 Calcutta 926 distinguished.

Maulvi Anwar-ul-Haq, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Malik Noor Muhammad Awan, Advocate Supreme Court for Respondent No.1.

2020 S C M R 200

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

MUHAMMAD MUMTAZ---Appellant

Versus

MEHTAB and another---Respondents

Criminal Appeal No. 359 of 2018, decided on 2nd December, 2019.

(Against the judgment dated 27.2.2018 of the Peshawar High Court Abbottabad Bench passed in Criminal Appeal No. 86-A of 2015)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Qatl-i-amd---Reappraisal of evidence---Sentence, reduction in---Blameworthy conduct of deceased---Trial Court convicted the accused under S. 302(b), P.P.C and sentenced him to imprisonment for life---High Court altered such conviction into S. 302(c), P.P.C. and reduced the sentence to 10-years rigorous imprisonment---Held, that confessional statement of accused, though retracted subsequently, was prosecution's mainstay---In said confessional statement accused had stated that he was carnally assaulted by the deceased more than once, and despite resistance, the deceased did not change his lusty course---In such backdrop, according to the prosecution itself, the accused exasperatingly embarrassed, took the most drastic step of murdering the deceased in the face of no other possible motive---In the absence of any other evidence, the accused made his breast clean and as such his narrative (confession) was to be received in its totality---Deceased could not be credited as being entirely blameless and as such interference by the Supreme Court, particularly when the accused had already served out the sentence (of 10 years imprisonment) would be far from being expedient---Appeal seeking enhancement in sentence of accused was dismissed.

Qari Abdul Rasheed, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Naveed Hayat Malik, Advocate Supreme Court for Respondents.

Malik Akhtar Hussain Awan, AAG, Khyber Pakhtunkhwa for the State.

2020 S C M R 202

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malikand Amin-ud-Din Khan, JJ

ABDUL RAZAQ---Petitioner

Versus

ABDUL GHAFFAR and others---Respondents

Civil Petitions Nos. 2559-L and 2560-L of 2018, decided on 20th November, 2019.

(On appeal against the judgment dated 16.11.2018, passed by the Lahore High Court, Lahore, in C.Rs. Nos. 164810 and 165796 of 2018)

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

----O.VI---Pleadings---Evidentiary value---Scope---Pleadings could not be considered as evidence in the suit on behalf of the party when not a single word had been uttered on the subject (by the party).

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

----O. XX, R. 6---Decree---Scope---Decree could not be passed against a person who was not a party in the lis before the Court.

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

----S. 60---Registered document---Presumption---Scope---Registered document had some presumptions attached to it under S. 60 of the Registration Act, 1908---Although such presumptions were rebuttable, but for their rebuttal a party must produce evidence on the basis of standard as set forth by the (Supreme) Court.

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

----S. 42---Suit for declaration---Declaratory decree---Scope---Through a suit filed under S. 42 of the Specific Relief Act, 1877 a declaration could be granted with regard to legal character or the right as to any property; however, no new right could be created in favour of plaintiff by grant of a declaratory decree.

Mohammad Azeem Malik, Advocate Supreme Court for Petitioner (in both cases).

Amjad Iqbal Khan, Advocate Supreme Court for Respondent No.1 (in both cases).

Nemo for other Respondents (in both cases).

2020 S C M R 206

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Yahya Afridi, JJ

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) through Secretary---Petitioner

Versus

TRADE SERVE INTERNATIONAL (PVT.) LTD. LAHORE and others---Respondents

Civil Petitions Nos. 2459 to 2465 of 2017, decided on 1st October, 2019.

(On the appeal against the judgment of the Lahore High Court, Lahore dated 12.05.2017 passed in Writ Petitions Nos. 2446, 4366, 4367, 4368, 4369, 4370 and 4371 of 2013)

Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----S. 24(5)---Pakistan Electronic Media Regulatory Authority Rules, 2009, R. 12(c)---Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations) Regulations, 2012, Reglns. 2(f), 2(h), 2(qq) & 9(2)---License for operating FM radio---Renewal license fee---Quantum---Prevailing applicable license fee---Where bidding had been carried out in granting licenses, the renewal fee for the same shall be the "prevailing applicable license fee" for the respective area and category of license sought to be renewed conjoined with the rate of inflation calculated as prescribed by the State Bank of Pakistan---Renewal license fee would be the last bidding price determined by the bidding carried out and approved by Pakistan Electronic Media Regulatory Authority (PEMRA) for the category and area of F.M. radio for which renewal of license was being sought plus the rate of inflation calculated as prescribed by the State Bank of Pakistan---Where after the grant of license by PEMRA to licensee, there had been no bidding for the category and area of F.M. radio for which license was sought to be renewed, then the renewal license fee for the next term, would be the bidding price approved by PEMRA in favour of the licensee plus the rate of inflation calculated as prescribed by the State Bank of Pakistan.

Salman Akram Raja, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record, Ali Zeeshan Haider, Head Legal PEMRA, Mohsin Hameed Dogar, DGM (Legal) and Wakeel Khan, D.G., Licenses B.M. for Petitioners (in all cases).

Qutb-ud-Din Saim Hashmi, Advocate Supreme Court and Muhammad Ali Raza, Advocate Supreme Court for Respondents Nos. 1 and 2 (in C.Ps. Nos. 2459 and 2462 of 2017).

Rasheed A. Rizvi, Advocate Supreme Court and Muhammad Kassim Mirjat, Advocate-on-Record for Respondent No. 1 (in C.Ps. Nos. 2460 and 2461 of 2017).

Qutb-ud-Din Saim Hashmi, Advocate Supreme Court for Respondent No. 2 (in C.Ps. Nos. 2460 and 2461 of 2017).

2020 S C M R 214

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Amin-ud-Din Khan, JJ

SIKANDAR HAYAT and another---Appellants

Versus

SUGHRAN BIBI and 6 others---Respondents

Civil Appeal No. 146-L of 2018, decided on 8th November, 2019.

(On appeal against the order dated 18.09.2018, passed by the Lahore High Court, Lahore, in C.R. No. 736 of 2015)

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

----S. 42---Civil Procedure Code (V of 1908), O. I, R. 10---Suit for declaration challenging a mutation---Allegation of connivance by revenue officials---Necessary party---Scope---When it was pleaded in a suit that with the connivance of the revenue officials any mutation was got attested and the same was challenged through a civil suit, the Provincial Government as well as the revenue officials against whom the connivance for attestation of the mutation was alleged, were necessary parties in the suit---When plaintiff alleged connivance of the said officials of Revenue Department with the defendants of the suit for getting a mutation attested, then without participation of the said officials, no valid adjudication could be carried out against them and no finding (of connivance) could be recorded against them in their absence.

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

----Art. 133---Cross-examination---Presumption---Material portion of a statement of a witness if not cross-examined, it was presumed that the other party had accepted such part/ portion of statement.

(c) Gift---

----Gift mutation---Proof---Donee a minor---Plea of fraud and connivance with revenue officials---Evidence on record showed that donee was about six years of age at the time of attestation of impugned mutation---Question was as to what fraud could be expected from the said donee/child with the connivance of the revenue officials---Nothing on record was available to suggest as to why the revenue officials (i.e. the Lambardar and the Pattaydar, etc.) as well as the witnesses of impugned mutation were party to the fraud, who identified the donor at the time of attestation of mutation---Present case was of an exceptional nature, since the donee was not required to independently prove the offer, acceptance and delivery of possession when he was admittedly a minor at the time of attestation of mutation in his favour by his father/donor---Donee and his legal heirs (i.e. the defendants) fully proved the valid attestation of mutation by producing voluminous oral evidence, including the record keeper and the revenue officials, who entered the mutation and attested the mutation---Attesting witnesses of the mutation and the patwari, who entered the mutation, also appeared (as witnesses)---Gift mutation was held to be valid---Appeal was allowed.

Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others 2018 SCMR 30 and Peer Baksh through L.Rs. and others v. Mst. Khanzadi and others 2016 SCMR 1417 distinguished.

Mian Abdul Quddous, Advocate Supreme Court for Appellants.

Sh. Usman Karim-ud-Din, Advocate Supreme Court for Respondents.

2020 S C M R 219

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

SAFDAR ABBAS and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 955-L and 973-L of 2016, decided on 3rd December, 2019.

(Against judgment dated 24.06.2016 of the Lahore High Court, Lahore passed in Cr. A. No. 70 of 2012 along with M.R. No. 101 of 2012)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Accused placed similarly to acquitted co-accused---Father of accused persons and another co-accused were assigned role of inflicting multiple club blows to the deceased, however they were acquitted by the Trial Court---Remainder of the acquitted co-accused persons, though assigned no harm to the deceased, nonetheless, were ascribed effective roles against the injured witnesses---All accused and co-accused persons were closely related being members of the same clan and in the totality of circumstances given the accusation, their roles could not be bifurcated without nullifying the entire case---Motive cited in the crime report was non-specific---Investigative conclusions were inconsistent with the case set up by the complainant---Recoveries were inconsequential---Complainant abandoned his case against the acquitted co-accused persons---In this backdrop, no intelligible or objective distinction could be drawn to hold the accused persons guilty of the charge in isolation with their co-accused---Prosecution evidence was substantially flawed, thus, it would be unsafe to maintain the conviction of accused persons without potential risk of error---Petition was converted into appeal and allowed, and accused persons were acquitted of the charge against them.

Shahid Azeem, Advocate Supreme Court for Petitioner (in Cr. P. No. 955-L of 2016).

Asghar Ali Gill, Advocate Supreme Court for Petitioner (in Criminal P. No. 973-L of 2016).

Shahid Azeem, Advocate Supreme Court for Respondents Nos. 2 and 3 (in Cr. P. No. 973-L of 2016).

Asghar Ali Gill, Advocate Supreme Court for Respondent No. 2 (in Cr. P. No. 955-L of 2016).

Mirza Abid Majeed, Deputy Prosecutor-General Punjab for the State.

2020 S C M R 221

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Munib Akhtar, JJ

MUHAMMAD SALEEM---Appellant

Versus

FEDERAL PUBLIC SERVICE COMMISSION and others---Respondents

Civil Appeal No. 1481 of 2015, decided on 16th December, 2019.

(On appeal from the judgment dated 4.5.2015 passed by the FST, Ibd, in Appeal No. 1704(R)(C.S)/2013)

(a) Constitution of Pakistan---

----Art. 240---Appointment to service of Pakistan and conditions of service---History of constitutional arrangements that were in place pre and post creation of Pakistan that led to addition of Art. 240 in the Constitution stated.

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

----S. 25(1)---Civil service --- Occupational Groups created by Office Memorandums---Office Memorandums --- Scope ---Legal source for the issuance of such Office Memorandums could only be the Civil Servants Act, 1973 itself---Legal power whereby such Office Memorandums had been issued was nothing other than an aspect (and exercise) of the rule making power conferred in terms of S. 25(1) of the Civil Servants Act, 1973---In law the Office Memorandums whereby the Occupational Groups were established emanated from, and were an exercise of, the rule making power conferred on the "President or any person authorized by the President in this behalf".

(c) Constitution of Pakistan---

----Art. 240---Appointment to service of Pakistan and conditions of service---Legislature, powers of---Scope---On the constitutional plane there was only one repository of the power in relation to the appointment and the terms and conditions of service of civil servants, and that was the Legislature---Notwithstanding this important and in many ways fundamental change from the past, the Executive branch had no direct and independent power in this regard.

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

----S. 25---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ("APT Rules") Civil service---Office Memorandums creating Occupational Groups in conflict with other Rules made under S. 25 of the Civil Servants Act, 1973---Question as to which of the two shall prevail in case of conflict---Held, that legal source from which the Office Memorandums emanated was the rule making power in terms of S. 25 of the Civil Servants Act, 1973 ('the 1973 Act'), therefore such Office Memorandums were co-equal with other Rules framed under S. 25, such as the 'APT Rules'---Office Memorandums could not be considered subordinate to such Rules, thus, in case of any inconsistency, they could not be regarded as yielding to the Rules otherwise made under S. 25---Since in the legal hierarchy they were of equal standing, the Office Memorandums and Rules such as the 'APT Rules' must be read together in a harmonized and consistent manner, to the maximum extent possible---Only if there was an irreconcilable difference that the question of which would prevail would arise, and such question would have to be addressed by resort to well established rules of interpretation, including (but not limited to) those such as relating to earlier versus later in time, or general versus specific etc---Question as to which particular rule(s) of interpretation would actually apply (and how) would depend on the actual provisions under consideration and the context in which they operated.

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

----S. 25---Constitution of Pakistan, Art. 240---Civil service---Office Memorandums creating Occupational Groups issued in terms of S. 25 of the Civil Servants Act, 1973---Such Office Memorandums could not be inconsistent with the Civil Servants Act, 1973 itself nor (ipso facto) the Constitution.

Qazi Jawad Ehsanullah, Advocate Supreme Court for Appellant.

Sohail Mehmood, DAG, Haroon ur Rasheed, Dy. Dir. (FPSC), Mrs. Misbah Gulnar Sharif, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record, Zahid Nawaz Cheema, Advocate Supreme Court, Syed Ali Zafar, Advocate Supreme Court, Waqar A. Shaikh, Advocate Supreme Court, Tariq Aziz, Advocate-on-Record, Hafiz Tariq Nasim, Advocate Supreme Court, Aftab Alam Rana, Advocate Supreme Court, Syed Rafaqat Hussain, Shah, Advocate Supreme Court, Malik Muhammad Qayyun, Senior Advocate Supreme Court, Shoaib Shaheen, Advocate Supreme Court and Khalid Anwar Afridi, Advocate Supreme Court for Respondents.

2020 S C M R 242

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Amin-ud-Din Khan, JJ

SUI NORTHERN GAS PIPELINES LIMITED--Petitioner

Versus

PRESIDENT OF PAKISTAN, PRESIDENT SECRETARIAT (PUBLIC), AIWAN-E-SADR, ISLAMABAD and 2 others---Respondents

Civil Petition No. 614-L of 2019, decided on 5th December, 2019.

(On appeal against the order dated 18.12.2018, passed by the Lahore High Court, Lahore in W.P. No. 2360 of 2016)

Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O No. 1 of 1983)---

----Art. 9---Wafaqi Mohtasib, jurisdiction of---Scope---Public sector company (Sui Northern Gas Pipelines Limited)---Matter of recruitment/appointment of a candidate on basis of "Blood Relation Quota"---Complaint filed by candidate before Wafaqi Mohtasib---Maintainability---Appointment and/or recruitment in a public sector company like the Sui Northern Gas Pipelines Limited was an executive function and such function could not be performed by the Wafaqi Mohtasib under Art. 9 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, which excludes his jurisdiction to entertain a complaint of such nature---In the present case, the Wafaqi Mohtasib did not have the jurisdiction to hear the complaint filed by the respondent-candidate due to his non-selection on basis of "Blood Relation Quota"---Petition for leave to appeal was converted into appeal and allowed accordingly with the direction to the petitioner (Sui Northern Gas Pipelines Limited) to formulate a clear policy for appointment on "Blood Relation Quota" and set down transparent criteria for appointment under the same, and to consider the case of respondent-candidate, as well as the other applicants, as per the newly formulated policy.

Peshawar Electric Supply Company Ltd. v. Wafaqi Mohtasib (Ombudsman) Islamabad and others PLD 2016 SC 940 ref.

Salim J. Baig, Advocate Supreme Court for Petitioner.

Ms. Rabia Bajwa, Advocate Supreme Court for Respondent No.3 along with Respondent in person.

2020 S C M R 246

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

NOOR MUHAMMAD---Petitioner

Versus

CUSTOMS APPELLATE TRIBUNAL, PESHAWAR BENCH through Chairman and others---Respondents

Civil Petition No. 3855 of 2019, decided on 29th November, 2019.

(Against the judgment dated 18.09.2019 passed by the Peshawar High Court, Peshawar in Custom Reference No. 600-P of 2017)

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

----Ss. 156(1)(89), 193 & 194-A---Smuggled vehicle with tampered chassis number---Seizure and confiscation by Customs authorities---Forensic Science Laboratory (FSL), report of---Plea of petitioner (owner of vehicle) that there were two contradictory reports of Forensic Science Laboratory on record, therefore, in the matter of confiscation of his vehicle the fora below should have adopted a more lenient view---Held, that petitioner had ample opportunities to take up all his defences during proceedings before the Deputy Collector (Adjudication), Collector of Customs (Appeals) as well as the Customs Appellate Tribunal, however, before all fora below he failed to rebut the report of the FSL that chassis number of the vehicle had been tampered with---Further the question of two contradictory reports of FSL had been raised as an afterthought in view of the fact that it was never raised before the lower fora---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 196---Limitation Act (IX of 1908), S. 5---Reference to High Court---Barred by eleven months---Condonation of delay---Grounds---Illness of special attorney---Not plausible or convincing ground---After dismissal of his appeal before the Appellate Tribunal, the petitioner waited for eleven months to file the Customs Reference before the High Court, which was hopelessly barred by time---Application for condonation of delay stated that the entire process was followed up by a special attorney of the petitioner---Said special attorney was allegedly a chronic patient of some disease and was therefore unable to file the Reference within time---Petitioner was unable to explain plausibly why he did not pursue the matter himself and why was he not following up the same---Plea/explanation that petitioner was not available and his special attorney was unwell were neither convincing nor plausible and did not constitute sufficient grounds for condonation of delay for about eleven months---Petition for leave to appeal was dismissed and leave was refused.

Arbab Shabbir Ahmed, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2020 S C M R 249

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

GULSHAN ALI SOLANGI and others---Petitioners

Versus

The STATE through P.G. Sindh---Respondent

Criminal Petitions Nos. 197-K to 204-K, 211-K to 221-K and 230-K of 2019, decided on 5th December, 2019.

(Against order dated 10.10.2019 passed by High Court of Sindh, Hyderabad Bench in Crl. B. A. Nos. S-582 to S-587, S-589, S-590, S-537 to S-543, S-591, S-593, S-598, S-599 and S-577 of 2019)

Criminal Procedure Code (V of 1898)---

----S. 498---Pre-arrest bail, grant of---Principles---Grant of pre-arrest bail was a remedy rooted into equity, at a cost to hamper the investigation---Such judicial protection was extended solely to save the innocent from the horrors of abuse of process of law with a view to protect his dignity and honour---Said remedy could not be granted in every run of the mill criminal case, particularly to an accused facing prima facie charges structured upon material/evidence, warranting custody, that too, on the basis of positions/pleas, verification whereof, was consequent upon recording of evidence.

Ahmed Ali Ghumro, Advocate Supreme Court for Petitioners (in Cr. Ps. 197-K to 203-K of 2019).

Bashir Ahmed Almani, Advocate Supreme Court for Petitioners (in Cr. P. 204-K of 2019).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court for Petitioners (in Cr. Ps. 211-K to 221-K of 2019).

Syed Shafqat Ali Shah Masoomi, Advocate Supreme Court for Petitioners along with Petitioner (in Cr. P. 230-K of 2019).

Ms. Rahat Ahsan, Additional PG Sindh for the State (in all cases).

2020 S C M R 251

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

Dr. AZAD HUSSAIN---Petitioner

Versus

The DEPUTY COMMISSIONER, RAWALPINDI and others---Respondents

Civil Petition No. 1170 of 2018, decided on 13th November, 2019.

(Against judgment dated 13.02.2018 passed by the Punjab Service Tribunal, Lahore in Appeal No. 540 of 2018)

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

----R. 7-A---Lien with parent department---Scope---Plain reading of R. 7-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, showed that lien with the parent department could be retained for a maximum period of three years and could not be extended beyond such period---Language of R. 7-A was couched in mandatory terms and neither the Department nor the Service Tribunal had the power or jurisdiction to extend the period of such lien beyond the maximum term of three years as prescribed by the Rules.

Petitioner in person.

Nemo for for Respondents.

2020 S C M R 254

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sajjad Ali Shah, JJ

Mst. CHANANI BEGUM (DECEASED) through LRs---Appellant

Versus

Mst. QAMAR SULTAN---Respondent

Civil Appeal No. 1241 of 2013, decided on 25th November, 2019.

(Against the order dated 24.4.2013 passed by the Lahore High Court Rawalpindi Bench in C.R. 368-D of 2003)

(a) Islamic law---

----Inheritance---Sect of deceased---Proof---Voluntary declaration of deceased in court proceedings regarding her faith---Persuasive value---In previous court proceedings regarding faith of her son, the deceased had voluntarily declared herself to be 'Shia'---No reason was found to disbelieve the declaration of deceased in respect of her own faith which neither was challenged nor it could successfully be challenged even if one was allowed to cross-examine the person who declared his/her faith---In the present case, on the factual plane the veracity of the statement of the deceased wherein she declared her faith throughout had not been challenged---Appellant had never claimed that the deceased did not appear in a witness box or she did not on oath declare herself to be "Shia" by faith---No better evidence could be made available to the Court than the declaration of such person to resolve the controversy regarding his/her faith---Question of faith being very personal to oneself and a declaration of faith by one had to be accepted on its face value which, of course, was not open to challenge from anyone, therefore, such voluntary declaration even if made in some previous proceeding was of great persuasive value after the death of such person and, therefore, could be validly used in the subsequently instituted proceedings to determine the faith of such person.

(b) Islamic law---

----Inheritance---Sect of deceased, determination of---General principle of presumption---Scope---in Indo-Pak sub­continent majority of Muslims were "Sunni" by faith, therefore, there was initial presumption that the parties to the proceedings were "Sunni", however, such initial presumption was rebuttable---No principle of universal application was available to determine the faith of a person which should be determined keeping in view the surrounding circumstances, the way of life, the parental faith and faith of other kith and kin---Consequently once the faith of a person was challenged the question of the initial presumption lost its sanctity and was to be inferred from the facts creating presumption or the surrounding circumstances one way or the other.

Muhammad Bashir v. Latifa Bibi 2010 SCMR 1915 ref.

(c) Islamic law---

----Inheritance---Sect of deceased---Proof---Presence of 'Alam' in house---Arranging 'Majlis'---Important piece of evidence which persuaded the Courts below in deciding the faith of deceased was the hoisting of 'Alam' of Hazrat Abbas at her house---Such fact was admitted by none other than plaintiff's own attorney/witness during his cross-examination---Such act of hoisting Alam was a strong indication of the fact that the resident of the house was "Shia" by faith---Plaintiff's attorney being nephew of the deceased did not deny two very important facts; firstly, that Alam of Hazrat Abbas was hoisted on the house of deceased and; secondly, that deceased used to hold "Majlis" at her house---Courts below had rightly evaluated the evidence on record in coming to the conclusion that the deceased was "Shia" by faith---Appeal was dismissed accordingly.

Mst. Ghulam Ayesha alias Ilyas Begum v. Sardar Sher Khan PLJ 2006 SC 1476 ref.

Muhammad Munir Paracha, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Syed M. Ayub Bokhari, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondent.

2020 S C M R 260

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

PRESIDENT, ALL PAKISTAN WOMEN ASSOCIATION, PESHAWAR CANTT.---Petitioner

Versus

MUHAMMAD AKBAR AWAN and others---Respondents

Civil Petitions Nos. 1028 to 1030, 1326 to 1339, 1514, 1543 and 1544 of 2019, decided on 21st November, 2019.

(Against the judgment dated 20.02.2019 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos. 4717-P to 4735-P, 24807-P and 4819-P of 2018)

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---When a statute did not provide the right of appeal against certain orders, the same could not be challenged by invoking the constitutional jurisdiction of the High Court in order to gain a similar objective.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Remedy barred by statute---Where a statute had expressly barred a remedy which was not available to a party under the statute, it could not be sought indirectly by resort to the constitutional jurisdiction of the High Court.

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

----S. 24---Constitution of Pakistan, Art. 199---Rent Controller---Interlocutory order---Statutory bar for filing appeal against an interlocutory order passed by Rent Controller---Constitutional jurisdiction of the High Court---Scope---Intent of the Legislature to keep out interlocutory/interim orders from the scope of appeal was not difficult to understand; it was meant to curtail delays, piecemeal and fractured litigation at various fora at the same time---Interlocutory/ interim orders could not be challenged under the guise of invoking the constitutional jurisdiction of the High Court because the same would tantamount to negating the provisions of the statute itself and rendering the bar imposed by the Legislature in the interest of expeditious disposal of rent matters totally redundant---High Court exercising constitutional jurisdiction must be fully cognizant and conscious of said rule and strictly adhere to the same in the interest of advancing the policy of law and delivering expeditious justice in accordance with the law and the Constitution.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Constitutional jurisdiction was equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of a validly enacted statutory provision.

Mushtaq Hussain Bukhari v. The State 1991 SCMR 2136; Mohtarma Benazir Bhutto, MNA and Leader of the Opposition, Bilawal House, Karachi v. The State 1999 SCMR 1447; Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45; Muhammad Raza Hayat Hiraj v. Election Commission of Pakistan 2015 SCMR 233; Saghir Ahmed Naqvi v. Province of Sindh 1996 SCMR 1165 and Muhammad Iftikhar Mohmand v. Javed Muhammad 1998 SCMR 328 ref.

Ihsanullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in all cases).

Nemo for Respondents (in all cases).

2020 S C M R 265

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Yahya Afridi, JJ

SARHAD DEVELOPMENT AUTHORITY N.W.F.P. (NOW KPK) through COO/CEO (Officio) and others---Appellants

Versus

NAWAB ALI KHAN and others---Respondents

Civil Appeals Nos. 2186 to 2199, 59-P, 60-P, 61-P and 27-P of 2017 and Civil Misc. Applications Nos. 9482 to 9495 of 2019, decided on 7th November, 2019.

(On appeal against the judgment dated 06.11.2017 of the Peshawar High Court Peshawar passed in R.F.As. Nos. 200-P, 216-P, 12-P, 208-P, 209-P, 210-P, 211-P, 215-P, 212-P, 214-P, 201-P, 213-P, 204-P of 2016 and 198-P of 2016)

(a) Land Acquisition Act (I of 1894) [as amended by the North-West Frontier Province (Amendment of Laws) Ordinance (XVII of 2001)]---

----Ss. 5-A & 6---Constitution of Pakistan, Art. 24---Acquisition of land--- Compensation mechanism--- Right to property--- Scope---Legislature in its wisdom had provided in the Land Acquisition Act, 1894, an inbuilt mechanism for redressal of grievances of persons interested in the land being compulsorily acquired---Formal declaration of the Provincial Government to acquire a particular land only took place after the objections of interested persons, if any, were addressed by the competent authority---Such protection afforded to the private landowners under the Act bolstered their fundamental right enshrined under Art. 24 of the Constitution.

Sub. (Retd.) Muhammad Ashraf v. District Collector Jhelum and others PLD 2002 SC 706 ref.

(b) Land Acquisition Act (I of 1894) [as amended by the Khyber Pakhtunkhwa (Amendment of Laws) Ordinance (XVII of 2001)]---

----Ss. 4(1) & 23---Constitution of Pakistan, Art. 24---Acquisition of land---Matters to be considered in determining compensation---Market value of land on the date of taking possession---Unlike Khyber Pakhtunkhwa, in the other three provinces, S. 23(1) of the Land Acquisition Act, 1894, had not been amended, and the "market value" of the land, as originally enacted, was determinable on basis of the value prevailing on the date of gazette publication of the notification under S. 4(1) of the Act---Since the year 2001, when the Khyber Pakhtunkhwa (Amendment of Laws) Ordinance, 2001 introduced amendments in the Land Acquisition Act, 1894, it was only in Khyber Pakhtunkhwa that, the determining criteria for deciding the "market value" of the property proposed to be acquired within the contemplation of S. 23(1) had been the prevalent value of land on the date of taking possession of the said property, and not the date when the notification under S. 4(1) was published in the official gazette. (c) Land Acquisition Act (I of 1894) [as amended by the Khyber Pakhtunkhwa (Amendment of Laws) Ordinance (XVII of 2001)]---

----S. 23---Acquisition of land---Matters to be considered in determining compensation---Sale transactions of similar properties---Potential value of property---Precedents reflected a consistent trend to also consider for the purposes of determining the "market value" of property to be acquired, its "potential value" or essentially, the future use to which the said property could be put to---In doing so, there was judicial consensus in considering sale transactions of similar nature of immovable property in the adjoining khasras or even mauzas taking place even after the date of publication of the notification under S. 4(1) of the Land Acquisition Act, 1894, for adjudging the "market value", and in doing so to finally fix the amount of compensation to be awarded to the landowners for the property acquired---Not only in Khyber Pahktunkhwa, but even in other three provinces, where S. 23(1) of the Act had not been amended, firstly, the value of similar land in the adjoining khasras and mauzas to the acquired land was taken into consideration for determining the amount of compensation to be awarded to owners of the acquired property; secondly, the escalation of price of land during the acquisition period till its culmination in issuance of the award could be taken into consideration; thirdly, for assessing the "potential value" of the acquired land, the most critical factor, which was to be kept in mind was the future utility of the proposed acquired land, keeping in view the availability of facilities for its said utilization; and finally, there could be no mathematical formula set for the determination of the compensation due to the landowners for the compulsory acquisition of their property--- Various factors depending on the circumstances of each case would cumulatively form the basis for determining the "market value" of the acquired land within the contemplation of S. 23(1) of the Act.

Mst. Iqbal Begum's case PLD 2010 SC 719; Begum Aziza's case 2014 SCMR 75 and Mst. Surraya Mehmood Jan's case 2015 SCMR 28 ref.

(d) Constitution of Pakistan---

----Art. 185---Land Acquisition Act (I of 1894) [as amended by the Khyber Pakhtunkhwa (Amendment of Laws) Ordinance (XVII of 2001)], S. 23---Appellate jurisdiction of the Supreme Court---Scope---Acquisition of land---Disputed questions of fact/grounds not raised by Acquiring Authority in forums below---Supreme Court in its appellate jurisdiction would generally not determine any question of fact, that had not been pleaded or raised by the parties at any stage before the Referee Court or the High Court and was for the first time raised in appeal before the Supreme Court.

Ali Khan's case 1968 SCMR 565; Adeeba Musharraf's case 1995 SCMR 2354 and Malik Ghulam Hussain's case PLD 1971 SC 573 ref.

Shazib Masud, Advocate Supreme Court, Dil Muhammad Khan Alizai, Advocate Supreme Court and Zair Nawaz, Mnager, SDA for Appellants (in C.As. 2186 to 2199 of 2017).

Haji Muhammad Zahir Shah, Advocate-on-Record/Advocate Supreme Court for Appellants (in C.As. 59-P to 61-P of 2017 and 27-P of 2017).

Dil Muhammad Khan Alizai, Advocate Supreme Court for Applicants (in C.M.As. 9482 to 9495 of 2019).

Shazib Masud, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent SDA (in C.As. 59-P to 61-P of 2017 and 27-P of 2017).

Respondent No. 1 in person (in C.As. 2193 to 2198 of 2017).

Zahid Hussain, Tehsildar Nowshera on behalf of Respondent No. 2 (in all cases).

Barrister Qasim Wadood, Additional A.-G., Khyber Pakhtunkhwa on behalf of Land Acquisition, Khyber Pakhtunkhwa (in C.As. 59-P - 61-P of 2017 and C.A. 27-P of 2017).

Nemo for other Respondents (in all cases).

2020 S C M R 276

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Ijaz ul Ahsan, JJ

MUHAMMAD SARWAR---Petitioner

Versus

MUMTAZ BIBI and others---Respondents

Civil Petition No. 1950-L of 2018, decided on 3rd October, 2019.

(On appeal from the Judgment/Order 28.06.2018 of the Honourable Lahore High Court, Lahore passed in Civil Revision No.2569 of 2009)

(a) Gift---

----Oral gift---Essential ingredients---Proof---Brother (petitioner) attempting to disinherit his sisters (respondents) through an alleged oral gift deed made by their father---Petitioner failed to mention the date, time and place of the alleged gift---Further, he omitted to mention the names of witnesses in whose presence his father allegedly gifted the property in his favour and disinherited his sisters---Likewise, there was no mention of acceptance of the gift in presence of witnesses in the written statement as required by law---Gift mutation as well as the alleged oral gift were fictitious and the result of fraud---Petition for leave to appeal was dismissed and leave was refused.

(b) Gift---

----Essential ingredients---Onus of proof---Onus to establish the factum and ingredients of the gift was on the beneficiary who claimed such gift and which was denied or challenged by the other legal heirs.

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

----S. 42---Oral gift---Mutation---Sanctioning in Majlis-e-Aam---In terms of S. 42 of the Punjab Land Revenue Act, 1967, it was obligatory that a mutation for an oral gift be sanctioned in Majlis-e-Aam so that every person of the village may have knowledge of such alienation and the possibility of fraud, collusion or secretly undertaken transaction may be eliminated.

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

----Art. 129---Oral gift---Mutation---Material witnesses of mutation not produced---Adverse presumption---Concerned Tehsildar who had allegedly sanctioned the mutation and witness of the mutation i.e. the Patidar were material witnesses of the alleged gift mutation, however they were not produced for any valid reason---Presumption of Art. 129 of the Qanun-e-Shahadat, 1984 by reason of withholding of the best evidence could be drawn against the alleged donee/petitioner---Gift mutation as well as the alleged oral gift were fictitious and the result of fraud---Petition for leave to appeal was dismissed and leave was refused.

(e) Gift---

----Oral gift---Mutation---Proof---Where the validity of a gift mutation was challenged, it was incumbent upon the beneficiary to not only prove the validity and legality of the gift mutation by producing all relevant evidence but it was also necessary that the gift itself be proved through cogent and reliable evidence.

(f) Gift---

----Oral gift---Mutation---Proof---Death certificate of alleged donor---Said certificate indicated that the alleged donor passed away on 12-09-1984 whereas the alleged gift mutation was entered and sanctioned on 10-02-1985 approximately four months after his death---Such patent discrepancy itself negated the case of the alleged donee regarding the property being gifted to him by way of oral gift and thereafter a gift mutation being sanctioned on the basis of such oral gift---Gift mutation as well as the alleged oral gift were fictitious and the result of fraud---Petition for leave to appeal was dismissed and leave was refused.

Kh. Muhammad Saeed, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2020 S C M R 281

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan and Mushir Alam, JJ

FAYYAZ AHMED and another---Appellants

Versus

MUHAMMAD KHAN and others---Respondents

Criminal Appeals Nos. 469 of 2007 and 594 of 2014, decided on 2nd September, 2015.\

(Against the judgment dated 12.04.2007 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 482 of 2005)

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 one under S. 302(c), P.P.C.---Chance and sudden encounter with no premeditation for murder---According to the FIR itself both the accused and co-accused were present at the scene of the crime prior to arrival of deceased there and they had no prior information that the deceased would come that way---In these circumstances it was far-fetched to conclude that they had any premeditation or pre-concert to do away with the deceased---Record showed that the motive set up by the prosecution based upon a past incident had been discarded by the High Court as unproved and the alleged recovery of a chhurri from the custody of accused had also been ruled out of consideration by the High Court because the recovered chhurri was not stained with blood and, thus, it did not stand connected with the alleged offence of murder---Facts and circumstances of the case clearly demonstrated that the encounter between the parties was a chance and sudden encounter and there was no premeditation involved---In the sudden occurrence only one blow was given by accused to the deceased and despite an opportunity being available he had not repeated that blow---In the heat of passion at the spot no undue advantage had been taken by the accused and co-accused and they had not acted in any manner which could be termed as cruel or unusual---Actions attributed to the accused and co-accused attracted the provisions of S. 302(c), P.P.C.---Convictions of accused and co-accused under S. 302(b), P.P.C. were converted into one under S. 302(c), P.P.C.---Appeals were disposed of accordingly.

Altaf Samad, Advocate Supreme Court for Appellant (in both cases).

Abdul Samad Khan, Senior Advocate Supreme Court for the Complainant (in both cases).

Mian Arshad Jan, Additional Advocate-General, Khyber Pakhtunkhwa for the State (in both cases).

2020 S C M R 285

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

GULAB KHAN---Petitioner

Versus

CHAIRMAN NAB and another---Respondents

Civil Petition No. 540-K of 2019, decided on 18th December, 2019.

(Against judgment dated 4.10.2019 passed by High Court of Sindh at Karachi passed in C.P. D-182 of 2019)

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Corruption and corrupt practices---Bail, grant of---Rule of consistency---Accused, who was the Secretary of a Government Officers Cooperative Housing Society, was alleged to have made monetary gains after unauthorizedly providing commercial/residential plots to non-members after interpolating minutes of a meetings---Held, that except for the accused, all the co-accused, including those placed at a higher step than the accused, had been released on bail---Entire land had since been retrieved by the society, and the affected allottees had abandoned their claims---In such circumstances, culpability of accused, alongside his colleagues in the crime could be best settled after recording of evidence, during the trial, which was already in progress---Prosecution had not been able to point out any evidence suggestive of any aggravated role played by the accused in the scam, therefore he could not be treated differently than the co-accused already released on bail---Petition for leave to appeal was converted into appeal and allowed and accused was released on bail.

M. Anwar Tariq, Advocate Supreme Court for Petitioner.

Sittar Sahil, Special Prosecutor NAB, Hassan Akbar, Additional Prosecutor-General NAB with Jawaad Hassan, I.O./Deputy Director NAB for the NAB.

2020 S C M R 287

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Qazi Muhammad Amin Ahmed, JJ

IMTIAZ alias TAJI and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 364-L of 2017 and Criminal Petition No. 275-L of 2011, decided on 3rd July, 2019.

(On appeal from the judgment of the Lahore High Court, Lahore dated 7.12.2010 passed in Criminal Appeals Nos. 622, 623, 829 of 2005, Criminal Revision No. 558 of 2005 and Murder Reference No.501 of 2005 etc.)

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

----S. 302(b)---Reappraisal of evidence---Occurrence took place during broad daylight around 2 p.m. at a bus stand---Matter was reported to police on the same day at 2:20 p.m. i.e. within twenty minutes of the occurrence---Deceased was medically examined in an injured condition an hour after the occurrence---Such circumstances were sufficient to exclude any chances of preconcert or premeditation in reporting the matter to police---Ocular account was furnished by two witnesses; one of whom was the complainant and real son of the deceased who had given sufficient explanation for his presence at the spot at the relevant time---Second eye-witness used to work at the bus stand and sustained fire-arm injuries during the occurrence---Both said witnesses by and large remained consistent on all the material aspects of the case and held the accused responsible for fire-arm injury on the abdomen of deceased---Statements of said witnesses got support from the medical evidence adduced by the doctor, who medically examined the deceased in injured condition and observed a fire-arm wound of entry on left side of front of abdomen---Statement of doctor who conducted autopsy on the dead body of deceased, further affirmed the case of prosecution against the accused---In such circumstances, there was no doubt that the prosecution had proved its case against the accused beyond reasonable doubt---Conviction of accused under S. 302(b), P.P.C. was upheld.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Sentence of death converted into imprisonment for life---Single fire shot---Motive unproved---Co-accused with similar role acquitted due to compromise---Only a single fire on the person of deceased was attributed to the accused---Admittedly the accused did not repeat the fire shot---Specific motive was alleged by the prosecution inasmuch as some time prior to present occurrence, the accused party had taken over the possession of an area of the bus stand and friction between the parties persisted---On account of such friction, the accused side in order to occupy other areas of the bus stand allegedly committed the occurrence---High Court had not given any definite finding qua the motive behind the occurrence---Record did not provide any detail as to when the accused side, on the previous occasion, took possession of an area of the bus stand; whether the complainant side had reported that matter to police; and, what were the other areas of the bus stand, that the accused side allegedly wanted to take possession of---No independent piece of evidence had been produced by the prosecution during trial to substantiate such claim qua motive---Moreover, the report of Forensic Science Laboratory qua rifle recovered from the accused was only to the effect that said weapon was in working condition, as such, the same could not be of much help for the prosecution---Two co-accused persons who were ascribed a similar and active role as the accused during the occurrence, were acquitted on the basis of compromise---All said circumstances justified reduction in the quantum of sentence of the accused from death to imprisonment for life---Conviction of accused under S. 302(b), P.P.C. was maintained, however his sentence of death was converted into imprisonment for life---Appeal was disposed of.

Ch. Abdul Ghaffar Bhuttoo, State counsel for Appellants.

Rai Zameer-ul-Hassan, Advocate Supreme Court for Petitioners (in Criminal Petition No. 275-L of 2011).

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State.

2020 S C M R 291

[Supreme Court of Pakistan]

Present: Mushir Alam and Faisal Arab, JJ

Mian ZAFAR ALI and another---Appellants

Versus

Mian KHURSHEED ALI---Respondent

Civil Appeal No. 185-L of 2015, decided on 20th December, 2019.

(On appeal against the judgment dated 20.05.2015 passed by the Lahore High Court, Multan Bench in Civil Revision No. 1170-D of 2004)

Civil Procedure Code (V of 1908)---

----O. I, R. 9---Suit not to be dismissed on account of non-joinder or mis-joinder of a party---Scope---Suit for partition of property---Non-Impleadment of all heirs and revenue officials---Non-joinder of a party did not amount to dismissal of the suit in terms of O. I, R. 9, C.P.C., however, in the present case where the question had arisen as to whether private partition of the property in joint khata had taken place way back in 1960 and the fact that one of the joint owners who was survived not only by two sons (appellants) but also by two daughters and a widow, it was necessary that they ought to have been made party in the suit---Case was remanded to the Trial Court to decide the suit afresh with the directions that the appellants shall implead in the suit the remaining surviving heirs of their father and revenue officials as parties; that the Trial Court shall then allow the newly added parties to file their respective written statements and then frame fresh issues for determination---Appeal was disposed of accordingly.

Muhammad Irfan Malik, Advocate Supreme Court for Appellants.

Sh. Naveed Shehryar, Senior Advocate Supreme Court and Ms. Najma Parveen, Advocate Supreme Court for Respondent.

2020 S C M R 293

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Sarmad Jalal Osmany and Qazi Faez Isa, JJ

NASEER KHAN---Petitioner

Versus

SAID QADEEM and others---Respondents

Criminal Petition No. 47-P of 2015, decided on 27th May, 2015.\

(Against the judgment dated 03.03.2015 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 858-P of 2010)

Criminal Procedure Code (V of 1898)---

----S. 512---Qanun-e-Shahadat (10 of 1984), Art. 133---Constitution of Pakistan, Art. 10A---Penal Code (XLV of 1860), S. 302(b)---Right to fair trial---Scope---Evidence of prosecution witnesses recorded in absence of accused (proclaimed offender)---Accused not allowed to cross-examine said prosecution witnesses after his arrest but before conclusion of trial---Legality---Before the trial, in the present case, had come to a close and before a stage was reached when the Trial Court could consider the evidentiary value of the un-cross-examined statements of the prosecution witnesses recorded under S. 512, Cr.P.C., the accused had been arrested and was brought before the Trial Court to face his trial---Before conclusion of his trial accused had appeared before the Trial Court and wanted an opportunity to cross-examine the prosecution witnesses which opportunity was denied to him by the Trial Court---Right to fair trial was fundamental right and in all situations wherein an apparent injustice may appear to be imminent a Trial Court was to resolve such issues in the light of the principles of fairness, particularly when no serious prejudice was likely to be caused to the opposite party---High Court had rightly set aside the convictions and sentences recorded by the Trial Court and remanded the case to the Trial Court with a direction to proceed with the trial afresh from the stage of recording of statements of the prosecution witnesses and to afford an opportunity to accused to cross-examine the said prosecution witnesses---Petition for leave to appeal was dismissed and leave was refused.

Altaf Samad, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2020 S C M R 297

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

NAZIR AHMED SHAIKH and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and others--Respondents

Civil Petitions Nos. 3846, 3866 and 3976 of 2019, decided on 17th December, 2019.

(Against the order dated 16.10.2019 passed by High Court of Sindh at Sukkur, in C.Ps. Nos. D-765 and D-764 of 2019)

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Corruption and corrupt practices---Bail, grant of---Accused persons (public office holders) and co-accused were alleged to have leased out land belonging to a Local Council at very low rates---Lease for land in question was recommended by a resolution of the Local Council carried by the house, albeit with some dissensions, in compliance with a direction issued by the High Court---Subject lease could neither be viewed as a one man show nor was admittedly viewed as misconduct by the competent authority inasmuch as the remainder signatories to it had not been taken on board---Title of the land continued to vest in the Local Council---Sending accused persons and co-accused into prison, on a subjective belief of their having manipulated the impugned lease, would be rather harsh in circumstances, particularly when the prosecution had the opportunity to possibly transform allegations into proof during the trial, which was already in progress---Consequently petitions for leave to appeal were converted into appeals and allowed; ad interim bails already granted to accused persons were confirmed, whereas co-accused was granted post-arrest bail---Supreme Court directed the Secretary Local Government to take cognizance of the present issue, and faithfully and vigilantly secure the proprietary rights/interests of the Local Council with regard to the land in question while keeping into account the actual value of the land and fair rent thereof.

Shahab Sarki, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in C.P. No. 3846 of 2019).

M. Ikram Ch., Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No. 3866 of 2019).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Petitioners (in C.P. No.3976 of 2019).

Syed Nayyar Abbas Rizvi, Additional P.-G. NAB for the NAB.

2020 S C M R 300

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

MOON ENTERPRISER CNG STATION, RAWALPINDI---Petitioner

Versus

SUI NORTHERN GAS PIPELINES LIMITED through General Manager, Rawalpindi and another---Respondents

Civil Petition No. 3985 of 2019, decided on 20th November, 2019.

(Against the order dated 10.10.2019 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No. 2918 of 2019)

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Power of Trial Court to close right of party to produce evidence---Pre-requisites---Practice in lower courts of seeking multiple adjournments on frivolous grounds to delay trial ---For O. XVII, R. 3, C.P.C. to apply and the right of a party to produce evidence to be closed, two conditions must have been met; first, at the request of a party to the suit for the purpose of adducing evidence, time must have been granted with a specific warning that said opportunity would be the last and failure to adduce evidence would lead to closure of the right to produce evidence; and, secondly the same party on the date which was fixed as last opportunity failed to produce its evidence---For the purpose of maintaining the confidence of the litigants in the court systems and the presiding officers it was important that where last opportunity to produce evidence was granted and the party had been warned of the consequences, the court must enforce its order unfailingly and unscrupulously without exception---Such order would not only put the system back on track and reaffirm the majesty of the law but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason---Where the Court had passed an order granting last opportunity, it had not only passed a judicial order but also made a promise to the parties to the lis that no further adjournments would be granted for any reason---Court must enforce its order and honour its promise---Order to close the right to produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning---Supreme Court observed that the trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then (Qatai Qatai Akhri Mouqa) made a mockery of the provisions of law and those responsible to interpret and implement it, and that such practice must be discontinued, forthwith. Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434; Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others PLD 2003 SC 180 and Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401 ref.

Sh. Zamir Hussain, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2020 S C M R 305

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ILYAS and another---Appellants

Versus

AMEER ALI and another---Respondents

Criminal Appeals Nos. 142-L and 143-L of 2015, decided on 6th May, 2019.

(On appeal from the judgment of the Lahore High Court, Lahore dated 6.11.2013 passed in Criminal A. No. 600 of 2011, Criminal A. No. 735 of 2011, Criminal Revision No. 725 of 2011 and M.R. No. 203 of 2011)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Motive not proved---Vague motive was set out in the FIR and the eye-witnesses, while appearing before the Trial Court made material improvements and introduced rather a different motive---In the FIR it was alleged that occurrence had taken place because of a quarrel between deceased and accused and co-accused persons a year prior to the occurrence, however, while appearing before the Trial Court, the witnesses of ocular account stated that the accused side had been pressurizing the complainant side to enter into a compromise and on refusal of the complainant side, the occurrence had taken place---In such circumstances, the motive set out by the prosecution remained far from being proved---Case of prosecution against the accused for the murder of deceased was not proved beyond reasonable doubt---Appeal was allowed and accused was acquitted of the charge of murder.

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

----Ss. 302(b) & 149---Qatl-i-amd, unlawful assembly---Reappraisal of evidence---Rule of consistency---Case against accused similar to that of co-accused not charged for murder---Case of the prosecution, against the accused and his co-accused to the extent of murder of deceased was on the same pedestal---One firearm injury was attributed to the accused on the chest of deceased, whereas two firearm injuries were attributed to co-accused on the chest and neck of deceased---As per doctor all the three injuries contributed towards the death of deceased, however the Trial Court found that every accused person was responsible for his own act and for injury on the person of deceased, therefore, the co-accused in question was not convicted for murder under S. 302(b), P.P.C.---Since the prosecution failed to bring on record any strong and independent corroboration to distinguish the case of accused from that of said co-accused, therefore, in the circumstances of the case, it could safely be held that case of prosecution against the accused for the murder of deceased was not proved beyond reasonable doubt---Furthermore no injury on the person of any injured prosecution witness was attributed to the accused, thus, the accused stood absolved from the vicarious liability under S. 149, P.P.C. to the extent of injuries on the persons of injured prosecution witnesses---Appeal was allowed and accused was acquitted of all charges.

Muhammad Taqi Khan, Advocate Supreme Court and Ms. Tasneem Amin, Advocate-on-Record for Appellants (in Criminal A. 142-L of 2015).

Rashid Javed Lodhi, Advocate Supreme Court for Appellants (in Criminal A. No. 143-L of 2015).

M. Anwar Bhaur, Advocate Supreme Court for Respondents Nos. 1-4 (in Criminal A. No. 142-L of 2015).

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

2020 S C M R 310

[Supreme Court of Pakistan]

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

NOOR ISLAM---Appellant

Versus

GHANI UR REHMAN and another---Respondents

Criminal Appeal No. 430 of 2014, decided on 5th April, 2016.\

(On appeal from the judgment dated 30.06.2014 passed by the Peshawar High Court in Crl. A. No. 151-P of 2014)

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

----Ss.392, 419, 420 & 170---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery, cheating by personation, cheating and dishonestly inducing delivery of property, personating a public servant---Reappraisal of evidence---Test identification parade---Infirmities---Only piece of evidence on which the courts below relied, was the identification parade, conducted in central jail where the accused was identified however, beside being the weakest piece of evidence it lost its judicial efficacy because the face feature complexion etc. were not given in the report---Identification parade had not been conducted according to the requirements of law on the subject because the dummies and the accused were not produced in the (fake) uniform of a government agency that the accused was allegedly wearing at time of incident---Complainant further disclosed that he came to know about the name of the accused, facing trial, from the police at the time of identification parade---Moreover the identification parade was held almost after one year of the incident---Convictions and sentences recorded against the accused were set aside in circumstances and he was acquitted of all charges---Appeal was allowed accordingly.

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

----Ss. 392, 419, 420 & 170---Robbery, cheating by personation, cheating and dishonestly inducing delivery of property, personating a public servant---Reappraisal of evidence---Accused and his accomplices allegedly stopped complainant's taxi, introduced themselves as officials of a government agency, took the complainant in their car and snatched a large amount of foreign currency from him---Held, that the complainant failed to produce any document about where he collected such a huge amount of foreign currency from---Complainant did not disclose why he was bringing such a huge amount of foreign currency without any escort or guard---Accused remained in police custody for sufficient time however, not a single note of foreign currency was recovered from him nor was the (fake) uniform of a government agency that he was allegedly wearing---Accused was a serving police officer, attached to a police station therefore, daily diary or the police-line register would have proved as to whether at the relevant time he was present on duty or was absent there-from, but his duty roaster was not taken into possession by the prosecution---Neither the car, in which the accused was travelling along with two accomplices nor the taxi in which the complainant was travelling, were taken into possession or traced out by the police---Convictions and sentences recorded against the accused were set aside in circumstances and he was acquitted of all charges---Appeal was allowed accordingly.

Altaf Samad, Advocate Supreme Court for Appellant.

Muhammad Asif, Advocate Supreme Court for Respondent No. 1.

Aslam Ghumman, Advocate Supreme Court for A.G. Khyber Pakhtunkhwa for the State.

2020 S C M R 313

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

ABDUL AZIZ MEMON---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 231-K of 2019, decided on 26th December, 2019.

(Against order dated 21.10.2019 passed by High Court of Sindh, Circuit Court Hyderabad in Cr. Bail Application No. S-988 of 2019)

Criminal Procedure Code (V of 1898)---

----S. 498---Pre-arrest bail, grant of---Principles---Grant of pre-arrest bail was an extraordinary remedy, rooted into equity, to protect the honour and freedom of the innocent in criminal cases actuated by abuse of process of law for oblique motives and purposes---Such protection could not be extended in every run of the mill criminal case without grievously hindering the investigative process.

Bashir A. Almani, Advocate Supreme Court for Petitioner.

Hussain Bux, Additional Prosecutor-General Sindh for the State.

2020 S C M R 315

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

SALIH MUHAMMAD alias GHALIB---Petitioner

Versus

The STATE through A.-G., Khyber Pakhtunkhwa and another---Respondents

Criminal Petition No. 1059 of 2019, decided on 1st November, 2019.

(On appeal from the judgment dated 6.5.2019 passed by the Peshawar High Court, Peshawar in Crl. Misc. No. 894/P of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 320---Qatl-i-khita by rash or negligent driving---Bail, grant of---According to the FIR, the complainant alleged that he witnessed an accident wherein a bus which was being driven very rashly and carelessly hit the complainant's cousin who died and a student was also injured in the accident---Neither was it claimed in the FIR that the complainant in fact saw the accused driving the vehicle nor disclosed as to how he later came to know that it was being driven by the accused---Despite the arrest of the accused who was in custody since about seven and a half months, no charge against him had been framed by the Trial Court as yet---Accused was granted bail in circumstances.

Arshad Hussain Yousafzai, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Anis M. Shahzad, State Counsel and Khalil ur Rehman, I.O. for the State.

2020 S C M R 316

[Supreme Court of Pakistan]

Present: Faisal Arab and Sajjad Ali Shah, JJ

FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ISLAMABAD through Chairman---Appellant

Versus

ABEER MASOOD---Respondent

Civil Appeal No. 1286 of 2018, decided on 20th December, 2019.

(Against the judgment dated 14.12.2016 passed by the Islamabad High Court, Islamabad in Civil Revision No. 341 of 2016)

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

----S. 42---Suit for declaration seeking change in date of birth---Change in date of birth only allowed in exceptional circumstances---Respondent, who was a student, filed a suit seeking a declaration that her date of birth in the Intermediate Secondary Education Certificate had been incorrectly recorded as 17-8-1992 whereas her correct date of birth was 17-8-1994---Held, that record contained Family Registration Certificate wherein the names of the respondent's siblings and their date of births were mentioned, Computerized National Identity Cards (CNICs) of the respondent and of her elder brother issued by NADRA, birth registration certificate of respondent's brother issued by the relevant authority and the birth certificate of the respondent issued by the Provincial Government---On all the said documents the date of birth of the respondent was mentioned as 17-8-1994 whereas the date of birth of her elder brother was 30-12-1992---Mother of the respondent produced documents relating to date of birth of the respondent's elder brother, which was mentioned as 30-12-1992---If the respondent's date of birth was taken as 17-08-1992, it was quite unbelievable that her elder brother, who was born on 30-12-1992, would have been born only four months after her birth and yet NADRA's record would reflect that her brother was elder than her---Respondent herself stated before the court that she was not an employee of any government or public institution---Supreme Court observed that it would not have allowed the correction in date of birth had the respondent been in the employment of any public, private or government service and was taking undue advantage of change in her date of birth, which might have prejudiced any right of others; that since no such situation arose in the present case, thus, the date of birth on her birth certificate, CNIC as well as in Family Registration Certificate issued by NADRA which was 17-8-1994 could not be ignored; that to ensure that the record did not reflect that the respondent's elder brother was born four months after her birth and to prevent any future dispute amongst her siblings with regard to inheritance and parentage, the Supreme Court was not inclined to interfere with the concurrent finding of courts below, whereby suit of respondent had been decreed---Appeal was dismissed.

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

----S. 42---Suit for declaration---Change in date of birth---Principles---Supreme Court discouraged changes in the date of birth which either could be for the purpose of unduly enhancing the tenure of service in any employment or to bring oneself within certain age limit in order to qualify for getting employed or seeking admission in an institution where age was relevant.

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

Sh. Riazul Haque, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2020 S C M R 319

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Gulzar Ahmed and Iqbal Hameedur Rahman, JJ

Mst. MIR ZALAI---Appellant

Versus

GHAZI KHAN and others---Respondents

Criminal Appeal No. 375 of 2013, decided on 23rd November, 2015.\

(Against the judgment dated 29.09.2011, passed by the Peshawar High Court, D.I. Khan Bench on Criminal Appeal No. 59 of 2011 and Murder Reference No. 06 of 2011)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Appeal against acquittal---Unreliable eye-witnesses---Occurrence took place after dark and no independent proof had been produced by the prosecution regarding availability of electric light at the spot---Circumstances in which the FIR had been lodged were quite suspicious and the eye-witnesses produced by the prosecution before the Trial Court were admittedly chance witnesses who had failed to establish the stated reason for their presence with the deceased at the relevant time---In order to fill such lacuna the prosecution had relied upon the statement of a prosecution witness but the reason provided by him was not supported by the reason statedly found by the investigating officer during the investigation---Both the eye-witnesses produced by the prosecution had claimed that while handling the deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced---In these circumstances the High Court had concluded that the eye-witnesses produced by the prosecution were not reliable and in all likelihood they had not witnessed the murder in issue---Such conclusion reached by the High Court was not open to any exception---Appeal against acquittal of accused was dismissed.

Talat Mahmood Zaidi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Altaf Samad, Advocate Supreme Court for Respondents Nos. 1 and 2.

Waqar Ahmed, Additional Advocate-General, Khyber Pakhtunkhwa for the State.

2020 S C M R 321

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Dr. WAQAR HAMEED---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 490 of 2019, decided on 1st November, 2019.

(Against the judgment of the Lahore High Court, Lahore dated 25.03.2019 passed in Criminal Appeal No. 81060 of 2017 and Criminal Appeal No. 75589 of 2017)

Per Manzoor Ahmad Malik, J; Qazi Muhammad Amin Ahmed, J agreeing; Sajjad Ali Shah, J dissenting. [Majority view]

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

----Ss. 405 & 415---"Criminal breach of trust" and "cheating"---Distinct offences---'Cheating' and 'criminal breach of trust' were two distinct offences---Both said offences could not be alleged simultaneously---Through cheating/fraud, money or property was grabbed or obtained through deceitful means, whereas in case of riminal breach of trust, the property was entrusted voluntarily.

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

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, criminal misconduct---Reappraisal of evidence--- Allegations against the accused and co-accused was that they fraudulently withdrew the salaries of complainant from the Treasury with the intention to misappropriate the same, however, when the matter came into the knowledge of the concerned authorities, they deposited the amount back in the Treasury---Held, that accused and his co-accused (since acquitted by the High Court) had been acquitted by the Trial Court for charges under Ss. 420, 468, 471, P.P.C. and such acquittal had not been challenged by the State or the complainant any further, therefore, the main question before the Court was whether the provisions of S. 409, P.P.C. were attracted to the facts and circumstances of the present case---Prosecution had not alleged that any property was ever entrusted to the accused, which was 'misappropriated' by him---Evidence brought on record in such regard by the prosecution mainly consisted of two pieces; first, withdrawal of salaries of complainant; and secondly, its re-deposit in the Treasury---Complainant, however, did not disclose as to how he came to know that his salaries had been withdrawn---Though a reference to a certain token number had been given by the complainant in his statement recorded during trial regarding the withdrawal of his salaries but there was nothing on record to show in whose favour said token was issued by the concerned office---Coming to the second part i.e. re-deposit of salaries of complainant, it was the case of prosecution that same were deposited through a challan form---No effort was made by the investigating agency for getting the opinion of handwriting expert regarding alleged signatures of accused on said challan form---Perusal of statement of accused recorded under S. 342, Cr.P.C. showed that neither any question was put to him regarding the token through which the complainant's salary was withdrawn nor any question was asked with reference to the challan form through which the money was re-deposited in the Treasury---During investigation a number of documents were taken into possession by the investigating agency, but accused was not confronted with a single one (in order to know his version) by the Trial Court while recording his statement under S. 342, Cr.P.C.---Trial Court did not frame any separate charge against the accused for offence under S. 5(2) of the Prevention of Corruption Act, 1947, which approach was not legally correct, as the Trial Court was required to frame separate charge for each distinct offence---Moreover, while convicting the petitioner under S. 5(2) of the Prevention of Corruption Act, 1947, the Trial Court had not discussed a single piece of evidence to reach the conclusion that accused had committed criminal misconduct---Prosecution had not been able to prove its case against the accused beyond reasonable doubt---Accused was acquitted of the charge framed against him. [Majority view]

Per Sajjad Ali Shah, J dissenting with Manzoor Ahmad Malik and Qazi Muhammad Amin Ahmed, JJ [Minority view]

----In order to prove the offence of criminal breach of trust, the prosecution had to establish that the accused belonged to one of the categories enumerated in S. 409, P.P.C., (in the present case, a "public servant") and that he had been entrusted with property or with dominion over property in that capacity and that he had dishonestly misappropriated or converted that property to his own use or dishonestly used or disposed of that property in violation of any direction prescribing the mode in which trust was to be discharged---Fact that the accused was a Senior Medical Officer vested him with the powers of Drawing and Disbursing Authority and made a case of statutory entrustment over all the amounts which were entrusted to him by the government and which could be withdrawn under his signatures for payment to the employees working under his control---Statutory entrustment with prescribed directions for the discharge of trust by payment of salaries to the employees was, therefore, proved beyond shadow of doubt---As to the second limb i.e. dishonest misappropriation of the entrusted money, the prosecution in all examined 12 witnesses and produced several documents including inquiry reports, challan containing signatures and stamp of accused, roll register through which salaries were paid, copies of attendance registers and pay bill showing salary of complainant withdrawn under the signatures of accused---Accused never suggested that the amount in question was not withdrawn or that it was not subsequently deposited in treasury---Complainant neither had any enmity nor any motive to falsely implicate the accused, therefore, his testimony had to be given due weight---Even before the Trial Court the case of the accused was that he had withdrawn the salaries of the complainant because the complainant was absent from duty, and that he had retained the amount temporarily out of misunderstanding and due to rush of work, and that he had deposited the amount back in the Treasury prior to registration of case---Accused throughout did not render any (plausible) explanation for retaining the amount from August, 2008 when the amount was withdrawn till May, 2009 when it was deposited back in the Treasury---Prosecution had produced ample documentary as well as oral evidence to prove that on the one hand the accused did not allow the complainant to join his duties or mark his presence in the attendance register and on the other hand, withdrew his salary and dishonestly misappropriated the amount for his own use---As to the making up of losses by the accused by depositing the dishonestly misappropriated amount back into the Treasury, that too after the initiation of inquiry, hardly affected the offence or the guilt and had been rightly considered by the Trial Court while inflicting lesser sentence on him. [Minority view]

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

----S. 342---Power of court to examine the accused---Scope---Piece of evidence which was not put to an accused while recording his statement under S. 342, Cr.P.C. could not be used against him.

Ch. Muhammad Zahoor Nasir, Advocate Supreme Court for Petitioner.

M. Shaukat Khan, Computer Operator in person for Respondents.

Mirza Abid Majeed, DPG Punjab for the State.

2020 S C M R 333

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Maqbool Baqar and Faisal Arab, JJ

COMMISSIONER INLAND REVENUE (ZONE-I) LTU, KARACHI---Appellant

Versus

Messrs LINDE PAK LTD., KARACHI---Respondent

Civil Appeal No. 837 of 2011, decided on 25th September, 2019.

(Against Order dated 21.04.2011 of the High Court of Sindh, Karachi passed in I.T.R. No. 171 of 2003)

(a) Words and phrases---

----'Instrument'---Definition and meaning.

The term 'instrument' has been defined in its ordinary sense, as a written legal document that defines rights, duties, entitlements or liabilities, such as statute, contract, will, promissory note or share certificate and with reference to commercial law, the terms has been defined there as an unconditional promise or order to pay a fixed amount of money or other fixed charges described in the promise or order esp., commercial paper or security, or any other writing that evidences a right to the payment of the money.

Black's Law Dictionary, 10th Edition ref.

(b) Words and phrases---

---'Agreement'---Definition and meaning.

An 'agreement' is a manifestation of mutual assent by two or more persons, and as 'the parties actual bargain founded in their language, or by implication from other circumstances'. It is an act in law whereby two or more persons declare their consent as to any act or thing to be done or forborne by some or one of those persons for the use of the others and other of them, which should reflect the meeting of minds of the contracting parties.

Whereas agreements, manifest the mutual consent of the parties thereto, and embody their actual bargain in respect of any act or thing to be done or forborne, it is a mutual document, containing reciprocal promises and obligations, executed by and between the parties to the bargain. It could be either a bilateral and/a multilateral document. The profound distinction between these two kinds of documents are well pronounced. The two patently belong to distinct and different species of documents.

Black's Law Dictionary, 10th Edition ref.

(c) Words and phrases---

----'Bond'---Definition and meaning.

A 'bond' has been described as a "document containing confession of a debt", as a "written promise to pay money", or to do some act if certain circumstances occur, or a certain time elapse. There is no distinction between bonds and `certificates of indebtedness' which conforms to all the characteristics of bonds.

Black's Law Dictionary, 10th Edition ref.

(d) Words and phrases---

----'Certificate'---Definition.

The word 'certificate' has been defined as a written declaration, official or formal of some fact.

Chamber's English Dictionary ref.

(e) Words and phrases---

----'Debenture'---Definition and meaning.

The term 'Debenture' whose origin lies in the latin word debenture, meaning, 'there are due', has been described as an instrument acknowledging a debt secured only by a general credit and financial reputation of the corporate issuer, not by a lien on corporate assets.

Black's Law Dictionary, 10th Edition ref.

(f) Words and phrases---

----'Security'---Definition and meaning.

The term 'security' has been defined there as a collateral, given or pledged to guarantee the fulfilment of an obligation, esp, the assurance that a credit will be repaid (usu, with interest) any money or credit extended to a debtor.

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

----S. 50(7D)---Finance/loan agreement---Mark-up accrued---Deduction of advance tax---Word "instrument of any kind" used in S. 50(7D) of the Income Tax Ordinance, 1979---Interpretation---Ejusdem generic, principle of---Tax department found that the respondent-company had not deducted and paid tax on the mark-up accrued in terms of a finance/loan agreement executed between the respondent-company and a consortium of financial institutions and commercial banks, in respect of a long term finance granted by the said consortium to the respondent-company ("the finance/loan agreement---Tax department contended that the respondent-company, in terms of the finance/loan agreement, was obliged to deduct income tax on the markup accrued in respect of the finance granted in terms of the finance/loan agreement, as mandated by S. 50(7D) of the Income Tax Ordinance, 1979 ("the Ordinance")---Held, that S. 50(7D) of the Income Tax Ordinance, 1979 provided that " Any person responsible for making any payment by way of profit or interest on bonds, certificates, debentures, securities or instruments of any kind issued by any banking company ... shall deduct advance tax, at the time of making such payment …."---Term 'instrument of any kind', could not, in the context of the S. 50(7D) of the Ordinance be construed in its wider sense, so as to include an 'agreement', or for that matter a finance/loan agreement within its fold as it would be violative of the rule of construction known as ejusdem generis, meaning, 'the same kind or class'---General words could not be read in isolation, their colour and their contents were to be derived from their context and surroundings---Addition of the phrase 'of any kind', to the word `instrument' also was of no avail to the tax department as such purported supplementation could not detach the word 'instrument' from the string of the 'specifics' preceding it---Respondent-company could not, therefore, be held liable under S. 50(7D) of the Ordinance, for not deducting income tax in relation to the finance/loan agreement---Appeal was dismissed accordingly.

A.G. v. Brown [1920] 1 KB 773 ref.

(h) Ejusdem generis, principle of---

----Meaning---Ejusdem generis meant 'the same kind or class', which required that when a general word or phrase followed a list of specifics the former would be interpreted to include only the items of the same class as those listed---Where a word of wider meaning was included in a string of genus describing terms of narrower meaning, the ejusdem generis principle would operate to restrict the meaning of the wider word, so as to keep it within the genus---Ejusdem generis rule was founded upon the idea that if legislature intended a general word to be used in an unrestricted sense, the particular clauses would not have been mentioned.

Bennion "Statutory Interpretation" 1984 Edn. P-536; Manghild (SS) v. Mclntyre Bros & Co. (1920) 2 KB 321, 331; Att. Gen. v. Seccombe (1911) 2 KB 688; Scale v. Pickering (1828) 2 Bing 448 and Bourne v. Norwich Crematorium Ltd. [1967] 1WLR 691, 696 ref.

Irfan Mir Halepota, Advocate Supreme Court for Appellant.

Shahid Hamid, Senior Advocate Supreme Court for Respondent.

2020 S C M R 340

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Amin-ud-Din Khan, JJ

KHIYAL SABA and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No. 950 of 2019, decided on 13th November, 2019.

(Against the order of the Peshawar High Court, Peshawar dated 22.07.2019 passed in Cr. M.B.A. No. 1663-P of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, grant of---Further inquiry---As per contents of FIR, precise allegation against the accused and co-accused was that of causing injuries on the persons of two prosecution witnesses, whereas there was no allegation against them of causing any injuries to the deceased---Medico Legal Reports of injured prosecution witnesses reveal that one of them sustained two stab wounds during the occurrence, whereas there were bruises on the person of the other witness---Prosecution confirmed that nature of injuries of injured witnesses had not yet been declared, and that nothing was recovered from the accused and co-accused during the course of investigation---Accused and co-accused were behind bars since almost six months---All said circumstances made their case one of further inquiry falling within the ambit of S. 497(2), Cr.P.C., thus, they were granted bail.

Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioners.

Amanullah Khan Niazi, Advocate Supreme Court for the Complainant.

Arshad Hussain Yousafzai, Advocate Supreme Court and Tariq Mahmood, SI for the State.

2020 S C M R 342

[Supreme Court of Pakistan]

Present: Mushir Alam, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD SIDDIQUE and others---Petitioners

Versus

The STATE---Respondent

Jail Petitions Nos. 24, 69, 215, 486 of 2016 and 682 of 2017, decided on 2nd January, 2020.

(Against judgment dated 10.12.2015 of the High Court of Sindh, Karachi passed in Special Criminal Anti-Terrorism Appeals Nos.5, 6 and 36 of 2005 with Confirmation Case No.1 of 2005)

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

----Art. 22---Test identification parade, evidence of---Appraisal of such evidence---Framework under Art. 22 of Qanun-e-Shahadat, 1984 provided enough space to admit evidence in prosecution of offenders previously unacquainted with the victims or the witnesses---Appraisal of such evidence was subject to same principles as were universally applicable to any piece of evidence, under consideration in a criminal trial; there were no additional barricades in such regard as was evident from the plain reading of Art. 22.

(b) Criminal trial---

----Reappraisal of evidence---Principles---Each criminal case was to be decided having regard to its own peculiar facts and circumstances---Test to be essentially applied in one case may absolutely be irrelevant in another, as crimes were seldom committed in identical situations.

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

----Ss. 365-A & 395---Kidnapping or abduction for ransom, dacoity---Prosecution---Onus to establish distinct role of each accused during the occurrence---Scope---In many cases prosecution must assign distinct roles played during the occurrence by the culprits for determination of their guilt as well as consequences thereof, however, there were cases in which totality of transaction may not warrant separability for such determination, e.g. cases involving abductions, dacoities and sudden assaults---Said offences more often than not, constituted episodes wherein different roles played by the culprits merged into integral totality of the crime, thus, it would be too harsh as well as unrealistic to demand (from the prosecution) exact re-enactment of roles by the witnesses---Capacities (of witnesses) even if intellectually sharp decreased drastically in calamitous situations, therefore, the administration of criminal justice, in such peculiar situations, had to be dynamically balanced upon fair trial without prejudice to the accused as well as due weightage to the prosecution evidence without being swayed by illusory notions, subjectively structured upon hypothetical beliefs.

Mahmood Akhtar Qureshi, Advocate Supreme Court for Petitioners (in J.P. No. 215 of 2016).

Dr. Raana Khan, Advocate Supreme Court for Petitioners (in J.Ps. Nos. 24, 69, 486 of 2016 and J.P. No. 682 of 2017).

Hussain Bux Baloch, Additional Prosecutor-General Sindh for the State.

2020 S C M R 346

[Supreme Court of Pakistan]

Present: Faisal Arab and Sajjad Ali Shah, JJ

FAQIR AHMED KHAN (DECEASED) through L.Rs.---Appellant

Versus

RIAZ AHMAD and others---Respondents

Civil Appeal No. 837 of 2015, decided on 14th November, 2019.

(Against the judgment dated 05.06.2015 passed by the Peshawar High Court, Peshawar in Civil Revision No. 311-P of 2014)

(a) [Khyber Pakhtunkhwa] Muslim Personal Law (Shariat) Application Act (VI of 1935)---

----S. 3(2)---Inheritance---Custom---Section 3(2) of Muslim Personal Law (Shariat) Application Act, 1935 (1935 Act)---Effect---Section 3(2) clearly indicated that notwithstanding any custom that was in force prior to the 1935 Act coming into force, whenever a question of succession upon the death of a Muslim arose in any Court, the Muslim Personal Law would be applicable with effect from the time of such death---Word 'whenever' contained in S. 3(2) was significant; it meant that whenever a question relating to succession of a Muslim was raised in any Court, the Muslim Personal Law had to be applied with effect from the time when the death had taken place irrespective of the fact that at that time some custom was in force.

(b) Islamic law---

----Inheritance, right of---Scope---Muslim heir dying before claiming his right to inheritance---Effect---Right of an heir to claim inheritance did not dissipate with his death as upon his death, it passed on to his heirs and so on and so forth---So when a Muslim had not received in his lifetime his share in the property to which he was entitled under Muslim Personal Law then the same right stood transferred to his heirs---No death could prevent a rightful heir to claim his share in the inheritance of his predecessor to which predecessor was entitled under the provisions of Muslim Personal Law---Merely for the reason that one's predecessor had died without claiming or receiving his share in the property that was inheritable by him under the Muslim Personal Law would be of no legal consequence.

Sardar Muhammad Aslam, Advocate Supreme Court for Appellant.

Muhammad Shahid Rasool, Advocate Supreme Court and Muhammad Ashraf Qureshi, Advocate Supreme Court for Respondents.

2020 S C M R 350

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan and Manzoor Ahmad Malik, JJ

AYA KHAN and another---Petitioners

Versus

The STATE---Respondent

Criminal Petition No. 926 of 2015, decided on 26th January, 2016.\

(On appeal against the judgment dated 20.11.2015 passed by Peshawar High Court, Peshawar in Cr. Misc. (BA) No. 1954-P of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c)---Possession of narcotic---Bail, grant of---Borderline case between 9(b) & 9(c) of Control of Narcotic Substances Act, 1997---Benefit of doubt to accused--- Vehicle in which the accused and co-accused were travelling was intercepted on a highway, and on checking of the same 1100 grams of heroin powder contained in plastic shopper bag was recovered---Neither the FIR nor the recovery memo mentioned whether it was the net or gross weight of the narcotic---In such circumstances it became a border line case between Ss. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997---Benefit of doubt in this regard was to go to the accused---Accused and co-accused were granted bail accordingly.

Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

Altaf Samad, Advocate Supreme Court for Petitioners.

Zahid Yousaf Qureshi, Advocate Supreme Court and A.-G. Khyber Pakhtunkhwa for the State.

2020 S C M R 352

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

SHABLA and others---Appellants

Versus

Ms. JAHAN AFROZ KHILAT and others---Respondents

Civil Appeals Nos. 1520, 1521 and 1522 of 2016, decided on 13th November, 2019.

(Against judgment dated 10.10.2016 passed by Lahore High Court, Lahore passed in C.R. No. 2754 of 2004 and connected C.Rs.)

(a) Islamic law---

----Inheritance---Female heir/legatee parting with her inherited property---Burden of proof---Right of inheritance, rooted into (Muslim) Personal Law, had to be jealously guarded, therefore, a heavy onus was cast upon the claimant/beneficiary to demonstrate that a female legatee had parted with her entitlement by choice and for considerations, consciously, without duress or uncalled for persuasions, by those placed qua her in advantageous positions.

(b) Limitation---

----Fraud in inheritance---Limitation never ran against fraud, more so in matters involving inheritance rights of a female.

Fazal Ellahi deceased through legal heirs v. Mst. Zainab Bi 2019 SCMR 1930; Khan Muhammad through L.Rs and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476; Mahmood Khan v. Syed Khalid Hussain Shah 2015 SCMR 869; Mst. Gohar Khanum v. Mst. Jamila Jan 2014 SCMR 801; Rehmat Ullah and others v. Saleh Khan and others 2007 SCMR 729; Arshad Khan v. Resham Jan and others 2005 SCMR 1859 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

(c) Co-sharer---

----Deemed possession---Co-sharer in an estate was deemed to be in possession of each inch thereof till the land was partitioned according the respective shares.

Malik Ejaz Hussain Gorchha, Advocate Supreme Court for Appellants (in C.As. Nos. 1520 and 1521 of 2016).

Malik Ghulam Mustafa Kandwal, Advocate Supreme Court for Appellants (in C.A. No. 1522 of 2016).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Maulvi Anwar-ul-Haq, Advocate Supreme Court, Ch. Ali Muhammad, advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record for Respondent No.1.

2020 S C M R 356

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Qazi Muhammad Amin Ahmed, JJ

NAZEEM ULLAH and others---Petitioners

Versus

The STATE---Respondent

Criminal Petition No. 947 of 2019, decided on 4th October, 2019.

(Against the order of the Peshawar High Court, Peshawar dated 21.08.2019 passed in Cr. Misc. B.A. No. 2472-P of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(b)---Possession of narcotic---Bail, grant of---Conscious knowledge/ possession of presence of narcotic yet to be determined---As per contents of FIR, at the time of raid, one co-accused fled away from the spot from the back door of baithak---Narcotic was recovered from a shopping bag, which was found from the center of the baithak---Question whether the accused and co-accused persons had the conscious knowledge or possession of the recovered narcotic substance shall be determined at the time of trial---Moreover, the offence alleged fell outside the prohibitory clause of S. 497, Cr.P.C.---Accused and co-accused persons were granted bail in circumstances.

Nasrum Minallah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Arshad Yousafzai, Advocate Supreme Court on behalf of State.

2020 S C M R 357

[Supreme Court of Pakistan]

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

REHMAN ULLAH alias INSAF---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 613 of 2016, decided on 22nd August, 2016.\

(Against the judgment dated 02.05.2016 passed by the Peshawar High Court, Peshawar in Criminal M. B.A. No. 681-P of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Bail, refusal of---Occurrence had taken place in daylight and an FIR in respect of the same had been lodged with reasonable promptitude wherein the present accused had specifically been named as the principal accused and effective firing at deceased as well as ineffective firing at complainant had been attributed to him therein---Eye-witnesses mentioned in the FIR stood by their statements made before the police fully incriminating the accused---Prima facie the medical evidence lent support to the ocular account in respect of the role attributed to the accused---Apparently the accused was connected with the motive set up in the FIR and during the investigation a pistol had been recovered from his custody which firearm had matched with two crime-empties secured from the place of occurrence and also with a bullet recovered from the deadbody of deceased---According to the record the accused had remained a fugitive for three long years before he was arrested---Trial of accused had already commenced---In view of all said factors available on the record prima facie reasonable grounds existed to believe in the accused's involvement in the alleged offence---Petition for leave to appeal was dismissed and accused was denied bail.

Ms. Tehmina Mohibullah Kakakhel, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Altaf Samad, Advocate Supreme Court for Respondent No. 2.

2020 S C M R 359

[Supreme Court of Pakistan]

Present: Mushir Alam, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Sheikh IQBAL AZAM FAROOQUI through Legal Heirs---Petitioner

Versus

The STATE through Chairman NAB---Respondent

Criminal Petition No. 79-K of 2019, decided on 2nd January, 2020.

(Against order dated 21.3.2019 of the High Court of Sindh, Karachi passed in Cr. Accountability Appeal No.14/2013)

Criminal Procedure Code (V of 1898)---

----S. 431---Abatement of appeal---Scope---Sentence and fine imposed by Trial Court---Appeal against conviction filed before the High Court---Convict expiring during pendency of his appeal---Question whether appeal required adjudication on merits after death of convict---Held, that corporal consequences of a conviction withered away with the death of the convict, therefore appeal filed by the convict would automatically abate, as the death severed all temporal links with his corpus---However, financial liability or fine, consequent upon conviction, which shifted upon the estate of deceased-convict, would certainly require the appellate court to decide the appeal on its own merit as in the event of its failure, the liability was to be exacted from the assets devolving upon the legal heirs.

Amir Raza Naqvi, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Petitioner.

Sattar Awan, Special Prosecutor for the State.

2020 S C M R 404

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

FAZAL WAHAB---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 207 of 2018, decided on 14th October, 2019.

(Against the judgment dated 15.02.2018 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 771-P of 2017)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---At the time of arrest of accused 6000 grams charas gardah was recovered from his possession---Prosecution in order to bring home the guilt of the accused produced complainant/ Station House Officer (SHO) and an Assistant sub-Inspector---Latter was also a witness of recovery---Both said witnesses while appearing before the Trial Court remained consistent on all the material aspects of the case---To prove safe custody of case property in malkhana, the prosecution produced the muharrir---Moreover, positive report of Forensic Science Laboratory substantially established the case of prosecution against the accused---During trial, the defence was not able to bring on record anything which could suggest that accused had been implicated in the case due to malice on the part of prosecution witnesses---Findings of guilt rendered by the courts below against the accused did not suffer from any infirmity---High Court had already taken a lenient view by reducing the sentence of the accused from 14 years imprisonment to seven years and by reducing the fine from Rs. 200,000 to Rs.100,000---Jail petition was dismissed.

Amjad Iqbal Qureshi, Advocate Supreme Court for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court for the State.

2020 S C M R 406

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sajjad Ali Shah, JJ

MUHAMMAD MISKEEN---Appellant

Versus

DISTRICT JUDGE ATTOCK and others---Respondents

Civil Appeal No. 383 of 2013, decided on 15th January, 2020.

(Against the order dated 10.6.2011 passed by the Lahore High Court, Rawalpindi Bench in W.P. 1436 of 2011)

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

----S. 22---Discretion of court as to decreeing specific performance---Scope---Jurisdiction to decree a suit for specific performance was purely discretionary and the Court was not bound to grant such relief merely because it was lawful to do so---Such discretion of the Court was not arbitrary but was based on sound and reasonable judicial principles.

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

----S. 12---Suit for specific performance of agreement to sell---Agreement to sell---Deficiencies---Agreement not specifying details about 'metes and bounds' and khasra number, khewat number etc. of the property nor its sale consideration---Held, that Trial Court had totally ignored the law on the subject of specific performance while decreeing the suit on the basis of such an agreement---Trial Court ought to have given convincing reasons for decreeing the suit by allowing specific performance and for ignoring all the deficiencies in the agreement as well as in the plaint.

In the present case, courts below had totally ignored the law on the subject while decreeing the suit on the basis of an agreement which neither specified the property under sale by metes and bounds nor provided for the sale consideration. The agreement merely stated that a sum of Rs.50,000/- was paid in advance towards an unspecified sale price in respect of six marlas of land situated in a certain Tehsil and District without specifying Khasra numbers, khewat numbers etc. The plaint filed by the plaintiff though had prescribed the khasra numbers (without any supporting documentary evidence showing the ownership of the seller in respect of land claimed) but was totally silent regarding the agreed sale consideration. The trial Court without framing any issue to find out the veracity of the plaintiff's claim regarding the claimed land or the title of the seller believed the statement of plaintiff and decreed the suit.

The other failure on the part of the trial Court was to fix the total sale price of the property on its own ignoring the fact that neither the agreement nor the plaint prescribed the sale price. The trial Court allowed the plaintiff to build a case which was even not pleaded in the plaint. The Court even did not feel it necessary to frame an issue to find out the sale price and placed reliance on totally extraneous documents.

The trial Court ought to have given convincing reasons for decreeing the suit by allowing specific performance and for ignoring all the deficiencies in the agreement as well as in the plaint specially when the relief was discretionary.

Mazhar Masood Khan, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellant.

Sh. Ahsan ud Din, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No. 3.

Sh. Azmat Ali Bukhari, Advocate Supreme Court for Respondent No. 4.

2020 S C M R 414

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Ijaz ul Ahsan, JJ

NADAR WALI---Petitioner

Versus

SUMAYA GUL and another---Respondents

Criminal Petition No. 879 of 2016, decided on 3rd November, 2017.\

(On appeal against the judgment dated 18.07.2016 passed by the Peshawar High Court, Peshawar in Cr.A. No. 551 of 2011)

Criminal Procedure Code (V of 1898)---

----Ss. 195(1)(b) & 195(1)(c)---Using forged documents during court proceedings---Prosecution under S. 195, Cr.P.C.---Procedure---Complaint in writing by the court where forged document presented---Scope---Petitioner by using forged documents during proceedings before the Family Court had prima facie committed offences enumerated in S. 195(1)(b) & (c), Cr.P.C.---Case was registered against the petitioner under Ss. 419, 420, 468, 471, 208, 406 & 193, P.P.C. and forwarded to the Trial Court for trial but the Trial Court could not take cognizance of the offences as complaint in writing by the Court concerned or the Court to which such Court was subordinate was not made---Held, that Single Judge of the High Court while deciding the appeal in the present case could have directed the Family Court where the forged document was used in evidence, to file a complaint in writing in respect of the offences committed, before the Court of competent jurisdiction, but he, for whatever reasons opted to remand the case to the Trial Court for proceeding against the accused for offences other than those mentioned in S. 195 Cr.P.C.---Remand of the case for proceeding with the trial of the offences which were neither made out nor committed by the petitioner was absolutely unjustified as it was not a trial for the heck of it but a trial for the offences committed during the proceedings before the Family Court---If the Trial Court could not take cognizance of the case for want of complaint for the offences committed, proper complaint was the remedy---Resumption of the trial on remand of the case for the offences not committed would be nothing but mockery of law and travesty of justice which could not be allowed under any circumstances---Since Trial Court in view of the provisions contained in S. 195(1)(b) & (c), Cr.P.C. could not take cognizance of the matter, the Supreme Court directed the Family Court to file a compliant against the petitioner in accordance with provisions of S. 195, Cr.P.C. for the offences alleged to have been committed by him---Petition for leave to appeal was converted into appeal and allowed accordingly.

Altaf Samad, Advocate Supreme Court for Petitioner.

Mujahid Ali Khan, Additional A.-G. Khyber Pakhtunkhwa for the State.

Nemo for the Complainant.

2020 S C M R 417

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

ZULFIQAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1672-L of 2019, decided on 15th January, 2020.

(Against order dated 02.12.2019 passed by Lahore High Court, Lahore in Criminal Misc. No. 51181-B of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd--- Bail, grant of---Further inquiry---Accused and his co-accused persons were alleged to have made fire shots at the deceased---Accused was assigned effective role of firing qua the deceased in the crime report, however the investigating officer opined that the accused had merely abetted the crime without being present at the spot---Allegedly accused was accompanied by his two able bodied sons (co-accused), each of whom was lethally armed---Question was whether in such circumstance the accused had any occasion to be part of the occurrence was an issue to be best settled after recording of evidence---Three fire shots sustained by the deceased did not commensurate with the volley of fires collectively made by the assailants---Such circumstance additionally warranted further probe---Furthermore accused was in his late sixties, which was yet another factor in his favour---Culpability of accused certainly called for further probe, thus, a case for his release on bail stood made out---Accused was granted bail.

Muhammad Ramzan Chaudhary, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Mirza Abid Majeed, Deputy Prosecutor-General Punjab with Abid, I.O. for the State.

Sajjad Hussain, Advocate Supreme Court for Respondents.

2020 S C M R 418

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

HAZRAT AMIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 67-P of 2019, decided on 7th October, 2019.

(Against the order of the Peshawar High Court, Peshawar dated 09.08.2019 passed in Criminal M.B.A. No. 2146-P of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 365-B---Kidnapping, abducting or inducing woman to compel for marriage etc.---Bail, grant of---Further inquiry---Matter was reported to the police with a delay of about eight days---Prosecution under instructions of the police officer present with record, stated that there was no direct evidence available on record against the accused---Police officer present in Court even failed to point out any legally admissible piece of evidence available on record, which could connect the accused with the alleged offence---Challan had not yet been submitted before a court of competent jurisdiction---Accused was behind bars since more than three months---All said circumstances made the case one of further enquiry falling within the ambit of S. 497(2), Cr.P.C.---Accused was granted bail.

Altaf Khan, Advocate Supreme Court for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court and Wajid, SI for the State.

2020 S C M R 420

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Munib Akhter and Qazi Muhammad Amin Ahmed, JJ

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

Versus

Messrs WI-TRIBE PAKISTAN LTD., ISLAMABAD---Respondent

Civil Petitions Nos. 3317 and 3318 of 2018, decided on 22nd January, 2020.

(Against judgment dated 21.5.2018 passed by the Islamabad High Court, Islamabad in FERA Nos. 11 and 13 of 2015)

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

----S. 3 & Third Sched., Table II, S. No. 2---Federal Excise Duty---Internet service---Transmission of voice content through the internet---Exempted from Federal Excise Duty---All telecommunication facilities availed through the internet were exempted from Federal Excise Duty irrespective of their nature---Internet services/facilities were wholly exempted from Federal Excise Duty---Nothing extraneous could be read into the relevant entry in the Federal Excise Act, 2005 to qualify or restrict such exemption.

(b) Interpretation of statutes---

----Fiscal statute---Fiscal provision of a statute had to be construed liberally in favour of the tax payer.

Dr. Farhat Zafar, Advocate Supreme Court and Ch. Akhter Ali, Advocate-on-Record for Petitioner.

Ayyaz Shaukat, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2020 S C M R 423

[Supreme Court of Pakistan]

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

HIDAYAT KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1088 of 2019, decided on 18th November, 2019.

(Against the order dated 11.10.2019 passed by the Peshawar High Court, Peshawar in Criminal M. (B.A.) No. 2668-P of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 404 & 201---Qatl-i-amd, dishonestly receiving stolen property, causing disappearance of evidence of offence---Bail, grant of---Further inquiry---Admittedly, the accused was not named in the FIR in any context---Prosecution had based its case against the accused on the basis of recovery of a SIM card from him belonging to the deceased, a pistol recovered on pointation of accused, positive report of Forensic Science Laboratory (FSL) and the statement of father of deceased recorded under S. 164, Cr.P.C.--- Father of deceased had not implicated the accused on the basis of any evidence, rather he stated in his statement that different steps taken by the police during the course of investigation particularly call data which showed that a call was allegedly made between deceased and the accused and the recovery of pistol on the pointation of the accused convinced him that accused was involved in the crime---Evidentiary value of report of the FSL was to be determined by the Trial Court after recording the evidence of the parties---Case against the accused called for further inquiry within the ambit of S. 497(2), Cr.P.C.---Accused was granted bail with the directions that if the concession of bail was misused by the accused or any delay in conclusion of trial was caused by him or anyone else acting on his behalf, the Trial Court shall be competent to recall the bail, after hearing the parties, strictly in accordance with law.

Asadullah Khan Chamakani, Advocate Supreme Court for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court along with Waheed Khan, ASI for the State.

2020 S C M R 425

[Supreme Court of Pakistan]

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

NATIONAL ACCOUNTABILITY BUREAU through Chairman---Appellant

Versus

MUHAMMAD SHAFIQUE---Respondent

Civil Appeal No. 1618 of 2019, decided on 6th January, 2020.

(Against the order dated 18.7.2017 passed by the Islamabad High Court in W.P. No. 3793 of 2016)

(a) Revised Leave Rules, 1980---

----R. 9(3)---Extraordinary leave without pay---Scope---Unauthorised absence from duty for a continuous period of 66 days---Compulsory retirement---Office order imposed major penalty of compulsory retirement on the respondent and treated his unauthorised absence from duty as extraordinary leave without pay---Interpretation---Plea on behalf of respondent that since his unauthorised absence from duty was treated as extraordinary leave without pay, therefore, the major penalty of compulsory retirement could not be sustained---Held, that perusal of the office order reflected that the competent authority in the first paragraph of office order had expressed its mind explicitly on the unauthorized absence of the respondent by imposing the major penalty of compulsory retirement from service with immediate effect---So far as the second portion of the office order treating absence of respondent as extraordinary leave without pay was concerned, since the penalty imposed by the competent authority was of compulsory retirement which followed the payment of salaries and other dues till the date of imposing such penalty, therefore, it was necessary to give finding as to how such absence was to be treated---Office order categorically provided for consequences of unauthorised absence in the form of compulsory retirement---Appeal was allowed.

(b) Revised Leave Rules, 1980---

----R. 9(3)---Extraordinary leave without pay---Scope---Rule 9(3) of Revised Leave Rules,1980 empowered the authorized officer to treat the unauthorized absence of an employee as extraordinary leave without pay but such treatment was not to be automatically allowed in every case---Such power was to be exercised in very genuine cases where the authorized officer found that imposing of major penalty on account of unauthorized absence of an employee would be too harsh or was not warranted under the circumstances---However, where the authorized officer after due application of mind upon examining/adjudging the misconduct had imposed one of the major penalties and thereafter keeping in mind that the gap between the un­authorized absence of the employee and the imposition of major penalty was to be provided with some kind of treatment provided for accordingly, then such treatment would undo the major penalty.

Lahore Development Authority v. Muhammad Nadeem Kachloo 2006 SCMR 434; Director General Intelligence Bureau v. Muhammad Javed 2012 SCMR 165 and Muhammad Sharif Abbasi v. Member, Water, WAPDA Lahore 2013 SCMR 903 distinguished.

Imran ul Haq Khan, DPG NAB for Appellant.

Raja Muhammad Aleem Khan Abbasi, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Respondent.

2020 S C M R 431

[Supreme Court of Pakistan]

Present: Mushir Alam and Manzoor Ahmad Malik, JJ

MURAD KHAN---Petitioner

Versus

The STATE---Respondent

Cr. P. No. 73 of 2016, decided on 14th March, 2016.\

(Against the order of the Peshawar High Court Peshawar dated 18.01.2016 passed in Criminal Miscellaneous (B.A.) No. 2336-P of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(b)---Possession of narcotic---Accused was driving a motorcar when he was stopped at a picket and on his pointation, one packet of 600 grams heroin was recovered from the secret cavity of the car, out of which one gram heroin was separated and was sent to the Forensic Science Laboratory for chemical examination---Report of the Forensic Science Laboratory was still awaited---Moreover, the case of the accused fell within the purview of S. 9(b) of the Control of Narcotic Substances Act, 1997, wherein maximum punishment was provided as seven years and fine---Accused was behind the bars for more than three months and no useful purpose would be served by keeping him behind the bars for an indefinite period---Accused was granted bail in circumstances.

Altaf Samad, Advocate Supreme Court and Haji Muhammad Zahir Shah, Advocate-on-Record for Petitioner.

Zahid Yousaf, Advocate Supreme Court for the State.

2020 S C M R 432

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

FAYAZ KHAN---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Aviation Cabinet Secretariat, Aviation Division, Islamabad and another ---Respondents

Civil Petition No. 1839 of of 2018, decided on 14th January, 2020.

(Against judgment dated 3.4.2018 passed by Peshawar High Court, Peshawar in W.P. No. 2614-P of 2016)

Airport Security Force Act (LXXVII of 1975)---

----S. 7-A---Pakistan Army Act (XXXIX of 1952), Preamble---Employee of Airport Security Force---Dismissal from service by Summary Court Martial---Such employee was subject to the Pakistan Army Act, 1952.

By virtue of section 7-A of the Airport Security Force Act, 1975 every officer/member of the Airport Security Force, was subject to the Pakistan Army Act, 1952 and, therefore, could be competently proceeded against by a duly constituted tribunal, findings whereof could not be upset unless shown to have been carried out without jurisdiction, coram non judice or mala fide.

District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401 ref.

Muhammad Bashir Khan, Advocate Supreme Court and Arshad Ali Chaudhary, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2020 S C M R 434

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

KHALID MEHMOOD---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 977 of 2019, decided on 7th October, 2019.

(Against the order of the Peshawar High Court, Peshawar dated 23.08.2019 passed in Criminal Miscellaneous B.A. No. 2300-P of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 409, 419, 420 & 468---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, criminal misconduct---Bail, grant of---Further inquiry---Crux of prosecution case against the accused was that he prepared some forged documents containing fake signatures of a Deputy Commissioner and handed over the same to the co-accused, who was the beneficiary of the alleged transaction---Prosecution as well as investigating officer did not confirm whether any expert opinion had been sought qua the fake and forged signatures of Deputy Commissioner on the disputed papers---Investigating officer confirmed that the co-accused/alleged beneficiary had already been allowed bail by the High Court, which order, according to him, had not been assailed so far---Furthermore the accused was behind the bars since about last three months---Case against the accused called for further enquiry falling within the ambit of S. 497(2), Cr.P.C.---Accused was granted bail accordingly.

Tanveer Iqbal, Advocate Supreme Court for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court and M. Tanvir, IO, Anti-Corruption for the State.

2020 S C M R 436

[Supreme Court of Pakistan]

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

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and others---Appellants

Versus

ZIA-UR-REHMAN---Respondent

Civil Appeal No. 661 of 2018, decided on 13th January, 2020.

(Against judgment dated 25.01.2017 of the Punjab Service Tribunal, Lahore passed in Appeal No. 4088 of 2014)

(a) Civil service---

----Traffic warden---Additional basic pay---Scope---"Letter of offer for appointment" and "Letter of appointment"---Interpretation---Respondent was appointed as a Traffic Warden (BS-14)---Before issuance of the appointment letter, a letter of offer of appointment as Traffic Warden (BS-14) was issued wherein it was mentioned that appointee shall receive emoluments of one additional basic pay plus 20 days fixed daily allowance and other allowances sanctioned by the Government from time to time---However, vide a subsequent notification the said emoluments were frozen to the levels existing at a prior date----Whether the additional basic pay formed part of the basic emolument of the respondent and therefore it was subject to increase---Held, that "letter of offer of appointment" was never accepted by the respondent and it was in the nature of an intimation---Had the respondent accepted the said letter, he may have had an arguable case---Appointment of the respondent was made through a "letter of appointment" as Traffic Warden (BS-14) and it was pursuant to and in acceptance of the terms and conditions of the said letter that the respondent joined the department---Said letter of appointment undertook a promise of grant of BS-14 with other emoluments at par with the Punjab Highway Patrol Police and as enhanced/ supplemented by the Government from time to time---Even otherwise correct meaning and interpretation of the "letter of offer of appointment" as well as the "letter of appointment" in essence meant the same things namely that the respondent would be entitled to draw his pay in BS-14 with other emoluments at par with the Punjab Highway Patrol Police---Furthermore the respondent never challenged the notification of the Provincial Government by virtue of which special pay and allowances were frozen at the level of an earlier date---Said freezing was applicable to all employees of the Provincial Government including the Provincial Police---Appeal was allowed and judgment of Service Tribunal was set aside.

Government of NWFP v. I.A. Sherwani PLD 1994 SC 72 and Secretary, Railways Board v. Muhammad Zubair Rana PLD 2000 SC 61 distinguished.

Abdul Hameed v. Special Secretary, Education 2016 SCMR 1611 ref.

(b) Civil Service Rules (Punjab)---

----Vol. I, Pt. I, Chapt. II, R. 2.44(a)---Pay---Interpretation---Special pay---Scope---Special pays granted in lieu of personal qualification were excluded from the general definition of "pay" and any interpretation or reasoning adopted to include it in the "pay" was incorrect.

Abdul Hameed v. Special Secretary, Education 2016 SCMR 1611 ref.

Ch. Faisal Fareed, Additional A.-G. Punjab, Shahbaz Ahmed Sheikh, Law Officer, Finance Department, Punjab, Amanullah, Dy. Secy., Government of Punjab, Finance Department, Punjab and Saif-ur Murtaza, AIG (HCR) for Appellants.

Hafiz M. Tariq Naseem, Advocate Supreme Court assisted by Junaid Jabbar, Advocate Supreme Court for Respondent.

2020 S C M R 444

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Faez Isa, JJ

KHAN ZEB---Petitioner

Versus

The STATE through Special Prosecutor, A.N.F.---Respondent

Criminal Petition No. 1202 of 2017, decided on 4th January, 2018.\

(Against the judgment dated 13.07.2017 of the Peshawar High Court, Peshawar passed in Cr. M. B.A. No. 1351-P of 2017)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic---Bail, grant of---Further inquiry--- Passenger onboard a vehicle containing narcotics---Connection between driver of vehicle and passenger not established---No investigation was carried out nor any data was collected to establish any connection or relationship between the accused-passenger and the driver of the vehicle wherein narcotic was found---Accused being a passenger in the vehicle and no connection, prima facie, having come on record between him and the driver, a case for further inquiry was made out---Accused was granted bail in circumstances.

The State through Director General ANF v. Said Ahmed 2011 SCMR 908 and Javed v. The State 2017 SCMR 531 ref.

Iltaf Samad, Advocate Supreme Court and Haji M. Zahir Shah, Advocate-on-Record (Absent) for Petitioner.

Rana Inam Amin Minhas, Special Prosecutor, ANF and Azhar Hamaish, Inspector, ANF for the State (ANF).

2020 S C M R 445

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Amin-ud-Din Khan, JJ

BILAL AHMED and another---Appellants

Versus

ABDUL HAMEED---Respondent

Civil Appeal No. 62-L of 2010, decided on 1st January, 2020.

(On appeal from the judgment dated 25.06.2009 passed by the Lahore High Court, Lahore in Civil Revision No. 974 of 2007)

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

----Ss. 6(1)(a) & 3---Punjab Land Revenue Act (XVII of 1967), S. 56(d)---Commercial urbanized property---Shafi-e-Shareek---Right of pre-emption---Suit property was constructed and urbanized, and it had also been admitted between the parties that the suit property, as well as the property on the basis of which the plaintiff (respondent) claimed the right of pre-emption, were commercial properties having property number allocated by the Excise and Taxation Department---No benefit of Revenue Records, even if ownership of both the parties would have been recorded in the same Khewat, would be given to the plaintiff for grant of a decree of pre-emption on the basis of Shafi-e-Shareek in the light of S. 3 of Punjab Pre-emption Act, 1991 (before its amendment in 2019) read with S. 56(d) of the Punjab Land Revenue Act, 1967---Plaintiff had failed to prove his right of pre-emption---Suit for pre-emption was dismissed.

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

----S. 6(1)(a)---Suit for pre-emption---Shafi-e-Shareek---Claim of joint ownership---Proof---Outdated Revenue Record filed with suit---Revenue Records presented by the plaintiff (purported pre-emptor) were outdated i.e. from the years 1993-94---Admittedly, the sale of suit property took place through registered sale deed dated 04-12-1999; therefore, at the time of impugned sale, the Register Haqdaran-e-Zamin of the year 1993-94 was not the current Register, as a new Register was prepared after every four years as per law---Vendees/appellants had produced an abstract from Register Haqdaran-e-Zamin of the year 2001-2002 which showed that at the time of sale, the plaintiff and the vendor were not joint owners in one Khawet---In Court during questioning the plaintiff admitted that he was full owner of shop in his possession and not a shareholder in the said shop with the alleged other shareholders of the Khawet recorded in the Revenue Records and further admitted the vendees to be full owners of their purchased suit shop---In such circumstances plaintiff could not take benefit of an old entry in the Revenue Record showing the vendors and the plaintiff owners in one Khewat---Plaintiff had failed to prove his right of pre-emption---Suit for pre-emption was dismissed.

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

----S. 5---Suit for pre-emption---Onus on pre-emptor---Scope---Pre-emptor was required to prove his right of pre-emption at the time of sale, at the time of filing of the suit, and at the time of passing of the decree.

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

----S. 31---Qanun-e-Shahadat (10 of 1984), Art. 129---Suit for pre-emption---Public notice under S. 31 of the Punjab Pre-emption Act, 1991---Effect---Pre-emptor deemed to have gained knowledge of sale---Impugned sale was through registered sale deed dated 04-12-1999---Plaintiff (purported pre-emptor) claimed to have gained knowledge of sale on 21-03-2000---Plaintiff had not disputed the issuance of (public) notice under S. 31 of the Punjab Pre-emption Act, 1991 ("the Act") by the Registrar in the pleadings as well as when he appeared as his own witness---In the light of provisions of S. 31 of the Act read with Art. 129 of the Qanun-e-Shahadat, 1984, the plaintiff would be deemed to have gained knowledge two weeks after registration of sale of suit property---Plaintiff had failed to prove his right of pre-emption---Suit for pre-emption was dismissed.

Amir Abdullah and others v. Muhammad Bukhsh 2006 CLC 200; Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499 and Muhammad Ramzan v. Lal Khan 1995 SCMR 1510 ref.

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

----S. 13(3)---Suit for pre-emption---Talb-i-Ishhad, notice of---Failure to produce one of the two witnesses of notice of Talb-i-Ishhad---Effect---Such notice would not stand proved and suit for pre-emption was to be dismissed.

Mst. Nusrat Bibi v. Nazir Akhtar 2015 SCMR 808 ref.

Jahangir A. Jhoja, Senior Advocate Supreme Court for Appellants.

Muhammad Aslam Awan, Advocate Supreme Court for Respondent.

2020 S C M R 451

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

ATTAULLAH---Petitioner

Versus

The STATE through AG Khyber Pakhtunkhwa and another---Respondents

Criminal Petition No. 1026 of 2019, decided on 21st October, 2019.

(Against order dated 17.09.2019 of the Peshawar High Court, Peshawar passed in Cr. M. (B.A.) No. 2285-P of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of--- None of the deceased persons was alleged to have been hit by any shot fired by the accused---No injury to any of the victims had been attributed to the accused---Although accused remained an absconder for seven long years, however since no reasonable ground was urged to deny bail to him, and since he was no more required for investigation, it was appropriate to grant bail to him---Accused was granted bail in circumstances.

Abdul Fayaz, Advocate Supreme Court for Petitioner.

M. Amin Khattak Lachi, Advocate Supreme Court for Respondent No.2.

2020 S C M R 452

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

ZAKA ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1280 of 2019, decided on 15th January, 2020.

(Against order dated 22.10.2019 passed by Lahore High Court in Criminal P. No. 54210-B of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Bail, grant of---Further inquiry---According to the First Information Report (FIR) deceased was repeatedly shot by the co-accused, where after the accused took hold of the weapon and fired the final shot---Such alleged last shot fired by the accused was not mentioned in the (dying) declaration of the deceased---Such dichotomy would be settled after recording of evidence---Investigation suggested that accused was present at the spot, but without any role assigned to him---Such circumstance called for further probe in the alleged culpability of the accused---Accused was granted bail accordingly.

Babar Awan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Abid Majeed Mirza, Deputy Prosecutor-General Punjab with Pervez, I.O. for the State.

Shahid Azeem, Advocate Supreme Court for Respondent.

2020 S C M R 454

[Supreme Court of Pakistan]

Present: Mushir Alam, Mazhar Alam Khan Minakhel and Syed Mansoor Ali Shah, JJ

TASNEEM JALAL---Appellant

Versus

DEPUTY DIRECTOR ANF and others---Respondents

Criminal Appeal No. 01-L of 2015, decided on 15th January, 2020.

(On appeal from the judgment of Lahore High Court, Lahore dated 31.07.2002, passed in Criminal Misc. 1192-M of 1995)

Control of Narcotic Substances Ordinance (VI of 1995) [since repealed]---

----S. 37--- Constitution of Pakistan, Art. 12--- Possessing and distributing narcotics---Conviction by a foreign court---Forfeiture of property in Pakistan under S. 37 of the Control of Narcotic Substances Ordinance, 1995 ("Ordinance") for an offence that was committed prior to the promulgation of said Ordinance---Protection against retrospective punishment---Scope---Said Ordinance was promulgated on 29-11-1995 whereas the offence took place in September, 1992 and the convict was convicted and sentenced by a foreign court on 26-09-1993---At the time of the offence (i.e. the year 1992), the punishment of forfeiture of properties of the convict in Pakistan was not available under the law as the Ordinance was promulgated in the year 1995---Fundamental Right under Art.12 protected a person against punishment for an offence (act or omission) that was not punishable at the time of the offence---Clearly, the punishment of forfeiture of the properties of the convict in Pakistan against a conviction of a foreign court did not exist at the time of the offence or the conviction, therefore, S. 37 of the Ordinance was not applicable to an offence committed by the convict before its promulgation---Appeal was allowed accordingly.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Abdul Rehman v. State 1978 SCMR 292 and Maqbool Ahmad v. State 2007 SCMR 116 ref.

Waqar Hassan Mir, Advocate Supreme Court and Ahmed Awais, Advocate Supreme Court for Appellant.

Kamran Murtaza, Senior Advocate Supreme Court for Applicant.

Zafar Iqbal Chohan, Special Prosecutor ANF, Ch. Inam Amin Minhas, Special Prosecutor ANF, Muhammad Nazir, DD ANF and Ch. Ehtisham, Special Prosecutor ANF for Respondents.

2020 S C M R 458

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Amin-ud-Din Khan, JJ

MUHAMMAD AZEEM---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1643-L of 2019, decided on 31st January, 2020.

(Against the order of the Lahore High Court, Lahore dated 15.11.2019 passed in Criminal Misc. No. 64585-B of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 148, 149, 337-A(i), 337-F(i) & 337-D---Attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, shajjah-i- khafifah, ghayr-jaifah badi'ah, jaifah---Bail, grant of---Statutory ground of delay in conclusion of trial---Accused was taken into custody on 15-09-2018---First charge was framed against him alone on 13-11-2018, thereafter, an application was submitted by the complainant side for summoning another person as co-accused, which was allowed on 30-05-2019; formal charge was framed against the accused and his co-accused on 13.11.2019 and proceedings commenced, meaning thereby that when second charge was framed, the case of accused for bail on statutory ground had already matured---Perusal of orders of Trial Court showed that on certain occasions non-bailable warrants of arrest of witnesses were issued---Accused, in circumstances, had made out a case for his release on bail on statutory ground i.e. non-conclusion of trial within the period specified under S.497, Cr.P.C, as from the circumstances of the case, he could not be solely held responsible for delay in the conclusion of trial, nor was he a desperate or hardened criminal; nor an accused of terrorism and had no record of previous conviction - Accused was granted bail accordingly.

Naveed Ahmad Khawaja, Advocate Supreme Court for Petitioner.

Naveed Iqbal Khan, Advocate Supreme Court for Respondent No.2.

Khurram Khan, additional P.-G. and Tahir, ASI for the State.

2020 S C M R 460

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Qazi Muhammad Amin Ahmed, JJ

SHAZIA BIBI---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 847 of 2018, decided on 8th January, 2020.

(Against judgment dated 15.11.2018 of the Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No. 539 of 2017)

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

----S. 9(c)---Possession of four kilograms of cannabis---Reappraisal of evidence---Accused lady was apprehended from within a public vehicle and found in possession of 4 kgs. of cannabis---Plea of accused that she had been targeted as a scapegoat by the police, who had enmity with her husband---Held, that quantity recovered from accused was substantial in volume/weight, which could not possibly be foisted upon a female to victimize her husband, who himself was the most suitable target, if at all the police had an axe to grind against him---Evidence of all the prosecution witnesses including those of recovery was in tune with one another---Soon after her arrest, the accused was produced before a Magistrate who remitted her into judicial custody, but the accused did not raise any protest at such opportune occasion, and her silence went a long way to rebut the belatedly related story that otherwise may not be plausible---Conviction of accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and resultant sentence of four years' imprisonment with fine of Rs. 20,000 was upheld---Petition for leave to appeal was dismissed.

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

----R. 6---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Report of Government Analyst---Protocols/procedure---Scope---Substantial/sufficient compliance with R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 ('Rule 6')---Plea on behalf of accused that forensic report in the present case did not mention the details of protocols used, as such the nature of contraband was never established---Held, that tests carried out by the analyst were vividly mentioned in his report, under the heading "Test Performed on Received Item(s) of Evidence" followed by the heading "Results and Conclusions"---Said details in the forensic report substantially/sufficiently qualified to meet the statutory requirements under R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001---Conviction of accused under S. 9(c) of Control of Narcotic Substances Act, 1997 was maintained---Petition for leave to appeal was dismissed.

Malik Jawwad Khalid, Advocate Supreme Court for Petitioner.

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

2020 S C M R 463

[Supreme Court of Pakistan]

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

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

Versus

MUZAFAR ALI---Respondent

Civil Petition No. 1631-L of 2018, decided on 20th March, 2019.

(On appeal from the judgment of Lahore High Court, Lahore dated 14.5.2018 passed in R.F.A. No. 605 of 2014)

Insurance Ordinance (XXXIX of 2000)---

----S. 115---Qanun-e-Shahadat (10 of 1984), Art. 133---Accidental Death and Indemnity Benefit Policy ('AIB Policy')---Injury and permanent disability---Proof---Statement made by policy holder during examination-in-chief regarding his accident and permanent disability not cross-examined---Effect---Statement of policy holder stood admitted.

Evidence available on the record established that respondent-policy holder was suffering from traumatic paraplegia and was permanently disabled for life. This could be inferred from his statement, when he appeared before the (Insurance) Tribunal. Respondent was not, cross-examined on the material fact that he had met with an accident and was disabled and now confined to wheelchair for life. In absence of any cross-examination on this material fact, the statement made by respondent in his examination-­in-chief stood admitted.

Further, State Life Insurance Corporation ('the Corporation') itself carried out a test in the year 2008, declaring respondent to be disabled for life. More importantly, relying on the evidence filed along with the claim of respondent, the Corporation allowed sickness benefit to the respondent. So, while relying on the same evidence, the respondent had been allowed sickness benefit, whereas for the purpose of granting annuity to him under the Accidental Death and Indemnity Benefit Policy ('AIB Policy'), the same evidence had been rejected. Courts below had rightly held that respondent was entitled to annuity under the AIB Policy.

Ibrar Ahmed, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Petitioners.

Liaqat Ali Butt, Advocate Supreme Court for Respondent.

2020 S C M R 465

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

Mst. ZOHRA KHATOON---Appellant

Versus

GHULAM FARID---Respondent

Civil Appeal No. 1409 of 2013, decided on 14th January, 2020.

(On appeal from the judgment dated 14.10.2013 of the Peshawar High Court, Abbottabad Bench passed in C.R. No. 485-A of 2006)

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

----S. 13---Suit for pre-emption---Talb-i-Muwathibat not made immediately---Talb-i-Ishhad sent beyond the prescribed two weeks' time---Pre-emptor claimed that his nephew learnt of the sale on the day of the execution of the sale deed, which was 25.01.2003, however, the nephew stated that pre-emptor was informed by him on 06.03.2003---In his cross-examination the nephew stated that he did not know the name of the purchaser and also did not know the particulars of the land which had been purchased, thus it was clear that the pre-emptor had not learnt of the sale on 06-03-2003 as was stated by him in the plaint---Pre-emptor in his cross-examination admitted that his nephew learnt of the sale on the date of execution of sale deed, which was 25.01.2003, therefore, it could reasonably be presumed that the nephew must have informed his uncle (pre-emptor) then or soon thereafter instead of waiting for forty-one days---Pre-emptor pleaded and testified that Talb-i-Muwathibat was made on 06.03.2003 which was not believable, particularly, when the nephew testified that the only reason for him to go and see his uncle on 06.03.2003 was to inform him about the sale, thereby suggesting that he had considered the communication of information of sale as important---In the plaint it was disclosed that the nephew had learnt of the sale on 25.01.2003, thus, it appeared that the pre-emptor had knowledge of the sale on 25.01.2003 but to bring the notice of Talb-i-Ishhad within the statutory period of two weeks had alleged in the plaint that he learnt of it on 06.03.2003---In a pre-emption suit the pre-emptor must immediately upon learning of the sale make Talb-i-Muwathibat and thereafter as per the Khyber Pakhtunkhwa Pre-emption Act, 1987, within fourteen days, send notice of Talb-i-Ishhad---Since the knowledge of sale was obtained by the respondent on 25.01.2003, or soon thereafter, the notice of Talb-i-Ishhad issued on 17-03-2003 was sent beyond the statutory period of two weeks---Pre-emption suit failed on said grounds and was dismissed accordingly---Appeal was allowed.

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

----S. 33---Suit for pre-emption---Shariah, application of---Scope---Unsubstantiated statement of pre-emptor regarding sale price of land---Effect---Disentitlement from claiming pre-emption---Vendee had purchased the subject land through a sale deed wherein the sale consideration was mentioned as Rs. 200,000---In the plaint the pre-emptor stated that actual sale consideration of subject land was Rs. 31,000 only---Held, that the pre-emptor did not substantiate his claim with regard to the alleged sale price---Section 33 of Khyber Pakhtunkhwa Pre-emption Act, 1987 provided that matters ancillary or akin to the provisions of the said Act which had not been specifically covered under any provision thereof shall be decided according to Shariah---Shariah required honesty and truthfulness in one's dealing and false statements made to obtain an advantage was an anthema to Almighty Allah---When an undue advantage was sought to be gained on the basis of a completely unsubstantiated statement it would disentitle a shafee (pre-emptor) to claim pre-emption---Pre-emption suit was dismissed---Appeal was allowed.

Subhannuddin v. Pir Ghulam PLD 2015 SC 69 ref.

Ashfaq Qayyum Cheema, Advocate Supreme Court with Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Sardar Muhammad Aslam, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Respondent.

2020 S C M R 471

[Supreme Court of Pakistan]

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

BASHIR AHMAD and others---Petitioners

Versus

The DIRECTOR GENERAL, LAHORE DEVELOPMENT AUTHORITY, LAHORE and others---Respondents

C.Ps. Nos. 2800-2801 of 2019, 2926-2927, 1830-L, 2067-L, 2253-L to 2255-L and 2800-L of 2019, decided on 20th January, 2020.

(Against the order dated 21.5.2019 of the Lahore High Court, Lahore passed in Writ Petitions Nos. 9693/16, 159063/18, 159053/18, 159059/18, 28373/16, 5846/16, 9696/16, 3901/17, 7590/17 and 7585/17)

(a) Punjab Industrial Relations Act (XIX of 2010)---

----S. 33---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), Ss. 4(1)(b)(iv) & 4(1)(b)(vi) ---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968). S. 1(4), proviso---"Workman"---Grievance petition before Labour Court---Maintainability---Employees of Lahore Development Authority proceeded against under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ("PEEDA 2006") and dismissed from service---Whether remedy for such employees lay before Labour Court---Contention of employees that despite the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 being not applicable to them, still they could maintain a grievance petition under S. 33(1) of the Punjab Industrial Relations Act, 2010, and that the word 'law' used in S. 33(1) also included the PEEDA 2006---Held, that employees were unable to establish that S. 33(1) of PEEDA, 2006 although containing the word 'law', would stand alone provide remedy to the employees before the Labour Court---Section 33(1) did not use the word 'law' in isolation, rather the provision clearly provided that "a worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law ...", thus, the redressal of an individual grievance of a worker could be redressed under S. 33(1), where right was guaranteed or secured to a workman under any law---In the present case, the compliant of the employees was not that any of the laws under which they had been proceeded against, had been violated nor was such the argument before the High Court---High Court had rightly held that PEEDA 2006 being itself a statute under which the employees had been proceeded against, they could not have brought their grievance before the Labour Court---Petitions were dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition before High Court---Maintainability---Employee proceeded against under a statute or statutory rules of service---In case an employee was proceeded against under a statute or any statuary rules and such statute or statutory rules were violated, his remedy lay before the High Court by filing of a writ petition under Art. 199 of the Constitution, and not any other remedy---When an employee had been proceeded against under a statute or statutory rules of service and the same did not provide any remedy before a specific forum, his remedy would lay before the High Court by way of a Constitutional petition.

Mahmood Ahmed Qazi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.Ps. Nos. 2800-2801 of 2019).

Barrister Haris Azmat, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.Ps. Nos. 2926-2927 of 2019).

Khalid Ismail, Advocate Supreme Court for Petitioners (in C.P. No. 2067-L of 2019).

Salman Riaz Chaudhry, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 2253-L to 2255-L of 2019 and C.P. No. 2800-L of 2019).

Petitioner in person (in C.P. No. 1830-L of 2019).

Nemo for Respondents (in all C.Ps.).

2020 S C M R 474

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Qazi Muhammad Amin Ahmed, JJ

MUSHTAQ AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 370 of 2019, decided on 9th January, 2020.

(Against judgment dated 11.03.2019 of the Lahore High Court, Multan Bench passed in Criminal Appeal No. 21 of 2018)

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

----S. 9(c)---Possession of 1460 grams of charas (narcotic)---Reappraisal of evidence---Prosecution case hinged upon statements of two witnesses who were police officials---Said witnesses did not have any enmity with the accused, who was intercepted at a public place during routine search by the police---Narcotic, considerable in quantity, could not possibly be foisted upon the accused to fabricate a fake charge, that too, without any apparent reason---While furnishing evidence, both the witnesses remained consistent throughout and their evidence was confidence inspiring---High Court had rightly convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to 4 years imprisonment with fine---Petition for leave to appeal was dismissed and leave was refused.

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

----R. 6---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Report of Government Analyst---Protocols/procedure---Scope---Substantial compliance with R. 6 of the Control of Narcotic Substances (Government Analysts) Rules 2001 ('Rule 6')---Said Rule required reference to the test applied for analysis of narcotic---Forensic report in the present case substantially met the legal requirements of Rule 6 as it contained a separate heading with the title ""Test Performed on Received Item(s) of Evidence"---Details mentioned in the forensic report regarding procedure/ tests applied did not fall short of the requirement of 'protocol' under R. 6---Petition for leave to appeal was dismissed and leave was refused.

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

----R. 6---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Report of Government Analyst---Government Analyst, summoning of---Scope---Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, being directory in nature, did not preclude an accused to summon the Government Analyst so as to solicit specific details, if any, required by him to vindicate his position.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

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

2020 S C M R 477

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Ijaz ul Ahsan and Syed Mansoor Ali Shah, JJ

GHULAM NABI---Appellant

Versus

IKRAM alias KAMA and others---Respondents

Criminal Appeal No. 175-L of 2011, decided on 16th August, 2019.

(Against the judgment dated 19.05.2009 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 1097 and 1094 of 2004, Criminal Revision No. 709 of 2004 and Capital Sentence Reference No. 305 of 2004)

Penal Code (XLV of 1860)---

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appeal against acquittal---Reappraisal of evidence---Prosecution had completely suppressed the fact that the deceased had also resorted to firing at the place of occurrence---Motive set up by the prosecution regarding damaging of a drain of waste water by the accused party at the spot had remained far from being established and the site-plan of the place of occurrence did not show any drain having been damaged---High Court had rightly concluded that some material facts had been suppressed by the complainant party and it was not clear how and why the occurrence had taken place---In such circumstances, the High Court had decided to extend the benefit of doubt to the accused persons and acquitted them of the charge---Furthermore, the acquittal of accused persons had come about 10 years ago and the present criminal case had originated about 19 years ago---Appeal against acquittal was dismissed in circumstances.

Malik Amjad Pervaiz, Advocate Supreme Court for Appellant.

Naveed A. Khawaja Advocate Supreme Court for Respondents Nos. 1 - 5 and Respondent No. 3 in person

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

2020 S C M R 479

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

SHAKEEL ABBAS---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 887 of 2018, decided on 13th February, 2020.

(On appeal against the judgment dated 07.11.2018 passed by Lahore High Court, Rawalpindi Bench, in Crl. A. No. 1127 of 2017)

Penal Code (XLV of 1860)---

----Ss. 315, 316, 319, 321 & 323---Diyat, Arsh and Daman Fund Rules, 2007, R. 11---Qatl-shibi-i-amd, qatl-i-khata, qatl-bis-sabab---Diyat, payment of---Conviction of petitioner-convict under S. 302(b), P.P.C. was substituted with one under S. 316, P.P.C. by the High Court on the basis that killings were not intentional---Leave to appeal was granted by the Supreme Court to consider inter alia whether offence attracted Ss. 316, 319 or 321, P.P.C.; whether indefinite detention on account of non-payment of diyat was against Injunctions of Holy Quran and Sunnah; and what was the scope of terms "part payment" and "terms and conditions for release" as used in R. 11 of Diyat, Arsh and Daman Fund Rules, 2007.

Petitioner was alleged to have done to death his two minor sons. Trial Court convicted the petitioner under section 302(b), P.P.C on two counts and sentenced him to imprisonment for life but ordered the running of sentences concurrently and directed payment of compensation to the legal heirs of the deceased of an amount of one hundred thousand rupees on account of each death and in default thereof to undergo simple imprisonment for six months on each count as well. Appeal filed by the petitioner was partly accepted by the High Court by acquitting the petitioner from the charge of murder and he was instead convicted under S. 316, P.P.C. (qatl shibh-i-amd) and sentenced to five years rigorous imprisonment and ordered to pay diyat under section 323, P.P.C. of an amount of Rs.2,174,577. Leave to appeal was granted to consider the following questions:

(i) High Court came to the conclusion that the killings were not intentional, and substituted the petitioner's conviction under 316, P.P.C., however, if there was no "intent to cause harm to the body" (as per section 315, P.P.C.) whether conviction was sustainable under section 316, P.P.C.;

(ii) If in the facts and circumstances of the case the conviction under section 316, P.P.C. was not sustainable whether the petitioner could still be convicted under section 319, P.P.C. (qatl-i-khata) and/or section 321, P.P.C. (qatl-bis-sabab);

(iii) Whether the petitioner could be detained indefinitely if he failed to pay the diyat on account of his poverty and whether such detention accorded with the Injunctions of the Holy Qur'an and Sunnah which section 323, P.P.C. states must be abided by;

(iv) Section 323, P.P.C. required the Federal Government to keep "in view the financial position of the convicts" in fixing the value of diyat, however, notifications issued thereunder simply fix the same diyat amount payable by all convicts alike, that is the value of 30,630 grams of silver and did not distinguish between convicts who could pay and impecunious convicts, who then on account of their inability to pay remained incarcerated indefinitely; and

(v) Rule 11 of the Diyat, Arsh and Daman Fund Rules, 2007 ("the Rules") permitted a convict "to be released on such terms and conditions as may be determined by the Court for payment of remaining amount" after making "part payment" and "the Court may pass an order for detention of the convict if he failed to fulfill the terms and conditions for release". The question arose what constituted "part payment", what kind of "terms and conditions" could be imposed and whether on account of the financial inability of the convict the Court could pass an order for his detention.

Petitioner through Jail.

Mirza Abid Majeed, Deputy Prosecutor-General, Punjab for the State.

2020 S C M R 483

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Amin-ud-Din Khan, JJ

MUHAMMAD SIDDIQUE (DECEASED) through LRs and others---Petitioners

Versus

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

Civil Petition No. 2477-L of 2015, decided on 16th January, 2020.

(On appeal from judgment dated 17.9.2015, passed by the Lahore High Court, Multan Bench, Multan, in C.R. No. 811-D of 2002)

(a) Jurisdiction---

----Special remedy before an authority, availability of---Bar of jurisdiction of civil court---Where a special remedy was provided for under the law, it may not be bypassed and the Civil Courts should not be approached directly without exhausting the highest forum in the authority---Furthermore, the jurisdiction of Civil Courts was also impliedly barred where an alternate remedy had been provided under the law, provided that the authority was not exercised in excess of the jurisdiction conferred upon the authority.

Hakam and others v. Tassadaq Hussain Shah PLD 2007 Lah. 261; Zahid Hussain and 10 others v. Shamasuddin and 9 others 2014 CLC 1334; Muhammad Jalat Khan v. Faisal Hayat Khan and 4 others 2003 CLC 837 and Bashir Ahmed v. Messrs Muhammad Saleem, Muhammad Siddique & CO. (Regd.) and others 2008 SCMR 1272 ref.

(b) Document---

----Registered document--- Presumption of regularity--- When a document was registered or a public functionary prepared a document, took action or passed orders in discharge of his duties performed in due course of law, it had the presumption of regularity attached with it, and that presumption needed to be rebutted with strong evidence.

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

----Ss. 42 & 39---Civil Procedure Code (V of 1908), O. I, R. 10(2)---Suit for declaration and cancellation of a registered public document or attested mutation---Provincial Government and the relevant (revenue) authorities to be made proper parties to such a suit.

Non-impleadment of public functionaries in the suits for declaration and cancellation of public documents pertaining to immovable properties, prejudiced the rights of authorities to defend their actions and did not enable the Court to decide the matter effectively and adjudicate completely. Therefore, under Order I, Rule 10(2) of the Code of Civil Procedure, 1908, the Provincial Government and the relevant authorities should be made proper parties to a suit in which an attested mutation or registered sale deed, etc. or otherwise a registered document, has been challenged.

Muhammad Arif and others v. District and Sessions Judge, Sialkot and others 2011 SCMR 1591 and Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463 ref.

Non-impleadment of the Provincial Government and relevant authorities who had sanctioned a document which has been impugned in a court of law, created a serious defect in the suit. This was not to say that the whole suit must always be defeated on this cause alone, as non-impleadment of proper parties in general did not always defeat a lis. Nonetheless, non-impleadment of proper parties created a serious irregularity and opened doors for fraud to be practiced by parties in connivance with one another, as well as created impediments for a court of law to effectively and completely adjudicate the matter after considering all aspects of the case.

Chaudhry Muhammad Munir and others v. Election Tribunal, Mandi Bahauddin and others 2009 SCMR 1368 and Mst. Rani and another v. Mst. Razia Sultana 1994 SCMR 2268 ref.

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

----S. 42---Suit for declaration---Scope---Pre-existing rights---By filing a suit for declaration under S. 42 of the Specific Relief Act, 1877, a party could get its pre-existing rights declared from the court but no fresh rights could be created by grant of such a decree.

Rehmatullah Khan and others v. Government of Pakistan through Secretary Petroleum and Natural Resources Division, Islamabad and others 2003 SCMR 50 ref.

Zulfiqar Ali Khan, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2020 S C M R 489

[Supreme Court of Pakistan]

Present: Faisal Arab, Sajjad Ali Shah and Munib Akhtar, JJ

Sardar MUHAMMAD ASIF NAQKSHBANDI---Petitioner

Versus

The STATE through P.G. Sindh---Respondent

Criminal Petition No. 151-K of 2019, decided on 8th August, 2019.

(Against the judgment dated 27.06.2019 passed by the High Court of Sindh, Karachi in Cr. Bail Application No. 326 of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 419, 465, 468, 471 & 34---National Database and Registration Authority Ordinance (VIII of 2000), Ss. 30(2)(a), 30(2)(e) & 30(2)(f)---Obtaining Computerized National Identity Card (CNIC) with false particulars---Pre-arrest bail, confirmation of---Further inquiry---Case of the accused was of further inquiry as his claim was that he had only obtained one CNIC and that too in accordance with law---Accused remained a General Councillor and no useful purpose would be served by sending him behind the bars before the conclusion of trial---Furthermore nothing was to be recovered from the accused---Pre-arrest bail already granted to the accused was confirmed.

Ghulam Shabbir Baloch, Advocate Supreme Court for Petitioner along with Petitioner in person.

Zafar Ahmed Khan, Additional P.-G. Sindh for Respondent.

Irfan Ahmed Memon, DAG and Ch. Muhammad Farooq, Assistant Director Legal, NADRA on Court's Notice.

Mehmood A. Qureshi, Advocate Supreme Court for Intervener (in Cr. M.A. 134-K of 2019).

2020 S C M R 490

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

PROVINCE OF PUNJAB through Executive District Officer (Education) Rawalpindi and another---Appellants

Versus

RUQIA ISLAM---Respondent

Civil Appeal No. 797 of 2013, decided on 23rd January, 2020.

(Against judgment dated 27.2.2013 passed by the Lahore High Court, Lahore in I.C.A. No. 89 of 2011)

(a) Constitution of Pakistan---

----Arts. 27 & 34---Civil service---Recruitment policy for teachers in government schools---Discrimination---Under impugned recruitment policy female teacher, otherwise eligible, was denied assumption of charge in boys high school but given option of joining primary or middle sections---Such policy was based on an apprehension oriented more on chauvinism than on any objective foundation---Impugned policy was not reasonable and High Court rightly gave directions to consider the appointment of respondent (female teacher) in Boys High School.

Respondent-female candidate otherwise eligible on all fours, was being denied a position despite having successfully competed for the job as an educator in the same category of post/functional group in Boys High/Higher Secondary School, however, with a relegated opportunity to serve in the same capacity in the primary and middle sections. Said stipulation/ classification, founded on her gender alone, apparently sans any rational basis except for a dogmatic and subjective belief that she would not be able to handle (boy) students placed in a slightly higher age group, was an apprehension oriented more on chauvinism than on any objective foundation. Impugned (recruitment) policy could not be viewed as prudent or expedient nor it reflected intelligible differentia so as to qualify the precondition of being reasonable. On the contrary, it was grievously retrogressive besides being violative of Constitutional commands. High Court had rightly directed the department to consider respondent's appointment in Boys High School.

Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 and Dossani Travels Pvt. Ltd. v. Messrs Travels Shop (Pvt.) Limited PLD 2014 SC 1 distinguished.

Supreme Court observed that half of the human resource of the country comprised of women; that they were mentoring, par excellence in every walk of life, and were a treasure which must be utilized for a better future, and that the Constitution contained rights that included equality of status as well as of opportunity.

(b) Constitution of Pakistan---

----Arts. 27 & 199---Civil service---Recruitment policy---Judicial review---Scope---Policy manifestly inconsistent with the Constitutional commands, retrogressive in nature, and discriminatory inter se the populace was not immune from judicial review.

Mushtaq Ahmad Mohal, Additional Advocate-General Punjab and Ikram Abbasi, L.O., C.E.O. for Appellants.

Respondent in person.

2020 S C M R 494

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

Messrs ELITE ESTATE (PVT.) LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary and others---Respondents

Civil Petition No. 2168 of 2019, decided on 13th January, 2020.

(Against the judgment dated 17.1.2019 of the Islamabad High Court, Islamabad passed in W.P. No. 671 of 2017)

Income Tax Ordinance (XLIX of 2001)---

----S. 152---Convention for Avoidance of Double Taxation between Pakistan and Egypt, 1995, Arts. 7 & 12.2---Payment for consultancy/technical services provided by foreign non-resident company---Exemption from deduction of withholding tax---In terms of the consultancy agreement executed between the parties, the foreign company was to provide services of professional architects, urban/town planners and engineering consultant for development of infrastructure in Pakistan---Article 12.2 of the Convention for Avoidance of Double Taxation between Pakistan and Egypt, 1995 ('the Convention') provided that fee for technical services was to be taxed in the contracting State in which they arose and in accordance with the laws of that State---Tax payable in the present case was in respect of the consultancy services and not on any business profits, thus, tax-payer could not rely on Art. 7 of the Convention to avoid deduction of withholding tax---Request of the tax-payer for exemption from deduction of withholding tax in respect of the consultancy fee paid or to be paid by it to the foreign company was rightly rejected---Petition was dismissed.

Shahzad Butt, Advocate Supreme Court for Petitioner.

Babar Bilal, Advocate Supreme Court for Respondents.

2020 S C M R 496

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Munib Akhtar, JJ

MUHAMMAD RAFIQUE and others---Petitioners

Versus

MANZOOR AHMAD and others---Respondents

Civil Petition No. 1811-L of 2015, decided on 17th February, 2020.

(On appeal from the judgment 24.06.2015 passed by the Lahore High Court, Multan Bench, Multan in R.S.A. No. 09 of 2004)

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

----S. 54---Civil Procedure Code (V of 1908), O. VIII, R. 5---Agreement to sell immoveable property---Proof---Admission by vendor in his written statement---In the present case, the vendor did not deny execution of the agreement to sell---Fact admitted need not be formally proved---Petition for leave to appeal dismissed.

Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21 ref.

Muhammad Munir Paracha, Advocate Supreme Court for Petitioners.

Sardar Muhammad Aslam, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents.

2020 S C M R 497

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

ZAID SHAH alias JOGI---Petitioner

Versus

The STATE---Respondent

Criminal Review Petitions Nos. 1 to 6 of 2016 in Jail Petitions Nos. 588 to 593 of 2013, decided on 29th January, 2020.

(On review from the judgment dated 22.10.2015 passed by this Court in Jail Petitions Nos. 588 to 593 of 2013)

(a) Constitution of Pakistan---

----Art. 188---Second review petition before the Supreme Court --- Not maintainable.

Khalid Iqbal and 2 others v. Mirza Khan and others PLD 2015 SC 50 and Moin ud Din and others v. The State and others PLD 2019 SC 749 ref.

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

----Ss. 35 & 397---Conviction for several offences at one trial---Concurrent commutation (of sentence)---Discretion of court---Scope --- Discretion available with the Court under Ss. 35 & 397 of the Code of Criminal Procedure, 1898 had to be exercised with judicial circumspection and caution to strike a balance in order to avoid miscarriage of justice---Every request for concurrent commutation (of sentence)was not to be granted in isolation to the facts and circumstances whereunder the crime was committed.

Anis M. Shahzad, Advocate Supreme Court for Petitioner (in all cases).

Mirza M. Usman, DPG for the State (in all cases).

2020 S C M R 500

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Maqbool Baqar and Faisal Arab, JJ

COMMISSIONER OF INCOME TAX (LEGAL) RTO, ABBOTTABAD---Appellant

Versus

Messrs ED-ZUBLIN AG GERMANY and another---Respondents

Civil Appeals Nos. 56 to 63 of 2010, decided on 26th September, 2019.

(Against order dated 25.06.2009 of the High Court of Peshawar, Peshawar passed in Review Petitions Nos. 1 to 8 of 2008)

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

----S. 133---Review petition filed against (tax) Reference decided by the High Court---Power of High Court to convert review petition into an application for correction of clerical error---Scope---In the exercise of its Reference jurisdiction under S. 133 of the Income Tax Ordinance, 2001, the High Court was not vested with jurisdiction to review its own orders---However, in the present case, in the review petition the appellant-tax department merely sought correction about the date of receipt of the Tribunal's order---Relief prayed by the appellant was for the correction of a clerical error, namely, the stamping of the wrong date of receipt of the order of the Tribunal by the mail clerk---Review petition by the appellant may have been treated by the High Court as an application for rectification for the correction of a clerical error---Supreme Court observed that conversion from a review petition to a rectification application ought to have been granted by the High Court in the exercise of its inherent jurisdiction to correct an obvious clerical error.

Muhammad Akram v. DCO Rahim Yar Khan 2017 SCMR 56 ref.

(b) Constitution of Pakistan---

----Arts. 184, 185, 188 & 199---Conversion of one type of proceedings into another---No fetters or bar could be placed on the High Court and or the Supreme Court to convert and treat one type of proceedings into another type.

Muhammad Akram v. DCO Rahim Yar Khan 2017 SCMR 56 and Sher Alam Khan v. Abdul Munim PLD 2018 SC 449 ref.

Babar Bilal, Advocate Supreme Court, Habib Qureshi, Advocate Supreme Court and Naeem Hassan, Secy. (Litigation), FBR for Appellant (in all cases).

M. Munir Paracha, Advocate Supreme Court for Respondents (in C.As. Nos. 56-59 of 2010).

Nemo for Respondents (in C.A. 60 - 63 of 2010).

2020 S C M R 502

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Amin-ud-Din Khan, JJ

ALLAH RAKHA (DECEASED) through LRs and others---Petitioners

Versus

ADDITIONAL COMMISSIONER (REVENUE) GUJRANWALA and others---Respondents

Civil Petition No. 2230 of 2015, decided on 4th February, 2020.

(Against the judgment dated 07.07.2015 passed by the Lahore High Court, Lahore in Writ Petition No. 68-R of 2002)

Jurisdiction---

----Bar of jurisdiction of Civil Court/High Court---Scope---Where there was a clause of bar of jurisdiction of Civil Court by virtue of jurisdiction being conferred upon another forum, then that bar was only superseded if the authority exercised its powers in excess of what was provided under the law/statute, or if it was exercised without jurisdiction---Where a civil suit was not competent, the jurisdiction of High Court could also not be made out on the sole basis that the civil suit was not competent, particularly if there was no exercise of jurisdiction coram non judice or in excess of the authority devolved by the law upon the relevant authority.

Hafiz S.A. Rehman, Advocate Supreme Court for Petitioners.

Ch. Faisal Fareed, AAG, Punjab for Respondents Nos. 1 and 2.

Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.3.

Muhammad Amin Malik, Advocate Supreme Court for Respondent No. 12.

Nemo for Respondents Nos. 4 to 11 and 13 to 16.

2020 S C M R 505

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Mst. YASMEEN---Appellant

Versus

JAVED and another---Respondents

Criminal Appeal No. 8-P of 2014, decided on 30th April, 2019.

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 28.07.2009 passed in Criminal Appeal No. 106 of 2008 and M.R. No. 4 of 2008)

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

----S. 302(b)---Qatl-i-amd---Appeal against acquittal---Reappraisal of evidence---Inquest report---In the relevant column of inquest report "brief history of crime", nothing was mentioned regarding facts of the case despite the claim of prosecution that matter was reported to police within three hours of the occurrence---Such circumstance alone cast serious doubts about the veracity of prosecution case against the accused and the claim of the eye-witnesses to have witnessed the occurrence---Appeal against acquittal was dismissed.

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

----S. 302(b)---Qatl-i-amd---Appeal against acquittal---Reappraisal of evidence---Night occurrence---No source of light---Admittedly occurrence took place at night at 10.00 p.m---In the FIR complainant mentioned that at the time of occurrence there was no electricity due to loadshedding---No source of light had been mentioned in the site plan either---Appeal against acquittal was dismissed.

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

----S. 302(b)---Qatl-i-amd---Appeal against acquittal---Reappraisal of evidence---Recovery and motive---During the course of investigation, nothing was recovered from the accused and he was not even connected with the motive part of the prosecution story---In a separate trial, two co-accused persons who along with the accused were equally charged by the complainant with the allegation of firing at the deceased were acquitted by Trial Court and no appeal against their acquittal was filed by the complainant---Appeal against acquittal was dismissed.

Syed Abdul Fayaz, Advocate Supreme Court for Appellant.

Iltaf Samad, Advocate Supreme Court for Respondent No.1.

Barrister Qasim Wadud, Additional A.-G., Khyber Pakhtunkhwa for the State.

2020 S C M R 507

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

PROVINCE OF PUNJAB through Secretary Agriculture Department, Lahore and others---Appellants

Versus

MUHAMMAD ARIF and others---Respondents

Civil Appeals Nos. 266-L to 285-L of 2019, decided on 14th February, 2020.

(On appeal from the judgment/order dated 04.04.2019 passed by Lahore High Court, Lahore in I.C.As. Nos. 19804, 19805, 19807, 19809, 19810, 19812, 19815, 19817, 19822, 19824, 19830, 19835, 19837, 19838, 19840, 19841, 19844, 19846, 19847 and 19849 of 2019)

(a) Civil service---

----Contractual employees---Time bound project posts---Such employees had no right to regularization in service.

Respondents were appointed under an international financial institution's development project on contract basis, initially for a period of three years. Under the conditions of the contract, the project posts were sanctioned only for the period and the period of employment was to be automatically terminated if not extended on expiry of the contract period. After gestation period of the project expired, services of the respondents automatically stood terminated. Although the international financial institution provided additional financing to the project after its gestation period expired, on the basis of the terms of conditions of such extension, the contracts of some of the employees were not extended.

In so far as it related to contract employees of the project, it was the prerogative of the project management to determine which employees were required for the extended period and stage of the project for effective implementation of the same. No vested right existed in favour of a particular employee to insist that the management should be directed to retain his services and extend his contract.

(b) Punjab Regularization of Service Act (XV of 2018)---

----S. 2(c)--- "Contract employees" and "project employees"---Distinction---Project employees employed on contractual basis were not entitled to the benefit of regularization under the Punjab Regularization of Service Act, 2018.

Punjab Regularization of Service Act, 2018 (Act of 2018) dealt with employees appointed on contract basis in a Government Department against the posts which were either vacant or likely to become vacated. Further these were sanctioned posts against which appointments made on contract basis and such contracts continued for years on end on the basis of periodic extensions. The Act of 2018 envisaged the right of regularization of service to a contract employee who had continuously been serving as such for a period not less than four years on the commencement of the Act to be considered for appointment on regular basis if:

(i) a regular vacancy allocated for initially recruitment was available for regularization;

(ii) he was qualified for the post;

(iii) he had not been appointed on a special pay package; and

(iv) he did not opt to continue as contract employee.

There was a qualitative and conceptual difference between contract employees covered by provisions of the Act of 2018 and contract employee employed in projects who had been specifically excluded from the benefit of the Act of 2018 in terms of section 2(c) of the said Act. [p. 512] D

Arshad Jehangir Jhoja, Additional P.-G. Punjab, Muhammad Adeeb Faisal, Assistant Director Technical and Javed Iqbal, Law Officer for Appellants.

Ishrat Ali Javed, Advocate Supreme Court for Respondents (in C.As. 266-L, 268-L, 277-L, 279-L, 283-L to 285-L of 2019).

Agha Abul Hassan Arif, Advocate Supreme Court for Respondents (in C.As. 267-L, 273-L, 276-L and 281-L of 2019).

Naveed Ahmed Khawaja, Advocate Supreme Court for Respondents (in C.As. 269-L, 272-L and 278-L of 2019).

Saqib Akram Gondal, Advocate Supreme Court for Respondents (in C.As. 274-L and 280-L of 2019).

Rai Ashfaq Ahmed Kharral, Advocate Supreme Court for Respondents (in C.A. 282-L of 2019).

Nemo for Respondents (in C.A. 275-L of 2019).

2020 S C M R 513

[Supreme Court of Pakistan]

Present:Gulzar Ahmed, C.J., Faisal Arab and Sajjad Ali Shah, JJ

NAIMATULLAH KHAN ADVOCATE and others---Petitioners

Versus

FEDERATION OF PAKISTAN---Respondent

Constitutional Petitions Nos.9/2010, C.M.A. No. 6206/2013, C.M.A. No. 1552-K/2018 in Const. P. No. 9, C.M.A.No.1600-K/2018 in Const. P. No. 9, C.M.A. No. 22-K/2019 in Const. P. No.9, C.M.A. No. 23-K/2019 in Const. P. No.9, C.M.A. No. 59-K/2019 in Const. P. No.9, C.M.A. No. 101-K/2019 in Const. P. No. 9, C.M.A. No.311-K/2019 in Const. P. No.9, C.M.A. No. 349-K/2019 in C.P. No. 815-K/2016, C.M.A. No.394-K/2019 in Const. P. No.9, C.M.A. No. 423-K/2019 in Const. P. No.9, C.M.A. No.425-K/2019 in Const. P. No. 9. C.M.A. No. 459-K/2019 in Const. P. No.9, C.M.A. No.560-K/2019 in Const. P. No.9, C.M.A. No. 521-K/2019 in Const. P. No.9, C.M.A. No. 527-K/2019 in Const. P. No. 9, C.M.A. No.556-K/2019 in Const. P. No.9, C.M.A. No. 606-K/2019 in Const. P. No. 9, C.M.A. No. 617-K/2019 in Const. P. No.9, C.M.A. No. 631-K/2019 in Const. P. No.9, C.M.A. No.690-K/2019 in Const. P. No.9, C.M.A. No. 796-K/2019 in. Const. P. No.9, C.M.A. No. 828-K/2019 in Const. P. No.9, C.M.A. No. 830-K/2019 in Const. P. No.9, C.M.A. No. 831-K/2019 in Const. P. No.9, C.M.A. No.875-K/2019 in Const. P. No.9, C.M.A. No.889-K/2019 in Const. P. No.9, C.M.A. No.896-K/2019 in Const.P.No.9, C.M.A. No. 116/2019 in C.M.A. Ni1/2019 in Const. P. No.9, CrI. O.P. No.7-K/2017 in Cr1. O.P. No.11-K/2016, Crl. O.P. No.19-K/2017 in Cr1. O.P. No.7-K/2017, Cr1. O.P. No.1-K/2020 in Const. P. No.9, Crl. M.A. No.121-K/2017 in Cr1. O.P. No.7-K/2017, Cr1. M.A. No.124-K/2017 in Cr1. O.P. No.7-K/2017, Crl. M.A. No.132-K/2017 in Crl. O.P. No.7­K/2017, Crl. M.A. No.111-K/2018 in Crl. M.A. No.132-K/2017 in Crl. O.P. No.7-K/2017, Crl. M.A. No.243-K/2018 in Crl. M.A. No.8-K/2018 in CrI. O.P. No.7, Crl. M.A. No.8-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.19-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.20-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No.25-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.32-K/2018 in CrI. O.P. No.7-K, Crl. M.A. No.38-K/2018 in Crl. O.P. No. 7-K, Cr1. M.A. No. 44-K/2014 in Crl. O.P. No.7-K. Crl. M.A. No.44-K/2018 in Crl. O.P. No.7-K, Cr1. M.A. No.52-K/2018 in CrI. O.P. No. 7-K, Crl. M.A. No.59-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.71-K/2018 in Crl. O.P.No.7-K, Cr1. M.A. No.72-K/2018 in Crl. O.P. No. 7-K, Cr1. M.A. No.95-K/2018 in Crl. O.P. No.7-K. Crl. M.A. No.199-K/2018 in Crl. O. P. No. 7-K, Crl. M.A. No.214-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.229-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.1-K/2019 in Crl. O.P. No.7-K, Crl. M.A. No.2-K/2019 is Crl. O.P. No.7-K/2019, C.M.A. No. 933-K/2019 in Const. P. No.9, C.M.A.No.964-K/2019 in Const. P, No.9 and C.M.A. No.23-K/2019 in Const. P. No.9, decided on 7th February, 2020.

(a) Colonization of Government Lands Act (V of 1912) [as amended by the Colonization of Government Lands Act (Sindh Amendment) Ordinance, 2005]---

----S. 10-A(2)(b)--- Constitution of Pakistan, Art. 184(3)---Matter regarding different issues plaguing Karachi city---Illegal allotments, construction and encroachments on public property, amenity plots and parks; non-functioning of local city train; non-completion of bus rapid transit system; structurally unstable buildings; construction of illegal marriage halls; lack of plantation and greenery on roads; corruption and bribery within the office of Provincial Building Control Authority; presence of slums (katchi abadis) in the middle of the city, etc.---Supreme Court gave directions to relevant functionaries, sought reports from others and issued notices for next date of hearing, where required, to address the issues plaguing Karachi city.

(b) Karachi Port Trust Act (VI of 1886)---

----Ss. 4, 18, 21, 25, 27, 29 & 29A---Constitution of Pakistan, Art. 184(3)---Matter regarding Karachi Port Trust (KPT) Employees Housing Society---Land belonging to Karachi Port Trust---Board of Trustees, powers of--- Scope--- Now here in the Karachi Port Trust Act, 1886 ('the Act'), the Board of Trustees of the Port of Karachi had been given power or authority to lease out, transfer or sell KPT property/land for residential purpose/housing society to its employees i.e. its officers and servants---Power of managing the affairs of the Port did not give power and authority to the Board of Trustees to arrogate to itself or to any officer and servant of KPT, the very land of the Port which was vested in trust with the Board of Trustees.

Board of Trustees of Karachi Port Trust were not authorized by law to create housing societies for its officers and servants and lease, transfer or sell the property/land of the Port to its officers and servants. Such act of the Board of Trustees of creating housing societies for officers and servants was contrary to the very mandate of the Karachi Port Trust Act, 1886 and was thus, declared to be illegal being void ab initio. All leases, transfers or selling of property/ land of the Port of Karachi by the Board of Trustees to its officers and servants were, thus, declared to be illegal and accordingly cancelled.

Messrs Metalex (Private) Limited v. Government of Sindh through Secretary, BOR PLD 2010 Kar. 414 ref.

Supreme Court directed that whole of the property/land leased, transferred or sold to the officers servants/workers of KPT would immediately revert to the Port of Karachi to be used strictly in accordance with the Karachi Port Trust Act, 1886; that the Board of Trustees was only required to manage the affairs of the Port as laid down in the Act and nothing more; that the officers, servants/workers were only entitled to payment of their salaries, fees and allowances to be sanctioned by the Board for their services and nothing beyond it; that if any amount had been received by the KPT from any of its officers, servants/workers in respect of lease, transfer or selling of Port land, the Board of Trustees of KPT shall immediately refund such amount to their officers, servants/workers and shall also pay, as compensation, the difference between the values of the money when the same was received and the value of money currently prevailing; and that the Federal Government shall look into the matter and deal with the Board of Trustees in accordance with law.

(c) Public functionary---

----Exercise of authority---Public property and funds---All public functionaries must exercise public authority, especially while dealing with the public property, public funds or assets in a fair, just, transparent and reasonable manner, untainted by mala fide, without discrimination and in accordance with law, keeping in view the constitutional rights of the citizens.

Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47 ref.

(d) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope---Public functionaries, acts of---Supreme Court while exercising jurisdiction under Art. 184(3) of the Constitution had all the powers and jurisdiction to declare acts of public functionaries, which were beyond their power and in utter violation of the law under which they were required to perform their duties, to be unlawful and void ab initio---Such power included cancelling documents of transaction of lease, transfer or sale of (public) property.

Suo Motu Case No.10 of 2009 2010 SCMR 885; Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641; Imran Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/ Member National Assembly, Prime Minister's House, Islamabad and 9 others PLD 2017 SC 265 and Ishaq Khan Khakwani and another v. Railway Board through Chairman and others PLD 2019 SC 602 ref.

In attendance:

Anwar Mansoor Khan, Attorney General for Pakistan, Syed Faiz ul Hassan Shah, P.G. Sindh, Adil Rafiq Siddiqui, Director ML&C, Yawar Farooqui, Advocate Supreme Court, Syed Imtiaz Hussain, MIA, KPT, G.M. Qureshi, Chief Legal Counsel, Board of Revenue, Shahid Jameel, Principal Law Officer, SBCA, Ashkar Dawar, Addl. Director, SBCA, Malik Ejaz, Director, SBCA, Muhammad Farooq Laghari, D.G. Layari Authority, Arshad Khan, D.G. National Stadium, Amanullah Zardari, DS/Focal Person, Tasleem Akhter, Secretary (Legal) Customs FBR, Islamabad, Zakir Hussain Khaskheli, Advocate Supreme Court, Abdul Rehman, Advocate Supreme Court, Salahuddin Ahmed, Advocate Supreme Court, Kashif Sarwar Paracha, DAG, Salman Talibuddin, A.G Sindh, K.A. Wahab, Advocate-on-Record, Dr. Raana Khan, Advocate-on-Record, Abdul Qadir Khan, Advocate-on-Record, Syed Jameel Ahmed, Advocate Supreme Court, Mrs. Abida Perveen Channar, Advocate Supreme Court, Mazhar Ali B. Chohan, Advocate-on-Record, Zakir Hussain Khaskheli, Advocate Supreme Court, Akhter Hussain, Advocate Supreme Court, M. Umar Riaz, Advocate Supreme Court, Sanaullah Noor Ghori, Advocate Supreme Court, Raja Qasit Nawaz Khan, Advocate Supreme Court, Syed Ali Zafar, Advocate Supreme Court, Muhammad Noman Jamali, Advocate Supreme Court, Arshad M. Tayyabali, Advocate Supreme Court, Faisal Siddiqui, Advocate Supreme Court, Muhammad Aqil, Advocate Supreme Court, Abrar Hassan, Advocate Supreme Court, Badar Alam, Advocate Supreme Court, Ubaid-ur-Rehman, Advocate Supreme Court, Sarfaraz Metlo, Advocate Supreme Court, Muhammad Ashraf Samoo, Advocate Supreme Court, M. Sohail HK Rana, Advocate Supreme Court, Nazar Hussain Dhoon, Advocate Supreme Court, Syed Ashiq Raza, Advocate Supreme Court, Abdur Rehman, Advocate Supreme Court, Tasawar Ali Hashmi, Advocate Supreme Court, Syed Sho-un-Nabi, Advocate Supreme Court, Iftikhar Shalwani, Commissioner, Karachi, Waseem Akhter, Mayor Karachi, Dr. Saif-ur-Rehman, Municipal Commissioner, Saeed Ahmed Qureshi Focal Person Government of Sindh, Masood Alam, Director, Mrs. Azra Muqeem, Law Officer, Zafar Ahsan, D.G SBCA, M. Wilayat Sr. Director MPD-SBCA, Admiral Jamil Akhter, Chairman KPT, Syed Mumtaz Ali Shah, Chief Secy., Mushtaq Soomro, Director SBCA, Asadullah Khan, M.D KWSB, Zohair Fazil, Dy. Chief M/o Panning Islamabad, Saeed Ghani, Minister, Yousuf Molvi, Advocate Supreme Court, Hassan Akbcr Addl: P.G. NAB SSP and SP City Karachi, Dr. Usman Chachar, Addl.Secretary, Home Deptt., Zulflqar Mahar, AIG Legal, Mazhar Hassan, AIG Legal, I.D. Mangi, AIG Legal, Shahnawaz, SP East, Zahid Bin Khalil, Director (Anti-Encroachment) DMC East, Salman Sabir, Adv. (Legal Advisor) DMC East Muhammad Aslam, Legal Advisor Cantonments, Hasan Nasir Jami, DG CAA, Waseem Shahid MEO/CEO Faisal Cantt., Qazi Rizwan Ahmed, CEO Karachi Cantt. Rana Kashif, CEO Clifton Cantt., Aamir Rashid, CEO Malir Cantt., Farooq Hasan, JS MOD Cantonment Shafiq Gohar, DS Manhora Cantt., Samina Shabir, CEO Korangi, Mureed, Joint Secy. NH&LH Div. Islamabad Ghazanfar Hussain, Registrar NED, Dr. AJ Sangi, NED, Shabi-ul-Hasan, LDA, M. Irfan, Law Officer-MDA, Ahmed Noor, (DD) ASF, Karamddin Junejo, Nazir High Court, Ghulam Akbar Laghari, Secy. Culture Mushtaq Masih, Principal YMCA, Aijaz Mazhar, CEO PIA, Naeem Mughal, DG SEPA, Habib-ur-Rehman, Secy. Pak-Railways, Nisar Memon, DS Pak-Railways, Salman Kazmi, Legal Advisor Pak-Railways, Khalid Muneer, Law Officer Pak-Railways, Mehmood Akhter Naqvi in person, Chanzeb, Law Officer Ambar Ali Bhai, Shehri CBE, Saleh Ahmed Farooqi, CEO (KIDCL), Zafar Ahsan, D.G SBCA (in C.M.As. Nos.59, 101, 71, 521, 23, 896/2019 Cr. O.P-07-K/17, Cr. O.P. 01-K/20, Cr. M.A. 20­K/18) (in persons).

2020 S C M R 568

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

Dr. SHAMIM TARIQ---Petitioner

Versus

INTERNATIONAL ISLAMIC UNIVERSITY, ISLAMABAD through President and others---Respondents

Civil Petition No. 2119 of 2018, decided on 12th February, 2020.

(Against judgment dated 02.04.2018 passed by the Islamabad High Court, Islamabad in I.C.A. No. 179-W of 2012)

(a) Civil service---

----Appointment--- Assistant Professor, post of--- Short listed candidates---Eligibility/qualification mentioned in advertisement for post---Candidates were required to meet the criteria mentioned in the advertisement on the date of submission of their applications---Respondent, who was selected for the post, did not possess the requisite qualification on the said date and as such was not qualified to be considered for the job---As the respondent did not possess requisite qualification, the Selection Board had no occasion to consider her in preference to those who possessed the qualifications as advertised by the University itself---Respondent's appointment as Assistant Professor BPS-19 was declared to have been made without lawful authority and accordingly set aside with the direction that the Selection Board shall convene at the earliest to appoint a suitable candidate from amongst the already short listed candidates, excluding both the petitioners as well as the respondent---Petition for leave to appeal was disposed of.

(b) Civil service---

----Appointments---Objective selection---Adherence to the statutory rules and procedures for selection of public jobs was the only surest method to objectively select the best out of the best from a competing lot---Such selection process was rooted into the fundamentals of equal opportunity, equal treatment and equal protections.

(c) Public functionary---

----State authority, exercise of---State authority in every sphere of life was a sacred trust to be exercised fairly and justly by the functionaries to accomplish the purposes assigned to them by law; it was their bounden duty to do right to all manner of people, without any distinction.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ahmad Nawaz Chaudhry, Advocate-on-Record for Petitioner.

Rehan-ud-Din Khan, Advocate Supreme Court for Respondent No.1.

Babar Awan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 4.

2020 S C M R 573

[Supreme Court of Pakistan]

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

AAMIR IQBAL GILL---Petitioner

Versus

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

CIVIL PETITION NO. 2429-L OF 2018

(On appeal against order dated 11.10.2018 passed by the Lahore High Court, Lahore in I.C.A. No. 29 of 2007)

AND

CIVIL PETITION NO. 2439-L OF 2018

(On appeal against order dated 12.11.2018 passed by the Lahore High Court, Lahore in Review Petition No. 248038 of 2018)

Civil Petitions Nos. 2429-L and 2439-L of 2018, decided on 18th February, 2020.

Life Insurance (Nationalisation) Order, 1972---

----Art. 49---Constitution of Pakistan, Art. 199---State Life Employees (Service) Regulations, 1973 ('the Regulations')---Said Regulations had statutory effect---Constitutional petition filed by an employee of State Life Insurance Corporation ('the Corporation') in relation to his terms and conditions of service was liable to be decided by the High Court in accordance with law without the objection that Service Regulations of the Corporation were of non-statutory character.

Chairman State Life Insurance Corporation v. Hamayun Irfan 2010 SCMR 1495 ref.

Junaid Jabbar Khan, Advocate Supreme Court for Petitioner (in both cases)

Syed Waqar Hussain Naqvi, Advocate Supreme Court for Respondents (in both cases).

2020 S C M R 579

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Sajjad Ali Shah, JJ

COLLECTOR OF CUSTOMS, APPRAISEMENT (WEST) and others---Petitioners

Versus

Messrs MAROSH and others---Respondents

Civil Petitions Nos. 841-K, 992-K to 1050-K of 2018, decided on 20th February, 2020.

(Against judgment dated 23.4.2018 of the High Court of Sindh, Karachi passed in C.Ps. Nos. D-7357, 7803, 7816, 8546, 8432, 8167, 8516, 8705, 8135, 8025, 7918, 8246, 8617, 8619, 8245, 8266, 8572, 7515, 7418, 8468, 3007, 7991, 7769 of 2017. 759, 2255, 646, 8882, 8373, 438, 301, 1433, 2357, 2451, 3022, 2439, 1355, 1365, 2617, 2644, 2848, 484, 612, 1703, 743, 676, 09, 1116, 2114, 123, 566, 911, 2180, 1508, 706, 1509, 1216, 1140, 1863 and 1700, 2081 of 2018)

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

----Ss. 18(1) & 18(3)---'Customs duty' and 'regulatory duty'---Distinction---Customs duty was distinct and separate from regulatory duty---Other factors notwithstanding there was no restriction on the government's power to impose regulatory duty on certain goods even when said goods were exempt from customs duty.

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

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

----S. 18---'Customs duty'---Statutory Regulatory Order (SRO), interpretation of---Language, tone and tenor of the SRO itself would indicate whether the intention therein was to merely exempt the imposition of customs duty, or also to preclude the imposition of future levies.

Collector of Customs and others v. Ravi Spinning Ltd. and others 1999 SCMR 412 and Government of Pakistan and others v. Saif Textile Mills 2003 PTD 335 ref.

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

----Ss. 18(1) & 18(3)---'Customs duty'---Statutory Regulatory Order (SRO), interpretation of --- 'SRO' in question provided that exemptions granted under the said SRO extended to "the whole of customs duties in excess of the rates specified", which meant the benefits accrued under the pertained not only to the imposition of customs duties but also to the imposition of regulatory duties---Petitions were dismissed.

(d) Interpretation of statutes---

----Implied repeal, doctrine of---Scope and meaning---In its traditional formulation, implied repeal doctrine was understood to be a very narrow doctrine that reconciled older and newer enactments by minimally paring back older law where there was no plausible understanding of the laws that could avoid the inconsistency---Courts applied the doctrine of implied repeal rarely because it was limited to reconciling laws that were so "plainly repugnant" to one another that they were incapable of coexisting---Even when faced with plainly incompatible enactments, the doctrine allowed for only the most modest displacement of the earlier law---Onus of establishing the conditions of implied repeal laid on the party asserting that a previous law had been impliedly repealed.

Dr. Foster's case (1614) 77 Eng. Rep. 1222, 1232 (K.B.); Interpretation and application of statutory and constitutional Law 123-24 (New York, John S. Voorhies 1857); Share Gold v. Tanner (2002 76 ALRJ 808); Saraswati v. The Queen 1991 172 CLR 1 and Tanveer Hussain v. Divisional Superintendent Railways PLD 2006 SC 249 ref.

Kafil Ahmed Abbasi, Advocate Supreme Court and Amanat Khan, Dy. Collector (Customs) for Petitioners.

Nemo for Respondents.

2020 S C M R 586

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Qazi Muhammad Amin Ahmed, JJ

MAZHAR ELLAHI---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 497 of 2015, decided on 20th February, 2020.

(Against judgment dated 18.11.2015 passed by the Lahore High Court at Rawalpindi Bench in Criminal Appeal No. 602 of 2010)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 337-L(2)---Qatl-i-amd, other hurt---Reappraisal of evidence---Registration of FIR, examination of injured witness and autopsy of deceased were carried out with promptitude---Occurrence took place within the bounds of the locality where presence of the witnesses, particularly one having extensive injuries could not be viewed with suspicion---Statements of witnesses were in complete unison with details of the salient aspects of the occurrence as well as events collateral therewith---Injuries endured by the deceased and the injured witness were consistent with the weapon recovered from accused---Benefit for absence of a forensic report and a misdirected motive had already been extended to the accused by the High Court, which converted his sentence of death into imprisonment for life---Petition for leave to appeal was dismissed.

Kashif Ali Malik, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner.

Ahmad Raza Gillani, Additional Prosecutor General, Punjab for the State.

2020 S C M R 588

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

BAKHT MUNIR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 12-P of 2017, decided on 2nd May, 2019.

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 08.11.2016 passed in Crl. A. No. 711-P of 2015 and M.R. No. 17 of 2015)

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 337-F(iii)---Qatl-i-amd, attempt to commit-qatl-i-amd, ghayr-jaifah-mutalahimah---Reappraisal of evidence---Sentence, reduction in---Sentence of death converted into imprisonment for life---Grounds---In the FIR itself, it was the case of the complainant that the occurrence had taken place on account of a trivial verbal altercation between the parties---No previous enmity existed between the parties---Circumstances of the case unequivocally suggested that the occurrence had taken place at the spur of the moment without any premeditation on the part of the accused---Conviction of the accused under S. 302(b), P.P.C. was upheld and the sentence of death awarded to accused on two counts was converted into imprisonment for life on two counts---Convictions and sentences of accused on other penal heads were maintained---Appeal was partly allowed.

Altaf Samad, Advocate Supreme Court for Appellant.

Mujahid Ali Khan, Additional A.G., Khyber Pakhtunkhwa for the State.

2020 S C M R 590

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

ZAHID and another---Petitioners

Versus

The STATE---Respondent

Jail Petition No. 712 of 2018, decided on 3rd March, 2020.

(On appeal against the judgment dated 12.09.2018 passed by the Sindh High Court, Circuit Court, Hyderabad in Crl. A. No. S-47 of 2018)

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

----S. 376---Rape---Reappraisal of evidence---First Information Report (FIR) registered a day after the crime---Delay immaterial---Fact that the modesty of a married woman was violated by sexual assault made understandable the apprehension of the victim and her family in approaching the police immediately---Delay in reporting the crime to the police in respect of an offence involving a person's honour and reputation and which society may view unsympathetically could prey on the minds of a victim and her family and deter them to go to the police---In the present case, the delay in registering FIR could also be explained because the victim and her family had elected for her medical treatment---Conviction and sentences of accused persons were maintained---Petition for leave to appeal was dismissed.

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

----S. 376---Rape---Reappraisal of evidence---Medical report of victim suggesting rape---Victim was examined on the day of the crime by a lady doctor, who testified that there were some marks of violence on the victim: nail marks on her right and left cheeks and swelling on her right forearm, suggesting that the victim was forced and restrained; and that, "the presence of human sperm in internal vaginal swabs constitutes the likelihood of sexual intercourse"---Victim herself testified about the sexual assault on her by the accused persons, but was not cross-examined on this part of her testimony---No suggestion was put forth to the effect that the complainant or the victim had any animosity or ill will against the accused persons---Conviction and sentences of accused persons were maintained---Petition for leave to appeal was dismissed.

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

----S. 376---Rape---Reappraisal of evidence---DNA report, absence of---Lack of DNA report was not sufficient to secure acquittal where there was substantial corroboratory evidence to secure conviction beyond reasonable doubt.

Ms. Ayesha Tasneem, Advocate Supreme Court for Petitioner.

Mrs. Rahat Ahsan, Additional P.-G. Sindh for the State.

2020 S C M R 594

[Supreme Court of Pakistan]

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

GHANI KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 95 of 2018, decided on 27th February, 2018.

(On appeal against the judgment dated 29.01.2018 passed by the Peshawar High Court, Peshawar in Crl. M. B.A. No. 2805-P of 2017)

Penal Code (XLV of 1860)---

----Ss. 324 & 34---Constitution of Pakistan, Art. 185(3)---Attempt to commit qatl-i-amd, common intention---Bail, refusal of---Accused was named in the FIR with specific role of firing at the complainant, hitting the latter on his right thigh and right side of the chest---Said allegation was prima facie supported by the medical evidence---Offence alleged against the accused fell within the prohibitory clause of S. 497, Cr.P.C.---Petition for leave to appeal was dismissed and bail was refused.

Altaf Samad, Advocate Supreme Court for Petitioner.

Anis Muhammad Shehzad, State counsel for Khyber Pakhtunkhwa and Amjad Khan, ASI for the State.

2020 S C M R 595

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

BASHIR AHMED LEGHARI---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 431 of 2019, decided on 25th February, 2020.

(Against judgment dated 11.03.2019 passed by the High Court of Sindh, Circuit Court Hyderabad in Cr. Petition No. S-188 of 2017)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 334--- Qatl-i-amd, itlaf-i-udw--- Reappraisal of evidence---Accused absconded soon after the occurrence and remained away from law for a considerable span of time---In this backdrop, prosecution's failure to recover the weapon, statedly used in the occurrence, faded into insignificance---Accused was certainly not expected to keep the gun for such a long period of time with him as a souvenir of his crime---Pellets fired by the accused covered both the thighs of the injured witness and it was in consequence thereof that the victim lost one of his legs---Clinical observations noted by the Medical Officer regarding the injuries, multiple in number, were consistent with the weapon held and used by the accused---Injuries recorded in the medico legal certificate coincided with the time of occurrence related in the crime report---Injured witness furnished graphic details of the occurrence with the support of other witnesses, each in comfortable unison with him---Conviction and sentence passed against the accused by courts below did not call for any interference---Petition for leave to appeal was dismissed.

Nemo for Petitioner.

Hussain Bux, Additional Prosecutor-General Sindh for the State.

2020 S C M R 597

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

FARMAN ALI and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 29-P of 2012 and Jail Petition No. 76 of 2012, decided on 25th September, 2017.

(On appeal against the judgment dated 23.02.2012 passed by Peshawar High Court, Mingora bench (Dar-ul-Qaza) Swat in Crl. Appeal No. 603 of 2009)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---In the FIR, it was specifically mentioned that the accused and co-accused fired at the deceased and due to their firing, the deceased received fire shots and succumbed to the injures---Names of the eyewitnesses had specifically been mentioned in the FIR---Matter was promptly reported to the police and the postmortem was also conducted promptly, which excluded the possibility of consultation or deliberation on the part of the prosecution---Ocular account which otherwise was trustworthy was fully supported by the medical evidence so far as injuries received by the deceased and time of occurrence etc, were concerned---No contradiction were found between the ocular account and the medical evidence---Ocular account was further corroborated by the abscondence of the accused as he remained fugitive from law and had to be declared a proclaimed offender---Likewise the co-accused was arrested 25/26 days after the incident---Non-dispatching of the empties to the firearm expert was not fatal to the prosecution case as no weapon was recovered during investigation of the case---Sentences of imprisonment for life awarded to accused persons were maintained---Petitions for leave to appeal were dismissed.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Eye-witnesses, testimony of---Though eye-witnesses of the occurrence were related to the deceased but they had no ill will or motive to falsely implicate the accused persons---Said witnesses remained consistent on each and every material point despite lengthy cross-examination and both the Courts below, after appraisal of the evidence, found them truthful and reliable witnesses---No material discrepancy or improvement was found in their statements---Sentences of imprisonment for life awarded to accused persons were maintained---Petitions for leave to appeal were dismissed.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Eye-witnesses not attributing specific injuries to each accused person---Immaterial---In the present case, when three persons started firing upon one person then it was not possible for eye-witnesses to specify the injuries caused by each of them---Even otherwise, the benefit of this aspect had already been extended to the accused persons by the Courts below by not awarding them the capital punishment and instead awarding them imprisonment for life---Sentences of imprisonment for life awarded to accused persons were maintained---Petitions for leave to appeal were dismissed.

Altaf Samad, Advocate Supreme Court for Petitioners (in both cases).

Nemo for the State (in both cases).

2020 S C M R 601

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

Mirza ABID BAIG---Appellant

Versus

ZAHID SABIR (DECEASED) through LRs and others---Respondents

Civil Appeal No. 472 of 2013, decided on 12th February, 2020.

(On appeal against the judgment dated 6.02.2013 passed by the Lahore High Court, Lahore in C.R. No. 489/2009)

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

----Arts. 117, 118 & 119---Contract Act (IX of 1872), S. 25---Islamic law---Inheritance---Brother depriving sister of her legal share in inheritance through a purported compromise agreement---Purported compromise application was neither executed nor filed whereas the purported agreement was not executed---Purported agreement surfaced fifteen years after its alleged execution without an explanation offered as to why it was not disclosed earlier---Burden to prove the two documents (the purported compromise application and the purported agreement) lay on the appellant (Art. 117 of the Qanun-e-Shahadat, 1984) but he did not discharge the burden of proof (Art. 118)---Since appellant failed to establish fact of payment under the compromise application and agreement, both said documents were void in terms of S. 25 of the Contract Act, 1872---Appeal was dismissed with costs.

Appellant-brother continued to throw one unnecessary challenge after another to prevent his sisters from getting their inheritance. One of the sisters who entered into the purported compromise agreement with the appellant had since passed away. Legal heirs of said sister/respondents remained deprived of their mother's share of inheritance for over forty-five years. Such conduct of the appellant contravened the law and also the dictates of Almighty Allah; Shariah expounded that legal heirs immediately on the death of their predecessor became owners of the estate left behind as per their predetermined shares.

Rights of inheritance of deceased sister to the extent of the certain properties had been determined by the Court however the appellant then produced the purported compromise application and long afterwards emerged the purported agreement. No explanation was forthcoming why these documents remained under wraps.

Purported compromise application was neither executed nor filed and the purported agreement was not executed. The purported agreement was dated 16th October 1993 but was brought forward after fifteen years, in the year 2008. The purported agreement left blank the place where the consideration amount was to be written. Appellant testified that he had inserted in his hand an amount of Rs. "700,000/=" which he said was paid in cash but failed to establish the particular fact of payment having been made to the deceased sister.

Purported compromise application did not refer to the purported agreement which was also inexplicable. Purported agreement surfaced fifteen years after its alleged execution without an explanation offered as to why it was not disclosed earlier. The signature of deceased sister on both these documents was also different from her signature on the plaint and other admitted documents. Both these documents were also thumb-impressed by her therefore it was relatively easy to establish if she had affixed her thumb impression thereon by sending them for forensic examination but the appellant did not elect to do so and thus an adverse presumption could be drawn against him. The burden to prove the two self-serving documents (the purported compromise application and the purported agreement) lay on the appellant (Article 117 of the Qanun-e-Shahadat, 1984) but he did not discharge the burden of proof (Article 118).

The purported compromise application and the purported agreement were stated to have been executed on payment of compensation of seven hundred thousand rupees but appellant failed to establish that such payment was made, therefore, these documents were void in terms of section 25 of the Contract Act, 1872.

Appeal was dismissed with costs throughout with the observations that often times male members of a family deprive their female relatives of their legal entitlement to inheritance and in doing so Shariah and law was violated; that since the deceased sister and now her legal heirs/respondents stood deprived of inheritance for forty-five years, it was expected that if the matter went to the Executing Court it would ensure that the matter was promptly concluded without entertaining frivolous objections from the appellant to further procrastinate the misery of the respondents.

(b) Islamic law---

----Inheritance---Vulnerable females compelled to relinquish their entitlement in inheritance in favour of their male relations---Such relinquishment by female members of the family was contrary to public policy and Shariah.

Ghulam Ali's case PLD 1990 SC 1 ref.

Muhammad Atif Amin, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Mustafa Ramday, Advocate Supreme Court assisted by Zaafir Khan, Ms. Zoe Khan and Akbar Khan, Advocate and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 1(a) to (d).

Respondents Nos. 2 - 5 ex parte.

2020 S C M R 610

[Supreme Court of Pakistan]

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

ASIF and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 419 and 420 of 2016, decided on 18th April, 2018.

(Against the judgment dated 03.02.2015 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 341-P of 2014)

Penal Code (XLV of 1860)---

----Ss.324, 353 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Explosive Substances Act (VI of 1908), S. 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illegal weapons, making or possessing explosives under suspicious circumstances, acts of terrorism---Reappraisal of evidence---Accused persons had connections with a terrorist organization, and they were apprehended red-handed at the spot with firearms---Huge quantity of explosive substance was recovered at their instance at the place of occurrence---Eye-witnesses produced by the prosecution were public servants who had no ostensible reason to falsely implicate the accused persons in a case of present nature---Said public servants had made consistent statements before the Trial Court pointing their accusing fingers towards the accused persons as some of the persons who had fired at the raiding police party and at whose instance explosive substance had been recovered after they had been apprehended red-handed---Reports of the experts submitted had been received in the positive---All the crime-empties recovered from the scene of the crime had matched with the respective weapons recovered from the possession of accused persons---Appeals were dismissed and convictions and sentences of accused persons were maintained.

Altaf Samad, Advocate Supreme Court for Appellants (in both cases).

Muhammad Aslam Ghumman, Advocate Supreme Court for the State (in both cases).

2020 S C M R 612

[Supreme Court of Pakistan]

Present: Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

AURANGZEB---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 488 of 2015, decided on 2nd March, 2020.

(Against judgment dated 21.01.2014 passed by Lahore High Court, Lahore in Cr. Appeal No. 1286 of 2010)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Witnesses of ocular account were closely related with the deceased, but notwithstanding, both of them had plausibly explained purpose of their presence at the crime scene by stating that they had assembled to watch a Kabaddi match, annually held by tradition at a nearby mausoleum---To the extent of role assigned to the accused in the crime report, both said witnesses remained consistent and straightforward---Acquittal of all co-accused persons did not cast away the case against the accused, who was singularly blamed for the crime---Incident was reported with a remarkable promptitude, followed by post mortem examination excluding possibility of deliberations and consultations---Witnesses' presence at the stated point of time, coincided with the durations of injuries mentioned in the autopsy report---Though inconsequential for want of forensic verification, the weapon recovered on accused's disclosure was consistent with the nature of fatal injury---Occurrence being a broad daylight affair before a large gathering, did not admit hypothesis of substitution---Sentence of imprisonment for life awarded to the accused was maintained---Petition for leave to appeal was dismissed.

Qamar Zaman Qureshi, Advocate Supreme Court and Rafaqat Hussain Shah, Advocate-on-Record for Petitioner.

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

2020 S C M R 615

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

COLLECTOR OF CUSTOMS---Appellant

Versus

Messrs BYCO PETROLEUM PAKISTAN and others---Respondents

Civil Appeals Nos. 1019 to 1021 of 2019, decided on 13th February, 2020.

(Against the judgment dated 02.08.2018 of the High Court of Balochistan, Quetta passed in Customs References Nos. 16, 17 and 18 of 2017)

Customs Act (IV of 1969)---

----S. 19---Tug boats for offloading oil tankers imported for a temporary period of three years---Not exempted from customs duties---S.R.O. 678(I)/2004 issued by the Government of Pakistan, under S. 19 of the Customs Act, 1969, which exempted various machinery, equipment, vessels imported temporarily from payment of customs duty did not cover Tug boats---Tug boats were distinct kind of boats and had been assigned a distinct and separate code heading in the Pakistan Customs Tariff, being PCT Code No. 8904.0000.

Main issue in the present case was whether the Tug boats imported by the respondents fell within the category of various machinery, equipment, vessels etc which were allowed to be imported temporarily without payment of customs duty etc, as enumerated in SRO 678(I)/2004 ('SRO 678') issued by the Government of Pakistan, under section 19 of the Customs Act, 1969. Sub-clause (vii) of Clause (5) of the SRO 678 provided that all petroleum sector companies, corporations and organizations etc. shall be entitled to import certain machinery, vessels, etc. on temporary basis without payment of customs duties. vessels mentioned in the said sub-clause is a "drilling and seismic (on shore or off shore) vessels" and not a Tug boat. Description of the specific vessel mentioned in SRO 678 did not embrace all kinds of vessels and certainly not Tug boats.

The category, purpose, function and classification of Tug boats, or a pusher craft, that were used to push deep sea vessels to the port, were altogether different from "drilling and seismic (on shore and off shore) vessels", which as manifest from their description, were used for the purpose of the drilling and for functions relating to seismology. The PCT Code No. 8904.0000 pertaining to Tug boats and pusher craft did not cover "drilling and seismic (on shore and off shore) vessels, and therefore there could be absolutely no confusion that Tug boats and "drilling and seismic (on shore and off shore) vessels", were two different things, with different codes, purposes and functions.

Tug boats imported by the respondents were not entitled to any exemption from customs duties.

Raja Muhammad Iqbal, Advocate Supreme Court and Ch. M. Javed, C.L. for Appellant.

Waqir Azim, Advocate Supreme Court for Respondents.

2020 S C M R 618

[Supreme Court of Pakistan]

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

MUKHTAR ALAM---Petitioner/Appellant

Versus

FAZAL NAWAB and another---Respondents

Criminal Appeal No. 5-P of 2015 and Criminal Petition No. 1146 of 2017, decided on 11th December, 2017.

(Against the judgment dated 18.10.2011 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat in Criminal Appeal No. 676 of 2010 along with Murder Reference No. 25 of 2010)

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Confessional statement of accused---Legality---Confessional statement of accused was recorded a day after his arrest---Confessional statement itself was duly signed by the accused---When the accused was confronted to such confessional statement while recording his statement under S. 342, Cr.P.C. he only stated that such proceedings were illegal---Accused did not deny his signature on the confessional statement---Disputing his signature at present stage before the Supreme Court was hardly of any significance nor was any such suggestion regarding the confessional statement put to the Judicial Magistrate---Conviction of accused under Ss. 302(b) & 34, P.P.C. was maintained.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Recovery of weapon and crime empties---Crime empties were recovered from the spot while recovery of crime weapon was led by the accused---Report of Forensic Science Laboratory was positive---Ocular version was also supported by the medical evidence---Conviction of accused under Ss. 302(b) & 34, P.P.C. was maintained.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---Complainant admitted that after five minutes of the incident deceased (in injured condition) was first carried to a village in a pickup, from where he was transferred to another pickup and then taken to hospital---Transferring the deceased to the other pickup took 15 minutes, which fact was not recorded in the FIR---No explanation was provided by the complainant as to why the deceased was not directly taken to the hospital to provide prompt medical treatment, which could have saved his life---In his deposition the complainant stated that besides him and deceased, two other persons had also gone to a Court and all of them returned together, where after the murderous assault took place---However, said two persons were not examined by the prosecution---Complainant had also suppressed the motive for the murder, which the accused stated was the earlier murder by the deceased of his brother---Under such circumstances it was appropriate to modify the sentence under S. 302(b), P.P.C. from death to that of imprisonment for life---Whilst upholding the conviction of accused, his sentence of death was reduced to one of imprisonment for life---Appeal was partly allowed.

Altaf Samad, Advocate Supreme Court for Appellant.

Khalid Khan, Advocate Supreme Court for Respondent No.1.

Anis Muhammad Shahzad, State Counsel for Respondent No.2.

2020 S C M R 622

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab and Sajjad Ali Shah, JJ

NAIMATULLAH KHAN ADVOCATE and others---Petitioners/Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No. 9/2010, C.M.A. No. 6206/2013, C.M.A. No.1552-K/2018 in Constitution Petition No. 9, C.M.A. No.1600-K/ 2018 in Constitutional Petition No.9, C.M.A. No.22-K/2019 in Constitutional Petition No.9, C.M.A. No.23-K/2019 in Constitutional Petition No.9, C.M.A. No. 59-K/2019 in Constitutional Petition No.9, C.M.A. No.101-K/2019 in Constitutional Petition No.9, C.M.A. No.311-K/2019 in Constitutional Petition No.9, C.M.A. No.349-K/2019 in C. P. No. 815-K/2016, C.M.A. No.394-K/2019 in Constitutional Petition No. 9, C.M.A. No.425-K/2019 in Constitutional Petition No.9, C.M.A. No. 425-K/2019 in Constitutional Petition No.9, C.M.A. No.459-K/2019 in Constitutional Petition No. 9, C.M.A. No. 560-K/ 2019 in Constitutional Petition No. 9, C.M.A. No.521-K/2019 in Constitutional Petition No.9, C.M.A. No.527-K/2019 in Constitutional Petition No. 9, C.M.A. No.556-K/2019 in Constitutional Petition No. 9, C.M.A. No. 606-K/2019 in Constitutional Petition No.9, C.M.A. No.617-K/2019 in Constitutional Petition No.9, C.M.A. No. 631-K/ 2019 in Constitutional Petition No.9, C.M.A. No.796-K/2019 in Constitutional Petition No.9, C.M.A. No.828-K/2019 in Constitutional Petition No.9, C.M.A. No.830-K/2019 in Constitutional Petition No.9, C.M.A. No.831-K/2019 in Constitutional Petition No.9, C.M.A. No.875-K/2019 in Const. Petition No. 9, C.M.A. No. 889-K/2019 in Const. Petition No. 9, C.M.A. No.896-K/2019 in Constitutional Petition No.9, C.M.A. No.116/2019 in C.M.A. No.Nil/2019 in Constitutional Petition No. 9, Criminal O.P. No.7-K/2017 in Criminal O.P. No.11-K/ 2016, Criminal O.P. No.19-K/2017 in Criminal O.P. No.7-K/2017, Criminal O.P. No. 1-K/2020 in Constitutional Petition No. 9, Crl. M.A. No.21-K/2017 in Crl. O.P. No.7-K/2017, Crl. M.A. No.124-K/2017 in Crl. O. P. No. 7-K/2017, Crl. M.A. No. 132-K/2017 in Crl. O.P. No.7-K/2017, Crl. M.A. No.111-K/2018 in Crl. M.A. No.132-K/2017 in Crl. O.P. No.7-K/2017, Crl. M.A. No.243-K/2018 in Crl. M.A. No.8-K/2018 in Crl. O.P. No.7, Crl. M.A. No.8-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.19-K/2018 in Crl. M.A. No. 7-K, Crl. M.A. No. 20-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.25-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.32-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 38-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 44-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 52-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 59-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 71-K/ 2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 72-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No. 95-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 199-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 214-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 229-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 1-K/2019 in Crl. O.P. No. 7-K, Crl. M.A. No. 2-K/2019 in Crl. O.P. No. 7-K, C.M.A. No.933-K/2018 in Constitutional Petition No.9, C.M.A. No.964-K/2019 in Constitutional Petition No.9 and C.M.A. No. 23-K/2019 in Constitutional Petition No.9, decided on 21st February, 2020.

(a) Constitution of Pakistan---

----Arts. 9 & 184(3)---Matter regarding non-functioning of Karachi Circular Railway (KCR)---Supreme Court after highlighting public transportation issues in Karachi city and discussing the reasons for delay in operation of KCR directed that Pakistan Railways with the aid and assistance of all agencies in the country had to revive and operate Karachi Circular Railway (KCR) and it shall do so positively within a period of six months, otherwise, the Court may take action against all relevant Government Executives and officials of Pakistan Railways for contempt of court and for not complying with mandatory provisions of the Constitution--- Matter was adjourned with further directions.

(b) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Right to life was not restricted only to the prosecution of a person but the State was required to ensure that all aspects of citizens' life were protected and dealt with by the State---Right to life included the provision of drinking water; provision of electricity; provision of education; provision of health facility; provision of civic and civil infrastructure, and provision of transportation for citizens etc.

(c) Constitution of Pakistan---

----Arts. 9, 14, 15, 18, 25, 37 & 38---Right to public transportation---Scope and significance---State was required to provide citizens with safe, humane and dignified means of travelling from one destination to another, within and outside cities---Providing such right was essential to ensuring equality of citizens and also as a social justice to eradicate social evils and to promote social and economic well-being of the people---Without transportation neither could a citizen get education; nor engage in his trade, business or profession; nor reach health care institutions; nor obtain necessities of life like food, clothing etc.

(d) Railway Regulatory Authority Ordinance (XCII of 2002)---

----S. 9---Railways Act (IX of 1890), S. 7---Railway Board Ordinance (XLVIII of 1959), Preamble---Constitution of Pakistan, Art. 184(3)---Matter regarding encroachments and housing societies built on land belonging to Pakistan Railways---No provision within the Railways Act, 1890, the Railway Board Ordinance, 1959 and the Railway Regulatory Authority Ordinance, 2002 allowed the Railway to convert any of its lands or infrastructure into that of a private housing society---Employees of Pakistan Railways also could not get themselves allotted land belonging to Railways, which in law was only meant for the operation and use of Railways---Supreme Court allowed the Railways authorities and Provincial Government to continue operation of removal of encroachments from Railways land and directed the Secretary Pakistan Railways to issue notices to all occupants of Railways land to vacate the same and to draft a programme for relocation of such occupants with the assistance of the Provincial Government--- Matter was adjourned with further directions.

In attendance:

Salam Talibuddin, A.G. Sindh, Syed Mumtaz Ali, Chief Secretary, Sindh, Habib ur Rehman Gillani, Secretary Railway, Kashif Sarwar Paracha, DAG, Zulfiqar Gul Memon, Assistant Chief, Transport Communication, Ministry of Planning, Shahid Jameel, Principal Law Officer, SBCA, Zia Makhdoom, President, Sindh High Court Bar Association, Karachi (74-K), Haider Waheed, Advocate Supreme Court (in C.M.A. No.83-K), Abid S. Zubari, Advocate Supreme Court (in C.M.A. No.84-K), Yawar Farooqui, Advocate Supreme Court, Syed Imtiaz Hussain, MIA, KPT, G.N. Qureshi, Chief Legal Counsel, Board of Revenue, Muhammad Farooq Laghari, D.S. Layari Authority, Salahuddin Ahmed, Advocate Supreme Court, K.A. Wahab, Advocate-on-Record, Dr. Raana Khan, Advocate-on-Record, Syed Jameel Ahmed, Advocate Supreme Court, Akher Hussain, Advocate Supreme Court, M. Umar Riaz, Advocate Supreme Court, Raja Qasit Nawaz Khan, Advocate Supreme Court, Muhammad Haseeb Jamali, Advocate Supreme Court, Muhammad Aqil, Advocate Supreme Court, Sarfraz Metlo, Advocate Supreme Court, Muhammad Ashraf Samoo, Advocate Supreme Court, Nazar Hussain Dhoon, Advocate Supreme Court, Syed Ashif Raza, Advocate Supreme Court, Syed Sho-un-Nabi, Advocate Supreme Court, Iftikhar Shalwani, Commissioner of Karachi, Waseem Akhter, Mayor Karachi, Dr. Saif-ur-Rehman, Municipal Commission KMC, Saeed Ahmed Qureshi, Focal Person, Government of Sindh, Masood Alam, Director, Mrs. Azra Muqeem, Law Officer, Syed Intezar Hussain, Manager, Legal, KPT, Asadullah Khan, M.D. KWSB, Saeed Ghani, Minister, Munir A. Malik, Senior Advocate Supreme Court, Abrar Hussain, Advocate Supreme Court, Badar Alam, Advocate Supreme Court, Ghulam Rasool Mangi, Advocate-on-Record, Ms. Sana Akram, Advocate Supreme Court, Sattar Muhammad Awan, Special Prosecutor NAB, Zulfiqar Mahar, AIG Legal, Mazhar Hassan, AIG Legal, I.D. Mangi, AIG Legal, Tahir, M.D. NESPAK and Amanullah Zardari, Focal Person, Home Department.

2020 S C M R 631

[Supreme Court of Pakistan]

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

Mirza MUHAMMAD NAZAKAT BAIG---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice, Islamabad and another---Respondents

Civil Appeal No. 1729 of 2019, decided on 28th January, 2020.

(Against the order dated 02.10.2019 passed by the Islamabad High Court, Islamabad in I.C.A. No. 37 of 2019)

Supreme Court Bar Association of Pakistan Rules, 1989---

----R. 9(a)---Legal Practitioners and Bar Councils Act (XXXV of 1973), S. 3(1)---Constitution of Pakistan, Art. 199---Constitutional petition before High Court challenging the vires of R. 9(a) of the Supreme Court Bar Association of Pakistan Rules, 1989---Maintainability--- Supreme Court Bar Association was not amenable to jurisdiction of the High Court in terms of Art. 199 of the Constitution, thus, a constitutional petition could not be invoked against it.

Abdul Sattar Chughtai Malik v. Pakistan Bar Council through Secretary and another PLD 2007 Lah. 170; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others PLD 2016 SC 377 and Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others 2017 SCMR 571 ref.

M. Shahid Kamal Khan, Advocate Supreme Court for Appellant.

Sohail Mehmood, DAG and M. Kassim Mirjat, Advocate-on-Record for the Federation.

Zulfiqar Abbas Naqvi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Pakistan Bar Council.

2020 S C M R 638

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Amin-ud-Din Khan, JJ

Messrs SUI SOUTHERN GAS COMPANY LIMITED---Petitioner

Versus

REGISTRAR OF TRADE UNIONS and others---Respondents

Civil Petition No. 449 of 2019, decided on 7th January, 2020.

(Against the judgment dated 07.12.2018 of the Islamabad High Court, Islamabad passed in W.P. No. 3074 of 2017)

Industrial Relations Act (X of 2012)---

----Ss. 2(xxxiii) & 19(5)---Contract workers rendering services to Sui Southern Gas Company Limited ("SSGC") engaged through a labour contractor---Whether such contract workers were eligible to be registered as voters to participate in a referendum for choosing a Collective Bargaining Agent---Held, that for an employee to fall under the definition of a "worker" or "workman", it was wholly irrelevant whether he had been employed directly or through a contractor---Only requirement for an employee in an establishment to become a voter, was his being a worker or a workman, in such establishment for a period of not less than three months and nothing more---Besides the functions performed by the contract workers in question were for the benefit of SSGC and they were rendering such services since many years---Purported arrangement/contract between SSGC and the labour contractors could not be allowed to be used as a device to deprive the contract workers of their legitimate and fundamental right of forming a union and or becoming a part thereof---Petition for leave to appeal was dismissed.

Fauji Fertilizer Company Ltd. through Factory Manager v. National Industrial Relations Commission through Chairman and others 2013 SCMR 1253 and State Oil Company Limited v. Bakht Siddiqui 2018 SCMR 1181 ref.

Asim Iqbal, Advocate Supreme Court and Kasim Mirjat, Advocate-on-Record for Petitioner.

Junaid Akhtar, Advocate Supreme Court for Respondents.

2020 S C M R 643

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

AMBREEN KHATOON and others---Petitioners

Versus

MUMTAZ BIBI and others---Respondents

Civil Petition No. 4178 of 2019, decided on 5th December, 2019.

(Against the order dated 18.10.2019 passed by the Lahore High Court, Lahore in Writ Petition No. 11802 of 2019)

(a) Inheritance---

----Legal heirs--- Widow and son of deceased excluded from inheritance---Record clearly reflects that there was sufficient evidence to establish the marriage of respondent with the deceased, which was evident from the CNIC issued to the respondent wherein she was stated to be his spouse---Furthermore CNIC issued to respondent's son stated the deceased to be his father---Birth register entry and the DNA test results also conclusively put the issue to rest and it could be stated with finality that respondent and her son were the widow and son of the deceased, and therefore, legally entitled to their share in property of deceased---Petition for leave to appeal was dismissed and leave was refused.

(b) Revenue authorities---

----Decisions of the courts were binding on the Revenue authorities.

Ghulam Farid Sanotra, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2020 S C M R 649

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

COLLECTOR OF CUSTOMS, ISLAMABAD---Petitioner

Versus

Messrs ASKARI CEMENT (PVT.) LTD. and others---Respondents

Civil Petitions Nos. 1882 and 1883 of 2016, decided on 22nd January, 2020.

(Against judgment dated 09.3.2016 passed by the Islamabad High Court, Islamabad passed in Custom Appeals Nos. 13 and 20 of 2003)

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

----S. 18---Dispute relating to classification of imported goods or determination of PCT Heading, resolution of---Resolution of a dispute regarding determination of a PCT Heading involved mixed question of law and facts, and thus exclusively fell within the domain of the customs hierarchy, as envisaged by the Customs Act, 1969---Scheme of the said Act did not envisage any role of the erstwhile Central Board of Revenue (now Federal Board of Revenue) in resolving any dispute relating to the classification of the goods.

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

----Ss. 193 & 223---Officers of customs to follow Board's orders, etc.---Scope---Direction as envisaged by S. 223 of the Customs Act, 1969 could be given in matters falling within the range of the administrative power so long as the field was not occupied by any statutory provision or a rule---Where customs authorities exercises quasi-judicial function, it was not bound by the instructions and directions or orders of the Board which tended to interfere with its judicial discretion---Customs authorities had to make their own decision on the basis of the facts and circumstances and the law applicable to the case---While exercising quasi-judicial functions the appropriate officers of customs were not subject to the administrative control of the Board by means of orders, instructions or directions.

Messrs Central Insurance Co. and others v. The Central Board of Revenue, Islamabad and others 1993 SCMR 1232 ref.

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

----S. 223--- Customs General Orders--- Scope---Such orders were only aids to Customs Officers in order to understand and interpret the Customs Act, 1969; they could not override or modify the law.

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

Sajid Ijaz Hotiano, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondents.

2020 S C M R 653

[Supreme Court of Pakistan]

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

MEHMOOD AHMED---Appellant

Versus

DISTRICT POLICE OFFICER, BAHAWALPUR and others---Respondents

Civil Appeal No. 1736 of 2019, decided on 18th February, 2020.

(Against the judgment dated 19.2.2018 of the Punjab Service Tribunal, Lahore Camp at Bahawalpur passed in Service Appeal No. 60 of 2017)

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 12(iii)---Enhancement of penalty, order for---Pre-requisites---Opportunity to accused of showing cause---Scope---Rule 12(iii) of Punjab Police (Efficiency and Discipline) Rules, 1975 provided that in all cases, in which officers proposed to enhance an award/punishment, they shall before passing final orders give the defaulter concerned an opportunity of showing cause, either personally or in writing, as to why his punishment should not be enhanced---In the present case, accused-appellant was called in the orderly room by the Regional Police Officer (RPO) himself and he was given personal hearing on the point of enhancement of penalty and after such hearing been provided to the appellant, the penalty of reduction in rank was enhanced to dismissal from service---No infringement of Sub-rule (iii) of R. 12 of the Punjab Police (Efficiency and Discipline) Rules, 1975 had been made nor the principles of natural justice were violated in the present case---Appeal was dismissed.

Arif Chaudhry, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Syed Wajid Ali Gillani, Additional A.-G. Punjab and Shahid Iqbal, DSP, Legal, Bahawalpur for Respondents.

2020 S C M R 656

[Supreme Court of Pakistan]

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

GOVERNMENT OF PAKISTAN, REVENUE DIVISION, FEDERAL BOARD OF REVENUE through Chairman, Islamabad and another---Petitioners

Versus

NAWAZ ALI SHEIKH---Respondent

Civil Petition No. 669-L of 2018, decided on 3rd February, 2020.

(Against the judgment dated 06.03.2018 passed by the Federal Service Tribunal, Lahore Bench in Appeal No. 158(L)CS/2015)

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

----Rr. 3(a), 3(b) & 3(c)---Inefficiency, misconduct and corruption---Dismissal from service---Respondent, who was a superintendent at the Regional Tax Office, was found guilty of processing bogus refund claims by ignoring red alerts issued by the Directorate of Intelligence and Investigation (IR), and consequently was dismissed from service---Service Tribunal modified major penalty of dismissal from service into reduction to lower scale in respondent's current scale equal to three increments for a period of five years and reinstated him into service---Held, that respondent had conceded that the red alerts issued by the Directorate of Intelligence and Investigation (IR) were duly communicated to him, and were in his knowledge but on account of rush of work, the same were overlooked---Inquiry Officer conducted the inquiry thoroughly, all due process rights available to the respondent under the law were provided to him---Charge sheet was issued to him; he was given an opportunity to respond; regular inquiry was conducted in accordance with the law; respondent was afforded adequate opportunity of defence and subsequently a show cause notice was issued by the competent authority and personal hearing was afforded to him before imposition of major penalty---Findings recorded by the Inquiry Officer and affirmed by the competent authority that the respondent was guilty of inefficiency, misconduct and corruption within the meaning of R. 3(a)(b) & (c) of the Government Servants (Efficiency and Discipline) Rules, 1973, were supported by the record and quite justified---Impugned judgment of the Service Tribunal was set aside and the order of dismissal of the respondent was maintained.

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

----S. 5(1)---Service Tribunal---Power to modify Appellate orders---Scope---Under S. 5 of the Service Tribunals Act, 1973 the Service Tribunal enjoyed powers to modify any Appellate order but such power was to be exercised carefully, judiciously and with great circumspection by assigning cogent, valid and legally sustainable reasons justifying such modification.

Chairman Dr. A.Q. Khan, Research Laboratories and another v. Malik Muhammad Hamid Ullah Khan 2010 SCMR 302 ref.

(c) Administration of justice---

----Relief based on law---Scope---No Court, Authority or Tribunal had any jurisdiction to grant any relief in favour of any person which was not based upon the foundation of the Constitution, the law and the rules.

Ibrar Ahmed, Advocate Supreme Court for Petitioner.

Respondent in person.

2020 S C M R 664

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD RAFIQUE alias NEELA and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 1322-L, 1296-L and 1297-L of 2013, decided on 6th March, 2020.

(Against judgment dated 30.10.2013 of the Lahore High Court, Lahore passed in Crl. Appeal No. 934/2010, Revision No. 568/2010 with M.R. No. 232/2010)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused was assigned a fatal blow on the deceased---Occurrence was broad daylight affair on a thoroughfare within the vicinity of inhabitation---Infliction of the fatal blow at the hands of the accused had unanimously been confirmed by the witnesses---According to the autopsy report, it was an incised wound of extensive nature, penetrating into the brain cavity, which was consistent with hatchet found stained with blood, recovered pursuant to disclosure by the accused---Father of the accused, was saddled only with alleged instigation; and had rightly been acquitted by the Trial Court---Brothers of accused were alleged to have caused abrasions on the body of deceased, however triviality of such abrasions rightly swayed the High Court to exercise caution and acquit them---Conviction of accused was rightly maintained by the High Court in circumstances---Petitions for leave to appeal were dismissed.

(b) Criminal trial---

----Conviction and acquittal---Doctrine of abundant caution---Scope---Said doctrine was a silver lining in jurisprudence to ensure safe administration of criminal justice and application thereof did not necessarily imply destruction of entire volume of evidence, if otherwise found sufficient to sustain the centrality of the charge.

Sardar Khuram Latif Khan Khosa, Advocate Supreme Court for Petitioners (in Criminal Petition No. 1322-L of 2013).

Mazhar Ali Ghallu, Advocate Supreme Court for the Complainant (in Criminal Petitions Nos. 1206-L and 1297-L of 2013).

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

2020 S C M R 666

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Qazi Muhammad Amin Ahmed, JJ

NOUMAN KHAN alias ROMAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1314 of 2019, decided on 6th January, 2020.

(Against the order of the Peshawar High Court, Peshawar dated 18.11.2019 passed in Crl. Misc. (BA) No. 3180-P of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 200, 201, 202 & 203---Qatl-i-amd---Bail, grant of---Further inquiry---Initially no one was named in the FIR---Subsequently, accused was implicated in the present case on the statement of father of deceased, recorded under S. 164, Cr.P.C.---Father of deceased, in said statement, stated that he came to know through personal sources that it was the accused who killed his son, however, he had not given any details of the source (as to how he came to know)---Veracity of said statement of father would be determined by the Trial Court after recording evidence pro and contra---Prosecution was not able to refer to any other legally admissible piece of evidence to connect the accused with the commission of alleged offence---All such circumstances made the case of accused one of further enquiry falling within the ambit of S. 497(2), Cr.P.C.---Accused was granted bail.

Arshad Hussain Yousafzai, Advocate Supreme Court for Petitioner.

Anees M. Shahzad, State Counsel and M. Amin, SI for the State.

2020 S C M R 668

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Amin-ud-Din Khan, JJ

ASAL JANAN and others---Petitioners

Versus

ZAREEF KHAN and others---Respondents

Civil Petition No. 138-P of 2015, decided on 21st January, 2020.

(Against the judgment dated 22.12.2014 passed by the Peshawar High Court, Bannu Bench in Civil Revision No. 81-B of 2019)

(a) Inheritance---

----Legal heirs---Joint owners---At the time of the death of propositus, all the legal heirs automatically became share-holders in the immoveable property left by propositus, therefore, they became joint owners.

(b) Inheritance---

----Limitation---In case the subject matter of a suit was pleaded to be of inheritance but the plaintiff failed to prove the matter pertained to inheritance, then the law and bar of limitation would be fully applicable.

Abdul Sattar Khan, Advocate Supreme Court for Petitioners.

Amanullah Khan, Advocate Supreme Court and Salamat Shah, Advocate Supreme Court for Respondents Nos. 10 to 19, 20 and 28.

Nemo for other Respondents.

2020 S C M R 670

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

HASSAN JAVED---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 166-L of 2020, decided on 6th March, 2020.

(Against Order dated 17.2.2020 of the Lahore High Court, Lahore passed in Crl. Misc. No. 2799-B of 2020)

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Anticipatory bail, grant of---Further inquiry---Allegation against accused-employee was that he received payments from his employer's customers in his personal accounts; that he transacted payments from company's account of his employer for consignments personally settled with foreign customers, and that he confessed his guilt and paid back part of the alleged sum with an undertaking for the remainder---Held, that the prosecution and complainant had not been able to point out, any material/evidence to establish alleged transactions, each of which was admittedly documented---No statement was available on the record to confirm the alleged confession by the accused, either individually or jointly with other employees---In addition to the crime report, the only statement was that of a prosecution witness, who referred to some "voice messaging" by the accused as proof of his guilt without production thereof before the Investigating Officer, foreclosing the possibility of its forensic confirmation---Not even the time or date of impugned transactions was mentioned in the crime report---Loss, allegedly incurred due to the employees, could not be equated with breach of trust--- Argument that mala fide was lurking behind the intended arrest could not be dismissed and as such given the accused's clean past, his remission into custody would be a measure far from being conscionable--- Case of accused came within the remit of S. 497(2), Cr.P.C.---Accused was admitted to anticipatory bail.

Ch. Imran Raza Chadhar, Advocate Supreme Court for Petitioner.

M. Wasim, Advocate Supreme Court for the Complainant.

Muhammad Jaffar, Additional Prosecutor-General Punjab and Ghulam Haider, I.O./ASI with Record for the State.

2020 S C M R 675

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

AAMIR HANIF and another---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 333 of 2013 and Criminal Petition No. 845-L of 2013, decided on 5th March, 2020.

(Against the judgment dated 3.7.2013 of the Lahore High Court, Lahore passed in Criminal Appeal No. 8-J of 2009 and Murder Reference No. 324 of 2008)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Reappraisal of evidence---Accused was the brother-in-law of the deceased and allegedly murdered the deceased due to his strained relations with the accused's sister (i.e. deceased's wife)---Though no casing was secured from the spot, nonetheless, blood taken therefrom was forensically established to be that of human origin---Autopsy report confirmed three entry wounds, consistent with the weapon recovered on accused's disclosure---Events were recorded with a remarkable promptitude as occurrence took place at 4:00 p.m; it was reported after one and half hour with medico legal examination of the injured soon thereafter; and autopsy at 9:30 p.m.---Witness who received injuries, was in his early seventies, and was an independent witness, with no axe to grind against the accused---Witnesses were in a comfortable unison on all the relevant details of the incident---Cross-examination on the complainant, though inordinately lengthy, merely set up a case of substitution that merited outright rejection---Convictions and sentences recorded and upheld by courts below did not call for any interference---Petition for leave to appeal was dismissed.

Nemo for Petitioners (in Jail Petition No. 333 of 2013).

A.G. Tariq Ch., Advocate Supreme Court for Petitioners (in Criminal Petition No. 845-L of 2013).

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

2020 S C M R 677

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Qazi Muhammad Amin Ahmed, JJ

SAQIB and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No. 1257 of 2019, decided on 6th January, 2020.

(Against the order dated 18.10.2019 passed by the Peshawar High Court, Peshawar in Cr. M. B.A. No. 2254-P of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss 324, 34, 337-A(ii), 337-F(ii) & 337-D---Attempt to commit qatl-i-amd, common intention, shajjah-i-mudihah, ghayr-jaifah-badiah, jaifah---Bail, grant of---Further inquiry---Case of cross-version FIRs---During the occurrence two persons from accused side also sustained injuries but those injuries had not been disclosed in the FIR---Cross version FIR in such regard was also recorded and challan in both cases i.e. FIR and cross version had been submitted---In such circumstances, it was for the Trial Court to determine as to who was the aggressor and who was aggressed upon, after recording evidence of the parties---Case against the accused persons called for further enquiry falling within the ambit of S. 497(2), Cr.P.C.---Accused persons were granted bail.

Arshad Hussain Yousafzai, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Miss Ayesha Tasneem, State Counsel and Siraj Khan, SI for the State.

2020 S C M R 679

[Supreme Court of Pakistan]

Present: Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

SADIQ ALI---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 450 of 2015, decided on 4th March, 2020.

(Against judgment dated 21.09.2015 passed by the Lahore High Court, Lahore in Crl. Appeal No. 301-J of 2011 and M.R. No. 195 of 2011)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence was a daylight affair, reported to the police with remarkable promptitude---Medico legal examination of complainant/injured witness was conducted under a police docket at 11:45 a.m., followed by autopsy of deceased at 3:00 p.m., durations that coincided with the point of time mentioned in the crime report which confirmed registration of case in the stated manner with exclusion of possibility for deliberations and consultations---Complainant furnished graphic details of the occurrence and injuries sustained by him confirmed his presence at the crime scene---Another eye-witness was an independent witness, who duly corroborated the complainant in his deposition---Injuries suffered both by the deceased as well as the complainant were consistent with the weapon, recovered on accused's disclosure, forensically found to have been stained with blood of human origin---Conviction and sentence of accused as modified by the High Court was maintained --- Petition for leave to appeal was dismissed.

Ms. Ayesha Tasnim, Advocate Supreme Court for Petitioner.

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

2020 S C M R 682

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Amin-ud-Din Khan, JJ

SULTAN---Appellant

Versus

NOOR ASGHAR---Respondent

Civil Appeals Nos. 1080 and 1113 of 2013, decided on 28th January, 2020.

(On appeal from judgment dated 24.5.2013, passed by the Peshawar High Court, D.I. Khan Bench, in C.Rs. Nos. 179 and 180 of 2011)

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

----S. 13(3)---Suit for pre-emption---Talb-i-Ishhad, notice for---Proof---Pre-emptor/appellant had not produced the postman to prove the service or refusal of the notice of Talb-i-Ishhad allegedly issued through registered acknowledgement due---Vendee had not admitted that he had received a notice of Talb-i-Ishhad, duly attested by two truthful witnesses issued within two weeks from the alleged date of knowledge---Statement of vendee in court made it evident that the notice was served after filing of the suit, and the notice was issued by the Court---Further, even the original notice of alleged Talb-i-Ishhad had not been produced and got exhibited in the documentary evidence---Suit filed by pre-emptor was rightly dismissed---Appeals were dismissed.

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

----S. 13---Suit for pre-emption---Talbs, performance of---Performance of Talbs was not a formality, rather it was substantial for the plaintiff/pre-emptor to prove Talbs in accordance with law, otherwise the suit would be defeated.

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

----S. 13---Suit for pre-emption---Talbs, performance of---Proof---Admissions on part of defendant/vendee---In a suit for pre-emption, the plaintiff had to stand on its own legs and may not rely on the weaknesses or admissions of the defendant/vendee to prove the whole claim---Balance of probabilities would not determine the outcome in a suit for pre-emption, which was a suit sui generis in its own nature and required each Talb to be proved in accordance with the law.

In a suit for pre-emption, the plaintiff had to stand on its own legs and may not rely on the weaknesses or admissions of the defendant/vendee to prove the whole claim. For instance, in a written statement a vendee/defendant denies performance of Talb-i-Ishhad by the plaintiff/pre-emptor but when appearing as a witness admits receipt of notice of Talb-i-Ishhad. This admission was not sufficient to hold that the plaintiff had proved performance of Talb-i-Ishhad because the admission of receipt of notice did not confirm that the notice was sent within two weeks after the date of knowledge by the plaintiff. It also does not confirm that the same was attested by two truthful witnesses. Further, that the same was sent through registered post acknowledgement due, therefore, the plaintiff before filing a suit was required to fulfil the requirements of filing the suit of pre-emption including performance of Talb-i­-Ishhad and if he pleaded and performed Talb-i-Ishhad in accordance with law only then he could prove the same after producing requisite evidence i.e. that the notice was issued within two weeks from the date of knowledge, it was attested by two truthful witnesses and it was sent through registered cover acknowledgement due where the facility of postal services were available. [p. 684] E & F

Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 ref.

Syed Mastan Ali Shah Zaidi, Advocate Supreme Court for Appellant (in both cases).

Nemo for Respondent (in both cases).

2020 S C M R 685

[Supreme Court of Pakistan]

Present: Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

ARFAN AKRAM---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 1 of 2016, decided on 3rd March, 2020.

(Against judgment dated 02.11.2015 passed by the Lahore High Court, Lahore in Crl. Appeal No. 243 of 2011 and M.R. No. 133 of 2011)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Incident was reported with remarkable promptitude---Occurrence that took place at 11:00 a.m., was reported to the police 45 minutes thereafter, and autopsy was conducted at 5:00 p.m.---Such durations synchronized with the point of time reflected in the crime report---Complainant, who was deceased lady's real son and inmate of the same premises was a natural witness by all standards; his evidence was duly corroborated by another witness---On all the salient features of the case as well as details collateral therewith, both said witnesses were consistent, straight-forward and confidence inspiring, and even otherwise, they had no axe to grind against the accused---Accused being son-in-law of deceased and brother-in-law of complainant could not be conceivably swapped as a scapegoat---Forensic reports were in the positive---Solitary fire shot was consistent with the weapon recovered and found wedded with the casing dispatched before arrest of accused---Accused's absence from law for a considerable span of time heavily militated against the position taken by him during the trial---Wife of accused, who was a common link with the deceased, was the best person to vindicate the position of accused, but she was conspicuously absent during the trial---Conviction and sentence of accused, as modified by the High Court, were maintained---Petition for leave to appeal was dismissed.

Nemo for Petitioner.

M. Usman, Deputy Prosecutor-General Punjab for the State.

2020 S C M R 687

[Supreme Court of Pakistan]

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

Haji NAWAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 421 of 2016, decided on 18th April, 2018.\

(Against the judgment dated 22.06.2016 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 39-P of 2016)

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 342---Possession of narcotic---Reappraisal of evidence---Statement of accused recorded under S. 342, Cr.P.C.---At the time of recording the accused's statement under S. 342, Cr.P.C. the positive report of the Forensic Science Laboratory had not been put to him at all---If a piece of evidence or a circumstance was not put to an accused person at the time of recording his statement under S. 342, Cr.P.C.. then the same could not be considered against him for the purpose of recording his conviction---Appeal was allowed and accused was acquitted of the charge.

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Safe custody of the recovered substance at the police station or safe transmission of the samples of the recovered substance from the police station to the office of the Chemical Examiner not established---Effect--- Conviction could not be recorded in such circumstances.

Amjad Ali v. The State 2012 SCMR 577 and Ikramullah and others v. The State 2015 SCMR 1002 ref.

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Benefit of doubt---Conscious possession of narcotic---According to the prosecution's own showing the accused was merely a passenger sitting on the passenger seat of the relevant vehicle at the time of the raid and recovery---Alleged narcotic substance was recovered from underneath some seats of the vehicle and its trunk---Accused might be the owner of the vehicle but at the relevant time his conscious possession of the narcotic substance had to be established by the prosecution, particularly when the vehicle was in control of the driver who had escaped, but the prosecution had completely failed in such regard---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted of the charge by extending the benefit of doubt to him.

Noor Alam Khan, Advocate Supreme Court and Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Muhammad Aslam Ghumman, Advocate Supreme Court for the State.

2020 S C M R 690

[Supreme Court of Pakistan]

Present: Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

ISLAM SHARIF---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 430 of 2015, decided on 3rd March, 2020.

(Against judgment dated 10.03.2015 passed by the Peshawar High Court, Bannu Bench in Crl. Appeal No. 29-B of 2013)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Deceased was proceedings for Fajr prayers to a mosque with his sons when he was intercepted by the accused and murdered---Accused as well as the deceased lived in the same rural neighbourhood and a dispute over a house had been raging between them since many years, thus, it could safely be assumed that both sides were well acquainted with each other---Identification of the culprit by the witnesses, proceeding in close proximity with the deceased, particularly in view of long standing acquaintance, could not be viewed with suspicion---No reason was found for the witnesses to swap the assassin of their elderly father with an innocent---Totality of circumstances that, inter alia, included an ongoing dispute as well as accused's longstanding absconsion spreading over almost two decades unmistakably suggested culpability of accused---No occasion was found for recovery of the weapon in the wake of accused's long disappearance from the scene---Both the witnesses, despite lapse of considerable time furnished graphic details of the occurrence, in a manner consistent, straightforward and confidence inspiring; and their cross-examination remained inconsequential--- Conviction and sentence of accused were maintained---Petition for leave to appeal was dismissed.

Rizwan Ejaz, Advocate Supreme Court for Petitioner.

Malik Akhter, A.A.G., Khyber Pakhtunkhwa for the State.

2020 S C M R 715

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

ASFAND YAR KHAN and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 234 of 2020, decided on 2nd April, 2020.

(Against order dated 3.2.2020 passed by the Peshawar High Court, Peshawar in Crl. Misc. No. 3759-P of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Bail, grant of---Further inquiry---Implication through supplementary statement---Petitioners were not named in the crime report as being alongside the five main accused who gunned down the deceased---All the witnesses were unanimous on the number of accused as five---Such omission by the witnesses in not naming the petitioners at the time of lodging the FIR by itself brought petitioners' case within the remit of S. 497(2), Cr.P.C.---Petitioners were granted bail.

Basharatullah Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Arshad Yousafzai, Advocate Supreme Court with Durran Shah, Inspector for the State.

2020 S C M R 717

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

MUHAMMAD RAMZAN alias JANI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1319-L of 2019, decided on 5th March, 2020.

(Against the order dated 07.10.2019 passed in the Lahore High Court, Lahore in Crl. Misc. No. 49712-B of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Offences alleged falling outside the prohibitory clause of S. 497, Cr.P.C.---Grant of bail for such like offences was a rule and refusal thereof an exception.

Naveed Ahmad Khawaja, Advocate Supreme Court for Petitioner.

Muhammad Amjad Rafiq, Additional P.G. Punjab along with Javed Iqbal, SI for the State.

2020 S C M R 731

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Umar Ata Bandial, Mazhar Alam Khan Miankhel, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed JJ

SUO MOTU ACTION REGARDING COMBATING THE PANDEMIC OF CORONA VIRUS (COVID - 19): In the matter of

Suo Motu Case No. 1 of 2020, decided on 13th April, 2020.

(a) Constitution of Pakistan---

----Art. 184(3)---Suo motu action regarding combating the pandemic of Corona virus (COVID-19)---Measures taken by Federal Government, Provincial Governments and Islamabad Capital Territory to deal with Corona virus---Reports submitted before the Supreme Court by Provincial Governments, Islamabad Capital Territory (ICT) and Gilgit-Baltistan (GB)---Concerns recorded by the Supreme Court over different issues including supply of Personal Protective Equipment (PPE) and ventilators for hospitals; availability of testing kits; sealing of Union Councils through executive orders; alleged distribution of free rations worth billions without any documentation for its purchase and distribution; lack of subsistence supplies in different cities, and threat of surge of pandemic---Supreme Court expressing its concerns over measures taken by the Federal and Provincial Governments and Islamabad Capital Territory (ICT) issued directions and asked them to file comprehensive reports before next date of hearing regarding matters relating to the pandemic giving the Supreme Court all necessary information, which could show that citizens fundamental rights were fully safeguarded and the State functionaries were doing all what was necessary for the survival of the people---Case adjourned.

(b) Constitution of Pakistan---

----Arts. 15 & 184(3)---Suo motu action regarding combating the pandemic of Corona virus (COVID-19)---Freedom of movement---Executive order issued by Provincial Government restricting inter-provincial movement of people---Movement record pro formas---Mandatory requirement for people to show their corona virus negative test reports and also take a certificate from the authorities concerned for travelling between two districts within the Province and for travelling to any other Province---Constitutionality---Provincial Advocate General when confronted with Art. 15 of the Constitution conceded that such an executive order could not be passed by the executive authority; rather it had to be done by law to be made by the legislature---Provincial Advocate General assured that he was going to advise the Provincial Government accordingly---Supreme Court directed that until such measure was taken by the legislature, the executive order of the Provincial Government restricting inter-provincial movement was struck down and set aside---Case adjourned.

(c) Constitution of Pakistan---

----Art. 184(3)---Suo motu action regarding combating the pandemic of Corona virus (COVID-19)---Safety and needs of doctors, paramedics and sanitary staff working at hospitals --- Supreme Court expressed its concerns over the necessary needs of the doctors, paramedics and sanitary staff and directed the Provincial Governments, and Islamabad Capital Territory (ICT) to address their grievances immediately---Case adjourned.

The doctors and paramedics, who were working in the front line in dealing with the Corona virus pandemic, were especially affected and were at risk of contracting the disease. Federal Government, Provincial Governments, the Islamabad Capital Territory (ICT) and Gilgit-Baltistan (GB) shall ensure that all necessary needs of the doctors and paramedics, in such an emergency situation, were fully fulfilled. Doctors and paramedics were performing duties beyond their call of duty and at many places, they were not even being provided with food. Such issue was a sensitive issue, which should immediately be addressed by all the Governments and grievances, in this regard of the doctors and paramedics were to be redressed.

The condition of sanitary staff was also not good and the Supreme Court was informed that they were exposed to all sorts of diseases, while working in the hospitals and other places. No effective care was being provided to them and a request had been made that they be provided with the requisite protection, so that they may perform their work without any fear. In the circumstances, the Federal Government as well as all the Provincial Governments, including, the ICT and GB shall ensure that sanitary staff were taken care of and were provided with proper and secure uniforms, so that they could work without fear of being affected by disease. IN ATTENDANCE:

Khalid Javed Khan, Attorney General for Pakistan, Sohail Mehmood, DAG, Dr. Tanveer Qureshi, Secretary M/o National Health, Saeed Ullah Khan Niazi, J.S. (Admn), Asif Suhail, Director (Lit), G.M. Jakhrani, Dy. Director (Lit), (All from M/o National Health) and Mirza Mahsood, J.S. M/o Interior for the Federation.

Niaz Ullah Khan Niazi, A.G., Islamabad, Shafaq Hashmi, D.G., (Chief Commissioner Office), Waseem Ahmed, Asstt. D.C., (I.C.T.A.) and Amer Naveed, A.D., (Lit), (I.C.T.A.) for ICT.

Shan Gul, A.G., Punjab, Javed Yaqoob, Addl.AG, Punjab, Cap (R) M. Usman, Secy. Primary and Secondary Health Deptt. Punjab, M. Nabeel Ahmed Awan, Secy. Specialized, Health Care and Medical Education Deptt. (Via Video link from Lahore Branch), Ch. Faisal Fareed, Addl.A.G. Punjab (In Islamabad) and Adnan Younas Butt, Sr. Law Officer, Punjab for the Government of Punjab.

Salman Talibudin, A.G, Sindh, Zahid Abbasi, Secy. Health, Muhammad Usman Chachar, Addl. Chief Secy.-Home, Dr. Saeed Ahmed Qureshi (Focal Person to Chief Secy. Sindh) and Syed Salman Shah, DG, PDMA (All via Video link from Karachi Branch) for the Government of Sindh.

Shumail Butt, A.G. KP (Via video link from Peshawar, Syed Imtaiz Hussain Shah, Secy. Health, KP, M. Abid Majeed, Secy. Relief Rehabilitation, KP, Mian Shakeel Ahmed, Secy. Local Govt. KP, Rooh-ul-Amin, Addl. Registrar, PHC and Amir Sultan Tareen P&D, Deptt- EHSAAS, Programme (All via Video link from Peshawar Br) for the Government of Khyber Pakhtunkhwa.

Arbab Muhammad Tahir, A.G, Balochistan, Naimatullah Battazi, P.G. Baluchistan, Cap (R) Fazeel Asghar, Chief Secy., Cap (R) Zafar Tahir Abbasi, Special Secretary Health, Imran Zarkhoon, DG, PDMA (Via Video link from Quetta Branch) and Ayaz Khan Swati, Addl. A.G.(In Islamabad) for the Government of Balochistan.

Muhammad Iqbal, AG, G.B. for the Government of Gilgit-Baltistan.

Aman Ullah Khan Kanrani, Advocate Supreme Court, Dr. Waqar Aftab in person, Farhat Nawaz Lodhi, Advocate Supreme Court, Dr. Fazal-e-Rabi in person, Professor Abdul Rashid Mian, President PMA, Samuel Payara, Chairman, Implementation of Minority Rights Forum, Malik M. Shaukat Feroze and DIG (Prison), Rawalpindi Region, Rwp. (on behalf of Govt. of the Punjab) in C.M.A. 2355/2020.

2020 S C M R 759

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

ALAMGIR KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 251 of 2020, decided on 30th March, 2020.

(Against order dated 6.2.2020 passed by the Lahore High Court, Lahore in Crl. Misc. No. 2091-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 124-A, 290 & 291---Maintenance of Public Order Ordinance (XXXI of 1960), S. 16---Punjab Sound Systems (Regulations) Act (XVIII of 2015), S. 6---Incendiary speech on a loud speaker against the State institutions---Bail, grant of---Plea on behalf of accused that he was a an errant youth, emotionally devastated by colossal loss of lives of his clan including that of his father at the hands of terrorists in the aftermath of war against terror---Held, that question as to whether in his outburst, mentioned in the transcript, the accused contravened the stipulated restrictions, was a question to be best settled by the Trial Court, having regard to the totality of the impugned discourse, after conclusion of evidence---Accused was a student, and his days of incarceration were serving no useful purpose to the prosecution---Accused was granted bail with the observation that the State must be benign upon dissent and criticism of its citizens, no matter how crudely articulated or misplaced, on the issues of desecration of the right to life during war through opinions.

Abdul Latif Afridi, Advocate Supreme Court for Petitioner.

Ahmed Raza Gillani, Additional P.G. Punjab with M. Nawaz, SHO and M. Sarwar, SI Police Station Civil Lines, Lahore for the State.

2020 S C M R 761

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

BABAR---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 1420-L of 2019, decided on 11th February, 2020.

(On appeal against the order dated 21.10.2019 passed by Lahore High Court, Lahore in Crl. Misc. No. 42805/B of 2019)

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

----Ss. 497(2) & 498---Penal Code (XLV of 1860), S. 376---Rape---Ad interim pre-arrest bail, confirmation of---Further inquiry---Abductee in her statement under S. 164, Cr.P.C., which primarily was the basis of the case against the accused, only mentioned the co-accused by name---Earlier, there was litigation between the co-accused and the abductee therefore it could not be ruled out that there may be mala fide to the extent of involving his brother i.e. the accused---Allegation against the accused was that he had associated himself with the co-accused however further information in such regard had yet not been collected by the prosecution thereby making it a case of further inquiry---Ad interim pre-arrest bail granted to accused was confirmed.

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

----S. 376---"Standard Operating Procedure (SOP) for Investigation of Rape Cases" dated 20th August 2013, Cls. 2(iii) & 3---Rape case---Investigation carried out by a male police officer in violation of the 'SOP'---Show cause notice issued to investigation officer and Station House Officer (SHO) for violating the 'SOP'---Propriety---Admittedly the investigation officer could not have disregarded the order of a superior officer i.e. the SHO and under such circumstances a show cause notice should not have been issued to the investigation officer, but it could have been issued to the SHO who had assigned him the investigation---Concerned Superintendent of Police stated that he shall withdraw the show cause notice issued to the investigation officer and will ensure that fresh advice was issued to the police stations under his jurisdiction to abide by the 'SOP'---Supreme Court directed the Inspector General of Police (Investigations) to ensure that the 'SOP' was abided by and fresh copies were sent to all the police stations in the province together with its Urdu translation so that all concerned were aware of the SOP and abided by it.

Badar Munir Malik, Advocate Supreme Court and Arshad Ali Chaudhary, Advocate-on-Record for Petitioner along with Petitioner in person.

Mirza Abid Majeed, D.P.G. Punjab, Waseem Dar, S.P. Sadar Gujranwala, Syed Zahid Hussain, SHO Aimanabad, Gujranwala, Syed Zahid Hussain, S.I./I.O., Mohsin Shah, ASI, Shabana, Lady Constable, Hina, Lady Constable and Sobia, Lady Constable for the State.

Aftab Alvi Alam Yasir, Advocate Supreme Court for the Complainant.

Mst. Makea Nawaz, Advocate in person on Court's Notice.

2020 S C M R 828

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz-ul-Ahsan and Sajjad Ali Shah, JJ

DIG OF POLICE, PUNJAB and others---Petitioners

Versus

MUHAMMAD IRFAN---Respondent

Civil Petition No. 2875-L of 2019, decided on 12th March, 2020.

(Against judgment dated 10.05.2019 of Punjab Service Tribunal, Lahore passed in Appeal No. 4717 of 2017)

Police Rules, 1934---

----R. 16.2---Pakistan Arms Ordinance (XX of 1965), Ss. 13 & 20---Conviction---Dismissal from service---Respondent, who was a junior clerk in office of District Police Officer, made a confession before the Judicial Magistrate in a case recorded against him under Ss. 13 & 20 of the Pakistan Arms Ordinance, 1965---Respondent was accordingly sentenced, however his sentence was suspended and he was put on probation---Held, that respondent had himself confessed his guilt and was convicted and sentenced accordingly---In terms of the R. 16.2 of the Police Rules, 1934 he could not be awarded a punishment less than what had been provided in the said Rules i.e. dismissal from service---Petition for leave to appeal was converted into appeal and allowed accordingly.

Mushtaq A. Mohal, Additional A.G., Punjab and Zaka Ullah, Inspector, Legal for Petitioners.

Malik Matiullah, Advocate Supreme Court for Respondent.

2020 S C M R 830

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

Dr. ATIF MUHAMMAD KHAN---Petitioner

Versus

The STATE through D.A.G. and another---Respondents

Criminal Petition No. 277 of 2020, decided on 16th April, 2020.

(Against order dated 18.02.2020 passed by the Islamabad High Court, Islamabad in Crl. Misc. No. 60-B of 2020)

Prevention of Electronic Crimes Act (XL of 2016)---

----S. 21---Disseminating explicit pictures of ex-wife on social media---Bail, grant of---Mobile phone handset along with four SIMs (Subscriber Identity Modules) as well as a memory card with different IMEI numbers was recovered from accused and dispatched to Federal Investigation Agency (FIA) for digital forensic examination---Report prepared by FIA indicted that the said recovered paraphernalia did not generated the explicit material, on the basis whereof, the investigating officer, exonerated the accused and accordingly placed him in column 2 of the report under S. 173, Cr.P.C.---Bad blood between the former spouses though a possible motive to target the complainant (ex-wife), nonetheless, required independent evidence to prima facie frame the accused with the charge---Forensic evidence which was the only tool to sustain the charge was faltering as the findings recorded by the FIA were in the negative---Culpability of accused, after prosecution's failure on forensic side, could best be settled after recording of evidence and, thus, his incarceration till conclusion thereof, would be inexpedient---Accused was granted bail in circumstances.

Sajeel Sheryar Swati, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Aamir-ur-Rehman, Additional Attorney General for Pakistan along with Qaiser Masood, Additional Director FIA, M. Salman Deputy Director FIA, Maqsood Ahmed, Forensic Officer and Humaira Aslam SI, FIA for the State.

M. Junaid Akhtar, Advocate Supreme Court for the Complainant.

2020 S C M R 832

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Amin-ud-Din Khan, JJ

SAKHI JAN and others---Petitioners

Versus

SHAH NAWAZ and another---Respondents

Civil Petitions Nos. 2866 and 2867 of 2015, decided on 22nd January, 2020.

(Against the judgments dated 13.04.2015 passed by the Peshawar High Court, D.I. Khan Bench in Civil Revisions Nos. 69-D and 86-D of 2012)

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

----S. 54--- Agreement to sell immoveable property---Proof and validity---Absence of signature of purchaser---Agreement to sell, if proved with reliable and cogent evidence, despite absence of signatures of the purchaser, would be valid in the eyes of law and enforceable.

Muhammad Sattar and others v. Tariq Javaid and others 2017 SCMR 98 ref.

(b) Administration of justice---

----Maxim 'nullus commodum capere potest de injuria sua propria' (A person cannot benefit from his own wrong) ---Scope---Giving benefit of a wrong to a wrong doer would be against the administration of justice.

Mian Muhammad Saeed and another v. The Province of West Pakistan and others PLD 1964 SC 572 ref.

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

----S. 54---Allotment of land by Government---Alienation of rights in such land through an agreement to sell---Where proprietary rights had been transferred by the Government in full, then there was no bar on further alienation of such land, unless the proprietary rights had not yet been vested with the allottee in full.

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

----S. 42---Civil Procedure Code (V of 1908), O. I, R. 10(2)---Qanun-e-Shahadat (10 of 1984), Art. 78---Mutations/sale deeds---Allegation of fraud and collusion of revenue officers---Necessary and proper parties---Suit for declaration challenging mutations/sale deeds sanctioned by public functionaries---Non-impleadment of the concerned revenue officials and the Provincial Government---Effect---Such suit was defective---Provincial Government and the relevant authorities appointed by the same, who sanctioned a public document, were required to be produced before the Court when the validity of said document needed to be proved---Revenue Officers and the Provincial Government were proper parties in cases where registered sale deeds and mutations had been challenged.

Syed Mastan Ali Shah Zaidi, Advocate Supreme Court for Petitioners (in both cases).

Nemo for Respondent No. 1 (in both cases).

Tufail Khan Girdawar Fazl-ur-Rehman, Patwari for Respondents Nos. 3 and 4 (in C.P. No. 2867 of 2015).

2020 S C M R 837

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD ASIF and another---Petitioners

Versus

MEHBOOB ALAM and others---Respondents

Criminal Petitions Nos. 1298 and 1612 of 2017, decided on 22nd April, 2020.

(Against the judgment of the Lahore High Court, Lahore dated 08.11.2017 passed in Murder Reference No. 199 of 2015/Criminal Appeal No. 328-J of 2015)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Crime report was lodged with promptitude and reflected the date and time of occurrence against the specific column which was part of the form---Parties had previous hostility between them---Conviction and sentence awarded to accused under S. 302(b), P.P.C. was maintained---Petition for leave to appeal was dismissed.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Post-mortem delayed by 12 to 24 hours---Not significant---In the present case, one person lost his life, and two sustained injuries, who were taken to a hospital which was at a distance of 30/40 kms from the place of occurrence---Consumption of time in transportation may have led to delay in postmortem examination which was good as the doctor had opined that proximately it ranged from twelve to twenty-four hours---Supreme Court observed that in a country like ours where the medical facilities and availability of paramedics was not an easy task, the consumption of such time in conducting postmortem seemed to be quite reasonable hence, the prosecution evidence could not be brushed aside on such score alone to extend the benefit of doubt to the accused---Conviction and sentence awarded to accused under S. 302(b), P.P.C. was maintained---Petition for leave to appeal was dismissed.

Raja Ghazanfar Ali Khan, Advocate Supreme Court and Javed Iqbal, Advocate Supreme Court for Petitioner (in Criminal Petition No.1298 of 2017).

Ch. Walayat Ali, Advocate Supreme Court for Petitioner (in Criminal Petition No. 1612 of 2017).

Muhammad Jaffar, Additional P.G. Punjab for the State.

2020 S C M R 841

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ISLAM---Petitioner

Versus

The STATE through Advocate General Punjab, Lahore and others ---Respondents

Civil Petition No. 3213-L of 2019, decided on 14th April, 2020.

(Against order dated 2.10.2019 passed by the Lahore High Court, Multan Bench, Multan in W.P. No. 10300 of 2019)

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

----S. 498---Cognizable/non-bailable offence---Anticipatory bail, grant of--- Scope and principles--- Principles, applicable to grant of anticipatory bail in a cognizable/non-bailable offence did not admit denials or parallel stories to ward off evidence/material prima facie constituting the offence nor the witnesses could be stripped off their credentials at the investigative stage so as to divert the usual course of law---Accused must point out circumstances, reasonably suggesting abuse of process of law with strappings of mala fide, lurking behind the intended arrest.

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

----S. 9---Cheating the public at large in connection with investment in a travel agency---Anticipatory bail, refusal of---Statements of 61 affectees with diverse and different backgrounds, clamouring foul play could not be summarily brushed aside to accommodate plea of accused---Detailed and comprehensive investigative process was carried out pursuant to call up notice, followed by an inquiry, findings whereof, prima facie pointed upon culpability of accused for an offence wherein grant of bail was narrowly formulated---Accused was refused anticipatory bail.

Asaf Faish-ud-Din Verdeg, Advocate Supreme Court along with M. Islam for Petitioner.

Nemo for Respondents.

2020 S C M R 843

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

HAMID ASHRAF (LATE) through L.Rs. and others---Petitioners

Versus

COMMISSIONER INLAND REVENUE, LAHORE---Respondent

Civil Petitions Nos. 283-L to 286-L of 2018, decided on 5th March, 2020.

(On appeal from the order of Lahore High Court, Lahore dated 21.11.2017 passed in Income Tax References Nos. 304 to 307 of 2014)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 120, 171 (Explanation) & 171(2)(c)---Tax refund---Due date---Additional payment or compensation for delayed refund---For the purposes of compensation, tax refund became due from the date of the refund order and not from the date of deemed assessment under S. 120 of the Income Tax Ordinance, 2001.

Explanation to section 171 of the Income Tax Ordinance, 2001 ('the Ordinance') provided that for the purposes of compensation, tax refund becomes due from the date of the refund order and not from the date of deemed assessment under section 120. In other words, the mechanism of refund under the Ordinance, worked on the basis of a refund order passed on an application for refund filed by tax payer and duly scrutinized by the Commissioner and was not payable simply on the basis of the deemed assessment under section 120. The scheme of refund provided under the statute overrode the deeming provision of section 120. Deemed assessment under section 120 was, therefore, not a substitute for a refund order. It appeared, as if the return of tax or refund by the Exchequer to a taxpayer required scrutiny by the Commissioner and could not be deemed to be an amount outstanding in favour of the taxpayer. The taxpayer was free to apply for refund under section 170, immediately after the filing of the tax return or the deemed assessment. Section 170 provided a fast-tracked mechanism for refund as it specified time for the passing of a refund order and the remedy of appeal in case of failure to pass any such order. Other than this fast-track refund mechanism there was no scheme of automatic refund on the basis of the deemed assessment as was made amply clear by the Explanation to section 171 of the Ordinance.

Explanation to section 171 of the Ordinance enjoyed retrospective effect because its purpose was "removal of doubt" besides supplying necessary statutory "clarification." However, the retrospective operation of the Explanation shall not affect past and closed transactions where the benefit of refund and compensation had already been extended to the taxpayer on the basis of deemed assessment under section 120.

In the present case, the applications for refund filed by the petitioner-taxpayer under section 170 were taken up by Assistant Commissioner Inland Revenue in the year 2010 and initially rejected. After remand of the matter by Commissioner Inland Revenue (CIR) (Appeals), the Deputy Commissioner Inland Revenue (DCIT) passed refund order on 22-03-2013. The matter remained under litigation between the department and the taxpayer, and refund order was passed on 23-03-2013, rather than 15-02-2011, when the CIR (Appeals) simply remanded the matter to the DCIT to decide the same afresh. Therefore, the date of refund order passed by DCIT i.e., 22-03-2013 would be the date when the refund became due as per section 171(2)(c) [instead of section 171(2)(a)] of the Ordinance.

Shahbaz Butt, Advocate Supreme Court along with Iqbal Hashmi, Advocate Supreme Court for Petitioners (in all cases).

Mian Yousaf Umer, Advocate Supreme Court along with Imtiaz A. Shaukhat, Advocate-on-Record for Respondent (in all cases).

2020 S C M R 850

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Amin-ud-Din Khan, JJ

BARKAT ALI (DECEASED) through L.Rs. and others---Petitioners

Versus

TANVIR ABBAS TABISH and others---Respondents

Civil Petition No. 1676-L of 2011, decided on 28th February, 2020.

(Against judgment dated 26.5.2011, passed by the Lahore High Court, Multan Bench, in C.R. No. 574 of 1992)

Arbitration Act (X of 1940)---

----S. 31---Arbitration award---Award not appraised by court before being made Rule of the Court---Case record showed that the matter for grant of a decree was sent to the Arbitrator by the Court, which was not permissible under the law---Even if the same was treated as an irregularity, the Trial Court was required to assess the Award for adjudging as to whether there were any apparent errors in the same---Objection petition of defendants was dismissed by the Trial Court but the Award itself was not appraised before being made Rule of the Court---Further, the Appellate Court had noted in its judgment that some of the parties to the agreement to sell were minors and there was nothing on record to show that before entering into the said agreement or making the reference, any permission of the Court was obtained for entering into the said agreement---Appellate Court had rightly remanded the case to the Trial Court to decide the same on merits---Petition for leave to appeal was dismissed.

Ch. Muhammad Ashraf, Advocate Supreme Court, M.A. Ghaffar-ul-Haq, Advocate Supreme Court and Zakria Sh., Advocate Supreme Court for Petitioners.

Syed Zafar Abbas Gillani, Advocate Supreme Court for Respondents.

2020 S C M R 853

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD YAQOOB---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 36 of 2016, decided on 21st April, 2020.

(Against the judgment of the Lahore High Court, Lahore dated 15.12.2015 passed in Criminal Appeal No. 772 of 2013)

(a) Explosive Substances Act (VI of 1908)---

----S. 4---Anti-Terrorism Act (XXVII of 1997), S. 7(g)---Making or keeping explosives with intend to endanger life or property, connections with a proscribed organization---Reappraisal of evidence---Raid proceedings---Crime report clearly reflected that the accused was active member of a proscribed religious organization and as such in pursuance of information after constituting raiding party, the premises of accused were raided---During course of proceedings of the raiding party, the accused led to recovery of not only four grenades but also four detonators which was spelled out from the record especially when the Bomb Disposal Officer came there for defusing the said ammunition which was recovered and was found explosive in nature---Detail mentioned by the Bomb Disposal Unit reflected the genuineness of the raid and recovery effected from the premises owned by the accused--- Conviction and sentence awarded to accused was maintained---Jail petition was dismissed.

(b) Explosive Substances Act (VI of 1908)---

----Ss. 2 & 4---Making or keeping explosives with intend to endanger life or property---Reappraisal of evidence---Explosive substance---Scope---'Grenade'---Whether "grenade" came within the definition of explosive substance---Held, that in the present case, apart from grenades, detonators were also recovered from the accused which ultimately if considered conjointly, came within the definition of "explosive substance"---Definition of 'explosive substance' in the Explosive Substances Act, 1908, reflected that any material which if utilized resulted into explosion came within the definition of explosive substance---"Explosive substance" shall be deemed to be any material which was used or attended to be used for causing any explosion which could endanger life---Recovery of four grenades and detonators were materials which could explode and be utilized for an explosion so the same came within the definition of "explosive substance"---Conviction and sentence awarded to accused was maintained---Jail petition was dismissed.

(c) Explosive Substances Act (VI of 1908)---

----S. 4---Anti-Terrorism Act (XXVII of 1997), S. 7(g)---Criminal Procedure Code (V of 1898), S. 340(2)---Making or keeping explosives with intend to endanger life or property, connections with a terrorist organization---Reappraisal of evidence---Accused opting not to give evidence on oath in disproof of the charge but presenting a defence witness subsequently---Held, that the accused who did not opt to appear for his own defence to brush aside the prosecution evidence while availing legal recourse in the shape of statement under S. 340(2), Cr.P.C. rather produced a witness in his defence, the statement of such witness was found to be nothing but an afterthought---Said witness had never appeared before the investigating officer during the course of investigation of the case in the defence of the accused---Conviction and sentence awarded to accused was maintained---Jail petition was dismissed.

Saeed Khurshid Ahmed, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Muhammad Jaffar, Additional P.G. Punjab for the State.

2020 S C M R 857

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD IMRAN---Petitioner

Versus

The STATE---Respondent

Criminal M.A. No. 130-K/2019 in Criminal Petition No. 137-K/2019 and Criminal Petition No. 137-K of 2019, decided on 20th March, 2020.

(For restoration - Against the judgment dated 30.04.2018 passed by the High Court of Sindh at Karachi in Criminal Appeals Nos. 309 and 336 of 2013)

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

----Ss. 302(b) & 34--- Qatl-i-amd, common intention--- Reappraisal of evidence--- Benefit of doubt--- Contradiction between witnesses---Presence at scene of occurrence doubtful---Ocular account had been furnished by the witnesses who were found out of tune with one another; they were discrepant on the manner and mode of their arrival at the crime scene; and there was no unanimity amongst them on the passage they took to take the deceased to the hospital---Such contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the accused started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments---Occurrence took place at an odd hour of night without any source of light---Mother of accused was medically examined under a police docket and she was found to have incised wound on her right hand, which suggested a happening incompatible with the case set up in the crime report---Co-accused, blamed to have clutched the deceased to facilitate the accused had since been acquitted on the same evidence without reproach---Recovery of churra/dagger from inside a shrine, that too, upon the disclosure of co-accused, failed to inspire confidence so as to be received as independent corroboration---Present case was fraught with many doubts--- Petition for leave to appeal was converted into appeal and allowed, and the accused was acquitted from the charge.

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

----S. 302(b)---Qatl-i-amd---Benefit of doubt---Benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, was to be extended to the accused without reservation.

Muhammad Ashraf Kazi, Senior Advocate Supreme Court for Petitioner.

Hussain Bakhsh Baloch, Additional Prosecutor General Sindh for the State.

2020 S C M R 861

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

ABDUL GHAFOOR GONDAL---Petitioner

Versus

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

Criminal Petition No. 51 of 2020, decided on 10th February, 2020.

(Against the order dated 16.1.2020 of the Lahore High Court, Lahore passed in Crl. Misc. No. 62243-B of 2019)

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art, 185(3)---Dishonestly issuing a cheque---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Plea on behalf of accused that the bank's witness in his statement under S. 161, Cr.P.C. had stated that the signature on the subject cheque did not match with the signature of accused in Bank's record; that the FIR was lodged after an inordinate delay of five years and no plausible explanation for the said delay had been given in the FIR; that under the circumstances it was a clear case of malicious and mala fide FIR and the accused was entitled to pre-arrest bail to protect him from undue harassment and humiliation---Held, that the complainant had not been able to satisfactorily controvert the pleas raised by the accused---Case was one of further enquiry and the probability of humiliating the accused and belatedly lodging of FIR could not be ruled out at present stage---Ad interim pre-arrest bail already granted to the accused by the Supreme Court was confirmed.

Umar Hayat Bhatti, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Petitioner along with Petitioner.

Mirza Abid Majeed, Deputy Prosecutor-General, Punjab and Muhammad Anwar, S.I. for the State.

Malik Matiullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 2.

2020 S C M R 863

[Supreme Court of Pakistan]

Present: Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

LIAQAT ALI and others---Appellants

Versus

SAFDAR KHAN---Respondent

Civil Appeal No. 240-P of 2014, decided on 2nd March, 2020.

(Against judgment dated 29.11.2010 passed by Peshawar High Court, Peshawar in C.R. No. 1845 of 2010 with C.M. No. 1887 of 2010)

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

----S. 13---Suit for pre-emption---Witnesses of Talbs corroborated pre-emptor' position---Said witnesses were in a comfortable unison on all the relevant details as well as the manner in which the pre-emptor declared his intention to pre-empt the sale---Suit for pre-emption had been rightly decreed.

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

----S. 13---Suit for pre-emption---Witnesses of Talbs---Contradictions between witnesses---Such contradictions blown out of proportion were merely narrative variations that inevitably occurred in a truthful discourse, particularly after flux of time---Statutory right could not be allowed to be defeated on subjective hyper technical assertions---Suit for pre-emption had been rightly decreed.

Abdul Qayum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798; Hameed Ullah Khan and others v. Mst. Zeenat Khatoon 2008 SCMR 1444; Muhammad Tariq and 4 others v. Asif Javed and another 2009 SCMR 240; Abdul Latif alias Muhammad Latif alias Babu v. Dil Mir and others 2010 SCMR 1087 and Daud Shah v. Waris Shah and others 2014 SCMR 852 ref.

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

----S. 15---Suit for pre-emption---Whether pre-emptor had acquiesced in the sale---Contradictions between witnesses of vendee---Vendees' claim that they had intimated the pre-emptor about their intention to purchase the land and transacted the sale only after he forewent the option, was not established---Three witnesses of the vendee were diametrically apart in their quest to establish pre-emptor's acquiescence---Statement of one witness could not be accepted without first excluding the others and vice versa---Suit for pre-emption had been rightly decreed.

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

----S. 13(3)---Suit for pre-emption---Talb-i-Ishhad, notice of---Postman who actually delivered notice of Talb-i-Ishaad not presented as witness---Instead of the actual postman, Registration Clerk, General Post Office (GPO) and another postman, appeared as witnesses for the pre-emptor---Held, that pre-emptor by producing said official witnesses along with relevant receipts and acknowledgement due aptly discharged the onus to establish dispatch of notice---State business had perpetual continuity sustained by officials in succession---Suit for pre-emption had been rightly decreed.

M. Shoaib Khan, Advocate Supreme Court for Appellants.

Abdul Sattar Khan, Advocate Supreme Court for Respondent.

2020 S C M R 867

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Amin-ud-Din Khan, JJ

SHAHBAZ GUL and others---Appellants

Versus

MUHAMMAD YOUNAS KHAN and others---Respondents

Civil Appeal No. 95-P and C.M.A. No. 774-P of 2014 in C.A. No.95-P of 2014, decided on 19th February, 2020.

(Against the judgment dated 06.06.2014 passed by the Peshawar High Court, Peshawar in C.R. No. 820-P of 2013)

(a) Gift---

----Gift mutation---Plea of gift mutations being bogus and a result of fraud---Contradictory pleas---Evidence of the plaintiff did not suggest that the mutations were bogus, as admittedly the same were available in the record of the Revenue department---Concerned roznamchas as well as the copies of mutations were brought on the record by the plaintiff himself from the proper custody (of revenue officials) through the statement of the concerned witnesses---Asserting that a mutation was fraudulent as well as bogus was a self-contradictory plea, in circumstances--- If the mutations were bogus, then there should be no record available in the Revenue Records of these mutations---In the present case, impugned mutations duly attested by the Revenue Officer at the relevant time in due course of law were available in the Revenue Records---Regarding the alternative plea that the mutations were fraudulent, a fraud must be committed with respect to the transfer of property by getting the mutations attested---In the present case, there was no evidence on the record that any fraud was committed with the donor for getting the impugned mutations attested---Appeal was allowed and suit filed by plaintiff/appellant challenging gift mutations was dismissed.

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

----S. 115---Revisional jurisdiction of the High Court---Limited scope---Concurrent findings of law and fact recorded by trial and appellate Courts below---Where two different interpretations were possible of the evidence brought on record, then appraisal of facts of lower courts should not be overturned by the High Court in its revisional jurisdiction under S. 115, C.P.C.---Between two possible interpretations, the one adopted by the trial and appellate Courts should be maintained, keeping in mind the limited scope of revisional jurisdiction.

Ch. Muhammad Asif, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellants.

Syed Mastan Ali Shah Zaidi, Advocate Supreme Court for Respondent No.1 along with Respondent No.1.

2020 S C M R 871

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

BABAR HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 252 of 2020, decided on 13th April, 2020.

(Against the order of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 22.01.2020 passed in Crl. Misc. No.3350-B of 2019)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 378---Bail, grant of---Further inquiry---Case of two versions---Accused and his co-accused persons escaped from the scene of occurrence while resorting to indiscriminate firing which as per prosecution case ultimately had hit one of the co-accused who succumbed to the injuries after five to seven days---In the FIR allegation of firing was ascribed to all the accused while escaping from the scene of occurrence, whereas, the dying declaration of deceased-co-accused and application moved by his wife before the police alleged that the firing was made by the accused---Allegation against the accused was of two versions, one advanced in the crime report, the other brought on the record in the shape of statement of deceased-co-accused as well as mentioned in the application filed by his widow---In such circumstances, culpability of accused could not be adjudicated at present stage rather it would be decided by the Trial Court after recording of evidence during the course of trial---Case against accused was one of further inquiry falling under S. 497(2), Cr.P.C. entitling him for the relief of bail---Accused was granted bail accordingly.

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

----S. 497---Bail---Scope---Previous criminal cases---Mere involvement of an accused in other criminal cases (without any conviction in any of them) could not be a ground to withhold the concession of bail.

Moundar and others v. The State PLD 1990 SC 934 and Muhammad Rafique v. The State 1997 SCMR 412 ref.

Qadeer Ahmad Rana, Advocate Supreme Court for Petitioner.

Mirza Usman, DPG Punjab with Shafqat SHO, Police Station Manchanabad for the State.

2020 S C M R 873

[Supreme Court of Pakistan]

Present: Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

AHMAD BAKHSH (DECEASED) through LRs---Appellant

Versus

AMEER ALI KHAN---Respondent

Civil Appeal No. 303 of 2014, decided on 3rd March, 2020.

(Against judgment dated 28.10.2013 of the Peshawar High Court, D.I. Khan Bench passed in C.R. No. 195 of 2010)

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

----S. 13---Suit for pre-emption---Contradictory statements of witnesses regarding Talbs---Notice was purportedly issued by the plaintiff-pre-emptor without reference to witness 'K', who was produced to prove Talb-i-Ishhad---Said witness deposed that he along with the plaintiff was present in a baithak when witness 'H' disclosed the factum of sale---Witness 'H' when himself examined remained silent, and conspicuously omitted any such encounter with witness 'K'---Both said witnesses were also discrepant on other relevant details regarding the time and manner in which the Talbs were made---Contradictions were such in nature that stance taken by one witness could not be accepted without first excluding the others' and vice versa---High Court had been justified to exclude their statements from consideration---Suit for pre-emption was rightly dismissed---Appeal was dismissed.

Anwar Khan, Advocate Supreme Court for Appellant.

M. Waheed Anjum, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondent.

2020 S C M R 930

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Umar Ata Bandial, Mazhar Alam Khan Miankhel, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

SUO MOTU ACTION REGARDING COMBATING THE PANDEMIC OF CORONA VIRUS (COVID -19): In the matter of

Suo Motu Case No. 1 of 2020, decided on 20th April, 2020.

Constitution of Pakistan---

----Arts. 9 & 184(3)---Suo motu case regarding combating the pandemic of Corona virus (COVID-19)--- Well-being of doctors, nurses, paramedics and janitorial staff at hospitals--- Transparency in distribution of funds from Zakat Fund and Bait-ul-Mal--- Safety measures and facilities provided to factory workers---Reports submitted by the Federal Government, Provincial Governments, Islamabad Capital Territory, Gilgit-Baltistan and concerned Ministry and authorities outlining the measures taken to deal with the pandemic of Corona virus---Supreme Court after perusing the said reports observed that after the passing of the last order by the Supreme Court in present proceedings, certain necessary steps had been taken by the respective Governments to ensure that the people of the country were dealt with in accordance with the Constitution, in that, their lives were secured in terms of Art. 9 of the Constitution and furthermore, all necessary infrastructure and medical facilities were made available to them in order to deal with the Corona virus (COVID-19) pandemic---Further observations and directions made by the the Supreme Court recorded.

Respective governments were required to ensure that these doctors, nurses, paramedics as well as janitorial staff were properly taken care of and their salaries and other benefits were paid on time and if there was a possibility of giving them special compensation, the same may be done.

Reports regarding the distribution of Zakat Fund by the Provincial Governments were not at all satisfactory. The same appeared to be the case with regards to funds of the Bait-ul-Mal. More detailed information was required about their distribution and specific reports were required from each of the Provincial Governments, Islamabad Capital Territory (ICT) and Gilgit-Baltistan showing transparency in the distribution of Zakat and Bait-ul-Mal funds. Information was needed by the court as to what criteria had been adopted by the Provincial Governments, ICT and Gilgit-Baltistan, for making payments to the beneficiaries of Zakat and Bait-ul-Mal funds, and what was the breakdown of the amount vis-à-vis the payment of money to needy people and the expenses incurred on the administrative side of these two departments. An opinion from the Ulema, as to how Zakat and Bait-ul-Mal funds could be utilized, was required to be obtained and hence, opinions of the Chairman, Council of Islamic Ideology, so also of Mufti Muhammad Taqi Usmani, an Islamic scholar and a former Judge of Shariat Appellate Bench of the Supreme Court, be obtained in such regard; particularly, on the question as to whether Zakat and Bait-ul-Mal funds could at all be utilized for payment of salaries to the employees and officers of these two departments and also to incur administrative expenses of these departments.

Factories ought to ensure that proper residential accommodation, clean toilets, drinking water, proper canteens, where food made by the employers was given to the workers at a nominal price, and proper medical facilities were provided. Recreation facilities were also to be made available to the workers. Factories operating throughout the country should ensure that all labour laws were followed by the factories in letter and spirit, and the relevant departments, dealing with the factories, were required to submit a detailed report in such regard.

While the pandemic had not reached its peak, cases were continuing in the country and were increasing day by day. However, in this moment of crisis, functionaries of all the governments shall cooperate with each other, make a consolidated effort, and take decisions by consensus for the mutual benefit of the nation and its citizens. There should be no lapse in such regard. Further reports be filed by the respective governments and the concerned departments before the next date of hearing. Case adjourned.

IN ATTENDANCE:

Khalid Javed Khan, Attorney General for Pakistan, Sohail Mehmood, DAG, Dr. Tanveer Qureshi, Secretary Ministry of National Health, Asif Suhail, Director (Lit), G.M. Jakhrani, Dy. Director (Lit), (All from Ministry of National Health), Mirza Mahsood, J.S. Ministry of Interior and Shams-ur-Rasool, SO Interior for the Federation.

Niaz Ullah Khan Niazi, A.G., Islamabad, Shafaq Hashmi, D.G., (Chief Commissioner Office), Waseem Ahmed, Asstt. D.C., (I.C.T.A.), Amer Naveed, A.D., (Lit), (I.C.T.A.), Babar Sahibdin, Director (Admn.) and Azhar Hussain Shah, DSP Legal for ICT.

Shan Gul, A.G., Punjab, Javed Yaqoob, Addl.AG, Punjab, Capt. (Retd.) M. Usman, Secy. Primary and Secondary Health Deptt. Punjab, M. Nabeel Ahmed Awan, Secy., Specialized, Health Care and Medical Education Deptt., Momin Agha, ACS Home, Mirza Shahid Saleem Baig, IG Prisons, Zeeshan Shabbir, Addl. Secy. Prisons, Qadeer Alam, AIG Judicial (Via Video link from Lahore Branch) and Ch. Faisal Fareed, Addl.A.G. Punjab (In Islamabad) for the Government of Punjab.

Salman Talibudin, A.G, Sindh, Zahid Abbasi, Secy. Health, Muhammad Usman Chachar, Addl. Chief Secy.-Home, Dr. Saeed Ahmed Qureshi, (Focal Person to Chief Secy. Sindh), Syed Salman Shah, DG, PDMA, Qazi Shahid Pervez, SMBR, Iftikhar Shalwani, Commissioner Karachi, Irshad Sodher, DC South, Ahmad Ali Siddiqui, DC East. (All via Video link from Karachi Branch) and Muhammad Kassim Mirjat, Advocate-on-Record (At Islamabad) for the Government of Sindh.

Shumail Butt, A.G. Khyber Pakhtunkhwa, Syed Imtaiz Hussain Shah, Secy. Health, Khyber Pakhtunkhwa, M. Abid Majeed, Secy. Relief Rehabilitation, Khyber Pakhtunkhwa, Mian Shakeel Ahmed, Secy. Local Government, Khyber Pakhtunkhwa, Rooh-ul-Amin, Additional Registrar, PHC, Amir Sultan Tareen P&D, Deptt. EHSAAS, Programme and Idrees Marwat, Secretary Zakat (All via Video link from Peshawar Branch) for the Government of Khyber Pakhtunkhwa.

Arbab Muhammad Tahir, A.G, Balochistan, Amir Hamza Mengal, DPG Balochistan, Hameedullah Peechi, AIG Prisons, Mudassar Waheed Malik, Secy. Health (Via Video link from Quetta Branch) and Ayaz Khan Swati, Addl. A.G. (In Islamabad) for the Government of Balochistan.

Muhammad Iqbal, AG, Gilgit-Baltistan, Syed Iqbal Hashmi, Advocate Supreme Court along with Professor Abdul Rashid Mian, President PMA, Samuel Payara, Chairman, Implementation of Minority Rights Forum, Senator A Rehman Malik, Ch. Haseeb Muhammad, President IHCBA, Saeed Khursheed Ahmed, Advocate Supreme Court and Muhammad Ashraf Qureshi, Advocate Supreme Court, AJK for the Government of Gilgit-Baltistan.

2020 S C M R 935

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD JAHANGIR AFZAL---Petitioner

Versus

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

Criminal Petition No. 258 of 2020, decided on 28th April, 2020.

(Against judgment dated 06.02.2020 passed by the Lahore High Court, Lahore in Crl. Misc. No. 4879-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Bail, grant of---Further inquiry---Implication of accused on basis of supplementary statements of complainant and witnesses---Seemingly there was no consensus between the complainant and the injured witness on the identity of the accused---Even subsequently assigned role to the accused was not shared by the Investigating Officer who merely depicted his presence at the crime scene in a manner incompatible with witnesses' narrative---Evidentiary value of supplementary statements (of complainant and witnesses) with the possibility of reconciling differences between the witnesses was an exercise that could be best undertaken after recording of evidence and as such culpability of accused for now was squarely covered by S. 497(2), Cr.P.C.---Accused was granted bail in circumstances.

Shamim-ur-Rehman Malik, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Ahmed Raza Gillani, Addl. Prosecutor General Punjab with Abdul Ghani, SI for the State.

Complainant in person.

2020 S C M R 937

[Supreme Court of Pakistan]

Present: Sh. Azmat Saeed and Yahya Afridi, JJ

BILAL KHAN---Petitioner

Versus

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

Criminal Petition No. 715 of 2018, decided on 2nd August, 2018.\

(On appeal against the judgment/order dated 24.05.2018 of the Lahore High Court, Lahore passed in Crl. Misc. No. 208332-B of 2018)

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

----S. 497--- Penal Code (XLV of 1860), Ss. 324, 34 & 109---Constitution of Pakistan, Art. 185(3)---Attempt to commit qatl-i-amd, common intention, abetment--- Bail, refusal of--- Accused was nominated in the FIR with a specific role of causing firearm injury to the injured witness--- Said injured witness had implicated the accused and stood by his statement---Sufficient material was available on record to connect the accused with the crime---Offence also fell within the prohibitory clause of S. 497, Cr.P.C.---Petition for leave to appeal was dismissed and accused was refused bail in circumstances.

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

----S. 497---Bail---Evidence, assessment of---At bail stage only tentative assessment (of evidence) was to be made and deeper appreciation was not permissible.

Malik Matee Ullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

M. Usman Mirza, Dy. PG for the State.

Ahmed Nawaz Ch., Advocate-on-Record for Respondent No. 2.

2020 S C M R 956

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUKARAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 368 of 2020, decided on 6th May, 2020.

(Against the order of the Peshawar High Court, Peshawar dated 06.04.2020 passed in Cr. M.B.A. No. 392-P of 2020)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, grant of---Further inquiry---Four persons were involved in the present case with allegations of causing indiscriminate firing---Deceased sustained only one injury on his person which proved fatal---Allegation against accused was generalized in nature and no one (out of the four persons) could be saddled with responsibility of causing injury to the deceased---Further only one empty was recovered from the place of occurrence---Accused remained on physical remand but no recovery had been effected from him---Case of the accused squarely fell within the ambit of S. 497(2), Cr.P.C. entitling him for the grant of post-arrest bail---Petition for leave to appeal was converted into appeal and allowed and the accused was granted bail.

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

----S. 497---Bail--- Abscondment of accused--- Absconsion per se could not be made basis for refusal of bail in the absence of any overt act which had contributed towards commission of the offence.

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

----S. 497---Bail---Principles---Liberty of a person was a precious right which could not be taken away without strong connectivity of accusation.

Mian Shafaqat Jan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for the Complainant.

Arshad Hussain Yousafzai, Advocate Supreme Court for the State.

2020 S C M R 959

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

FBR through Chairman, Islamabad and others---Appellants/Petitioners

Versus

Messrs WAZIR ALI AND COMPANY and others---Respondents

Civil Appeal No. 1460 of 2013 and Civil Petition No. 133 of 2012, decided on 9th March, 2020.

(On appeal against the judgments dated 13.03.2013 and 01.12.2011 passed by the High Court of Sindh Karachi in C.P. No. D-3336 of 2011 and Islamabad High Court, Islamabad in W.P. No.2895 of 2011)

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

----Ss. 4(1), 4A, 74, 114, 115 & Second Sched., Pt. III, Cl. 11---Federal Board of Revenue (FBR) Circular No.11 of 2011 dated 12.9.2011---Government of Pakistan (Revenue Division) S.R.O. No.977(I)/2011 dated 19.10.2011---Surcharge on income tax levied under S. 4A of the Income Tax Ordinance, 2001 [inserted through Income Tax (Amendment) Ordinance (IV of 2011)]---Scope---For the purpose of computing surcharge under S. 4A of the 2001 Ordinance, the entire income tax liability of the tax year 2011 was to be taken into consideration which was then to be proportionately allocated to the 3½ months period and on that figure of proportionate tax liability surcharge was to be calculated.

Federal Board of Revenue (FBR) issued Circular No.11 of 2011 dated 12-09-2011, which stated that the liability of surcharge under section 4A of the Income Tax Ordinance, 2001 (the 2001 Ordinance) was confined to a period of 3½ months (16.03.2011 to 30.06.2011) and the tax liability of the tax year 2011 was to be proportionately allocated to the 3-1/2 month period. This Circular was then followed by the Federal Government's Notification SRO 977(I)/2011 dated 19-10-2011 whereby in exercise of the power conferred by subsection (2) of section 53 of the 2001 Ordinance, Clause (11) was added in Part III of the Second Schedule which read that 'The amount of surcharge payable on the income tax liability for the tax year 2011 under section 4A shall be computed on the proportionate amount of income tax liability for three and a half months.' Respondents (taxpayers) challenged the FBR Circular 12-09-2011 on the grounds that the surcharge could only be computed on that tax liability that exclusively pertained to the income derived in the 3½ months period; that for the purpose of computing surcharge, all payments of advance income tax made at the import stage in the entire tax year 2011 should not be taken into consideration proportionately for the purposes of determining surcharge for the 3½ months period and the advance income tax paid in the said 3½ months period only could have been considered.

Held, that section 4A of the 2001 Ordinance, started with the phrase 'Subject to this Ordinance', which clearly pointed out that it did not have any overriding effect, hence, it could not be in derogation of any provision of the 2001 Ordinance. The whole of the 2001 Ordinance envisaged that the income tax liability was to be determined on the basis of taxable income that was derived or legally presumed to have been derived in a whole tax year and not any part of it. Therefore, even for the purpose of computing surcharge under section 4A of the 2001 Ordinance, the entire income tax liability of the tax year 2011 was to be taken into consideration which was then to be proportionately allocated to the 3½ months period and on that figure of proportionate tax liability surcharge was to be calculated. This was so as no provision of the 2001 Ordinance allowed splitting of a tax year into two periods for the purposes of determining two separate taxable incomes of the same tax year and then on the income of one such period tax liability was to be computed. If that was done, it would be in derogation of the provisions of the 2001 Ordinance itself, more specifically sections 4(1), 74, 114 and 115 of the 2001 Ordinance.

Section 4(1) of the 2001 Ordinance, clearly provided that income tax liability was to be determined for the entire period of a tax year not any part of it and tax year was specifically defined in section 74 of the 2001 Ordinance which meant a period of twelve months.

Even in cases where payment of advance tax becomes a person's final tax liability and he was required to file only a statement of income under section 115 of the 2001 Ordinance, that statement too had to be with regard to the tax year and not any part of it. Whatever method of computing taxable income was applicable to a person, either at the rates specified in the Schedule to the 2001 Ordinance or the advance tax deductions becoming his final tax liability, one thing was certain that income tax liability was determined on the actual or presumptive income of the whole tax year. Therefore, in cases where advance tax deduction made on the basis of value of goods imported by a person was considered to be his final tax liability, the legally presumed taxable income of such a person would be the total value of goods imported in a given tax year.

Whole basis for computing surcharge even for 3-1/2 months period should be the income tax liability that was determined for the entire tax year, 2011 and then such tax liability was to be proportionately allocated for the 3-1/2 months period for the purposes of computing surcharge without determining two separate taxable incomes of the same tax year and then working out tax liability of 3-1/2 months separately for the purposes of computing surcharge. In other words, there could not be separate determination of taxable income for 8-1/2 months period (from 1st July to 15th March) for which accounting was to be separately done and then a separate accounting was done for the remaining 3-1/2 months period (from 16th March to 30th June) and on the basis of taxable income emerging for the 3-1/2 months period, income tax liability was computed and on that surcharge payable under section 4A of the 2001 Ordinance was calculated. Petition for leave to appeal was converted into an appeal and allowed.

(b) Constitution of Pakistan---

----Art. 185(3)---Limitation Act (IX of 1908), S. 5---Petition for leave to appeal time barred---When a common question of law was decided in one case, another case involving the same point that was time barred was liable to be heard on merits.

Mehreen Zaibun Nisa and others v. Land Commissioner, Multan and others PLD 1975 SC 397 and Province of Punjab v. Muhammad Tayyab 1989 SCMR 1621 ref.

Abdul Hameed, Advocate Supreme Court for Appellants/ Petitioners (in C.A. 1460/2013).

Babar Bilal, Advocate Supreme Court for Appellants/Petitioners (in C.P. 133/2012).

Masood Akhtar, Chief Legal Officer, FBR.

Nemo for Respondent No. 1 (in C.A. 1460/2013).

Ex parte for Respondents Nos. 2 to 4 (in C.A. 1460/2013).

M. Raheel Kamran Sh, Advocate Supreme Court for Respondents Nos. 1 to 13 (in C.P. 133/2012).

2020 S C M R 968

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

MUNIR AHMAD---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 324 of 2015, decided on 27th April, 2020.

(Against judgment dated 09..4.2015 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No. 14 of 2011 along with M.R. No. 3 of 2011)

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

----S. 7---Penal Code (XLV of 1860), S. 302(b)---Murderous assault upon a police contingent---Reappraisal of evidence---Purpose behind the raid to arrest the accused was established as there was a criminal case registered against him---Complete darkness had not yet engulfed the scene when the encounter commenced and it was so mentioned in the cross-examination of prosecution witnesses---Prosecution witnesses, who were police officials, were in a comfortable corroborative unison on all the salient aspects of the case as well as details collateral therewith; and they had no axe to grind against the accused---Human blood and a large number of casings were secured vide inventories of even date from the designated spot of the occurrence---Absence of accused from law for a considerable span of time (1 year 8 months) and his involvement in other criminal cases did not reflect well upon his credentials---Analysis of prosecution's evidence did not allow space to admit any other hypothesis other than guilt of accused---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 149---Unlawful assembly, members of---Culpability---Scope---Acquittal of members of an unlawful assembly merely on the premise that no person fell prey to their retaliation was a conclusion, inherently incompatible with the well-entrenched principle of community of intention for prosecution of a common object---Mere absence of harm in consequence thereof by itself did not vitiate culpability of an unlawful assembly.

Mian M. Tayyab Wattoo, Advocate Supreme Court for Petitioner.

Ahmed Raza Gillani, Additional Prosecutor General Punjab for the State.

2020 S C M R 971

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD FAISAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 324 of 2020, decided on 5th May, 2020.

(Against the order of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 02.01.2020 passed in Crl. Misc. 2218-B of 2020)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324 & 337-F(vi)---Constitution of Pakistan, Art. 185(3)---Attempt to commit qatl-i-amd, ghayr-jaifah-munaqqillah---Bail, grant of---Further inquiry---As per prosecution version contained in the FIR, though the accused had been attributed two fire shots on non-vital part of the body of injured witness, however, dimension and locale of injuries portrayed that possibility could not be ruled out that injures were in continuation of each other---Perusal of record further revealed that the accused was discharged from hospital after one day, therefore, statement of injured witness that he had undergone surgical intervention during his hospital stay was not substantiated from the record---Injury ascribed to the accused had been declared falling under S. 337-F(vi), P.P.C. which entailed maximum punishment of seven years---Declaration of injury was made after a lapse of eight months, during the pendency of present petition before the Supreme Court---Accumulative effect of all such facts and circumstances created doubt regarding truthfulness of prosecution version---Regarding the question of applicability of S. 324, P.P.C., undeniably, the injuries were on non-vital part against a motive which was feeble in nature, hence, such question would be resolved by the Trial Court after recording of evidence during the course of trial---Case of the accused was one of "further inquiry" falling within the ambit of S. 497(2), Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed and the accused was granted bail.

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

----S. 497---Bail---Benefit of doubt---Such doubt could be extended (to the accused) even at bail stage.

Umar Asadullah, Advocate Supreme Court for Petitioner.

Complainant in person.

Syed Ahmad Raza Gillani, APG and Saeed, I.O. for the State.

2020 S C M R 974

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

SHABRAN KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 391 of 2020, decided on 6th May, 2020.

(Against judgment dated 6.4.2020 passed by the Peshawar High Court Bannu Bench, Bannu in B.A. No.138-B/2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Bail, grant of---Further inquiry---Complainant restructured his case by making a statement and replacing the initial three suspects with two co-accused persons---Accused was introduced as the architect behind the murder on whose instructions the co-accused committed the crime---To substantiate the allegation against the accused, investigating officer produced three witnesses before the Magistrate---Licensed weapon in the name of one of the co-accused was part of prosecution inventories, in such circumstances fate of the prosecution case was to be essentially settled by the Trial Court after recording of evidence---Culpability of accused as the person behind the scenes certainly warranted further probe and as such his case squarely fell within the remit of S. 497(2), Cr.P.C.---Petition for leave to appeal was converted into an appeal and allowed and accused was granted bail.

Aftab Alam Yasir, Advocate Supreme Court for Petitioner.

Anis M. Shahzad, Advocate Supreme Court along with M. Asghar, I.O. for the State.

2020 S C M R 976

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

GOVERNMENT OF THE PUNJAB through Secretary Special Education Department, Lahore and others---Appellants

Versus

ABDUL JABBAR---Respondent

Civil Appeal No. 2056 of 2019, decided on 9th April, 2020.

(Against the order dated 23.01.2019, passed by the Lahore High Court, Lahore in W.P. No. 184204 of 2018)

Punjab Public Service Commission Regulations, 2016---

----Reglns. 59 & 62---Advertised post---Creation of vacancy due to non-joining by any of the successful candidates---Appointment of a substitute candidate against the vacant post---Scope---Plain reading of Reglns. Nos. 59 & 62 of the Punjab Public Service Commission Regulations, 2016 showed that a substitute could indeed be provided by the Provincial Public Service Commission from the merit list during its validity period if so requested by the department concerned---Obligation to recommend a substitute candidate was conditional upon a request being made by the concerned department, and no automatic right of appointment against post vacated could vest in a candidate who had not been selected.

Provincial government advertised posts of junior special educators. After going through the process of written test and interview respondent-candidate was placed at Sr. No. 108 on the merit list and was not recommended for appointment. Two other candidates who stood at Sr. Nos. 20 and 44 on the merit list and were recommended for appointment against the posts in question did not join. Respondent who stood at Sr. No. 108 on the merit list, claimed a right to be appointed relying on Regulations 59 and 62 of the Punjab Public Service Commission Regulations, 2016 ('the 2016 Regulations'). Claim of respondent was denied. Subsequently Provincial Government re-advertised the two posts vacated, however, the respondent did not participate in the fresh recruitment process and insisted that a right had already accrued in his favour by reason of two vacancies having become available as the recommended candidates appearing at Sr. Nos. 20 and 44 on the merit list did not join. High Court while relying on the Regulations 59 and 62 of the 2016 Regulations allowed the writ petition of the respondent and issued directions to the concerned department to issue appointment letter to him subject to availability of post.

Plain reading of Regulation No. 59 of the 2016 Regulations showed that a substitute could indeed be provided by the Provincial Public Service Commission from the merit list during its validity period if so requested by the department concerned. No such request from the department was available on the record in the present case.

Combined reading of Regulations Nos. 59 and 62 of the 2016 Regulations revealed that an obligation to recommend a substitute candidate was conditional upon a request being made by the concerned department. The said condition having not been met in the present case, an automatic right did not and could not come to have vest in the respondent for his appointment. Further, it was also apparent from the record that pursuant to the fresh advertisement, the process of recruitment had already been completed and as such an order to appoint the respondent against a post for which he had not been recommended could not have been passed.

High Court fell in error in misinterpreting the provisions of the 2016 Regulations and also ignored a material fact that the respondent had not participated in the fresh recruitment process despite having knowledge of the same. Regulation No. 59 left the decision on the hiring department to ask for substitute recommendation or re-advertise to attract better qualified and accomplished candidates. In the absence of demonstrated mala fides on the part of the hiring department, which had not even been alleged let alone proved the High Court could not have arrogated to itself the powers which have been conferred on the department by the Regulations. Besides the High Court had not considered the principle of law laid down in the judgment reported as Musa Wazir v. NWFP Public Service Commission (1993 SCMR 1124). Appeal was allowed and impugned order of High Court was set-aside.

Syed Wajid Ali Gillani, Additional AG, Punjab and Mian M. Iqbal, Law Officer, PPSC for Appellants.

Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent.

2020 S C M R 981

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through Capital City Police Officer Peshawar and others---Appellants

Versus

SHAHID---Respondent

Civil Appeal No. 58 of 2020, decided on 2nd April, 2020.

(Against judgment dated 20.11.2017 of Khyber Pakhtunkhwa Service Tribunal, Peshawar, passed in Service Appeal No. 734 of 2014)

Civil service---

----Police official---Dismissal from service---Wilful absence from duty for a period of six months and three days---Service Tribunal considering penalty of dismissal from service imposed upon respondent to be too harsh a penalty modified the same to withholding of two increments for a period of two years and absence period was treated as leave of kind due---Legality---Tribunal had not taken trouble of examining or making any observations regarding the parameters of imposition of major and minor penalties, and circumstances under which such penalties were to be imposed and what law governed the imposition of such penalties---Whimsically stating that the punishment was harsh could not be made basis by the Tribunal to modify the penalty imposed by the competent authority---Tribunal while modifying the penalty had not acted in accordance with law, in that, no law in such regard whatsoever was cited by him---Tribunal by interfering with the penalty imposed by the department had exceeded from its jurisdiction more so when the respondent was employed in a disciplined force where he could not have remained absent from duty for a long period of 06 months and 03 days---Impugned judgment passed by the Tribunal suffered from illegality and was unsustainable in the eyes of law, therefore the same was set aside, and the penalty of dismissal from service imposed upon the respondent was restored---Appeal was allowed.

Barrister Qasim Wadood, Additional AG, Khyber Pakhtunkhwa for Appellants.

Muhammad Asif, Advocate Supreme Court for Respondent.

2020 S C M R 984

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Ijaz ul Ahsan and Munib Akhtar, JJ

MUHAMMAD SALEEM KHAN---Petitioner

Versus

MCB BANK LIMITED---Respondent

Civil Petition No. 3057 of 2019, decided on 3rd December, 2019.

(Against the order dated 27.06.2019 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in R.F.A. No. 122 of 2013)

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

----S. 9(2)-Bankers' Books Evidence Act (XVIII of 1891), S. 2(8)---Suit for recovery of loan---Statement of account submitted by financial institution before the Banking Court---Verification in terms of Bankers' Books Evidence Act, 1891---Scope---In the present case, the account statement submitted before the Banking Court carried a note at the end stating "Certified and verified on Oath that all the entries contained in the statement of account are true copies of the entries contained in ordinary books of the bank maintained and prepared in ordinary course of business and the said books are still in the custody of the bank. These entries have been certified after verification from the original ledger/ bills of the banker"---Said note practically incorporated the language of S. 2(8) of the Bankers' Books Evidence Act, 1891 and therefore met the requirement of law---Furthermore each page of the account statement was duly stamped and initialled by the concerned official of the Bank which amply and adequately met the requirements of the law---Petition for leave to appeal was dismissed and suit of financial institution was held to be pending before the Banking Court.

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

----S. 9(2)-Bankers' Books Evidence Act (XVIII of 1891), S. 2(8)---Suit for recovery of loan---Statement of account submitted by financial institution before the Banking Court---Verification in terms of Bankers' Books Evidence Act, 1891---Scope---Account statement was one comprehensive document containing the entire history of the account containing credit and debit entries in a chronological order and was only required to contain verification at the end of such document.

Abdul Rashid Awan, Advocate Supreme Court for Petitioner.

Barrister Umer Aslam Khan, Advocate Supreme Court for Respondent.

2020 S C M R 987

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mushir Alam, Sardar Tariq Masood, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

SUO MOTU ACTION REGARDING COMBATING THE PANDEMIC OF CORONA VIRUS (COVID-19): In the matter of

Suo Motu Case No. 01 of 2020, decided on 18th May, 2020.

(a) Constitution of Pakistan---

----Arts. 18 & 184(3)---Suo motu case regarding combating the pandemic of Corona virus (COVID-19)---Shopping Malls---Decision taken by the National Coordination Committee on Covid-19, under the Chairmanship of the Prime Minister to open shopping Malls---Province of Punjab and Islamabad Capital Territory (ICT) decided to open shopping Malls, however Provincial Government (of Sindh) did not allow opening of such Malls---Held, that all the shopping Malls in the ICT, and Province of Punjab were opening, and even in other Provinces that did not have shopping Malls, their shops and markets, had been allowed to open and they were doing business---Punjab Government had approached National Health Services and Research Centre (NHSRC) for obtaining the approval for opening of the shopping Malls and similar had been done in the ICT and both Punjab and ICT, were likely to get permission for opening of the shopping Malls---If such measures could be taken by the biggest Province of the country i.e. Punjab, why something similar could not be done by the Province of Sindh, which had no valid reason or justification for keeping the Malls closed---Supreme Court directed Government of Sindh to apply to the NHSRC immediately , for seeking approval for opening of shopping Malls in the Province of Sindh; that after such application was made, the NHSRC shall give their decision immediately and if their decision was that shopping Malls were allowed to open, the respective Provincial Government shall allow the shopping Malls to be open and shall not create any hindrance or obstruction in such regard but ensure that notified SOPs were followed---Case was adjourned.

(b) Constitution of Pakistan---

----Arts. 4, 18, 25 & 184(3)---Suo motu case regarding combating the pandemic of Corona virus (COVID-19)---Decision taken by the National Coordination Committee on COVID-19, under the Chairmanship of the Prime Minister to close down shops, markets and business on Saturday and Sunday by way of a complete lock down---Held, that there was no justifiable rational or reasonable classification on the basis of which these two days were excluded from doing business, for that, all days of the week were the same---Such restriction was contrary to Arts. 4, 18 & 25 of the Constitution and thus, was declared to be illegal and accordingly set aside, with the direction that the businessmen shall be allowed to do their business on all days, which was permissible under the law, subject to enforcement of SOPs---Supreme Court observed that looking at the past history of country, where business activities of private entrepreneurs were interfered with by the Government, such entrepreneurs lost faith in the system and packed up and moved to some other destinations in the world, where they considered their investment to be more safe and profitable; that if the businesses and industries remained closed for a long time, their revival became more and more doubtful, and in case they were not revived, millions of workers would be on streets and the Government may be faced with a human disaster and calamity of such a magnitude that to overcome it, may become next to impossible---Case adjourned.

(c) Constitution of Pakistan---

----Arts. 4, 18, 25 & 184(3)---Suo motu case regarding combating the pandemic of Corona virus (COVID-19)---Report submitted by National Disaster Management Authority (NDMA) before the Supreme Court---Government spending on Corona virus---Propriety---Held, that there was no reason why huge amounts of money was being spent on Corona virus (COVID-19), for that, Pakistan was not a country which was seriously affected by it---Other serious ailments were also prevailing in the country, from which people were dying daily and those ailments were not being catered for and Corona virus (COVID-19), which apparently was not a pandemic in Pakistan, was swallowing huge sums of money---Supreme Court observed that it was not by any means suggesting that the governments should not attend to Corona virus but that it expected that the governments should not put all its resources for one disease, nor the country should be made altogether dysfunctional, because of a disease, for its consequences would be highly detrimental to the people of the country, and the Federal Government and all Provincial Governments should address themselves on such point---Case adjourned.

Khalid Javed Khan, Attorney General for Pakistan (via video Link from Karachi Branch), Sohail Mehmood, DAG, Dr. Tanveer Qureshi, Secretary Ministry of National Health, Asif Suhail, Director (Lit), G.M. Jakhrani, Dy. Director (Lit), Saeed Ullah Khan Niazi, J.S. Admn, (All from Ministry of National Health), Mirza Mahsood, J.S. Ministry of Interior, Shams-ur-Rasool SO Interior, Syed Mansoor H. Gardezi, Dir. Legal Advisor, Pakistan Bait-ul-Mal., Muhammad Idrees Mahsood, Member (Admn. and Finance), NDMA and Zafar Iqbal, Dir. Legal NDMA for Federation.

Niaz Ullah Khan Niazi, A.G., Islamabad, Shafaq Hashmi, DG ICT, Amir Naveed, ADC ICT, Waseem Khan, ADC ICT and Azhar Hussain Shah, DSP Legal for ICT.

Shan Gul, Acting A.G., Punjab, Ch. Faisal Fareed, Addl. AG Pb., Capt. (Retd.) M. Usman, Secy. Primary and Secondary Health Deptt. Punjab, Khurram Abbas, Law Officer, M. Nabeel Ahmed Awan, Secy. Specialized, Health Care and Medical Education Deptt., Zeshan Rana, Addl. Secy. (Prisons), Saifullah Gondal, Dy. Secy. Zakat and Usher and Muhammad Aslam Ramy, Administrator Zakat and Usher for Government of Punjab.

Salman Talibudin, A.G, Sindh, Mumtaz Ali Shah, Chief Secy. Sindh, Muhammad Usman Chachar, Addl. Chief Secy. Home, Dr. Saeed Ahmed Qureshi, (Focal Person to Chief Secy. Sindh), Zahid Abbasi, Secy. Health, Qazi Shahid Pervez, SMBR, Iftikhar Shalwani, Commissioner Kcy, Altaf Bijrani, Spl. Secy. Zakat and Usher, Rasheed Ahmed Solangi, Secy. Labour Deptt. (All via Video link from Karachi Branch) and Muhammad Kassim Mirjat, Advocate-on-Record (At Islamabad) for Government of Sindh.

Shumail Butt, A.G. Khyber Pakhtunkhwa, Atif Ali Khan, Addl. AG., Syed Imtaiz Hussain Shah, Secy. Health, Khyber Pakhtunkhwa, M. Abid Majeed, Secy. Relief Rehabilitation, Khyber Pakhtunkhwa, Dr. Maqsood Ali, Chief Executive, HCC, Dr. Khalid Masood, Director (LRH) and Khyal Muhammad Mohmand, Legal Officer (LRH) (All via Video link from Peshawar Branch) for Government of Khyber Pakhtunkhwa.

Arbab Muhammad Tahir, A.G, Balochistan, Baloch Aziz, Secy. Religious Affairs, Dr. Saleem Abro, DG Health (Via Video link from Quetta Branch), Ayaz Khan Swati, Addl. A.G. and M. Fareed Dogar, A.A.G. Balochistan. (At Islamabad) for Government of Balochistan.

Muhammad Iqbal, AG, Gilgit-Baltistan, Syed Iqbal Hashmi, Advocate Supreme Court for PMA and Samuel Payara, Chairman, Implementation of Minority Rights Forum for Government of Gilgit-Baltistan.

2020 S C M R 993

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Qazi Muhammad Amin Ahmed, J

ZAHOOR KHAN---Petitioner

Versus

AKHTER MUHAMMAD and another---Respondents

Criminal Petition No. 21-P of 2010, decided on 21st May, 2020.

(Against the judgment dated 28.02.2020 passed by the Peshawar High Court, Peshawar in Criminal M.B.A. No. 57-P of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Bail, refusal of---Accused stayed away from the law for a period of over five years---Autopsy report confirmed receipt of as many as six entry wounds---Argument regarding conflict between ocular account and medical evidence, seemingly otherwise beside the mark, could not be attended within the barriers of tentative assessment, particularly in the face of inordinate abscondence of accused from the law---Ocular account, accompanied by medical evidence as well as investigative conclusions, constituted "reasonable grounds" within the contemplation of S. 497, Cr.P.C. to disallow release of accused---Accused was refused bail.

Akhter Ali Khan, Advocate Supreme Court for Petitioner.

Anis Muhammad Shahzad, Advocate Supreme Court for the Complainant.

Miss Aisha Tasneem, State Counsel with Iqbal Mashwair, I.O./S.I. for the State.

2020 S C M R 994

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Ijaz ul Ahsan, JJ

HASSAN RAZA---Petitioner

Versus

FEDERAL BOARD OF REVENUE through Chairman and others---Respondents

Civil Petition No. 2749 of 2016, decided on 14th June, 2017.\

(Against judgment dated 27.06.2016 of Federal Service Tribunal, Islamabad, passed in Appeal No. 1988 (R) CS of 2015)

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

----R.4(1)(b)---Inquiry proceedings---Major penalty---Detailed inquiry---Scope---Ordinarily major penalty could not be imposed unless a detailed inquiry was conducted; however, this was not an absolute rule---Where sufficient evidence was available on record, a detailed inquiry could be dispensed with and after confronting the delinquent official with the available evidence and providing him an opportunity to explain his position, the inquiry officer could record findings and make his recommendations.

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

----Rr. 3(b), 3(c) & 4(1)(b)(iv)---Misconduct and corruption---Taking a bribe---Dismissal from service converted into compulsory retirement---CCTV Footage, authenticity of---Petitioner, who was posted at an airport, was alleged to have demanded illegal gratification from a passenger---Video clip as well as the CCTV footage of the incident was available and the same was shown to the petitioner who admitted that he featured in the said video---Only defence taken by the petitioner was that the voice in the video clip was not his---Inquiry officer found that the sound in the video clip was the voice of the petitioner because of his peculiar accent and lip movements which coincided with the sound recording---Perusal of said video clip with sound by the Supreme Court in Chambers also revealed that the audio recording clearly corresponded with the lip movements of the petitioner in the video clip, and there was no possibility of a voiceover or the video clip having been dubbed subsequently---Even otherwise, there was no reason why anybody in the department or the passenger who apparently met the petitioner for a few minutes would involve and frame the petitioner in such manner---Video clip in question was also uploaded on the social media and covered by international press which clearly brought a bad name to the country as well as the concerned department---Any leniency shown in dealing with such acts would not only send the wrong message to other functionaries of the department but would amount to condoning bribery and corruption in the system with disastrous consequences---Competent authority had imposed major penalty of dismissal from service, but the appellate authority, possibly on compassionate grounds, converted the major penalty of dismissal from service into compulsory retirement, which decision was maintained by the Service Tribunal---Service Tribunal recorded valid and cogent reason for its judgment which required no further interference---Petition for leave to appeal was dismissed and leave was refused.

Sardar M. Aslam, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

M.D. Shahzad, Advocate Supreme Court and Ms. Ansar Anees, Dy. Collector Customs for Respondents.

2020 S C M R 1000

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

ASMAT ALI---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 1205 of 2019, decided on 4th May, 2020.

(Against order dated 24.09.2019 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 946-P of 2018)

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

----S. 9(c)---Possession of 9600 grams of cannibas---Reappraisal of evidence---Statements of recovery witnesses (police officials) were in tune with each other with no apparent motive to implicate the accused on a false charge---Substantial quantity of the contraband ruled out a manipulated recovery---Accused, who was driving the truck in question, in his bid to disproof the charge, admitted most parts of the events that took place on the day of incident except for an obvious denial regarding possession of narcotic in the truck---Accused was rightly convicted and sentenced by the Trial Court under S. 9(c) of the Control of Narcotic Substances Act, 1997---Petition for leave to appeal was dismissed and leave was refused.

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

----R. 6---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Report of Government Analyst---Protocols/ procedure---Scope---Where forensic report conclusively established the narcotic character of the substance with sufficient details regarding the test carried out, the insufficiency of protocols mentioned in the said report was not consequential.

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

Arshad Hussain Yousafzai, Advocate Supreme Court for the State.

2020 S C M R 1001

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Qazi Faez Isa and Maqbool Baqar, JJ

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, QUETTA and another---Petitioners

Versus

ABDUL SATTAR---Respondent

Civil Petition No. 2841 of 2018, decided on 25th April, 2019.

(Against the order dated 24.04.2018, passed by the High Court of Balochistan, Quetta in Civil Revision No. 452 of 2010)

Pakistan Railways Code for the Engineering Department---

----Item No. 1961---Railway quarter let out to an outsider---Pre-requisites---Consultation of General Manager, Railways with the Financial Advisor---Highest rent that could be secured---Respondent, who was a bailiff of the High Court, was allotted a Railway quarter vide an agreement---After expiry of agreement, when respondent was serviced with a vacation notice, he filed a suit for declaration and permanent injunction, which was decreed by the civil court---Held, that in terms of Item No. 1961 of the Pakistan Railways Code for the Engineering Department ('the Code'), Railways quarters and other building, which were not required for housing of railway staff or other railway purposes may at the discretion of the General Manager be let, in consultation with the Financial Advisor, to outsiders, on the highest rent that could be secured---In the present case, counsel for respondent was unable to show any approval of General Manager in consultation with the Financial Advisor for letting out the quarters to the respondent---Manner by which the highest rent was secured was also not explained to the court---Unless the quarter was offered by publication for obtaining of highest rent it was not understandable as to how the amount of highest rent could be determined---Two essential conditions for letting out the quarter in question apparently were not met, and there seemed to be letting out of the said quarter to the respondent on mere asking---Such manner of allotment to the respondent was not in accordance with the "Code" and thus was a nullity in the eye of law---Unless the requirement of the "Code" was met in toto the letting out of the quarter in question could not be held as legal and the respondent could not claim any right over it---Judgments/decrees of all the Courts below were set aside---Petition for leave to appeal was converted into appeal and allowed accordingly.

M.D. Shahzad Feroz, Advocate Supreme Court for Petitioners.

Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2020 S C M R 1004

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

FATEH SHER---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 317 of 2018, decided on 29th April, 2020.

(Against judgment dated 12.03.2018 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1285 of 2013 along with M.R. No. 260 of 2013)

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Leave to appeal, petition for---Incident was a night affair on fringe of the village population when according to the complainant he accompanied the deceased and the injured without any apparent purpose---Through a supplementary statement, unknown assailants were introduced by their names with specific roles---All co-accused were exonerated by the investigating officer and the complainant having found investigative conclusions inconsistent with the case set up in the crime report, preferred a private complaint which again resulted into failure except the petitioner-accused, who was convicted under S. 302(b), P.P.C.---Prosecution's failure qua majority of the accused persons, one of whom was indivisibly assigned identical role to that of petitioner; question of identity of the assailants in a moonlit night as mentioned in the crime report; an unanticipated encounter between the deceased and the injured with the assailants and inconsequential forensic report, all made out a case for reappraisal of evidence to ensure safe administration of criminal justice--- Leave granted.

Sarfraz Khan Gondal, Advocate Supreme Court for Petitioner.

Ahmed Raza Gillani, Additional Prosecutor General Punjab for the State.

2020 S C M R 1006

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mushir Alam, Sardar Tariq Masood, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

SUO MOTU ACTION REGARDING COMBATING THE PANDEMIC OF CORONA VIRUS (COVID -19): In the matter of

Suo Motu Case No. 01 of 2020, decided on 19th May, 2020.

(a) Constitution of Pakistan---

----Arts. 9 & 184(3)---Suo motu case regarding combating the pandemic of Corona virus (COVID-19)---Insufficient resources available with the Government---Likelihood of the health sector becoming overwhelmed due to large number of infected patients---Despite the country facing a struggling economy, the people of the country had a fundamental right, namely, right to life, under which the Government was required to provide to the people safe and healthy living conditions---Observations recorded by the Supreme Court regarding the challenges presented by Corona virus (COVID-19) detailed.

Coronavirus (COVID-19) was very much present in Pakistan and it has also caused large number of fatalities and considerable number of people had been infected and their numbers were increasing day-by-day. It was obvious that Coronavirus (COVID-19) had come as an additional burden on the Government and the manner in which the virus had started spreading in Pakistan, had set the alarm bell ringing. The virus being new, there was no readiness of the Government to deal with the same, nor the necessary medical equipment were available to face the growing number of infected cases. Government did take immediate steps to face this virus and mitigate its effects on the people, and in this regard, colossal amount of money was diverted and used. Pakistan had a struggling economy and Coronavirus (COVID-19) made it more staggering. However, the people of Pakistan had a fundamental right, namely, right to life, under which Government of Pakistan is required to provide to the people of Pakistan safe and healthy living conditions.

(b) Constitution of Pakistan---

----Arts. 149(1), 149(4) & 184(3)---Suo motu case regarding combating the pandemic of Coronavirus (COVID-19)---Directions to Provinces by Federation in certain cases---Scope---Coronavirus (COVID-19) was a grave menace to the peace, tranquility and economic life of the country, and thus, the Executive Authority of the Federation shall stand extended to giving of the directions to the Provinces to prevent the menace.

Reading of the Articles 149(1) & 149(2) of the Constitution, clearly showed that the Executive Authority of all the Provinces were mandatorily required to be exercised so as not to impede or prejudice the exercise of the Executive Authority of the Federation and the Executive Authority of the Federation shall extend to giving of such directions to Provinces, as may appear to the Federal Government to be necessary. Further that the Executive Authority of the Federation shall also extend to giving of directions to Provinces as to the manner in which the Executive Authority of the Provinces was to be exercised for the purpose of preventing any grave menace to the peace or tranquility or economic life of Pakistan or any part thereof. Obviously, the Coronavirus (Covid-19) was a grave menace to the peace, tranquility and economic life of Pakistan, and thus, the Executive Authority of the Federation shall stand extended to giving of the directions to the Provinces to prevent the menace.

(c) Constitution of Pakistan---

----Arts. 9 & 184(3)---Suo motu case regarding combating the pandemic of Corona virus (COVID-19)---Sanitary staff not provided their salaries, pension and protective gear---After getting assurances from the Law officers for the Federation, Provinces and Islamabad Capital Territory (ICT) that all issues pertaining to sanitary workers would be addressed, the Supreme Court directed that all the dues of contract sanitary workers shall be paid by the contractors positively within two days and if not done so by the contractors, the same be done by the respective governments---Case adjourned.

Law Officers for the Federation, Provinces and Islamabad Capital Territory (ICT) gave assurances to the Supreme Court that grievance of the sanitary staff would be specifically and seriously redressed by the relevant Government officials, in that, all sort of protective gears shall be provided to them within a week's time positively; that salaries of all the sanitary staff shall be paid by all the Governments/Local Governments; that the pension of the sanitary staff shall also be paid; that the salaries and pensions shall be released and paid in full within two days, and that conditions of sanitary staff, employed by the contractors, shall also be examined.

Supreme Court observed that sanitary, being a core work of the Government, it was not understandable as to how this work was being done by awarding contracts; that apparently, such contracts were mere sham contracts and the Supreme Court on the next date of hearing would examine this issue. Supreme Court directed that Government departments shall file before the Court copies of the contracts with the contractors employing sanitary employees, and that all their dues shall also be paid by the contractors positively within two days and if not done so by the contractors, the same be done by the respective governments. Case was adjourned.

Khalid Javed Khan, Attorney General for Pakistan, Sohail Mehmood, DAG, Dr. Tanveer Qureshi, Secretary Ministry of National Health, Asif Suhail, Director (Lit) (All from Ministry of National Health), Syed Mansoor H. Gardezi, Dir. Legal Advisor, Pakistan Bait-ul-Mal. and Lt. Gen. Muhammad Afzal, Chairman, NDMA for the Federation.

Niaz Ullah Khan Niazi, A.G., Islamabad and Azhar Hussain Shah, DSP Legal for ICT.

Shan Gul, Acting A.G., Punjab, Capt. (Retd.) M. Usman, Secy. Primary and Secondary Health Deptt. Punjab (both via video link from Lahore), Ch. Faisal Fareed, Addl. A.G. Punjab, M. Nabeel Ahmed Awan, Secy. Specialized, Health Care and Medical Education Deptt. Saifullah Gondal, Dy. Secretary, Zakat and Usher, Muhammad Aslam Ramay, Administrator Zakat and Usher and Alamgir Ahmed Khan (all via video link from Lahore) for Government of Punjab.

Salman Talibudin, A.G, Sindh, Muhammad Usman Chachar, Addl. Chief Secy. Home, Dr. Saeed Ahmed Qureshi, (Focal Person to Chief Secy. Sindh), Zahid Abbasi, Secy. Health, Qazi Shahid Pervez, SMBR, Iftikhar Shalwani, Commissioner Kci and Haroon Ahmed Khan, Addl. Chief Secretary, Zakat and Ushr (All via Video link from Karachi Branch) for Government of Sindh.

Shumail Butt, A.G., Khyber Pakhtunkhwa, Atif Ali Khan, Addl. AG., Syed Imtaiz Hussain Shah, Secy. Health, Khyber Pakhtunkhwa, M. Abid Majeed, Secy. Relief Rehabilitation, Khyber Pakhtunkhwa, Dr. Maqsood Ali, Chief Executive, HCC, Muhammad Idrees Marwat, Secretary Social Welfare Department, Dr. Khalid Masood, Hospital Director (LRH) and Khyal Muhammad Mohmand, Legal Officer (LRH) (All via Video link from Peshawar Branch) for Government of Khyber Pakhtunkhwa.

Arbab Muhammad Tahir, A.G, Balochistan, Baloch Aziz, Secy. Religious Affairs, (Via Video link from Quetta Branch), Ayaz Khan Swati, Addl. A.G. and M. Fareed Dogar, AAG Balochistan. (At Islamabad) for Government of Balochistan.

Muhammad Iqbal, AG, Gilgit-Baltistan, Syed Iqbal Hashmi, ASC for PMA, (in C.M.A. No.3099/2020), Samuel Payara, Chairman, Implementation of Minority Rights Forum for Government of Gilgit-Baltistan.

2020 S C M R 1013

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

TASAR MEHMOOD and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 574 and 575 of 2019, decided on 5th May, 2020.

(Against judgment dated 7.3.2019 passed by the Islamabad High Court, Islamabad in Criminal Appeals Nos. 204 of 2015 and 2 of 2017)

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

----Ss. 302(b) & 392---Qatl-i-amd, robbery---Reappraisal of evidence---Occurrence took place at 9:45 p.m., and the complaint was recorded promptly at 11:45 p.m. at the spot---Injured witness, who received a fire shot was examined under a police docket---Autopsy of the co-accused, who died due to firing of his own accomplices, was carried out at 10:30 a.m. the following day---Spot inspection confirmed the incident---Integrity of initial investigation was beyond doubt and it was through an investigative process that the police reached the accused and co-accused, who were kept in judicial lock up and remitted into police custody only after they had been identified by the injured in the test identification parade---Weapons recovered pursuant to disclosures were forensically matched with the casings dispatched earlier than arrest of accused and co-accused---Evidence comprising of natural witnesses, with dead body of a co-accused, squarely constituted proof beyond doubt---Absence of watchman from the witness box did not raise any adverse inference as the remainder of the witnesses were in place during the trial---Petition for leave to appeal was dismissed and leave was refused.

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

----Art. 22---Police Rules, 1934, R. 26.32---High Court (Lahore) Rules and Orders, Vol. III, Part-C---Test identification parade---Scope---Process of test identification parade had to be essentially carried out, having regard to the exigencies of each case, in a fair and non-collusive manner, free from the taints of prejudice---Such exercise was not an immutable ritual, inconsequential non-performance whereof, may cause failure of prosecution case, which otherwise was structured upon clean and probable evidence.

Tariq Mehmood Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in both cases).

Niazullah Niazi, Advocate General, I.C.T. along with Mubarak SHO Shahzad Town, Azhar, SI/I.O. for the State.

2020 S C M R 1018

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Qazi Muhammad Amin Ahmed, J

MUHAMMAD SHOAIB AHMED---Appellant

Versus

The CONTROLLER GENERAL OF ACCOUNTS, ISLAMABAD---Respondent

C.A. No. 2065 of 2019, decided on 13th May, 2020.

(Against the judgment dated 16.02.2018, passed by the Federal Service Tribunal, Lahore in Appeal No. 426(L)/2017)

Civil service---

----Regular inquiry after retirement from service---Appellant who was a Senior Auditor in the office of the Provincial Accountant General, along with four other employees was proceeded against for taking out a procession, and forcefully closing down their office---Competent authority dismissed appellant and three others from service, while the fourth employee was compulsorily retired---Service Tribunal reinstated all four employees in service with direction to hold regular inquiry against them, whereas in case of appellant his major penalty of dismissal from service was converted into compulsory retirement and it was ordered that since appellant had reached age of superannuation therefore there question of conducting a regular inquiry did not arise--- Held, that case of the appellant was similar to that of the remaining four persons, and the very fact that the appellant retired from service before his appeal came to be decided, could not provide justification to the Tribunal to take a different view from the one taken in the case of the other four employees---Since the appellant seemed to have been treated differently by the impugned judgment from four other employees, the impugned judgment to the extent of the appellant was not sustainable in law---Impugned judgment was set-aside and the matter was remanded to the department to hold regular enquiry in the case of the appellant and thereafter, to pass necessary order in accordance with law--- Appeal was allowed accordingly.

Rana Habib ur Rehmand Khan, Advocate Supreme Court (via video link from Lahore) and Syed Rafaqat Hussain Shah, Advocate-on-record for Appellant.

Ch. Aamir Rehman, Additional Attorney General, Syeda B.H. Shah, Advocate-on-Record and Muhammad Zubair Akhtar, Assistant Accountant General for Respondent.

2020 S C M R 1021

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Amin ud Din Khan, JJ

MUHAMMAD NAWAZ and others---Petitioners

Versus

SAKINA BIBI and others---Respondents

Civil Petition No. 157-L and Civil Appeal No. 6-L of 2020, decided on 15th May, 2020.

(Against judgment dated 10.12.2019 of Lahore High Court, Lahore passed in Civil Revisions Nos. 1701 and 2364 of 2015)

(a) Gift---

----Oral gift---Gift mutation---Fraud---Brothers depriving sisters of their share in inheritance---Sons being beneficiaries of the gift mutation were required by law to prove not only the validity of the mutation but more importantly the oral gift which was the basic transaction which was purportedly implemented through the gift mutation in question---In their written statement and the evidence produced before the Trial Court, the defendants (sons) did not mention the date, time, place or names of the witnesses in whose presence the oral gift was made---Defendants were able to produce only one witness, who claimed to be present when the oral gift was allegedly made---Even said witness was not able to disclose the date, time or venue of the oral gift---Said witness in his cross-examination, admitted that at the time of alleged gift mutation the donor was about 80 years old, and that at the time of attestation of the gift mutation no Patidar was present---Three Courts below had concurrently held that the defendants had failed to prove the oral gift---Further even the validity of the mutation could not be proved on account of failure on the part of the defendants to produce the concerned Tehsildar and other revenue functionaries, who were the most material witnesses---Another defence witness categorically admitted in his evidence that the donor continued to own the property till his death.

(b) Fraud---

----No person could be allowed to take benefit of his own fraud.

Omar Hayat Tahir Chohan, Advocate Supreme Court and Naveed Aslam, Advocate Supreme Court for Petitioners (in C.P. No.157-L of 2020).

Mubin A. Siddiqui, Advocate Supreme Court for Petitioners (in C.A. No. 6-L of 2020).

Zulfiqar A. Dhiddi, Advocate Supreme Court for Respondents.

2020 S C M R 1026

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Yahya Afridi, JJ

SECRETARY REVENUE DIVISION/CHAIRMAN FBR and another---Appellants

Versus

MUHAMMAD ASLAM and others---Respondents

Civil Appeal No. 327 of 2018, decided on 17th June, 2019.

(On appeal from the judgment/order dated 06.06.2017 of the Federal Service Tribunal, Islamabad passed in Appeal No.880(R)CS/ 2015)

Fundamental Rules---

----F.R. 26---Period of leave counted for increments in time scale---Scope---Extraordinary leave---Absence from duty for 2557 days regularized in categories of leave on half pay, leave on full pay and extraordinary leave---On retirement respondent applied for three annual increments for the absence period which was treated as extraordinary leave---Department denied such relief to the respondent however Service Tribunal granted the same through the impugned judgment---Held, that clearly the extraordinary leave period of absence from duty of the respondent was attributable to his own doing---No cause for such extraordinary leave had been given by the department whilst dividing the duration of his absence into different types of leave periods---Such relief constituted a favour given to the respondent---Attempt to seek increments for the period of leave which was neither leave on half pay nor leave on full pay but was classified as extraordinary leave could not be sanctified further by assuming the same to be beyond respondent's control---Impugned judgment of Service Tribunal was set aside and relief of three annual increments was denied to the respondent--- Appeal was allowed accordingly.

Secretary, Communication and Works Department, Lahore and another v. Malik Riaz Ahmad 1993 SCMR 1014 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Ms. Shireen Imran, Advocate Supreme Court for Respondent No.1 in person..

M.D. Shahzad, Advocate Supreme Court and Rasheed Alam Dogar, Inspector for Respondent No.2.

Saqib Farid, Dept. Rep., Mrs. Misbah Gulnar Sharif, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 3.

2020 S C M R 1029

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

CHIEF POSTMASTER FAISALABAD, GPO and another---Appellants

Versus

MUHAMMAD AFZAL---Respondent

Civil Appeal No. 2063 of 2019, decided on 27th April, 2020.

(Against the judgment dated 28.02.2019 passed by the Federal Service Tribunal, Lahore in Appeal No. 549(L)/2016)

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

----S. 5---Government Servants (Efficiency and Discipline) Rules, 1973, Rr. 3(b), 3(c) & 4(1)(b)(iv)--- Misappropriation, embezzlement, dishonesty and cheating---Service Tribunal, powers of---Scope---Service Tribunal converting dismissal from service awarded by department authority into compulsory retirement with all pensionary benefits---Legality---Service Tribunal held that the department was justified in finding the respondent guilty of misconduct, corruption, misappropriation, embezzlement, dishonesty and cheating etc, but surprisingly, after having recorded said findings arrogated to itself the jurisdiction to modify the penalty of dismissal from service to compulsory retirement---Under S. 5 of the Service Tribunals Act, 1973 the Tribunal enjoyed powers to modify any order passed by the departmental authorities but such power was required to be exercised carefully, judiciously and after recording reasons for the same---In the present case, the penalty in question had been imposed by the departmental authority on the basis of established charges and the major penalty of dismissal from service was imposed upon him in accordance with the law and the rules---In these circumstances, it was not understandable as to how and from where the Tribunal derived the authority to exercise a power in favour of the respondent in such an arbitrary unstructured and whimsical manner---Exercise of jurisdiction by the Tribunal was without any lawful authority whatsoever, specially so where no reasons, let alone cogent had been assigned for exercise of jurisdiction by the Tribunal---Appeal was allowed, judgment of Service Tribunal was set-aside and penalty of dismissal from service imposed by departmental authorities was restored.

(b) Administration of justice---

----Courts/Tribunals---Relief, grant of---Adherence to the Constitution and the law---Scope---All Courts/Tribunals seized of matters before them were required to pass orders strictly in accordance with the parameters of the Constitution, the law and the rules and regulations lawfully framed under the law---No Court had any jurisdiction to grant arbitrary relief without the support of any power granted by the Constitution or the law.

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

----R. 5---Departmental inquiry---Dispensing with the requirement of regular inquiry---Scope---Where there were serious allegations against an employee which were denied by him, the department was under an obligation to conduct a regular inquiry in all circumstances --- In case the departmental authorities came to the conclusion that there was sufficient documentary evidence available on record which was enough to establish the charge, it could, after recording reasons, which were of course justiciable, dispense with the inquiry in the interest of expeditious conclusion of departmental proceedings---Courts can always re­examine the reasons assigned by the departmental authority for dispensing with the requirement of regular inquiry and if such reasons were not found cogent and legally sustainable, the Court had all requisite powers and was not debarred from sending the matter back to the department to hold a regular inquiry.

Mian Asghar Ali, DAG, Raja Abdul Ghafoor, Advocate-on-Record and M. Zahid, A.S. for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Hafiz Hifz-ur-Rehman, Advocate Supreme Court for Respondent.

2020 S C M R 1036

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan, Qazi Muhammad Amin Ahmed and Sayyed Mazahar Ali Akbar Naqvi, JJ

SUO MOTU ACTION REGARDING COMBATING THE PANDEMIC OF CORONA VIRUS (COVID -19): In the matter of

Suo Motu Case No. 1 of 2020, decided on 8th June, 2020.

(a) Constitution of Pakistan---

----Arts. 9 & 184(3)---Suo motu case regarding combating the pandemic of Corona virus (COVID-19)---No law made at Federal level for dealing with Corona virus---Supreme Court observed that no law had been made at the national level for dealing with the Corona virus and its effects on the citizens; that making of laws at the national level was essential for dealing with the cases of Corona virus and the Supreme Court had already in one of its previous orders of present proceedings emphasized its importance, however, the needful in this regard had not been done as yet---Supreme Court adjourned the matter after re-emphasizing the importance of legislation for dealing with Corona virus at the national level.

(b) Constitution of Pakistan---

----Arts. 9 & 184(3)---Suo motu case regarding combating the pandemic of Corona virus (COVID-19)--- Sanitary workers--- Safety kits---Although sanitary workers were employed for doing sanitary work, but that did not mean that they should do sanitary work where their health and life may be jeopardized---Such workers should not be asked to work beyond their call of duty; if they were made to do work which had the remotest possibility of them being affected by a disease or ailment (such as the Corona virus) which may pose a threat to their life, strong and effective steps should be taken by the Federal Government, Provincial Governments, Local Governments, Cantonment Boards, Islamabad Capital Territory (ICT) and Gilgit-Baltistan Government, for ensuring that all sorts of safety kits were mandatorily provided to sanitary staff and none of them should be allowed to work without safety kits being made available to them --- Supreme Court observed that if legislation to this effect had not been made by the Federal Government, Provincial Governments, Local Governments, Cantonment Boards, ICT and Gilgit-Baltistan Government, they shall ensure that such legislation dealing with this very aspect of the matter shall be made, which was very important and a requirement under Art. 9 of the Constitution---Case was adjourned.

(c) Constitution of Pakistan---

----Art. 184(3)---Suo motu case---Locusts infestation---Locusts posed a serious danger to the agriculture sector in Pakistan, in that it may wipe out most of the agricultural production and there may occur serious shortage of agricultural goods---Such shortage of agricultural goods may lead to a shortage of food for the people---Supreme Court observed that locusts had to be immediately dealt with and totally eradicated from Pakistan with due promptitude in order to ensure that it did not cause substantial loss to the agriculture sector of the country---Supreme Court directed that a categorical and comprehensive report in this regard be filed by the Department of Plant Protection, so also by the National Disaster Management Authority (NDMA) before the next date of hearing---Case was adjourned.

(d) Constitution of Pakistan---

----Arts. 18 & 184(3)---Suo motu case regarding combating the pandemic of Corona virus (COVID-19)---Commercial shops---Opening and closing times during lockdown imposed by the Government---Supreme Court observed that in one of its previous orders of present proceedings it had directed that shops may not be closed on Saturday and Sunday owing to the approaching Eid-ul-Fitr; that now since Eid-ul-Fitr had already passed, the order of opening of shops on Saturday and Sunday was, therefore, recalled; that the Government may make a policy for opening and closing of shops as per their strategy to meet the dangers of Corona virus (COVID-19)---Case was adjourned.

Khalid Javed Khan, Attorney General for Pakistan, Sohail Mehmood, DAG, Idrees Mehsood, Member NDMA, Aamir Ashraf Kh., Secretary Ministry of NHRC, Dr. Malik M. Safi, D.G. Health, NHRC, Rana M. Safdar, Dir. NHRC, G.M. Jakharani, Dy. Dir. (Lit), NHRC and Asif Suhail, Dir. (Lit), NHRC for Federation.

Niaz Ullah Khan Niazi, Advocate General, Islamabad, Waseem Ahmed, Addl. Dy Commissioner and Amer Naveed, Asst. Director (Lit) for ICT.

Shan Gul, Acting Advocate General, Punjab, Jawad Yaqoob, Asst. AG Punjab, Muhammad Usman, Secy. Primary and Secondary Health Deptt. M. Nabeel Ahmed Awan, Secy. Specialized Health Care and Medical Education Deptt. M. Aslam Ramay, Administrator Zakat and Ushar, Alamgir Khan, Secy. Zakat and Ushar (all via video link from Lahore Branch), Ch. Faisal Fareed, Addl. A.G. Punjab and Rauf Siddiqui, Addl. A.G. Punjab for the Government of Punjab.

Salman Talibudin, Advocate General, Sindh, M. Usman Chachar, Addl. Chief Secy, Home, Sindh, Dr. Saeed Ahmed Qureshi, Focal Person to Chief Secy. Sindh, Zahid Abbasi, Secy. Health, Salman Shah, D.G. PDMA, Jalalani, Addl. Secy. (L. Govt.), Mazhar Hussain, AIGP (Legal) and Iftikhar Shalwani, Commissioner Karachi (all via video link from Karachi Branch) for Government of Sindh.

Shumail Butt, Advocate General, Khyber Pakhtunkhwa, Syed Imtiaz Ali Shah, Secy. Health, Khyber Pakhtunkhwa, M. Idrees Marwat, Secy. Social Welfare Deptt. Syed Wilayat Shah, Dir Operations, Motasim Billah Shah, Special Secy. (Local Govt.), M. Israr, Secy. Agriculture, Parvez Sabitkhel, DG, PDMA and Jabriel Raza, Dy. Secy. R & R Khyber Pakhtunkhwa (all via video link from Peshawar Branch) for Government of Khyber Pakhtunkhwa.

Arbab Muhammad Tahir, Advocate General, Balochistan (via video link from Quetta Branch) and Ayaz Khan Swati, Addl. A.G. for Government of Balochistan.

Muhammad Iqbal, Advocate General, Gilgit-Baltistan for Government of Gilgit-Baltistan.

Syed Iqbal Hashmi, Advocate Supreme Court for Pakistan Medical Association.

Samuel Payara, Chairman, Implementation of Minority Rights Forum (in C.M.A. No.3099/2020).

2020 S C M R 1041

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

OWAIS SHAMS DURRANI and others---Petitioners

Versus

VICE-CHANCELLOR, BACHA KHAN UNIVERSITY, CHARSADDA and another---Respondents

Civil Petition No. 2911 of 2018, decided on 29th April, 2020.

(Against the order dated 12.04.2018 passed by the Peshawar High Court, Peshawar in Writ Petition No. 5210 of 2017)

(a) Khyber Pakhtunkhwa Universities Act (X of 2012)---

----S. 11(5)(d)--- Upper Division Clerks--- Contract appointments converted into fixed pay (employment) for one year---Whether such employees had right to regularization in service---Held, that the petitioners' appointments were made in terms of S. 11(5)(d) of the Khyber Pakhtunkhwa Universities Act, 2012, (Act, 2012) which limited the power of the Vice Chancellor to create temporary posts and make appointments to a maximum period of three years---Petitioners worked for three years and thereafter their contracts expired with afflux of time---Further re-appointment of petitioners on fixed pay for a period of one year only was done through a notification, and on expiry of such period their services were terminated---Said notification did not confer any right to seek regularization and the University reserved to itself the right of termination of petitioners' services at any time/ stage without serving any prior notice to that effect to them---Petitioners accepted such appointments and did not challenge the notification before the terms of their appointments expired---Moreover the petitioners were appointed directly without following any process requiring advertisement of the posts, open competition, transparency in the process of appointment and appointments on merit through a validly constituted Selection Committee---Initially having been appointed on contract basis there was no vested right of petitioners to seek regularization in terms of settled principles of law as well as the provisions of S. 11(5)(d) of the Act, 2012---Petition for leave to appeal was dismissed and leave was refused.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Relief---Scope---Where a citizen sought relief in constitutional jurisdiction he must point to a right statutory or constitutional which vested in him and had been denied in violation of the law.

Nasir Mehmood, Advocate Supreme Court and Mehmood A. Sh., Advocate-on-Record for Petitioners.

Nemo for Respondents.

2020 S C M R 1045

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

COMMISSIONER INLAND REVENUE (ZONE-I), KARACHI---Appellant

Versus

Messrs FAISAL BANK LIMITED---Respondent

Civil Appeals Nos. 573 and 574 of 2013, decided on 9th March, 2020.

(On appeal from the judgment/order dated 06.12.2012 of the High Court of Sindh, Karachi passed in ITR Nos. 517 and 518 of 2010)

Income Tax Ordinance (XLIX of 2001)---

----S. 29---Income Tax Ordinance (XXXI of 1979) [since repealed[, S. 23(1)(x)---Bad debts---Writing off---Circumstances when debts claimed by an assessee may reasonably be believed as irrecoverable and therefore be classified as bad debts---Reasonableness test---Scope---Held, that it was not a matter of discretion for the assessee to decide what a bad debt was; rather the assessee had to establish reasonable grounds showing that having taken the requisite lawful steps for recovery of the outstanding debts, the same were not recoverable in the foreseeable future---Classification of a bad debt was not left to the discretion of the taxpayer; it must be demonstrated by the securities and the bona fide measures taken by the taxpayer to secure repayment of the outstanding debt---If in a subsequent tax year recovery of a bad debt was effected then the same was taxable as income.

Commissioner of Income Tax v. National Bank of Pakistan, Karachi PLD 1976 Kar. 1025 ref.

Commissioner of Income Tax (Legal), Islamabad v. Askari Commercial Bank Limited, Rawalpindi 2018 PTD 1089 distinguished.

Dr. Farhat Zafar, Advocate Supreme Court and Masood Akhtar, Chief Legal (FBR) for Appellant.

Ijaz Ahmed Zahid, Advocate Supreme Court for Respondent.

2020 S C M R 1049

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

NOOR MUHAMMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1431 of 2019, decided on 7th May, 2020.

(Against the order of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 11.11.2019 passed in Crl. Misc. No. 1780-B of 2019)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 163---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, grant of---Further inquiry---Implication on basis of special oath---Local police investigated the matter in detail and ultimately found the involvement of the accused suspicious, hence, his arrest was deferred under S. 169, Cr.P.C.---During second investigation, the participation of the accused was again found doubtful and as such the investigating officer had not given a definite opinion qua culpability of the accused---Third investigation was carried out by Provincial Crime Branch which found the accused involved on the basis of special oath offered in a mosque---Concept of such special oath was in defiance of Art. 163 of Qanun-e-Shahadat, 1984---Sole eye-witness mentioned in the FIR got recorded his statement thrice under S. 161, Cr.P.C., in all three successive statements, he had contradicted his earlier statement---Further the third and last statement was recorded belatedly---Accused was allowed bail.

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

----S. 161---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Belated recording of statement of prosecution witness under S. 161, Cr.P.C.---Delayed recording of such statement reduced its value to nil.

Abdul Khaliq v. The State 1996 SCMR 1553 ref.

Malik Waheed Anjum, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Altaf Elahi Sheikh, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for the Complainant.

Mirza M. Usman DPG, Punjab, Khalil Ahmad, SDPO and Tariq Mehmood, SHO for the State.

2020 S C M R 1053

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

ANTHONY ROY (DECEASED) through Legal Heirs---Appellant

Versus

The PRIME MINISTER OF ISLAMIC REPUBLIC OF PAKISTAN through Prime Minister Secretariat, Islamabad and others---Respondents

Civil Appeal No. 10 of 2020, decided on 23rd April, 2020.

(Against the judgment dated 22.10.2018 passed by the Federal Service Tribunal, Islamabad in Appeal No. 2183(R)CS/2011)

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

----R. 4(1)(b)(iv)---Mechanical engineer in Pakistan Railways---Gross negligence, carelessness and failure to perform duty diligently, efficiently and conscientiously---Dismissal from service---In the tender documents, no specific measurement of the Bitumen Tape was mentioned by the appellant and the question of quantity was kept open which opened the door for fraud which was consequently committed---Contracts of such nature were required to mention specific quantities of goods required in order to ensure that the exchequer was not unduly burdened with excessive procurement or over payment---Appellant was negligent and careless in performance of his duties which led to a loss of Rs.38,39,734/- where in the first instance he did not mention any quantity of Bitumen Tape required, thereafter did not supervise actual use of the Bitumen Tape and finally without due verification mechanically and negligently approved bills raised by the contractor which led to over payment of Rs.38,39,734---Measurements given by the appellant were not supported by the work actually performed---Three successive inquiries were conducted at three different levels by qualified and experienced officers of Pakistan Railways who had no apparent bias against the appellant---In all three inquiries the appellant was found guilty---Penalty of dismissal was sustainable on the basis of the fact that gross negligence, carelessness and failure to perform his duty diligently, efficiently and conscientiously stood established from the record---Appeal was dismissed.

Mian Asif Mumtaz, Advocate Supreme Court for Appellant.

Jawad Mehmood Pasha, Advocate Supreme Court, Raja Ghazanfar Ali Khan, Advocate Supreme Court, Syed Rafaqat H. Shah, Advocate-on-Record, Imran Hayat, Director Legal, Azam Ghafoor, Chief Contractor Purchase, Rashid Waqas, Dy. CME, Shehzad Javed, Dy. Mechanical Engineer and Muhammad Saleem, Joint Director Ministry of Railways for Respondents.

2020 S C M R 1058

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

UMAID ALI---Appellant

Versus

The ELECTION COMMISSION OF PAKISTAN through Secretary Election Commission of Pakistan Islamabad and others---Respondents

Civil Appeal No. 1400 of 2019, decided on 11th March, 2020.

(Against the judgment dated 31.5.2019 passed by High Court of Sindh at Karachi in C.P. No. 493-D of 2018)

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

----S. 36(1)(i)---Local Government elections---Office of Chairman, Town Committee---Disqualification for candidates---'Person under contract for work to be done or goods to be supplied to a council or had otherwise any direct pecuniary interest in its affairs'---Connotation---Disqualification provided in S. 36(1)(i) of the Sindh Local Government Act, 2013 disbarred only a contractor of the Council and not a contractor of the Government---Such disqualification under S. 36(1)(i) of the Act did not apply to a Government contractor , who was not a contractor with any Council nor had any direct pecuniary interest in the affairs of such Council.

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

----S. 36(1)(j)--- Constitution of Pakistan, Art. 63(1)(l)--- Local Government elections---Disqualification for candidates---'Person who was for the time being disqualified or chosen as a member of the Provincial Assembly under any law for the time being in force'---Connotation---General or blanket disqualification incorporated through clause (j) of S. 36(1) of the Sindh Local Government Act, 2013, could not again import the disqualifications under Art. 63(1) of the Constitution that had already been incorporated with modification in clauses (a) to (d), (f), (g), (h) and (i) of S. 36(1) of the Act---Clause (j) of S. 36(1) of the Act was unclear and vague, therefore, the Supreme Court directed the Provincial Government to re-examine and amend the language of S. 36(1)(j) of the Act as necessary to bring it in conformity with the intention of the legislature.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellant.

Afnan Karim Kundi, Advocate Supreme Court for Respondent No.5.

Syed Shabbir Shah, Additional A.G. Sindh for Government of Sindh.

2020 S C M R 1063

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

ALLAH RAKHA---Petitioner

Versus

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

Criminal Petition No. 120 of 2020, decided on 7th May, 2020.

(Against judgment dated 18.11.2019 passed by the Lahore High Court, Lahore in Criminal Appeal No. 219286/2018)

Penal Code (XLV of 1860)---

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Nazir of court misappropriating an amount of Rs.36,00,000---Reappraisal of evidence---Sentence, reduction in---Accused-petitioner was dismissed from service and deposited back a sum of Rs.700,000/- out of the total amount misappropriated but failed to clear the remainder liability on account of his financial incapacity---Trial Court considered a period of five years as appropriate sentence on coordinate charges, however, awarded maximum sentence of ten years to the accused provided for the offence under S. 409, P.P.C.---Accused-petitioner prayed for reduction of sentence recorded under S. 409, P.P.C. from ten years to five years---Held, that although the petitioner being a part of system of administration of justice was certainly under a heavier onus to maintain highest standard of integrity and rectitude, nonetheless, his indiscretion had not brought him anything other than stigma and loss of post-retirement benefits, therefore, in the said backdrop, reduction of sentence recorded on the count under S. 409, P.P.C. to five years rigorous imprisonment would be a wage, conscionable in circumstances---Petition for leave to appeal was dismissed, however, the sentence under S. 409, P.P.C. was reduced from ten years to five years imprisonment, which was to run concurrently with coordinate charges, pre-trial period inclusive.

M. Shahzad Siddiqui, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for the State.

2020 S C M R 1065

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Amin-ud-Din Khan, JJ

FAKHAR-UD-DIN BUTT (DECEASED) through L.Rs. and others---Petitioners

Versus

MANZOOR BAQAI and others---Respondents

Civil Petition No. 2476-L of 2018, decided on 29th May, 2020.

(Against the judgment dated 01.9.2015 passed by the Lahore High Court, Lahore passed in Civil Revision No. 1938 of 2003)

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3---Forged and bogus Permanent Transfer Deed (PTD)---Patwari and record room, incharge of Settlement Department and senior clerk Revenue Department, testified against the petitioners and categorically stated that the PTD of the petitioners was not genuine and all relevant records established that it was bogus and forged---Further, there were entries and interpolations in the record which clearly showed tampering of the relevant registers and records going to the extent of replacing pages from the relevant registers and forging signatures---Superintendent Record, Board of Revenue, a witness summoned by the petitioners, testified against the petitioners and supported the case of respondents---Record indicated that in the Settlement record produced before the Court the entry in favour of predecessor-in-interest of the petitioners on CSC-V Register contained the words bogus written on it---Note on the said Register written by the Competent Authority confirmed the said fact---Said note stated that the entry appeared to be bogus and on the basis of examination of the pages and signatures of the officer in question, it could safely be concluded that the entry was prima facie made subsequently which was also indicated by the fact that the page had been torn off and a fresh page had been inserted in its place which contained writing in different ink, and a different handwriting---Further a categorical statement was made that even the signatures on the PTD and related documents in favour the petitioners were bogus and forged---Departmental functionaries had no personal interest in favour or against either of the parties---No allegation of bias or collusion was raised against any functionary of the department---Predecessor-in-interest of the petitioners admitted that he was not aware when he was dispossessed, he did not initiate any proceedings before the Board of Revenue/Settlement Department and did not approach any competent forum to recovery/restoration of possession for ten long years---Suit filed by respondents had rightly been decreed in their favour by the fora below---Petition for leave to appeal was dismissed and leave was refused.

Malik Muhammad Jamil Awan, Advocate Supreme Court for Petitioners.

Iftikhar Ahmad Mian, Advocate Supreme Court for Respondent No.6.

2020 S C M R 1069

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmad, JJ

MUHAMMAD MANSHA---Appellant

Versus

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN and others---Respondents

Civil Appeal No. 51 of 2011, decided on 22nd April, 2020.

(Against the judgment dated 11.05.2010 of the Lahore High Court, Lahore passed in R.F.A. No. 592 of 2006)

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

----Ss. 5 & 23(2)---Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997) [since repealed]---Sale/ disposition by the judgment debtor, of his property, after pronouncement of a judgment and decree by the Banking Court, without written permission of the Banking Court vide [section 23(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001]---Pre-requisites---Banking Court---Scope---Banking Court in the context of S. 23(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ('the 2001 Ordinance'), was the Court established by virtue of S. 5 of the 2001 Ordinance, and thus the judgment and decree required to invoke the provisions of S. 23(2) of the 2001 Ordinance, was the judgment and decree passed by a Banking Court established under the 2001 Ordinance, and not any other Court, and for that matter, not a "Banking Court" that was established under the repealed Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997---Ordinance, 2001 did not, either expressly or impliedly, provide for any retrospective application of the provision of S. 23(2) thereof, the same could not therefore operate to reverse or undo a transaction which took effect from 18-8-2001, prior to the date the said provision and the law containing the same, i.e. 2001 Ordinance, came into existence.

(b) Interpretation of statutes---

----Retrospective effect---Scope---When the legislature through an enactment altered the rights of parties by taking away or conferring any right of action, such enactment did not affect pending actions, unless provided in express terms within the enactment---General rule of common law was that the statute changing the law ought not (to affect past events), unless the intention appeared with reasonable certainty to be understood as applying to facts or events that had already occurred in such a way so as to confer or impose or otherwise effect rights or liabilities which the law had defined with references to past events.

PLD 1969 SC 187; (1957) 96 CLR 261, 267 and PLD 2003 SC 818 ref.

Ch. M. Amin Javed, Advocate Supreme Court for Appellant.

M. Almas, Advocate Supreme Court for Respondent No.1.

2020 S C M R 1115

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

SAMI ULLAH and another---Petitioners

Versus

LAIQ ZADA and another---Respondents

Criminal Petition No. 231 of 2020, decided on 8th May, 2020.

(Against the order of the Peshawar High Court, Peshawar dated 14.02.2020 passed in Criminal M.B.C.A. No. 45-M of 2019 and Criminal M.B.C.A. No. 46-M of 2019)

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

----S. 497(5)---Bail, cancellation/recalling of---Grounds for cancelling or recalling bail stated.

Following are some of the grounds upon which bail granted to an accused may be cancelled/recalled:

(i) The bail granting order was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice;

(ii) The accused had misused the concession of bail in any manner;

(iii) The accused had tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses;

(iv) There was likelihood of abscondment of the accused beyond the jurisdiction of court;

(v) The accused had attempted to interfere with the smooth course of investigation;

(vi) The accused misused his liberty while indulging into a similar offence; and

(vii) Some fresh facts and material had been collected during the course of investigation establishing guilt of the accused.

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

----S. 497(5)---Bail, cancellation/recalling of---Principles.

Ordinarily the superior courts were reluctant to interfere with an order extending concession of bail. The rationale behind this was that once concession of bail was granted by a Court of competent jurisdiction then very strong and exceptional grounds would be required to interfere with the concession extended to a person who was otherwise clothed with freedom. Any contrary action of the court would be synonymous to curtailing the liberty of such person, which otherwise was a precious right guaranteed under the Constitution.

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

----S. 497---Bail---Benefit of reasonable doubt---Such benefit could be extended to an accused even at bail stage.

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

----S. 497(5)---Bail, cancellation/recalling of---Principles---Where material available on the record did not support a finding of misuse of concession of bail by the accused in any manner, the court could decline cancellation of bail even if it was satisfied that the bail granting order passed by the court below was not sustainable in the eyes of law---Matter could be remanded to the court below if subsequently any material came on record qua misuse of privilege of bail.

Shahid Arshad v. Muhammad Naqi Butt and 2 others 1976 SCMR 360 ref.

Abdul Latif Afridi, Advocate Supreme Court and Barrister Sarwar, Advocate for Petitioners.

Muhammad Saeed Khan, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for the Complainant.

Zia Ullah, ASI for the State.

2020 S C M R 1120

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Yahya Afridi, JJ

COMMISSIONER INLAND REVENUE LEGAL DIVISION, RTO III KARACHI---Appellant

Versus

YASMEEN BANO and 3 others---Respondents

Civil Appeals Nos. 656 to 659 of 2011, decided on 24th February, 2020.

(On appeal from the judgment/order dated 24.12.2010 of the High Court of Sindh, Karachi passed in W.T.R.As. Nos. 27 to 30 of 1998)

(a) Wealth Tax Act (XV of 1963)---

----Ss. 25(1) & 25(2) [since omitted]---Power of Commissioner to revise orders of subordinate authorities---Limitation period---Scope---Whether in the absence of a limitation period prescribed under S. 25(2) of the Wealth Tax Act, 1963 ('the Act') the said omission could be supplied with reference to the limitation period under S. 25(1) of the Act---Held, that S. 25(1) of the Act provided a revisional remedy to the assessee for obtaining an order that was net prejudicial to his interest---Prescribed limitation period for invoking said remedy was one year---On the other hand, S. 25(2) of the Act (since omitted) conferred a suo motu power on the Commissioner to revise orders in the interest of the revenue for which no limitation period was prescribed in the Act---Thus, Ss. 25(1) & 25(2) of the Act served different purposes---Purpose of S. 25(2) was to protect the interest of the revenue and to prevent wealth from escaping assessment---Same purpose was also served by Ss. 17A & 17B of the Act, and the limitation period for both said sections was four years---In particular S. 17B , which was almost a verbatim copy of S. 25(2) provided for the exercise of suo motu revisional power by the Inspecting Additional Commissioner to protect the interest of the revenue---Section 25(2) was only omitted from the Act in the year 1992 after S. 17B was inserted into the Act---Section 17B was then the successor to S. 25(2), therefore, it was only logical that the limitation period governing section 17B, i.e. four years, should also govern S. 25(2) of the Act.

(b) Interpretation of statutes---

----Limitation period---Statute not providing any limitation period---When a statute was silent about limitation, a reasonable time limit was to be supplied by the Court---In carrying out such exercise, no general standards could be set out, and such time was and shall be dependant again on the purpose of the law to be achieved by an act or function to be performed.

Federal Land Commission through Chairman v. Rais Habib Ahmed and others PLD 2011 SC 842 ref.

Riaz Hussain Azam, Advocate Supreme Court along with Mansoor Akhtar, Chief Legal for Appellant.

M. Saleem Thepdawala, Advocate Supreme Court for Respondents (in C.As. Nos. 656-657 of 2011).

2020 S C M R 1154

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Qazi Muhammad Amin Ahmed, J

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice Division, Islamabad---Petitioner

Versus

MAMOON AHMED MALIK---Respondent

C.P. No. 4683 of 2018, decided on 11th May, 2020.

(Against the judgment dated 22.10.2018, passed by the Federal Service Tribunal, Islamabad in Appeal No. 64(R)CS/2017)

(a) Revised Leave Rules, 1980---

----R. 9(3)---Absence from duty---Termination from service with absence treated as Extraordinary leave without pay---Plea that once the absence period had been treated as an Extraordinary leave (EOL), no further punishment could have been imposed upon the respondent---Held, that such plea was not tenable in view of two judgments of the Supreme Court, passed in the cases of NAB through its Chairman v. Muhammad Shafique (2020 SCMR 425) and Kafyat Ullah Khan v. Inspector-General of Police, Islamabad and another (Civil Appeal No.1661/2019)---Petition for leave to appeal was converted into appeal and allowed and termination order of respondent's service was restored.

National Accountability Bureau through its Chairman v. Muhammad Shafique 2020 SCMR 425 and Kafyat Ullah Khan v. Inspector General of Police, Islamabad and another Civil Appeal No.1661 of 2019 ref.

(b) Civil service---

----Regular enquiry---Scope---No disputed facts---Regular enquiry was only held when there were disputed facts---In the present case the fact that the respondent remained absent from duty from 5.9.2011 to 2.4.2012, was not disputed rather an admitted fact; it was also admitted fact that the respondent was a probationer---Since there was no dispute about the fact of respondent remaining absent from duty, no question arose for holding of a regular enquiry---Petition for leave to appeal was converted into appeal and allowed and termination order of respondent's service was restored.

Sajid Ilyas Bhatti, Additional Attorney General and Arshad Ali Siddiqui, S.O. Ministry of Law for Petitioner.

Ms. Shireen Imran, Advocate Supreme Court for Respondent.

2020 S C M R 1157

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Yahya Afridi, JJ

COLLECTOR OF CUSTOM FBR and another---Appellants

Versus

Messrs FITTER PAKISTAN (PVT.) LTD.---Respondent

Civil Appeals Nos. 1077 and 1078 of 2011, decided on 25th February, 2020.

(On appeal against the judgments dated 21.09.2010 and 26.7.2010 passed by the High Court of Sindh, Karachi in C.P. No. D-1547 of 2009 and D-252 of 2009)

Interpretation of statutes---

----Taxing statute---Provision providing for exemption from taxation---Scope---Assessee/taxpayer must bring his case within the terms of the exemption, which were to be read strictly because the exemption operated as an exception from the general rule regarding the burden of taxes--- Exemptions were an exception to the general liability imposed by a tax, therefore when an exempting provision was susceptible to two interpretations, the one going against the tax payer was preferred.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and Messrs Bisvil Spinners Ltd. v. Superintendent, Central Excise and Land Customs Circle Sheikhupura and others PLD 1988 SC 370 ref.

Raja Muhammad Iqbal, Advocate Supreme Court for Appellants (in both cases).

Qadir Hussain Sayed, Senior Advocate Supreme Court for Respondent No. 1 (in both cases).

Ex parte for Respondent No. 2.

2020 S C M R 1160

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

SAIMA ASHIQ JAVED---Petitioner

Versus

STATE through Attorney General of Pakistan, Lahore and another---Respondents

Criminal Petition No. 1145-L of 2019, decided on 2nd June, 2020.

(Against the order dated 11.9.2019 passed by the Lahore High Court Lahore in Criminal Misc. No. 49695 of 2019)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Anticipatory bail, refusal of---Financial scam---Female employee of Provincial Accountant General Office using her bank account to facilitate co-accused persons in misappropriating public money---Evidence against the female-accused comprised of documented transactions involving Bank accounts including one operated by her---Contentions and denials raised by the accused could best be attended by the Trial Court---Counsel for accused was unable to point out any mala fide lurking behind her intended arrest---Law did not confer immunity on the accused on account of her gender and as such she was required to make out a case for judicial protection---Petition for leave to appeal was dismissed, and anticipatory bail was refused.

Zafar Mehmood Chaudhry, Advocate Supreme Court for Petitioner along with Saima Ashiq Javed (Petitioner).

Khurram Saeed, Additional Attorney General for Pakistan for the State.

Nemo for Respondent No. 2.

2020 S C M R 1177

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Sayyed Mazahar Ali Akbar Naqvi, JJ

TARIQ SAEED---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 860 of 2019 and C.M.A. No. 1760 of 2019, decided on 12th June, 2020.

(Against the judgment of the Lahore High Court, Lahore dated 13.06.2019 passed in Criminal Appeal No. 111841 of 2017)

National Accountability Ordinance (XVIII of 1999)---

----S. 10---Public servant (XEN) involved in corruption and corrupt practices---Reappraisal of evidence---Sentence, reduction in---Advanced age---Deteriorating health---Trial Court sentenced the accused under S. 10 of National Accountability Ordinance, 1999 for imprisonment of seven years and further awarded a fine of Rs.1,63,00,000---Farm house belonging to the accused was also ordered to be confiscated in favour of the State---High Court dismissed appeal filed by the accused and maintained the judgment of the Trial Court in toto---Held, that record reflected that there was no doubt about the involvement of accused in corruption and corrupt practices---Record further reflected that the accused had in the past entered into a plea-bargain in respect of another reference filed by the National Accountability Bureau (NAB), whereas two more references were pending against him, which reflected the antecedents of the accused qua his involvement---However, the accused was an old man with poor health condition, and he had already undergone substantial part of the sentence recorded by both the courts below---To meet the ends of justice the Supreme Court reduced the sentence already inflicted upon the accused from seven years to five years while maintaining the fine of Rs.1,63,00,000 and confiscation of his farm-house in favour of the State--- Petition for leave to appeal was converted into appeal and partly allowed with the observations that very genesis of white-collar crime had engulfed the educated-cum-privileged class while encroaching its contours into the society which had almost become epidemic leaving repercussions individually as well as collectively, and that such crimes were detrimental to the very fabric of the society.

Muhammad Ashraf alias Chaudhry v. The State 1994 SCMR 667 ref.

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

Haider Ali, Additional Prosecutor General for NAB.

2020 S C M R 1182

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

YASEEN---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 28 of 2018, decided on 12th March, 2018.

(Against the judgment of the Peshawar High Court, Peshawar dated 20.11.2017 passed in Crl. M/Bail No. 2375/P of 2017)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 353, 148, 149 & 216---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Firing upon police and army personnel---Bail, refusal of---Accused was apprehended from the spot and a pistol was recovered from his possession---Report of Forensic Science Laboratory (FSL) qua the weapon allegedly recovered from possession of accused and the empties recovered from the spot was in the positive---Offence alleged against the accused fell within the prohibitory clause of S. 497, Cr.P.C.---Accused was not entitled to concession of bail---Petition for leave to appeal was dismissed and leave was refused.

Iltaf Samad, Advocate Supreme Court for Petitioner.

Zahid Yousaf Qureshi, Additional AG Khyber Pakhtunkhwa and Fazal Akbar, SI for the State.

2020 S C M R 1183

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD HAYAT---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 464 of 2020, decided on 5th June, 2020.

(Against impugned judgment dated 23.4.2020 passed by Peshawar High Court, Peshawar in Cr. M. (B.A.) No. 843-P of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 392---Robbery---Bail, refusal of---Alleged discrepancy in the actual number of assailants, and flaws attributed to the test identification parade were issues that could not be settled within the restricted scope of tentative assessment of the material collected by the investigating agency---Said issues essentially were to be determined by the Trial Court, on the strength of evidence, yet to be recorded---In the absence of any apparent malice (for false implication of accused), identification of the accused by the witnesses, recovery of the looted articles on the disclosure of accused, and the manner in which the inmates of the house, including children and women were tied at an odd hour of night during the robbery, request of bail by the accused could not be allowed---Petition for leave to appeal was dismissed and bail was refused to the accused.

Mazullah Barkandi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Ms. Ayesha Tasneem, Advocate Supreme Court along with Raza Raban, SI, Peshawar for the State.

Hasnain Ali, Advocate Supreme Court for the Complainant.

2020 S C M R 1185

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

RAZA and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 1124-L and 1120-L of 2015, decided on 25th June, 2020.

(Against the judgment of the Lahore High Court, Lahore dated 14.09.2015 passed in Murder Reference No. 276/2011 and Criminal Appeal No. 996/2011)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Qanun-e-Shahadat (10 of 1984), Art. 27---Qatl-i-amd---Reappraisal of evidence---Sentence, reduction in---Instigation by accused---Single fire shot---First plea that accused took after his arrest and commencement of investigation was that deceased had made an attempt to commit rape with sister of accused; that when mother of accused went to reprimand the deceased, he started abusing his mother and also grappled with her; that resultantly the accused flared up and under the heat of passion made a single fire shot on the deceased---Such stance taken by the accused remained consistent throughout during the course of investigation as well as the trial---During investigation, the first plea raised by the accused was found correct by the Investigating Officer---Such first plea of accused was admissible in evidence under Art. 27 of the Qanun-e-Shahadat, 1984---Record clearly spelt out that occurrence had taken place due to the act of the deceased, which enraged the mental faculty of the accused and under the impulses of the same the present occurrence had taken place---Benefit of the same was available to the accused, for which many circumstances were not required rather a glimpse of the same was always deemed sufficient---Sentence inflicted upon the accused by Courts below under S. 302(b), P.P.C. was not made out, therefore, the Supreme Court converted the sentence from imprisonment for life under S. 302(b), P.P.C. to imprisonment for 10 years under S. 302(c), P.P.C.---Petition for leave to appeal was converted into appeal and partially allowed.

Ch. Walayat Ali, Advocate Supreme Court for Petitioner (in Criminal Petition No. 1124-L of 2015).

Nemo for Petitioner (in Criminal Petition No. 1120-L of 2015).

Jaffar, Additional Prosecutor General for the State.

2020 S C M R 1189

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab, Ijaz ul Ahsan, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

SUO MOTU ACTION REGARDING COMBATING THE PANDEMIC OF CORONA VIRUS (COVID -19): In the matter of

Suo Motu Case No. 1 of 2020, decided on 25th June, 2020.

(a) Constitution of Pakistan---

----Art. 184(3)---Suo motu case regarding combating the pandemic of Corona virus (COVID-19)---National Disaster Management Authority (NDMA)---Import of machinery undertaken by a company for manufacture of N-95 masks in Pakistan---Said company appeared to have been favoured by NDMA for import of machinery for making of N95 masks and then supplying the same to the NDMA---If NDMA was the purchaser of N-95 masks produced by the company in question then NDMA could not have been the facilitator of said company for the import of machinery---Documents on record indicated that NDMA itself chartered an aircraft for airlifting the machinery---Flight clearance was sought from a foreign (Chinese) Government through the Pakistan Embassy---No document was filed by NDMA to establish whether the facilitation provided to the company was also made available to other business entities in Pakistan by publication in newspapers, etc.---Supreme Court directed that the NDMA was to provide details of purchases of N-95 masks from the company or any third party and money paid to the company or its agents; that documents relating to payment of dues and taxes by the company may also be filed; that NDMA should also explain why the company was given special favour by it for import of the machinery, and that the source from which the money was paid for the purchase of machinery should also be disclosed---Case was adjourned.

(b) Civil Aviation Rules, 1994---

----Rr. 36 & 37---Constitution of Pakistan, Art. 184(3)---Suo motu case---Pilots with fake licences and/or educational degrees---Statement made by Minister of Aviation on the floor of the Parliament that some pilots flying planes in Pakistan had fake flying licences---Aircraft including commercial aircraft that were allowed to be flown by pilots who had fake degrees and licences posed serious danger to life and safety of citizens---Issuing of pilot licences was the function of the Civil Aviation Authority (CAA)---Supreme Court issued directions to the CAA and CEOs of Pakistan International Airlines (PIA) and two other private airlines on the issue of fake licences and/or educational degrees of pilots and adjourned the case.

Supreme Court issued the following directions on the issue of pilots with fake licences and/or educational degrees:

(i) The Director General, Civil Aviation Authority (CAA) shall appear before the Supreme Court on the next date of hearing and explain why the CAA had not traced fake pilot licenses and taken appropriate action in accordance with law. It shall also be explained how and why pilots with fake educational degrees and/or licences were being allowed to be employed by the airlines in Pakistan and operate passenger aircraft putting lives at risk, which was a serious offence under the law;

(ii) A comprehensive report shall be filed by the Director General, CAA within two weeks giving details of the total number of licenses issued, the total number of pilots in employment of Pakistan International Airlines (PIA), the verification of their degrees and licenses, and how many pilots with fake degrees and/or licenses had been found, and what action had been taken against them;

(iii) The CEOs of PIA and two other private airlines shall also appear in Court on the next date of hearing with a report regarding the present status of verification of pilots' educational degrees and licenses from the CAA. They should give a list of pilots employed by them accompanied by copies of their educational testimonials and licenses.

(c) Constitution of Pakistan---

----Art. 184(3)--- Suo motu case---Provincial budget for the year 2020-2021 announced by the Provincial (Sindh) Government---No allocation of funds for development schemes in the Province generally and for the city of Karachi particularly, instead an allocation of about Rs.4 billion made for purchase of luxury vehicles for the use of employees of the Sindh Government---Sindh Government already possessed large number of vehicles for its employees and vehicles were also available from various projects funded by foreign agencies---When the Sindh Government was itself stating that it had no funds for payment of salaries to many sanitary staff workers; when the City Government of the Provincial capital claimed it had no funds to clean the drains of the city; when there was no supply of water to many homes in the Province, and even electricity was in short supply necessitating long periods of load shedding, then it was not understandable how and under what provision of law the Provincial (Sindh) Government had allocated in the budget Rs. 4 billion for purchase of luxury vehicles---In such circumstances, prima facie, the allocation of funds of about Rs.4 billion for importing of luxury vehicles was not justifiable looking at the ground realities prevailing in the Province---Province of Sindh needed to allocate funds in education, health, water-supply, infrastructure developments and safety of people---Till the next date of hearing the Supreme Court restrained the Provincial Government of Sindh from incurring from the budget 2020-2021, expenses for the procurement of vehicles through import or local procurement---Case was adjourned.

(d) Constitution of Pakistan---

----Art. 184(3)---Suo motu case regarding combating the pandemic of Corona virus (COVID-19)---Hoarding of anti-virus chemicals, life saving drugs and equipment used to detect, monitor and treat patients affected by Coronavirus---Basic instruments such as oximeters had disappeared from the market and were being sold at exorbitant prices---Likewise oxygen cylinders which were necessary to save lives had disappeared from the market and were being hoarded and sold at excessive prices---Effective steps had not been taken to remedy such illegal and unethical practices either at the Federal or the Provincial level---Supreme Court issued necessary directions to the relevant regulatory authorities, enforcement agencies and respective health ministries of the Federal as well as Provincial Governments and adjourned the case.

To curb the illegal practice of hoarding of life saving drugs and equipment used to detect, monitor and treat patients affected by Coronavirus, the Supreme Court issued the following directions to the relevant regulatory authorities, enforcement agencies and respective health ministries of the Federal as well as Provincial Governments:

(i) Strict action in accordance with law be taken against hoarders of anti-virus chemicals, life saving drugs, oxygen cylinders and equipment used to detect, monitor and treat patients affected by Coronavirus (COVID-19);

(ii) Ensure availability of all requisite equipment used for detection, monitoring and treatment of the disease at reasonable prices;

(iii) Ensure adequate and sufficient supply and availability of drugs, oxygen and equipment used in treatment of the disease at reasonable prices; and

(iv) The Drug Regulatory Authority of Pakistan (DRAP) shall fast track registration of drugs which had already been registered in USA and Europe and were used for treatment of Coronavirus (COVID-19). Drug Regulatory Authority shall facilitate import of such drugs if not manufactured locally and also facilitate local production under license on fast track basis.

(v) A comprehensive report in such regard shall be filed by DRAP as well as the Federal and Provincial Governments, Islamabad Capital Territory (ICT) and Government of Gilgit-Baltistan before the next date of hearing. [p. 1198] G & H

Khalid Javed Khan, Attorney General for Pakistan, Sohail Mehmood, DAG, Farrukh Shahzad, Assistant AGP, Adrees Mehsood, Member, NDMA, Dr. Atta-ur-Rehman, Additional Secretary, Ministry of NHSR&C and Dr. Falak Naz, D.G., Plant Protection for the Federation.

Niaz Ullah Khan Niazi, Advocate General, Islamabad, Hamza Shafqat, DC ICT, Waseem Ahmed, Addl. Dy. Commissioner and Amer Naveed, Asst. Dir (Lit) for ICT.

Shan Gul, Acting Advocate General, Barrister Hassan Khalid Ranjha, AAG, Ahmed Javed Qazi, Secretary LG, Muhammad Usman, Secretary, Primary and Secondary Health Department, Wasif Khurshid, Secretary Agriculture, M. Nabeel Ahmed Awan, Secretary, Specialized Health Care and Medical Education Raja Khurram Shahzad Umar, D.G., PDMA (all via video link from Lahore Branch) and Ch. Faisal Fareed, Addl. A.G. Punjab for Government of Punjab.

Salman Talibudin, Advocate General, M. Usman Chachar, Addl. Chief Secretary Home, Kazim Hussain Jatoi, Secretary Health, Qazi Shahid Pervaiz, Sr. M.B.R., Iftikhar Shalwani, Commissioner Karachi, Dr. Saeed Ahmed Qureshi, Focal Person to Chief Secretary Sindh, Mazhar Hussain Alvi, AIGP (L), Mushtaq Ahmad, AIGP (L-1), Amanullah Zardari, Focal Person and Syed Muhammad Shayyan Shah, Deputy Director, PDMA (all via video link from Karachi Branch) for Government of Sindh.

Shumail Butt, Advocate General, Syed Imtaiz Ali Shah, Secretary Health, Kamran Khan, Secretary Labour, M. Idrees Khan, Secretary Zakat, Motasim Billah Shah, Special Secy. (Local Govt.), M. Israr, Secy. Agriculture, Adil Iqbal, Special Secretary Health, Mubbashir Raza, D.S., Ushr and Zakat, Naveed Khan, Director Plants, Syed Wilayat Shah, Dir. Operations (all via video link from Peshawar Branch) and Atif Ali Khan, Addl. A.G. for Government of Khyber Pakhtunkhwa.

Arbab Muhammad Tahir, Advocate General (via video link from Quetta Branch) and Ayaz Khan Swati, Addl. A.G. for Government of Balochistan.

Nemo for Government of Gilgit-Baltistan.

Syed Iqbal Hashmi, Advocate Supreme Court for PMA.

Syed Mansoor Hussain Gardezi, Deputy Legal Advisor for Pakistan Bait-ul-Mal.

Farhat Nawaz Lodhi, Advocate Supreme Court Voluntarily Appeared.

Samuel Payara, Chairman, Implementation of Minority Rights Forum (via video link from Lahore Branch) (in C.M.A. No.3099/2020)

2020 S C M R 1198

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

GHULAM ABBAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 445 of 2020, decided on 4th June, 2020.

(Against the order dated 4.3.2020 passed by the Peshawar High Court D.I. Khan Bench in Cr. Misc. B.A. No. 61-D of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Bail, refusal of---Advanced age of accused with allegedly frail health, albeit with no specific disorder could not extenuate his abscondance for almost 16 years having regard to the fatal role assigned to him---Statements of the witnesses including an injured witness were supported by medical evidence---In view of such circumstances aggravated by lengthy absence of accused from the law constituted "reasonable grounds" within the contemplation of S. 497, Cr.P.C. to refuse discretionary relief of bail to the accused---Furthermore acquittal of co-accused, initially arrayed as unknown, was rightly not treated as a valid ground by the Trial Court and High Court to grant bail to accused---Petition for leave to appeal was dismissed and accused was refused bail.

Saleemullah Ranazai, Advocate Supreme Court for Petitioner.

Ms. Aysha Tasneem, Advocate Supreme Court for the State.

2020 S C M R 1200

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD SULTAN---Petitioner

Versus

MUHAMMAD RAZA and others---Respondents

Criminal Petition No. 163 of 2020, decided on 12th June, 2020.

(Against the order of the Lahore High Court, Lahore dated 28.01.2020 passed in Criminal Misc. No. 49574-TA of 2019)

Criminal Procedure Code (V of 1898)---

----Ss. 177, 179 & 526---Penal Code (XLV of 1860), Ss. 302, 364, 109 & 149---Police Order (C.E. Order No.22 of 2002) Art. 156---Extra-judicial killing by police officials---Place of trial---Accused triable in district where "consequences ensued"---Scope---On an application filed by the accused-respondents (police officials) the High Court transferred the trial of the complaint from the court of Additional Sessions Judge, at city "T" and entrusted it to Additional Sessions Judge at city "L"---Legality---Death of son of the complainant was reported within the local limits of a police station situated in city "L", and in such regard, an FIR was also registered with said police station---Post-mortem examination of deceased was conducted in "L" and in this connection, all the witnesses were also residents of "L"---As per version of the prosecution, it was mentioned in the "complaint" that the sons of the complainant were allegedly abducted from two distinct places on two different occasions respectively, however, they were kept in illegal confinement in a police station situated in "L"---All said facts were fully covered by the second part of S. 179, Cr.P.C. coming within the ambit of "ensued consequences"---Impugned order of High Court was passed squarely within the spirit of law, therefore, the transfer of trial of "complaint" and entrusting the same to the court of Additional Sessions Judge in city "L" was well within the parameter of the law---Petition for leave to appeal was dismissed.

Chaudhary Abdul Khalid Thind, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for the State.

2020 S C M R 1205

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

NOOR BAKHSH---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 527 of 2020, decided on 1st July, 2020.

(Against the order dated 28.4.2020 passed by the High Court of Balochistan, Quetta in Crl. B. A.T. No. 40 of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 316---Qatl shibh-i-amd---Bail, refusal of---Accused fired at the deceased on his spinal cord resulting in an injury---Said fire shot injury resulted in death of deceased, albeit after a lapse of almost six years---Accused stayed away from law for a period exceeding half a decade---Being a fugitive from law, that too for a pretty long period of time, accused had disentitled himself from the concessions, ordinarily extended by discretion to an offender---While it was for the Trial Court to determine the cause of death and consequences thereof, the case initially set up in the crime report, supported by the statements of the witnesses and medical evidence constituted 'reasonable grounds' within the contemplation of S. 497, Cr.P.C.---Petition for leave to appeal was dismissed and accused was denied bail.

Liaquat Ali Khan Tareen, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Syed Baqar Shah, Advocate Supreme Court for the State.

2020 S C M R 1206

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD SHABBIR and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 66-L of 2020 in Criminal Petition No. 1189-L of 2014, decided on 23rd June, 2020.

(Against the judgment of the Lahore High Court, Lahore dated 23.10.2014 passed in Capital Sentence Reference No. 34-T of 2007 and Criminal Appeal No. 534 of 2007)

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

----Ss. 302(b), 324, 148, 149, 337-A(i), 337-A(ii), 337-F(i), 337-F(iii) & 337-F(vi)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, shajjah-ikhafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah-mutalahimah, ghayr-jaifah-munaqqillah, acts of terrorism---Reappraisal of evidence---During the occurrence three persons were done to death in a brutal manner and one person was seriously injured---As per post mortem reports, the first deceased received 28 injuries, the second as many as 34 injuries and the third deceased received 12 injures on different parts of their bodies---Injured witness also received as many as nineteen injures on different parts of his body---Occurrence had taken place in broad daylight and the presence of an eye-witness and injured witness at the scene of occurrence was quite natural and beyond any doubt---Statements of said prosecution witnesses were consistent, confidence inspiring and in consonance with the probability and circumstances of the case and were worthy of credence---Injured witness received firearms injures in the occurrence while sitting in a jeep and saw the occurrence, hence, his presence at the relevant time could not be considered as unnatural and improbable and he had no enmity or malice against the accused persons and his testimony was duly supported by medical evidence having been found confidence inspiring, truthful and unimpeachable---Report of Forensic Science Agency showed that all empties except some were fired from the weapons recovered from the accused persons---Convictions and sentences recorded by the High Court were maintained---Appeal was dismissed.

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

----S. 302(b)---Qatl-i-amd---Discrepancies in statements of prosecution witnesses---Effect---Where such discrepancies shattered the prosecution story on salient features then there was substance to intervene on the subject (of conviction) otherwise it had no impact on the veracity of the prosecution story.

Muhammad Iqbal v. The State PLD 2001 SC 222 ref.

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

----S. 302(b)--- Qatl-i-amd--- Sentence, reduction in--- Mitigating factors---Revenge killing---Murders committed out of revenge depended human physiology---Human, being a creature of his environment was governed by the background of the society from where he hailed---Although such aspect did not cover the doctrine of provocation still the area from where a person belonged and other antecedent of such person were relevant factor while taking into account whether revenge killing could be regarded as a mitigating circumstance---Question of sentence in each criminal case definitely had direct nexus with the particular circumstances of the said case.

Ajun Shah v. The State PLD 1967 SC 185 ref.

Sher Afghan Asdi, Advocate Supreme Court for Appellants.

Imdad Hussain Hamdani Syed, Advocate Supreme Court for the Complainant.

M. Amjad Rafiq, Additional PG for the State.

2020 S C M R 1214

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

KAMRAN ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 500 of 2020, decided on 6th July, 2020.

(Against order dated 15.4.202 passed by the Peshawar High Court, Bannu Bench in Crl. Misc. B.A. No. 142-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Bail, grant of---Further inquiry---Accused and co-accused were implicated for the murder of deceased through supplementary statement of complainant, wherein it was stated that the motive for the murder was a monetary dispute between the parties---Co-accused pursuant to a disclosure, led to the recovery of a .30 caliber pistol, a weapon that did not forensically tally with the casings secured during spot inspection---Semi burnt cell phone handsets used by the deceased, concealed underneath the soil, were recovered at instance of the accused--- Complainant's strong belief about culpability of accused notwithstanding, evidentiary value of various pieces of evidence collected by prosecution had to survive judicial scrutiny to cross the barriers of rules of evidence; and such exercise had admittedly not yet commence (during trial)---Prosecution for the time being was not possessed with any digital proof to establish nexus between the deceased and the recovered handsets---Call Detail Record (C.D.R.) purportedly suggestive of conversation between the deceased and the accused shortly before his death, did not contain any contents/details thereof---Case of accused squarely fell within the remit of S. 497(2), Cr.P.C.---Petition for leave to appeal was converted into an appeal and allowed and accused was released on bail.

Talat Mahmood Zaidi, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Petitioner.

Anis M. Shahzad, Advocate Supreme Court with Umar Nawaz, ASI for the State.

Dil M. Khan Alizai, Advocate Supreme Court for the Complainant.

2020 S C M R 1216

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

REGARDING COLOSSAL LOSSES INCURRED BY PAKISTAN RAILWAYS: In the matter of

Human Rights Case No. 13316-P of 2018, decided on 9th July, 2020.

Constitution of Pakistan---

----Art. 184(3)---Human Rights case---Losses incurred by Pakistan Railways---Frequent accidents involving Railways---Observations recorded by the Supreme Court regarding the dismal state of affairs of the operation, infrastructure and safety measures adopted by Pakistan Railways.

Overall Railways in Pakistan was not being operated in the way it should be operated; more so, in accordance with the Rules and Manuals of Railways, on account of which accidents were taking place frequently, in which precious lives were being lost and great damage to the Railways was caused. There seemed to be nothing in sight by which the operation of the Railways could be improved, as not only was the infrastructure of the Railways altogether bad and non-workable but also its employees were apparently not fit to operate the Railways. There needed to be serious thinking on the part of the Government regarding the operation of the Pakistan Railways and overhauling the Secretariat from top to bottom to ensure that the Railways operated safely. Supreme Court observed that the Court expected that such measures would be taken by the Government immediately to ensure that the Railways did not play with the lives of the people and its properties were not lost. Supreme Court directed that a report, in such regard, may be made available to the Court by the Government through the Planning Commission within one month. Case was adjourned.

Ch. Aamir Rehman, Additional Attorney General for Federation of Pakistan.

Habib-ur-Rehman Gillani, Secretary, Dost Muhammad Leghari, CEO/SR/GM, M. Liaqat Memon, Member Finance, Farrukh Tamur, Secy., Railway Board, M. Saleem Khan, Joint Director, Mazhar Ali Shah, D.G. (Planning), Zubair Shafi Ghori, AGM-I, Shoaib Adil, DS, Multan, Nisar Ahmed, AGM-I, Suffain Dogar, CPO/HQ, Sajjad Butt, ASC/D.G. (Legal), Syed Rifaqat Ali Shah, Advocate-on-Record, Khurram Shahzad, Legal Advisor and Imran Hayat, Dy. Legal Advisor for Ministry of Railways.

Syed Waqar-ul-Hassan, Additional Secretary, Zohair Fazil, Chief (Transport and Communication) for Ministry of Planning, Development and Special Initiatives.

Moeed Ali, D.G. (RA) and Kashif Farooq Ch., A.O. for Auditor General of Pakistan.

Muhammad Qasim Mirjat, Advocate Supreme Court/Advocate-on-Record for Government of Sindh.

2020 S C M R 1218

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

Mirza AAMER HASSAN---Appellant

Versus

COMMISSIONER OF INCOME TAX and others---Respondents

Civil Appeal No. 158-L of 2011, decided on 30th June, 2020.

(On appeal from the judgment of Federal Service Tribunal, Lahore dated 27.05.2020, passed in Appeal No. 668(L)C.S/2001)

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 3(1)(e)(iii)---Fundamental Rules, R. 29---Major penalty of reduction/reversion to the lowest of the time-scale---Whether such penalty could be imposed without any specified time---Held, that major penalty of reduction/reversion to the lowest of the time-scale had to be time bound---Once the time was served the officer under penalty could revert to his original position or status in service.

Section 3(1)(e)(iii) of the Removal from Service (Special Powers) Ordinance, 2000 ('the Ordinance') did not specify any time as to how long the reduction to the lowest post or time scale or lower stage in time scale was to last. However Rule 29 of the Fundamental Rules clearly provided that any such major penalty had to be time-bound. Consistent practice of the Supreme Court over the years was to specify the time in such like penalties by placing reliance on Fundamental Rule 29.

Muhammad Sadiq v. Superintendent of Police and others 2008 SCMR 1296; Member (A.C.E. and S.T.) Federal Board of Revenue, Islamabad and others v. Muhammad Ashraf and 3 others 2008 SCMR 1165; Secretary Kashmir Affairs and Northern Areas Division, Islamabad v. Saeed Akhtar and another PLD 2008 SC 392; Government of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Umer Morio 2005 SCMR 436 and Tanvir Ahmed v. Chief Secretary, Government of Punjab, Lahore 2004 SCMR 647 ref.

Major penalty of reduction to a lower post or pay scale or to a lower stage in a pay scale was not akin to the board game of Snakes and Ladders, relegating a civil servant to a lower position and making him rise up again. It was not the scheme of the penalty under the Ordinance that the officer after such reduction was to a start all over again in the new position and rise up the ranks as if to re-live his service life again. This was not the purpose or the object of the major penalty. Such like penalties, by nature were time-bound, they were to punish an officer for the lapse committed and once the time was served, the officer under penalty could revert to his original position or status in service and stood restituted. A major penalty of reduction to lower position without specifying time not only defeated the object of the penalty but was also disproportionate with the lapse committed by the officer.

Sabir Iqbal v. Cantonment Board, Peshawar through Executive Officer and others PLD 2019 SC 189; Secretary to Government of the Punjab Food Department, Lahore and another v. Javed Iqbal and others 2016 SCMR 1120 and Muhammad Ali S. Bukhari v. Federation of Pakistan through Establishment Secretary, Islamabad and 2 others 2008 SCMR 214 ref.

Mian Muhammad Javaid, Advocate Supreme Court for Appellant.

Ibrar Ahmad, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Respondents.

2020 S C M R 1222

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

MATTI ULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 18 of 2019, decided on 1st July, 2020.

(Against the impugned judgment dated 11.12.2018 passed by the Peshawar High Court, Peshawar in Crl. Appeal No. 687-P of 2018)

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

----S. 9(c)---Possession of 7200 grams of cannabis---Reappraisal of evidence---Prosecution case was primarily structured upon the statements of official of the Anti-Narcotic Force, who had statedly acted on a tip off to confront the accused at the designated point; they subdued the accused with the contraband and a motorbike, both secured vide inventory of even date---Cache of narcotics weighing 7200 grams could not be viewed as an insignificant quantity---During the cross-examination of the witnesses no flaw or discrepancy was pointed out in their narratives either on salient features of the case or matters collateral therewith; they were in a unison that inspired confidence and, thus, absence of support from the public did not diminish value of their testimony---Story of substitution of accused and making him a scapegoat was unlikely, as the accused was a member of the Frontier Constabulary and there appeared no earthly reason for the officials to hound the accused with no axe to grind in a crowded metropolis with a cache substantial enough in volume as well as cost---Conviction and sentence of accused under S. 9(c) of the Control of Narcotic Substances Act, 1997 were maintained---Petition for leave to appeal was dismissed.

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

----S. 9---Possession of narcotic---Lack of public witnesses---Testimony of police officials/Anti-Narcotics Force officials---Admissibility---Reluctance by the public to stand in aid of law was symptomatic of abysmal civic apathy which could not be allowed to be used as an escape route from justice--- Being functionaries of the State, officials of Anti-Narcotics Force were second to none in status; their official acts and declarations were statutorily presumed as intra vires unless proved contrarily---In the absence of any flaw or discrepancy in their depositions, their testimony could not be conditioned by additional riders.

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

----R. 6---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of cannabis--- Reappraisal of evidence--- Report of Government Analyst---Protocols/procedure---Scope---In the present case the Forensic report sufficiently detailed tests applied for determination of narcotic character of the contraband, carried out on the samples transmitted from safe custody and as such was not violative of 'protocol' directed by the Control of Narcotic Substances (Government Analysts) Rules, 2001---Conviction and sentence of accused under S. 9(c) of the Control of Narcotic Substances Act, 1997 were maintained---Petition for leave to appeal was dismissed.

Malik Nasrum Minallah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Shah Faisal for the State.

2020 S C M R 1225

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

ALI AKBAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 443-L of 2020, decided on 24th June, 2020.

(Against the order of the Lahore High Court, Lahore dated 24.02.2020 passed in Criminal Misc. No. 72942-B of 2019)

Per Manzoor Ahmad Malik, J; Syed Mansoor Ali Shah, J agreeing; Sayyed Mazahar Ali Akbar Naqvi, J dissenting.

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

----S. 497(1), proviso 3--- Penal Code (XLV of 1860), Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, acts of terrorism---Bail, grant of---Statutory ground of delay in the conclusion of trial---[Per Manzoor Ahmad Malik, J (Majority view): Charge against accused was framed after more than two years of him being taken into custody---Report submitted by Trial Court showed that accused was not solely responsible for delay in the conclusion of trial, as such delay was also caused by the complainant and his private witnesses---Presently more than four years had passed since the arrest of the accused---Prosecution under instructions from the police admitted that there was no record of previous convictions of the accused---Single injury on the person of deceased was attributed to the accused, therefore, he could not be considered as a hardened, desperate or dangerous criminal---Accused had made out a case for his release on bail on the statutory ground of delay in the conclusion of trial---[Per Sayyed Mazahar Ali Akbar Naqvi, J dissenting (Minority view): Present occurrence took place in the backdrop of rivalry between two groups of criminal gangs---Gruesome act of double murder was committed by the accused and co-accused with nefarious designs to create a concocted counter-version against an earlier incident with ulterior motives---During the course of investigation the recovery of a rifle was effected from the accused which also matched with the empties collected from the place of occurrence---Investigation concluded and found the active participation of the accused in the double murder with a specific role of causing firearm injury to one of deceased on temporal region---After the accused was taken into custody, the co-accused persons did not appear before Trial Court on different dates one after the other, making it practically impossible for the Trial Court to frame charge against them---Nevertheless once charge was framed, the accused party continued playing the same tactics as co-accused persons absented themselves one by one on numerous dates of hearing---Accused with a criminal mindset deliberately adopted such tricks in order to delay the Court proceedings with an intent to exhaust the other party and to further avail the benefit of proviso 3 to S. 497(1), Cr.P.C.---Non-appearance of complainant and prosecution witnesses before the Trial Court could not be treated as intentional; rather they were forced to avoid appearance, because they apprehended serious threats to their lives---Complainant had already made several attempts to seek police protection but all efforts proved futile---Lawlessness of the rival groups could be gauged from the fact that 364 empties of sophisticated weapons were recovered from the spot---Furthermore material available on the record connected the accused as the main perpetrator of the gruesome act of double murder, which brought him in the category of a hardened, desperate and dangerous criminal as stipulated under proviso 4 of S. 497(1), Cr.P.C.---In such circumstances accused was not entitled to be enlarged on bail on statutory ground of delay in the conclusion of trial provided under proviso 3 of S. 497, Cr.P.C.]---Petition for leave to appeal was converted into appeal and allowed and accused was released on bail.

Moundar and others v. The State" PLD 1990 SC 934 ref.

Per Sayyed Mazahar Ali Akbar Naqvi, J

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

----S. 497(1), provisos 3 & 4---Bail, grant of---Statutory ground of delay in the conclusion of trial---Proviso 4 to S. 497(1), Cr.P.C.---Scope and applicability.

Provisos 3 and 4 to section 497(1), Cr.P.C. were co-existent qua their application; hence, the imports of the same could not be constructed in isolation rather they had to be interpreted conjointly. [p. 1234] J

Proviso 4 of section 497(1), Cr.P.C. envisaged distinct legal requisites in relation to its applicability;

(i) That the provision of third proviso of subsection 497(1), Cr.P.C. shall not apply to previously convicted offender in an offence punishable with death or imprisonment for life;

(ii) Or to a person who in the opinion of the court was hardened, desperate or dangerous criminal or involved in terrorism.

Plain reading of first requisite depicted it to be mandatory in nature by virtue of its language which was otherwise clear, unambiguous and transparent in its application. It spoke about those weighed down with criminal background. In other words any criminal who was previously convicted was outrightly barred from the consideration to avail the benefit of proviso 3 of section 497(1), Cr.P.C. This condition was to apply stricto sensu in all fairness without compromising it in any manner; hence, all those who were stigmatized/tainted with criminal background were ousted from consideration. However, the second limb of proviso 4 of section 497(1), Cr.P.C. was discretionary in its applicability. The language itself was self-explanatory ensuing the intent of said provision. While introducing this limb of said provision the legislature had empowered the court to form an opinion qua the person involved in a criminal case if brought forth while taking into consideration the act, mode and manner of occurrence and other existing circumstances placed before the court without being prejudiced by any previous record. The Court while forming opinion about the criminal declaration had to satisfy all norms of legal aspects so that opinion made should not frustrate any ethics of decency and fairness to meet the ends of justice. The opinion of the court should meet all legal justiciable requirements demanded by the law in the interest of safe administration of criminal justice.

Javed Bashir, Advocate Supreme Court for Petitioner.

Respondents Nos. 2-3 in person.

M. Amjad Rafiq, Additional P.G. and Farooq, SI for the State.

2020 S C M R 1237

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD YASIN and another---Petitioners

Versus

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

Criminal Petitions Nos. 1292-L and 1196-L of 2015, decided on 14th July, 2020.

(Against the judgment dated 08.10.2015 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 2-J-ATA/2013, 2127/2010 with C.S.R. No. 51-T/2010)

Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, act of terrorism---Reappraisal of evidence---Autopsy of deceased, held as late as at 9:30 a.m. the following day of occurrence, despite arrival of the injured and the dead body during the preceding night at 10:20 p.m. was quite intriguing---Further it was mind boggling that examination of the injured in the hospital and recording of complaint at the spot were steps taking place at the same time i.e. 10:20 p.m.---Such coincidence when taken in the totality of circumstances admitted a possibility that crime report was not recorded at a point of time mentioned therein---Delayed autopsy in a tertiary hospital reinforced the said hypothesis that in retrospect cast its shadow on the ostensible promptitude behind the crime report---Argument that the foundation of the case was laid after deliberations and consultations could not be dismissed out of hand---Desertion of two prosecution witnesses, statedly won over by the accused, though reflected a possible societal phenomena, nonetheless, being the best witnesses in circumstances, their absence from the scene certainly called for extra caution---Witnesses unanimously blamed an acquitted co-accused to have targeted one of the deceased---Autopsy of said deceased clearly established the injury attributed to the said acquitted co-accused---Prosecution's failure qua said acquitted co-accused before the Trial Court as well as in the High Court entailed repercussions as the set of witnesses disbelieved qua said co-accused would essentially require independent corroboration vis-à-vis the accused---Witnesses disbelieved with regard to an identically placed co-accused could not join themselves to corroborate each other against the accused---Motive set up by the prosecution was non-specific and vague and there were no consequential recoveries from the accused and co-accused persons--- Acquittal of four other co-accused persons, who were assigned role of indiscriminate firing only, further dented the prosecution case---On the whole prosecution case was found fraught with doubts, thus, it would be unsafe to maintain the convictions of the accused---Petition for leave to appeal was converted into appeal and allowed and accused was acquitted of all charges against him.

Naveed Ahmed, Kh., Advocate Supreme Court for Petitioners (in Cr. P. 1292-L of 2015).

Khurram Khan, Additional Prosecutor-General Punjab for the State.

Ch. Ghulam Sarwar Nihung, Advocate Supreme Court for the Complainant (in Cr. P. 1196-L of 2015).

2020 S C M R 1241

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Amin-ud-Din Khan and Sayyed Mazahar Ali Akbar Naqvi, JJ

NAJEEB ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 590-L of 2020, decided on 7th July, 2020.

(Against the order dated 20.04.2020 passed by the Lahore High Court, Lahore in Criminal Misc. No. 11292-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 334, 34, 337-A(ii) & 337-F(v)---Attempt to commit qatl-i-amd, itlaf-i-udw, common intention, shajjah-i-mudihah, ghayr-jaifah-hashimah---Bail, grant of---Further inquiry---As per contents of the FIR, the accused made a fire with his pistol hitting on the right knee of the complainant---During two successive investigations, it was concluded by the police that though accused was present at the spot but he was empty handed and did not cause any injury to anybody---Nothing was recovered from the accused during the course of investigation and he was behind the bars for more than seven months---In such circumstances, case of accused called for further inquiry falling within the ambit of S. 497(2), Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed and accused was allowed bail.

Malik Matee Ullah, Advocate Supreme Court for Petitioner.

Jaffar, Additional P.G. Punjab along with Nawaz, S.I. for the State.

Aftab Hussain Bhatti, Advocate Supreme Court along with Respondent No. 2 (in person) for Respondent No. 2.

2020 S C M R 1243

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

AKHTAR ALI---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 445-L of 2020, decided on 15th July, 2020.

(Against the order dated 17.3.2020 passed by the Lahore High Court, Lahore in T.A. No. 161169 of 2020)

Criminal Procedure Code (V of 1898)---

----S. 526---Transfer of case from one court to another, application for---Scandalous and frivolous application containing accusations directed at judges---Remorse and regret shown by applicant---Cost imposed by High Court, reduction in---Before the Courts below, during proceedings for transfer of case, the petitioner had directed outrageous and scandalous accusations against the Judges and also targeted the members and office bearers of the local Bar---Petitioner while hurling accusations threw both caution as well as courtesy to the wind and the High Court was well within the bounds of law to saddle him with a substantial cost of Rs. 50,000---Petitioner, present before the Supreme Court, had expressed remorse and regret, throwing himself at the mercy of the Court; he pledged profound respect and courtesy that had to be given to a tribunal with an undertaking to be extremely careful in the future---Restraint was a better part of judicial calling, nonetheless, given the gravity of petitioner's reckless behaviour he could not be off completely---Supreme Court with a stern warning and while exercising restraint, reduced the cost imposed by the High Court from Rs. 50,000 to Rs.2000 as a symbolic reminder to the petitioner for his mischief---Petition for leave to appeal was dismissed and leave was refused.

Petitioner in person.

Khurram Khan, Additional Prosecutor General Punjab for the State.

Respondent No. 3 in person.

2020 S C M R 1245

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Amin-ud-Din Khan and Sayyed Mazahar Ali Akbar Naqvi, JJ

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE---Appellant

Versus

MUHAMMAD ALI SAQIB---Respondent

Civil Appeal No. 36-L of 2020, decided on 10th July, 2020.

(Appeal from the judgment dated 12.08.2014 passed by the Punjab Service Tribunal, Lahore in Appeal No. 3767 of 2010)

(a) Civil service---

----Reinstatement in service---No specific allegation proved through evidence---Orders of the competent authority as well as departmental appeal were on the basis that they agreed with the recommendation of the Inquiry Officer; they had not scrutinized the evidence available on the file themselves, but awarded major penalty of dismissal from service by relying upon the recommendation of the Inquiry Officer and ignored the fact that no specific allegation through evidence was proved against the respondent-civil servant---Prosecution was duty bound to prove the allegations for which the respondent was charge sheeted---Service Tribunal had rightly reinstated the respondent in service---Appeal was dismissed.

(b) Civil service---

----Dismissal from service---Inquiry proceedings---Order for dismissal from service could not be passed only on the ground that the respondent-civil servant had not joined the inquiry proceedings.

Rana Shamshad Khan, Additional A.G. Punjab and Dr. Khadim Hussain, DEO/D.I.R. for Appellant.

Malik Mateeullah, Advocate Supreme Court for Respondent.

2020 S C M R 1248

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

Mufti KAFAYAT ULLAH---Petitioner

Versus

The STATE and another---Respondents

Jail Petition No. 105 of 2020, decided on 4th June, 2020.

(Against judgment dated 17.03.2020 passed by the Islamabad High Court, Islamabad in Criminal Revision No. 20 of 2019)

Penal Code (XLV of 1860)---

----S. 324---Qanun-e-Shahadat (10 of 1984), Art. 40---Attempt to commit qatl-i-amd---Reappraisal of evidence---Complainant alleged that after hearing of a case in the district court, the accused and his co-accused brother confronted the complainant party in the parking lot and attempted two fire shots, but both of them luckily got stuck in the chamber of the weapon---Subsequently the accused was allegedly subdued and disarmed in the parking lot by a police officer---Such story of unusual failure of the assault rested upon word of mouth of complainant and witnesses with inherent missing links---Investigating Officer who recorded the crime report at the spot did not secure missed bullets from the weapon nor he associated the police official, who allegedly intervened to snatch the gun and subdued the accused---Said police official was also absent from the witness-box---Inclusion of accused's brother in the case for having common intention with the accused cast doubt on the prosecution case---According to notes of police proceedings, the complainant with her brother presented the weapon belonging to the accused to the police with five live bullets in the magazine---Such seizure did not qualify the riders of Art. 40 of the Qanun-e-Shahadat, 1984 so as to be received as corroboration of the prosecution story that otherwise ran counter to the case set up in the crime report---Given the persistent animosity between the parties, it would be unsafe to maintain the conviction on the basis of a prosecution script, which was inherently flawed---Petition for leave to appeal was converted into appeal and allowed, and impugned judgments were set aside and the accused was acquitted of the charge.

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

Niazullah Niazi, Advocate-General, Islamabad with M. Anwar, I.O., Margallah for the State.

2020 S C M R 1250

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

SARWAR and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 1116-L and 1143-L of 2015, decided on 25th June, 2020.

(Against the judgment dated 10.09.2015 passed by the Lahore High Court, Lahore in Crl. Appeal No. 12-J of 2011 and Murder Reference No. 125 of 2011)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence took place at 0:800 a.m. and it was reported to the police on the same day at 10:15 p.m.---Delay of two hours and fifteen minutes in reporting the crime to the police was not material keeping in view the peculiar circumstances of the case such as the gender of the complainant, who was a female, and 11 miles distance between the place of occurrence and the police station---Record did not show any deliberate or conscious delay in reporting the matter to the police---Ocular account was furnished by widow (complainant) and brother in law of the deceased---Occurrence took place in front of the house of the complainant and place of occurrence was never disputed by the defence---Presence of the complainant at the time and place of occurrence could not be doubted by any stretch of imagination---Ocular account was fully supported by the medical evidence---Prosecution had successfully brought home guilt against the accused beyond any reasonable doubt---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---Mitigating circumstances---Circumstances which rightfully persuaded the High Court to alter the sentence of death of accused to imprisonment for life were that the recovery of 12 bore double barrel gun was not believable; that motive behind the occurrence could not be proved; and that single fire shot on the person of deceased was attributed to the accused---Alteration of the sentence of death to imprisonment for life by the High Court was fully justified in such circumstances---Petition for leave to appeal was dismissed and leave was refused.

Malik Rab Nawaz, Advocate Supreme Court for Petitioner (in Criminal Petition No. 1116-L of 2015).

Mian Ghulam Rasool, Advocate Supreme Court for Petitioner (in Criminal Petition No. 1143-L of 2015).

Muhammad Amjad Rafiq, Additional P.G. for the State.

Mian Ghulam Rasool, Advocate Supreme Court for the Complainant.

2020 S C M R 1253

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Muhammad Amin Ahmed and

Amin-ud-Din Khan, JJ

BABAR NADEEM---Petitioner

Versus

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

Criminal Petition No. 549 of 2020, decided on 21st July, 2020.

(Against the order dated 5.6.2020 passed by the Lahore High Court, Lahore in Crl. Misc. No. 19465-B of 2020)

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302(b) & 109---Qatl-i-amd, abetment---Ad interim pre-arrest bail, confirmation of---Argument of accused that in the absence of any legal evidence there was no occasion for the Courts below to deny judicial protection of bail to him in the face of mala fide vividly lurking behind his intended arrest warranted serious consideration---Accused, who was allegedly one of the abettors to the murder, was not mentioned in the crime report despite having been spotted by the witnesses, shortly before the incident---Furthermore another co-accused, who was alleged to have abetted the crime was let off by the prosecution---Omission of name of accused from the crime report brought his culpability within the purview of S. 497(2), Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed, and ad-interim bail granted to the accused was confirmed.

Naveed Ahmed Khawaja, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, Additional Prosecutor General Punjab along with Rana Tanvir, SHO and M. Akram, I/O for the State.

Nemo for Respondents.

2020 S C M R 1255

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

Haji QASIM KHAN---Petitioner

Versus

The STATE through D.A.G.---Respondent

Criminal Petition No. 1257 of 2017, decided on 5th April, 2018.

(On appeal against the judgment dated 24.11.2017 passed by Lahore High Court, Lahore in Criminal Misc. B.A. No. 2504 of 2017)

Foreigners Act (XXXI of 1946)---

----S. 14---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471 & 109---Foreign national fraudulently obtaining a Computerised National Identity Card (CNIC) of Pakistan---Bail, grant of---Further inquiry---Law Officer for State present in court confirmed that for almost the same offence, the accused had already been acquitted by the Trial Court---In such circumstances, the question whether the accused could be prosecuted again for the same offence could not be answered in the present proceedings and it was the domain of the Trial Court to determine the said question, after recording of evidence produced by the parties---For the moment, the case of the accused called for further inquiry within the ambit of S. 497(2), Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed and accused was admitted to bail.

Arshad Hussain Yousafzai, Advocate Supreme Court for Petitioner.

Syed Nayyab Hussain Gardezi, DAG along with Shahnsha, I.O. (FIA) for the State.

2020 S C M R 1257

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD NOMAN MUNIR---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 610 of 2020, decided on 10th July, 2020.

(Against the judgment dated 21.5.2020 passed by the Lahore High Court, Lahore in Crl. Misc. No. 20425-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Possession of cannabis and heroin---Bail, refusal of---Cannabis weighing 1380 grams and heroin weighing 07 grams recovered from the possession of accused squarely fall within the mischief of S. 9(c) of Control of Narcotic Substances Act, 1997 that attracted prohibition embodied in S. 51 of the said Act---Insofar as non-association of a witness from the public was concerned, people did collect at the scene, and despite request from police abstained to assist the law and such fact was mentioned in the crime report itself---Such conduct of public was usual and symptomatic of societal apathy towards civic responsibilities---Even otherwise, the witnesses being members of the police contingent and functionaries of the State were second to none in their status, with statutory presumption that their acts were, prima facie, intra vires---Accused was rightly refused bail by courts below---Petition for leave to appeal was dismissed and leave was refused.

Syed Qamar Hussain Sabzwari, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2020 S C M R 1258

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

Dr. ABDUR RAUF---Petitioner

Versus

The STATE through D.A.G.---Respondent

Criminal Petition No. 412 of 2019, decided on 26th April, 2019.

(Appeal against the judgment dated 11.03.2019 passed by the Peshawar High Court, Peshawar in Criminal M/B.A. No. 502-P of 2019)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 419, 420, 468 & 471---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Bail, grant of---Offences alleged against the accused fell outside the prohibitory clause of S. 497, Cr.P.C.---Accused was behind bars for more than three months and nothing was to be recovered from him---In such like cases, grant of bail was a rule and refusal an exception---Petition for leave to appeal was converted into appeal and allowed and accused was allowed bail.

Arshad Hussain Yousafzai, Advocate Supreme Court for Petitioner.

Sajid Ilyas Bhatti, Additional A.G. for the State.

2020 S C M R 1259

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

SUI SOUTHERN GAS COMPANY LIMITED, KARACHI---Appellant

Versus

IMDAD ALI PATHAN and others---Respondents

Civil Appeal No. 1964 of 2019, decided on 2nd July, 2020.

(Against the judgment dated 07.02.2019 passed by the High Court of Sindh, Circuit Court Hyderabad in R.A. No. 61 of 2009)

Master and servant---

----Employee of Sui Southern Gas Company Ltd ('the company')---Declaratory suit filed by employee against the company---Maintainability---Plea on behalf of company that suit filed by the employee before the civil court was not maintainable for the reason that the company was not a statutory corporation nor any statutory rules of service were applicable to its employees rather the principle of 'master and servant' applied to them and a declaratory suit could not have been filed; that there were concurrent findings recorded by the Trial Court as well as the Appellate Court where the employee had been non suited for the reason that his suit was not maintainable---Validity---Plea raised by the company regarding rules applicable to its employees had not been elaborately considered by the High Court in the impugned order and it had gone on to consider the law as laid down in the ESTACODE which apparently was not applicable to the present case for that the employee was not a civil servant---High Court has also not considered that there were concurrent findings recorded by the Courts below and what need was felt by the High Court to interfere with such concurrent findings had not been addressed in the impugned order---Consequently appeal was allowed, the impugned judgment of the High Court was set aside and the matter was remanded to the High Court to decide the same afresh, in accordance with law.

Asim Iqbal, Advocate Supreme Court and M. Kassim Mirjat, Advocate-on-Record for Appellant.

Sanaullah Ghauri, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (absent) for Respondents.

2020 S C M R 1262

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

IMRAN ABBAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 622 of 2020, decided on 10th July, 2020.

(Against the judgment dated 28.01.2020 passed by the Islamabad High Court, Islamabad in Crl. Misc. No. 19-B of 2020)

Administration of justice---

----Witness protection---For effective and meaningful administration of criminal justice, witness protection was a sine qua non and as such a bounden responsibility was cast upon the State to be discharged through its functionaries to safeguard vulnerable witnesses in order to ensure that stream of justice ran pure and clean with scales strictly held in balance.

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

Niazullah Khan Niazi, Advocate-General, Islamabad Capital Territory and M. Sarferaz, SSP with Abdul Jabbar, I.O. for Respondents.

2020 S C M R 1264

[Supreme Court of Pakistan]

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

WAZIR KHAN and another---Petitioners

Versus

SHERIN DAD and others---Respondents

Criminal Petitions Nos. 19-P and 20-P of 2011 and 296 of 2018, decided on 27th April, 2018.

(Against the judgment dated 30.11.2010 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 333 of 2019 and Murder Reference No. 17 of 2009)

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

----Ss. 302(b), 324, 34 & 337-A(ii)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, shajjah-i-mudihah---Reappraisal of evidence---Parties were very closely related to each other and an FIR in respect of the incident in issue had been lodged within an hour of the occurrence---In the said promptly lodged FIR the accused had been named and a leading role in the murder of deceased and in causing of injuries to complainant was attributed to him---Injured complainant victim had consistently pointed his accusing finger towards the accused as the person responsible for causing the death of the deceased and for causing injuries to the complainant himself and the medical evidence had supported the said allegations levelled against the accused---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 having been proved to the hilt---High Court had acquitted the accused on two other counts under S. 302(b), P.P.C. and had also reduced the sentence of death passed against him on the third count under S. 302(b), P.P.C. to imprisonment for life and, thus, the accused has already been treated leniently by the High Court---Delay of about seven and a half years in filing of the present petition before the Supreme Court showed that the accused had accepted the verdict passed against him by the High Court---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 302(b), 324, 34 & 337-A(ii)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, shajjah-i-mudihah---Reappraisal of evidence---Sentence, reduction in---Accused was convicted by the Trial Court on three counts of the charge under S. 302(b), P.P.C. and was sentenced to death on each count besides having been convicted and sentenced for offences under Ss. 324 & 337-A(ii), P.P.C. read with S. 34, P.P.C.---On appeal accused was acquitted by the High Court on two counts of the charge under S. 302(b), P.P.C. whereas his sentence of death on the third count of the charge under S. 302(b), P.P.C. was reduced to imprisonment for life; and the convictions and sentences of accused for the offences under Ss. 324 & 337-A(ii), P.P.C. read with S. 34, P.P.C. were, however, maintained by the High Court---Held, that as regards the acquittal of accused from two counts of the charge under S. 302(b), P.P.C. pertaining to the murders of two persons the High Court had concluded that the record of the case had established that all the three eye-witnesses produced by the prosecution were not in a position to see the second part of the incident in which the said two deceased had been killed---High Court further noticed that the said two murders had been committed in the shop of a witness, who was subsequently given up by the prosecution as having been won over meaning thereby that he was not ready to support the case of the prosecution in such respect---For reduction of accused's sentence of death on the third count of the charge under S. 302(b), P.P.C. pertaining to the murder of third deceased the High Court had noticed that the incident forming the motive already stood patched up and the immediate cause of occurrence had been suppressed by the parties to the case and in that backdrop the High Court had decided to exercise caution in the matter of accused's sentence of death on that count of the charge---Reasons recorded by the High Court for acquitting accused from two counts of the charge under S. 302(b), P.P.C. and for reduction of his sentence on the third count of the charge under S. 302(b), P.P.C. were valid and grounded in the record of the case---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Petitioner (in Criminal Petitions Nos. 19-P and 20-P of 2011).

Iltaf Samad, Advocate Supreme Court for Petitioner (in Criminal Petition No. 396 of 2018).

Zahid Yousaf, Additional Advocate-General, Khyber Pakhtunkhwa for the State (in all cases).

Iltaf Samad, Advocate Supreme Court for Respondents (in Cr. Ps. 19-P and 20-P of 2011).

2020 S C M R 1268

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

JEHANZEB KHAN---Petitioner

Versus

The STATE through A.G. Khyber Pakhtunkhwa and others---Respondents

Criminal Petition No. 594 of 2020, decided on 9th July, 2020.

(Against the judgment dated 15.5.2020 passed by the Peshawar High Court, Peshawar in Crl. M/BA No. 1227-P of 2020)

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

----S. 497---Bail, grant of---Scope---Grant of bail could not be subjected to riders and conditions, if otherwise, a case for bail stood made out.

(b) Administration of justice---

----Court, neutrality of---In criminal dispensation of justice, the Court being an independent adjudicator at all stages must religiously maintain its neutrality without having any responsibility to either side.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Accused had allegedly issued bank cheques to the complainant which bounced upon presentation---After his arrest, the accused was released on bail by a Magistrate on the basis of an Iqrarnama, wherein the accused purportedly made a commitment to clear a substantial portion of the default---Complainant disputed genuineness of the Iqrarnama, in view whereof, the Additional Sessions Judge cancelled the bail---Attempt by accused to secure bail from the High Court also failed---Held, that grant of bail could not be subjected to riders and conditions, if otherwise, a case for bail stood made out, therefore, release of accused and his subsequent arrest on the basis of an abortive/disputed arrangement was a mechanism that could not be approved---Details of financial obligation in satisfaction whereof the cheques were purportedly issued to the complainant was conspicuously missing in the crime report---Offence complained was punishable with three years' imprisonment or fine or with both and as such did not attract the statutory bar (under section 497, Cr.P.C.)---Continuous detention of accused was not likely to improve the investigative process, which had already concluded---Accused could not be held behind the bars as a strategy for punishment---Petition for leave to appeal was converted into appeal and allowed and accused was released on bail.

Syed Iqbal Hassan Shah Gillani, Advocate Supreme Court with Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court with Momin, I.O. for the State.

Gohar Ali Khan, Advocate Supreme Court for the Complainant along with Complainant in person.

2020 S C M R 1270

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Amin-ud-Din Khan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD JAHANGIR KHAN and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No. 1485-L of 2019, decided on 7th July, 2020.

(Against the order of the Lahore High Court, Multan Bench, Multan dated 30.10.2019 passed in Crl. Misc. No. 6256-B of 2019)

Per Manzoor Ahmad Malik, J; Amin-ud-Din Khan, J agreeing; Sayyed Mazahar Ali Akbar Naqvi, J dissenting.

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

----S. 498---Penal Code (XLV of 1860), Ss. 324, 148, 149, 148, 452 & 354---Attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, house-trespass after preparation for hurt, assault or criminal force to woman with intent to outage her modesty---Pre-arrest bail, refusal of---Allegation against the accused persons prima facie got support from the medical evidence---All the injured were medically examined on the same day i.e. day of occurrence, through the police---From the spot, 20 empties were taken into possession by the police and recoveries of weapons were yet to be made from the accused persons---During the course of investigation, the police had found the accused persons involved in the case---Prima facie, provisions of Ss. 148 & 149, P.P.C. were attracted to the case on the basis of material available on record and at bail stage it was not desirable to bifurcate the roles of accused persons as it would amount to deeper appreciation of evidence, which exercise could not be undertaken at bail stage---Petition for leave to appeal was dismissed and pre-arrest bail was refused to accused persons. [Majority view]

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

----S. 498---Penal Code (XLV of 1860), Ss. 324, 148, 149, 148, 452 & 354---Pre-arrest bail, refusal of---Accused persons and their counsel not present before the High Court at the time of hearing of their petition for pre-arrest bail---Effect---On the date prior to dismissal of pre-arrest bail petition, the case was adjourned on the request of counsel for the accused persons and the latter were also present on that date---Impugned order whereby pre-arrest bail petition of accused persons was dismissed showed that case had been called repeatedly but neither the accused persons nor their counsel turned up before the High Court, despite it being a pre-arrest bail wherein personal appearance of the accused persons was mandatory---In such circumstances, the accused persons were not entitled to the extraordinary concession of pre-arrest bail---Petition for leave to appeal was dismissed. [Majority view]

Per Sayyed Mazahar Ali Akbar Naqvi, J dissenting.

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

----S. 498---Pre-arrest bail---Concept and scope---Concept of pre-arrest bail was an extra-ordinary relief which was limited to rare cases based upon trumped-up charges---To avail such relief, it was obligatory to establish that the prosecution had been launched, based upon mala fides and ulterior motives, and if it materialized, it would certainly cause irreparable loss to the reputation of accused---Ad interim bail acted as a shield to protect innocent persons facing highhandedness of individuals or authorities through frivolous litigation---While granting pre-arrest bail, Court could consider the merits of the case in addition to element of mala fides/ulterior motives---Courts of law were under bounden duty to entertain broader interpretation of "law of bail" while interpreting material placed before them, in a more liberal manner to arrive at a conclusion which was required due to the apparent downfall in the standard of investigation (of criminal cases). [Minority view]

Meeran Bux v. The State and another PLD 1989 SC 347 and Syed Muhammad Firdaus and others v. The State 2008 SCMR 784 ref.

Rana M. Ayub Tahir Joyya, Advocate Supreme Court for Petitioner along with Petitioners.

M. Jaffar, Additional P.G. Punjab and Zafar Iqbal, SI for the State.

2020 S C M R 1278

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

HABIB ULLAH JAN and another---Petitioners

Versus

The STATE through A.G. Khyber Pakhtunkhwa and others---Respondents

Criminal Petition No. 543 of 2020, decided on 7th July, 2020.

(Against the order dated 5.3.2020 passed by the Peshawar High Court, Bannu Bench, Bannu in Crl. Misc. No. 73-B/2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 324---Attempt to commit qatl-i-amd---Bail, refusal of---Magnitude of violence endured by the three witnesses at the hands of the accused persons was prima facie supported by the medical evidence, statements of the witnesses and spot recoveries---No considerations were found on record calling for further probe into the guilt of accused persons, who were rightly denied bail by the High Court---Petition for leave to appeal was dismissed and leave was refused.

Adil Aziz Qazi, Advocate Supreme Court and Sher Afzal Khan, Advocate Supreme Court for Petitioners.

Fakhruddin Shah, Advocate Supreme Court for the State.

Anis M. Shahzad, Advocate Supreme Court for the Complainant.

2020 S C M R 1396

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

Mst. ATTIA BANO and others---Appellants

Versus

ABDUL MAJEED---Respondent

Civil Appeal No. 73 of 2016, decided on 24th June, 2020.

(Against the judgment dated 28.05.2015 passed by the Islamabad High Court, Islamabad in C.R. No. 392 of 2010)

Benami transaction---

----Proof---Ostensible owner---Legatees of ostensible owner claiming ownership of property---Plaintiff, who was a foreign national, contended that he had supplied the funds to his deceased brother for the purchase of plot as well as construction thereon---Held, that transfer of funds for the purpose of purchasing subject property had been mentioned by the plaintiff in his cross-examination, wherein he admitted that he had remitted the money to Pakistan through 'hundi' system---Plaintiff was a person of sound financial means, whereas legatees of the deceased brother could not present any evidence relating to any substantial source of income of their father to purchase a costly residential unit such as the subject property---Testimony of deceased brother's widow suggested that the plaintiff had arranged the funds for his deceased brother to manage a residence for his family; that plaintiff's brothers jointly resided in the subject property, and that subject premises was the permanent residential address in plaintiff's National Identity Card---Totality of circumstances, reflected from the evidence unambiguously suggested a joint possession over the premises that included the plaintiff, who stayed therein on his visits to Pakistan---Plaintiff's foreign residency and his admitted financial status appeared to have been a dominant consideration behind his delegation of the task to his deceased brother to conveniently transact the deal on his behalf---Deceased brother had also executed a stamp paper in his life wherein it was acknowledged that plaintiff had provided the funds for the subject property and that it was a benami transaction in favour of the deceased brother---Stamp vendor appeared as a witness to confirm purchase of stamp paper by the deceased brother, which was executed in plaintiff's favour---Another real brother of the deceased as well as the plaintiff testified about the execution of the stamp paper as well as provision of funds by the plaintiff for the subject property---Burden had satisfactorily been discharged by the plaintiff to establish that his deceased brother was merely an ostensible player, with resources assigned by the plaintiff to conveniently manage the purchase of land for construction of a house thereon---Declaratory suit filed by the plaintiff had been rightly decreed in his favour by courts below---Appeal was dismissed.

Abdul Majeed and others v. Ameer Muhammad and others 2005 SCMR 577 and Muhammad Sajjad Hussain v. Muhammad Anwar 1991 SCMR 703 ref.

Kh. Shahid Rasool, Advocate Supreme Court for Appellants.

M. Shahzad Siddiqui, Advocate Supreme Court for Respondent.

2020 S C M R 1401

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Sayyed Mazahar Ali Akbar Naqvi, JJ

RIZWANA ALTAF---Petitioner

Versus

CHIEF JUSTICE, HIGH COURT OF SINDH through Registrar---Respondent

Civil Petition No. 3952 of 2019, decided on 9th June, 2020.

(On appeal against the judgment dated 14.09.2019 passed by the Sindh Subordinate Judiciary Service Tribunal, Karachi)

(a) Sindh Judicial Service Rules, 1994---

----R. 9(2)---Civil Judge and Judicial Magistrate---Misrepresentation and concealment in application form for post of Civil Judge and Judicial Magistrate---Held, that in the application submitted while applying for the post of Civil Judge and Judicial Magistrate, the petitioner disclosed that she was enrolled as an advocate of district judiciary and as advocate of the High Court without disclosing the fact that she was a government servant holding the post of primary school teacher---In the application form petitioner was required to disclose the name of the department, her designation and the date of her employment in service, and the date of her induction in previous service and if terminated, when and with what reasons---Petitioner did not provide such information in her application and left the relevant spaces in the application blank---Resultantly, background check with regard to her past service could not be conducted by the concerned authorities of the Provincial Government before appointing her as a Civil Judge and Judicial Magistrate---Only when the petitioner drew salary as school teacher for the months when she was also entitled to draw salary of the post of Civil Judge that the factum of her pervious employment came to light---Petitioner's own record reflected that she got herself enrolled as a school teacher by representing herself to be a practicing advocate for at least two years though she only had a standing of about two months, which was another misrepresentation on her part---Petitioner either never practiced as an advocate of the subordinate courts for a period of two years or if she had then she did not serve the education department as primary school teacher and yet continued to draw salary of such post; in this background she appeared to have deliberately concealed the factum of her employment with Education Department in order to get enrolled as an advocate of High Court on false representation---Petitioner did not disclose to the Education department that she needed NOC for applying for the post of Civil Judge and Judicial Magistrate---Only reason which the petitioner disclosed in her resignation tendered to the Education Department was her domestic engagement---Facts reflected from the record were sufficient to dispense petitioner's services by invoking R. 9(2) of the Sindh Judicial Service Rules, 1994, as such a person could not be given the important post of a judge when the basis of seeking enrolment as High Court advocate as well as appointment as Civil Judge and Judicial Magistrate was tainted with concealment and misrepresentation---Services of petitioner were rightly dispensed with by the Chief Justice of the High Court, while she was in her probationary period---Petition for leave to appeal was dismissed and leave was refused.

(b) Sindh Judicial Service Rules, 1994---

----S. 9(2)---Probationer---Dispensing of services without regular inquiry---When there was some sound reason in the mind of the competent authority that an employee who was serving in his or her probationary period was not suitable to be given permanent employment and his or her services needed to be dispensed with, then it mattered not if the competent authority expresses such reason without conducting a regular inquiry.

Muhammad Umair Baloch, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2020 S C M R 1406

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

AAMIR SHAHZAD and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petitions Nos. 849 and 850 of 2019, decided on 10th June, 2020.

(Against judgment dated 09.07.2019 of the Islamabad High Court, Islamabad passed in Criminal Appeal No. 191 of 2018)

(a) Drugs Act (XXXI of 1976)---

----S. 18(1)(d)---Import, manufacture and sale of unregistered drugs---Reappraisal of evidence---Powers of Drug Inspector---Scope---Argument that the Drug Inspector lacked authority to carry out the raid and seize the contraband drugs---Held, that such argument was entirely beside the mark---Drug Inspector appeared in the witness-box, and categorically asserted his status to carry out the raid on the strength of Notification No.1(19)-Law/2004(Vol-III)- 578 dated 17th February, 2012, a position uncontroverted by the defence during the trial---Section 18(d) of the Drugs Act, 1976 did not place any clog on the powers of Inspectors so as to "enter and search, with such assistance, if any, as he considers necessary, any building, vessel or place, in which he has reason to believe that an offence under this Act or any rules has been or is being committed or may continue to be committed"---In exercise of powers vesting in the Inspector/witness, he was well within the remit of law to seize unregistered drugs---Said drugs were secured vide inventory on Form-5, and transmitted to the Quality Control Board, an exercise that required no additional authorization---Conviction and sentences of the accused persons under the Drugs Act, 1976 were maintained---Petitions for leave to appeal were dismissed and leave was refused.

(b) Drugs Act (XXXI of 1976)---

----S. 11(5)--- Import, manufacture and sale of unregistered drug---Reappraisal of evidence--- Quality Control Board, functions of---Scope---Argument that the seized unregistered drugs were sent to the Quality Control Board, but during trial no member of the said Board entered the witness box to prove the charge against the accused persons---Held, that prosecution was not required to produce any member of Quality Control Board to join the witnesses to drive home the charge---Functions of the Quality Control Board were supervisory/regulatory in nature and as such for prosecution of an offence under the Drugs Act, 1976 the Drug Inspector himself could discharge the onus--- Besides the accused persons in the present case never opted to summon any member of the Board during the trial nor any prejudice had been alleged---Conviction and sentences of the accused persons under the Drugs Act, 1976 were maintained--- Petitions for leave to appeal were dismissed and leave was refused.

Raja Rizwan Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Mian Asghar Ali, Deputy Attorney-General for Pakistan for the State.

2020 S C M R 1410

[Supreme Court of Pakistan]

Present: Mushir Alam, Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Excise and Taxation Department, Civil Secretariat, Peshawar and others---Petitioners

Versus

SARFRAZ KHAN and another---Respondents

Civil Petition No. 800-P of 2019, decided on 28th May, 2020.

(Against the order dated 14.11.2019 passed by Peshawar High Court, Peshawar in W.P. No. 362-P of 2019)

Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 33---Seizure of altered vehicle---Welded and refitted chassis frame--- Excise and taxation department seized the subject vehicle as on forensic examination it was found to have a welded and refitted chassis frame--- High Court set-aside the seizure order and directed the department to hand over the vehicle to the respondent (owner)---Held, that S. 33 of the Provincial Motor Vehicles Ordinance, 1965 did not distinguish alteration in the motor vehicles in any manner whatsoever---Any alteration effected in the vehicle was required to be reported within 14 days to the authority in whose jurisdiction the owner resided and the authority was required to issue a certificate of registration of the subject vehicle to the concerned authority where such alteration had to be entered into---No such exercise was undertaken in the present case---Respondent conceded that such alteration was not carried out by him but by the person from whom he had purchased the vehicle---Liability and responsibility vested on the person making such alteration in any manner whatsoever---If the respondent had purchased the vehicle without taking due care and complying with the requirements of law, he could not claim to be a bona fide purchaser---Respondent could claim damages from the person from whom he purchased the subject vehicle---Petition for leave to appeal was converted into appeal and allowed and impugned order of High Court was set aside.

Sultan Muhammad v. Collector Customs and another 2015 PTD 570 ref.

Malik Akhtar Hussain, Additional A.G. Khyber Pakhtunkhwa for Petitioners.

Syed Hamad Ali Shah, Legal Officer Khyber Pakhtunkhwa Excise Department and Shakil Ahmed, Inspector Motor Registration Authority, Sargodha on Court's Notice.

Respondent No.1 in person.

2020 S C M R 1414

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

JAVED ISHFAQ---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 112 of 2017, decided on 6th July, 2020.

(Against judgment dated 30.1.2017 passed by the Lahore High Court, Lahore in Criminal Appeal No. 8 of 2012 along with M.R. No. 7 of 2012)

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

----S. 302(b)--- Qatl-i-amd---Reappraisal of evidence---Record showed that there was no previous bad blood between the parties---Incident took place in a peaceful neighbourhood over shifting of an electric transformer during a power outbreak in hot summer season---In such backdrop initial receipt of injuries, established during the course of investigation to have been caused by clubs, etc. had to be viewed in the peculiar background of the incident, which also appeared to be a reason for absence of the injured from the witness box---Worst casualty was the deceased, hit by accused's shot as the clash became more violent and, thus, in the given circumstances acquittal of the co-accused persons by the Trial Court in the absence of the injured from both sides had been an option wisely preferred by the Trial Court---Police declined to entertain the counter version and the accused by their own choice considered institution of private complaint as a futile exercise---Suppression of facts from both sides appeared to be the predominant cause behind the acquittal of co-accused persons with roles different than the accused---Acquittal of co-accused persons, thus, by itself did not pave way for the accused to escape consequences of his individual criminal act, which otherwise was established beyond doubt---Ocular account has been furnished by two witnesses who were in tune with each other on all the salient features of the case as well as details collateral therewith; and they had no axe to grind to point their fingers on the accused alone---Petition for leave to appeal was dismissed, leave was refused and sentence of life imprisonment imposed upon the accused by the High Court was maintained.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 and Ali Raza alias Peter and others v. The State and others 2019 SCMR 1982 ref.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Distance between assailant and victim---Medical jurisprudence---Burning/blackening of gunshot wound---Scope---Burning/blackening, though a predominant factor to determine distance inter se the assailant and the victim, nonetheless, was not a conclusive indicator; it depended upon factors more than one, such as, quality of munition and process of combustion that may possibly vary the impact of combusted gun powder---Smudging shot may cause deceptive appearance as well, therefore, in the absence of other qualifying evidence, hypothesis of inter se distance could not be constructed with empirical exactitude on the presence of burning alone.

Parikh's Text Book of Medical Jurisprudence and Toxicology, 1989 Edition, Pages 280/282 ref.

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

----S. 302(b)--- Qatl-i-amd---Reappraisal of evidence---Site plan---Scope---Site plan was never considered as a substantive piece of evidence nor any benefit may be extracted therefrom unless the witnesses were duly confronted with the purported anomaly or discrepancy therein.

Safdar Hussain Tarrar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for the State.

2020 S C M R 1418

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

COMMISSIONER FAISALABAD DIVISION, FAISALABAD and another---Appellants

Versus

ALLAH BAKHSH---Respondent

Civil Appeal No. 370 of 2020, decided on 1st July, 2020.

(Against the judgment dated 3.3.2017, passed by the Punjab Service Tribunal, Lahore in Appeal No. 377 of 2014)

(a) Civil service---

----Transferring/mutating Government land in favour of a private party--- Misconduct---Fraud and embezzlement---Dismissal from service---Respondent-Patwari had himself admitted the commission of the offence that he transferred Government land measuring 270 Kanals, to private parties, causing loss of millions of rupees to the Government exchequer---Such conduct of the respondent could not be considered as mere negligence, rather it constituted misconduct and maximum penalty under the law had to be imposed upon him---Government properties and the Government funds were not to be doled out by Government officials, either to private persons or to themselves, and such conduct amounted to fraud upon the Government---Person(s) committing such fraud or embezzlement of Government property or money could, in no circumstances be treated leniently in disciplinary proceedings and in appropriate cases, be allowed to continue in service---Respondent was proceeded against departmentally by issuing of a show cause notice and the statement of allegations against him---Inquiry was conducted and the requirements of natural justice were duly complied with---Judgment of the Tribunal holding that the respondent had been given harsh punishment by competent authority and the punishment of dismissal from service was not commensurate with the gravity of the offence, was altogether misplaced---Impugned judgment of Service Tribunal was set-aside and order passed against respondent for his dismissal from service was restored---Appeal was allowed accordingly.

(b) Civil service---

----Misconduct---No loss caused to Government exchequer or loss recovered---Not a mitigating circumstance---Mere fact that despite commission of the offence no loss was caused to the Government exchequer or the loss caused was recovered could not be a mitigating factor in punishing a government servant whose misconduct stood established.

(c) Punjab Service Tribunals Act (IX of 1974)---

----S. 5---Powers of Service Tribunal to confirm, set aside, vary or modify the order passed by department/competent authority---Scope---Once misconduct was established, it was the prerogative of the department to decide on the quantum of punishment, out of the various penalties provided in law---Unless the Tribunal found exercise of such prerogative by the departmental authority to be perverse and totally disproportionate to the gravity of the offence/misconduct, for which reasons had to be recorded, penalty imposed by the departmental authorities could not be interfered with---Such reasons must be valid and meet the standards of logical and judicial reasoning --- Powers of the Tribunal under S. 5 of the Punjab Service Tribunals Act, 1974 to confirm, set aside, vary or modify orders appealed against were neither discretionary nor unbridled---Such powers had to be exercised cautiously, carefully and with circumspection where the order imposing the penalty was wholly perverse or ex facie so demonstrably disproportionate and excessive for the offence/misconduct, that to let it stand would be unfair, unjust and inequitable---Further, where powers were exercised under S. 5, detailed reasons must be recorded justifying such exercise which would withstand the test of judicial scrutiny by the Supreme Court.

Ch. Faisal Fareed, Additional Advocate General, Punjab, Babar Hayat Tarar, Senior Member Board of Revenue, Ishrat Ali, Commissioner, Faisalabad and Faizan Ahmad, A.C., Shorkot for Appellants.

Shahid Azeem, Advocate Supreme Court and Ahmad Nawaz Ch., Advocate-on-Record for Respondent with Respondent in person.

2020 S C M R 1422

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

SADIQ ULLAH and another---Petitioners

Versus

The STATE and another---Respondents

Civil Petition No. 44 of 2019, decided on 27th July, 2020.

(Against order dated 11.12.2018 passed by the Peshawar High Court, Peshawar in W.P. No. 2395-P of 2018)

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

----Ss. 6 & 23---Penal Code (XLV of 1860), S. 302(b)---Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction---"Terrorism"---Scope---Personal dispute---Female medical student allegedly murdered over refusal of marriage---Held, that there were no benign murders nor the aftermaths of violence endured by its victims and anguish suffered by their families could be quantified in an empirical gauge---Magnitude of every murder and concomitant loss impacted the surroundings differently, which inevitably were gripped by fear and shock, however, the intensity of brutality and loss of life, consequent thereupon, by themselves did not bring a violent act within the contemplated purview of "terrorism"---"Terrorism" was a distinct phenomena achieved through violent means and ends other than settlement of personal scores---While the tragedy in the present case that befell upon the deceased girl evolved profound shock and deserved to be appropriately visited on the strength of evidence, so as to ensure justice to her family, it nonetheless, could not be equated with "terrorism"---Case was withdrawn from the Anti-Terrorism Court and entrusted to the concerned Sessions Judge, who was directed to conclude the trial in jail premises by recording evidence of the remaining witnesses---Petition for leave to appeal was converted into appeal and allowed accordingly.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 ref.

Hussain Ali, Advocate Supreme Court for Petitioners.

Malik Akhtar Hussain, Additional A.-G. Khyber Pakhtunkhwa for the State.

Abdul Fayyaz, Advocate Supreme Court for Respondents.

2020 S C M R 1425

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Mazhar Alam Khan Miankhel, JJ

AQEEL SHAHZAD and others---Appellants

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Khyber Pakhtunkhwa, Peshawar and others---Respondents

Civil Appeals Nos. 634 of 2014 and 431 and 432 of 2020, decided on 22nd July, 2020.

(On appeal from the judgment/Order dated 8.5.2012 and dated 20.4.2018 passed by the Peshawar High Court, Peshawar in W.P. 3095 of 2011 and W.P. No. 3058 of 2011)

Khyber Pakhtunkhwa Agricultural Produce Markets General Rules, 2011---

----R. 71(v)---Khyber Pakhtunkhwa Agricultural and Livestock Produce Markets Act (IV of 2007), Ss. 16 & 36--- Employees of Market Committee seeking regularization in service--- Termination from services---Legality---Terms and conditions of the employees as reflected in the different appointment orders would show that the same were of permanent and regular nature---Employees of the Market Committee who had spent/rendered services in the Committee since the year 1994-95 and that too without any blemish, and in spite of Khyber Pakhtunkhwa Agricultural and Livestock Produce Markets Act, 2007 ('the 2007 Act'), the Khyber Pakhtunkhwa Agricultural Produce Markets General Rules, 2011 ('the 2011 Rules'), and Bye-laws of 2013 made under the 2007 Act, had been made rolling stones struggling for their fundamental rights---Action of the competent authorities to terminate the employees and to make fresh appointments orders was oppressive and against their fundamental rights specially when R. 71(v) of the 2011 Rules also gave protection to the persons already employed---While serving the Market Committee for such a long time, almost all of the employees would have lost their chance of fresh appointments in other Government departments---In such circumstances the decision of the government and the Market Committee for termination of the employees or their fresh appointments under the Act 2007, the 2011 Rules and relevant Bye-laws of 2013, could not be concurred with---Order of termination of the employees, being illegal and unlawful, and having no legal effect, was set aside with the direction to the Provincial Government and the Market Committee to consider regularization of the services of the employees in accordance with law.

Misbahullah Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (absent) for Appellants (in C.A. No. 634 of 2014).

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa and Saadullah Jandoli, Advocate-on-Record (absent) for the Appellants (in C.A. 431 of 2020 also for Respondents Nos. 1-5 in C.A. No. 634 of 2014).

Sardar Ali Raza, Advocate Supreme Court and Syed Rifaqat Hussain, Advocate-on-Record for Appellants (in C.A. No. 432 of 2020).

Khalid Rehman, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (absent) for Respondents Nos. 1 - 16 (in C.As. Nos.431 - 432 of 2020).

Nemo for other Respondents.

2020 S C M R 1431

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

AQAL KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 619 of 2020, decided on 3rd August, 2020.

(Against the judgment dated 17.2.2020 of the Peshawar High Court, Peshawar passed in Bail Petition No. 56-P of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---After the co-accused had murdered the deceased, accused was alleged to have taken away a weapon from the scene, which belonged to the deceased---Said weapon was subsequently recovered from the accused after his arrest---Accused was denied bail from courts below on the ground that recovery of weapon from him was a circumstance that conclusively established his presence at the scene so as to disentitle him from concession of bail, no overt act notwithstanding---Held, that what was evident from the record was that during accused's, seemingly, unanticipated encounter with the deceased, the later was singularly targeted by the co-accused---First Information Report did not mention details of snatching of deceased's gun by the accused---Circumstances of the incident, squarely brought case of accused within the purview of S. 497(2), Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed and accused was released on bail.

Hussain Ali, Advocate Supreme Court for Petitioner.

Anis M. Shahzad, Advocate Supreme Court and Muhammad Ilyas, I.O. for the State.

Riazat ul Haq, Advocate Supreme Court for the Complainant.

2020 S C M R 1432

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

CHIEF COMMISSIONER OF INLAND REVENUE, LTU, ISLAMABAD and another---Petitioners

Versus

MUHAMMAD JAVED PARACHA and others---Respondents

Civil Petitions Nos. 3625 and 3707 of 2018, decided on 2nd July, 2020.

(Against the judgment dated 11.07.2018 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1064(R)CS/2017)

(a) Civil service---

----Willful absence from duty without authorization-----Removal from service converted into resignation---Petitioner was continuously on leave with effect from 1.4.2008 to 1.7.2013 and his application for extension of leave was not allowed, therefore, he was under an obligation to report for duty which he did not do---Petitioner's application for extension also stated that in case his leave could not be extended and he could not be transferred to his native city, his letter may be treated as his resignation---In view of the fact that the department neither extended his leave nor transferred him to his native city, it should have accepted his resignation and relieved him from duty---Action of the department to have waited and thereafter finding the petitioner absent from duty without leave leading to removal from service proceeding against him was not only unnecessary but also without lawful justification---Service Tribunal was correct in coming to the conclusion that the order of removal from service was unsustainable, however, in view of the fact. that petitioner had tendered his resignation with effect from 1.7.2013, his resignation from service was to be accepted from the said date---Having admittedly tendered his resignation on 1.7.2013 and having never formally withdrawn the same, no lawful reason or basis was made out to reinstate the petitioner into service---Petitions for leave to appeal were dismissed and leave was refused.

(b) Civil service---

----Place of service---Prerogative of employer---Government servant was required to serve where his employer wanted him to serve; it was not a choice or prerogative of the employee to claim a right to serve at a place that he choose to serve.

M.D. Shahzad Feroz, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Petitioners.

Respondents in person.

2020 S C M R 1436

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

SHEHRYAR KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 691 of 2020, decided on 3rd August, 2020.

(Against the judgment dated 3.4.2020 of the Peshawar High Court, Peshawar passed in Cr. M.B.A. No. 446-P of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Bail, refusal of---Cross version based upon an injury, sustained by the co-accused, to press into service hypothesis of self defence, was a controversy to be best settled by the Trial Court---Accused party had also suppressed the fatal shot on the deceased in their cross version---Saddled with the responsibility of the fatal shot, accused's absence from law, also stood as an impediment to his release on bail---Given the role attributed to the accused, existence of a cross version, veracity whereof was yet to be settled, by itself would not bring his case within the purview of further probe---Accused was denied bail---Petition for leave to appeal was dismissed and leave was refused.

Asad Ullah Khan Chamkani, Advocate Supreme Court for Petitioner.

Anis M. Shahzad, Advocate Supreme Court and Gul Wali, Inspector/I.O. for the State.

Riazat ul Haq, Advocate Supreme Court for the Complainant.

2020 S C M R 1474

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

NAIMATULLAH KHAN ADVOCATE and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No.9/2010, C.M.A. No.6206/2013, C.M.A. No.1552-K/2018 in Const. P. No.9, C.M.A. No.1600-K/2018 in Const. P. No.9, C.M.A. No.22-K/2019 in Const. P. No.9, C.M.A. No.23-K/2019 in Const. P. No.9, C.M.A. No.59-K/2019 in Const. P. No.9, C.M.A. No.101-K/2019 in Const. P. No.9, C.M.A. No.311-K/2019 in Const. P. No.9, C.M.A. No.349-K/2019 in C.P. No.815-K/2016, C.M.A. No.394-K/2019 in Const. P. No.9, C.M.A. No.423-K/2019 in Const. P. No.9, C.M.A. No.425-K/2019 in Const. P. No.9, C.M.A. No.459-K/2019 in Const. P. No.9 C.M.A. No.460-K/2019 in Const. P. No.9, C.M.A. No.521-K/2019 in Const. P. No.9, C.M.A. No.527-K/2019 in Const. P. No.9, C.M.A. No.556-K/2019 in Const. P. No.9, C.M.A. No.606-K/2019 in Const. P. No.9, C.M.A. No.617-K/2019 in Const. P. No.9, C.M.A. No.631-K/2019 in Const. P. No.9, C.M.A. No.796-K/2019 in Const. P. No.9, C.M.A. No.828-K/2019 in Const. P. No. 9, C.M.A. No. 830-K/2019 in Const. P. No.9, C.M.A. No.831-K/2019 in Const. P. No.9, C.M.A. No.875-K/2019 in Const. P. No.9, C.M.A. No.889-K/2019 in Const. P. No.9, C.M.A. No.896-K/2019 in Const. P. No.9, C.M. Appeal No.116/2019 in C.M.A. Ni1/2019 in Const. P. No.9, C.M.A. No.933-K/2019 in Const. P. No.9, C.M.A. No.964-K/2019 in Const. P. No.9, C.M.A. No.23-K/2020 in Const. P. No.9, C.M.A. No.66-K/2020 in Const. P. No.9, C.M.A. No.72-K/2020 in Const. P. No.9, C.M.A. No.74-K/2020 in Const. P. No.9, C.M.A. No.78-K/2020 in Const. P. No.9, C.M.A. No.81-K/2020 in Const. P. No.9, C.M.A. No.82-K/2020 in Const. P. No.9, C.M.A. No.83-K/2020 in Const. P. No. 9, C.M.A. No.87-K/2020 in Const. P. No. 9, C.M.A. No. 145-K/2020 in Const. P. No. 9, C.M.A. No.147-K/2020 in Const. P. No.9, C.M.A. No.162-K/2020 in Const. P. No.9, C.M.A. No.163-K/2020 in Const. P. No.9, C.M.A. No.165-K/2020 in Const. P. No.9, C.M.A. No.167-K/2020 in Const. P. No.9, C.M.A. No.177-K/2020 in Const. P. No.9, C.M.A. No.179-K/2020 in Const. P. No.9, C.M.A. No.193-K/2020 in Const. P. No.9, C.M.A. No.202-K/2020 in Const. P. No.9, C.M.A. No.281-K/2020 in Const. P. No.9, C.M.A. No.282:K/2020 in Coust. P. No.9, C.M.A. No.300-K of 2020 in Const. P. No.9, C.M.A. No.318-K/2020, C.M.A. No.336-K/2020, C.M.A. No.367-K/2020, C.M.A. No. 391-K/2020 in Const. P. No.9, C.M.A. No. 376-K/2020, C.M.A. No. 414-K/2020 in Const. P. No. 9, C.M.A. No.442-K/2020 in Const. P. No. 9, Crl. O.P. No. 1-K/2020 in Const. P. No. 9, Crl. Org. P. No. 2-K/2020 in Const. P. No. 9, Crl. Org. P. No. 4-K/2020 in C.M.A. No. 149-K/2020 in Const. P. No. 9, Crl. Org. P. No. 5-K/2020 in Const. P. No.9, C.R.P. No.9-K/2020 in C.M.A. No.94-K/2020 in Const. P. No.9, C.R.P. No.10-K/2020 in C.M.A. No.121-K/2020 in Const. P. No.9, C.R.P. No.11-K in C.M.A. No. 120-K/2020 in Const. P. No.9, C.R.P. No.12-K/2020 in Const. P.No.9, C.M.A. No.334-K/2020 in C.R.P. No.Nil-K/2020 in Const. P.No.9, C.P. No.422-K/2020, Cr1. O.P. No.7-K/2017 in Cr1. O.P. No.11-K/2016. Cr1. O.P. No.19-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No. 121-K/2017 in Crl. O.P. No.7-K/2017, Crl. M.A. No.124-K/2017 in Cr1. O.P. No.7-K/2017, Crl. M.A. No.132-K/2017 in Cr1. O.P. No.7-K/ 2017, Crl. M.A. No.111-K/2018 in Crl. M.A. No.132-K/2017 in Crl. O.P. No.7-K/2017, Crl. M.A. No.243-K/2018 in Crl. M.A. No.8-K/2018 in Cr1. O.P. No.7, Crl. M.A. No. 8-K/2018 in Cr1. O.P. No.7-K, Crl. M.A. No.19-K/2018 in Cr1. O.P.No.7-K, Crl. M.A. No.20-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.25-K/2018 in Cr1. O.P. No.7-K, Crl. M.A. No.32-K/2018 in Cr1. O.P.No.7-K, Crl. M.A. No.38-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.44-K/2018 in Cr1. O.P. No.7-K, Cr1. M.A. No.52-K/2018 in Cr1. O.P. No.7-K, Crl. M.A. No.59-K/2018 in Cr1. O.P. No.7-K, Crl. M.A. No.71-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.72-K/2018 in Cr1. O.P.No.7-K, Crl. M.A. No.95-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.199-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.214-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.229-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.1-K/2019 in Crl. O.P. No.7-K, Crl. M.A. No.2-K/2019 in Crl. O.P.No.7-K, Crl. M.A. No.34-K/2020 in Crl. Org. P. No.7-K in Const. P. No.47/2011, Crl. Org. P. No.11/2015 in Const. P. No.47/2011, Crl. Org. P. No.199/2016 in Const. P. No.47, H.R.C. No.22978-S/2014, H.R. MA. No.87/2014, H.R.C. No.13058-S/2015, decided on 10th August, 2020.

C.R.P. No. 11-K of 2020

(Against the order dated 06.03.2020, passed in C.M.A. No. 120-K in Const. P. No. 9 of 2010)

(a) Constitution of Pakistan---

----Art. 184(3)---Matter regarding non-functioning of Karachi Circular Railway (KCR)---Construction of underpasses for smooth running of KCR---Laying of track---Fencing on both sides of the track---Directions issued by the Supreme Court for completion of Karachi Circular Railway.

In view of urgency of the matter and the dire need to resolve the problem of overcrowding on roads and to grant some relief to the people of Karachi, it had been suggested that Frontier Works Organization ("FWO") be deputed to construct the underpasses along the route of the Karachi Circular Railway (KCR) owing to their experience and expertise in the field. Supreme Court after finding such suggestion reasonable and in the public interest directed that FWO be commissioned to construct the underpasses within a period of six months from the date of the award of the contract formalities which shall be completed as expeditiously as possible and not later than one month from the date of present order; that the Pakistan Railways shall continue its work regarding laying of tracks of the KCR; that Pakistan Railways shall coordinate with the Provincial Government contractor in ensuring that whatever work was required to be done by the Provincial Government was done by it in accordance with the requirements and priorities of Pakistan Railways; and that Pakistan Railways shall ensure that all tracks on both sides were protected by proper fencing from beginning to the end.

(b) Karachi Building and Town Planning Regulations, 2002---

----Regln. 5-1.22---Matter regarding buildings adjacent to Alladin Park on Rashid Minhas Road by the name of 'Royal Park'---Illegal allotment---Demolition of building towers---Refund of amounts to allottees---Commissioner (Karachi) informed the Court that out of five towers built by the builder, two had already been demolished, and three were under the process of demolition, and that the demolition work shall be accomplished within a further period of three months---Plea on behalf of allottees of said towers that they had paid amounts in excess of Rs. 141 crores to the builders; that such amount was lying with the builders for the last six years, therefore, the builders may be directed to refund the same to the allottees with 10% interest as provided under the Karachi Building and Town Planning Regulations, 2002---Held, that such request of allottees seemed to be reasonable, however before passing any order, Supreme Court issued notices to the builders for appearance on the next date of hearing---Review petitions were disposed of.

(c) Constitution of Pakistan---

----Art. 184(3)---Matter regarding a private school operating on an amenity plot in Kidney Hill Park---Legality---Amenity plot could not be used for commercial purposes or for the use of a private school, as it was against the mandate of law---Supreme Court directed the administration to remove the structure (of private school) from the amenity plot and handover the plot to the authorities of Kidney Hill Park or the concerned education society for running a school by the society itself---Applications were disposed of.

(d) Constitution of Pakistan---

----Art. 184(3)---Matter regarding encroachment upon land belonging to Hill Park and construction of houses thereupon---Subject plots had been carved out from the hills of Hill Park---Plot being within the land area of Hill Park could not have been allotted by the surrounding Housing Society (PECHS) to the allottees---Said plots did not belong to the said Housing Society rather such plots were under the control of Karachi Metropolitan Corporation (KMC)---All encroachments in Hill Park were patently illegal and void and the same were liable to be removed---Supreme Court directed that the Commissioner shall take immediate action for removal of the encroachments and restore the land of Hill Park for the use and enjoyment of the people of the city; that with regard to transactions, if any, entered into by the owners of the houses built on such illegal plots, they may take measures for recovery of their money in accordance with law; and that owners of the houses may also seek whole or part of the compensation from the surrounding Housing Society, if permissible, in accordance with law.

(e) Constitution of Pakistan---

----Art. 184(3)---Matter regarding removal of debris from Bagh Ibn-e-Qasim---Debris from the Bagh Ibn-e-Qasim had not been removed despite clear cut Court orders for doing so and in such regard time was allowed to the builders to remove the debris which the builders had failed to do up-till now---Supreme Court directed that the Commissioner shall have the debris removed from Bagh Ibn-e-Qasim and such exercise shall be completed within a period of one week; that the cost of removing of debris shall be recovered from the builders; and if the builders did not pay the cost as claimed by the Commissioner, within the time allowed, the debris be sold and costs recovered.

(f) Sindh Cultural Heritage (Preservation) Act (XII of 1994)---

----Preamble---Matter regarding construction of a building within premises of Karachi Gymkhana for parking and residential accommodation---Whether such construction was contrary to the Sindh Cultural Heritage (Preservation) Act, 1994---Supreme Court issued notice to Karachi Gymkhana and directed that it shall file a report regarding construction activity it had carried out within its premises; that Karachi Gymkhana shall show under what authority of law such construction had been made and further construction was being raised; that such report be filed within a period of two weeks, and in the meanwhile all construction activities shall remain stayed within Karachi Gymkhana.

(g) Constitution of Pakistan---

----Art. 184(3)---Matter regarding construction of COM-3 building on an allegedly amenity plot --- Plea that plot in question was part of plots exclusively meant for recreation and amenity purposes being part of the Benazir Shaheed Park; that the plots were used by the visitors of Benazir Shaheed Park for their food/drink/refreshment and souvenir shops and were not meant for raising of commercial buildings---Supreme Court issued notice to Director General, Karachi Development Authority (KDA) and directed that he shall file his report regarding the plots in question; that he shall give complete history of the subject plot (COM-3) along with all necessary documents, including maps; that such exercise shall be done by the Director General, KDA within a period of four weeks, and that he shall himself appear before the Court on the next date of hearing.

In Attendance:

Khalid Javed Khan, Attorney General for Pakistan, Salman Talibuddin, A.G Sindh, Syed Mumtaz Ali Shah, Chief Secretary, Sindh, Habib ur Rehman Gillani, Secretary, Railway, Kashif Sarwar Paracha, DAG, Ghulam Akbar Dheto, Secretary, Transport, Zulfiqar Gul Memon, Assistant Chief, Transport and Communication, Ministry of Planning, Shahid Jameel, Principal Law Officer, SBCA, Zia Makhdoom, President, Sindh High Court Bar Association, Karachi (74-K), Haider Waheed, Advocate Supreme Court (in C.M.A. No.83-K), Abid S. Zubari, Advocate Supreme Court (in C.M.A. No.84-K) along with Akhlaq Ahmed, Khaleeq Ahmed, Advocate Supreme Court, Shoukat Ali Sheikh, Legal Advisor, DMC, Malir, Khalid Mehmood Sheikh, M.D. Karachi Water and Sewerage Board Muhammad Salim Hassan Watto, CEO Clifton, Umair Mehboob, CEO, Minora, Haider Ali Sial, CEO, C.B Malir, Umer Farooq, CEO, Umar Masoom Wazir, CEO, Korangi Creek, Khawar Iftikhar, CEO Faisal, Qazi Rizwan, CEO, Karachi C.B, Yawar Farooqui, Advocate Supreme Court, Syed Imtiaz Hussain, MIA, KPT, G.N. Qurcshi, Chief Legal Counsel, Board of Revenue, Muhammad Farooq Laghari, D.S. Layari Authority, Salahuddin Ahmed, Advocate Supreme Court, K.A. Wahab, Advocate-on-Record, Dr. Raana Khan, Advocate-on-Record, Syed Jameel Ahmed, Advocate Supreme Court, Akhter Hussain, Advocate Supreme Court, M. Umar Riaz, Advocate Supreme Court, Raja Qasit Nawaz Khan, Advocate Supreme Court, Muhammad Haseeb Jamali, Advocate Supreme Court, Muhammad Aqil, Advocate Supreme Court, Sarfaraz Metlo, Advocate Supreme Court, Muhammad Ashraf Samoo, Advocate Supreme Court, Nazar Hussain Dhoon, Advocate Supreme Court, Syed Ashiq Raza, Advocate Supreme Court, Syed Sho-un-Nabi, Advocate Supreme Court, Badar Alam, Advocate Supreme Court, Iftikhar Shalwani, Commissioner of Karachi, Waseem Akhtar, Mayor, Karachi, Dr. Saif-ur-Rehman, Municipal Commissioner, KMC, Khawaja Naveed Ahmed, Advocate Supreme Court, Hassan Nasir Jami, D.G. CAA, Nadir Shafi Dar, Deputy D.G. CAA, Ms. Yasmeen Lari, In person, Saeed Ahmed Qureshi, Focal Person Government of Sindh, Masood Alam, Director, Mrs. Azra Muqeem, Law Officer, Syed Intezar Hussain, Manager, Legal, KPT, Asadullah Khan, M.D KWSB, Saeed Ghani, Minister, Munir A. Malik, Senior Advocate Supreme Court, Abrar Hussain, Advocate Supreme Court, Badar Alam, Advocate Supreme Court, Ghulam Rasool Mangi, Advocate-on-Record, Ms. Sana Akram Minhas, Advocate Supreme Court, Ms. Amber Ali Bhai, in person, Zulfiqar Mahar, AIG Legal, Mazhar Hassan, AIG Legal, I.D. Mangi, AIG Legal, Tahir, M.D. NESPAK and Amanullah Zardari, Focal Person, Home Department.

2020 S C M R 1486

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

SHEQAB MUHAMMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 591 of 2020, decided on 7th August, 2020.

(Against the order dated 05.06.2020 in Cr. M. (BA) 229-M/ 2020 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat)

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

----S. 497---Bail---In-depth analysis of the prosecution case was forbidden by law at bail stage.

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

----S. 497---Penal Code (XLV of 1860), S. 324---Attempt to commit qatl-i-amd---Bail, refusal of---In a daylight affair, two persons sustained firearm injuries besides one having endured violence through blunt means and as such required no public support to drive home the charge---Statements of injured victims supported by medical examinations of even date, prima facie brought case of accused within the mischief of S. 324, P.P.C., hit by statutory prohibition, in view whereof, he could not be released on bail in the absence of any consideration within the purview of S. 497(2), Cr.P.C.---Accused was denied bail in circumstances---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 497---Penal Code (XLV of 1860), S. 324---Bail---Murderous assault---Vital and non-vital parts of victim's body---Relevance---Murderous assault as defined in S. 324, P.P.C. drew no anatomical distinction between vital or non-vital parts of human body---Once the triggered was pressed and the victim was effectively targeted, "intention or knowledge" as contemplated by S. 324, P.P.C. was manifested---Course of a bullet was not controlled or steered by assailant's choice nor could he claim any premium (at bail stage) for poor marksmanship.

Abdul Latif Afridi, Advocate Supreme Court for Petitioner.

Anis M. Shahzad, Advocate Supreme Court with Samiullah, SHO and Abdul Kamal, I.O. for the State.

Complainant in person.

2020 S C M R 1488

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

NAIMATULLAH KHAN ADVOCATE and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No.9/2010, C.M.A. No. 6206/2013, C.M.A. No..1552-K/2018 in Const. P. No.9, C.M.A. No.1600-K/2018 in Const. P. No.9, C.M.A. No.22-K/2019 in Const. P. No.9, C.M.A. No.23-K/2019 in Const. P. No.9, C.M.A. No.59-K/2019 in Const. P. No.9, C.M.A. No:101-K/2019 in Const. P. No.9, C.M.A. No.311-K/ 2019 in Const. P. No,9, C.M.A. No.349-K/2019 in C.P. No.815-K/ 2016, C.M.A. No.394-K/2019 in Const. P. No.9, C.M.A. No.423-K/ 2019 in Const. P. No.9, C.M.A. No.425-K/2019 in Const. P. No.9, C.M.A. No.459-K/2019 in Const. P. No.9, C.M.A. No.460-K/2019 in Const. P. No.9, C.M.A. No.521-K/2019 in Const. P. No.9. C.M.A. No.527-K/2019 in Const. P. No.9, C.M.A. No.556-K/2019 in Const. P. No.9, C.M.A. No.606-K/2019 in Const. P. No.9,. C.M.A. No.617-K/2019 in Const. P. No.9, C.M.A. No.631-K/2019 in Const. P. No.9, C.M.A. No.796-K/2019 in Const. P. No.9, C.M.A. No.830-K/2019, Const. P. No.9, C.M.A. No.831-K/2019 in Const. P. No.9, C.M.A. No.875-K/2019 in Const. P. No.9, C.M.A. No.889-K/2019 in Const. P.No.9, Const. P. No. 9, C.M.A. No. 896-K/2019, in Const. P. No. 9, C.M. Appeal No. 116/2019 in C.M.A. Nil/2019 in Const. P. No. 9, C.M.A. No. 933-K/2019 in Const. P. No. 9, C.M.A. No. 964-K/2019 in Const. P. No. 9, C.M.A. No. 23-K/2020 in Const. P. No. 9, C.M.A. No. 74-K/2020 in Const. P. No. 9, C.M.A. No. 78-K/2020 in Const. P. No. 9, C.M.A. No. 81-K/2020 in Const. P. No. 9, C.M.A. No. 82-K/2020, in Const. P. No. 9, C.M.A. No. 83-K/2020, in Const. P. No.9, C.M.A. No. 162-K/2020 in Const. P. No. 9, C.M.A. No. 163-K/2020 in Const. P. No. 9, C.M.A. No. 165-K/2020 in Const. P. No. 9, C.M.A. No. 167-K/2020 in Const. P. No. 9, C.M.A. No. 177-K/2020 in Const. P. No. 9, C.M.A. No. 179-K/2020 in Const. P. No. 9, C.M.A. No. 193-K/2020 in Const. P. No. 9, C.M.A. No. 202-K/2020 in Const. P. No. 9, C.M.A. No. 281-K/2020 in Const. P. No. 9, C.M.A. No. 282-K/2020 in Const. P. No. 9, C.M.A. No. 300-K of 2020 in Const. P. No. 9, C.M.A. No. 318-K/2020, C.M.A. No. 336-K/ 2020, C.M.A. No. 346-K/2020, C.M.A. No. 367-K/2020, C.M.A. No.391-K/2020, in Const. P. No. 9, C.M.A. No. 414-K/2020 in Const. P. No. 9, C.M.A. No. 442-K/2020 in Const. P. No. 9, Crl. O.P. No. 1-K/2020 in Const. P. No. 9, Crl. Org. P. No. 2-K/2020 in Const. P. No.9, Crl. Org. P. No. 4-K/2020 in C.M.A. No. 149-K/2020 in Const. P. No. 9, Crl. Org. P. No. 5-K/2020 in Const. P. No. 9, C.R.P. No.12-K/2020 in Const. P. No.9, C.M.A. No.334-K/2020 in C.R.P. No.Nil-K/2020 in Const. P. No.422-K/2020, Crl. O.P. No. 7-K/2020 in Crl. O.P. No. 11-K/2016, Crl. O.P. No. 19-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No. 121-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No. 121-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No.124-K/2017 in Crl. O.P. NO. 7-K/2017, Crl. M.A. No. 132-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No. 111-K/2018, in Crl. M.A. No.132-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No. 243-K/2018 in Crl. M.A. No. 3-K/2018 in Cr1. Org. P. No.7-K, Crl. M.A. No.19-K/2018 in Crl .Org. P.No.19-K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No. 20-K/2018 in Crl. Org. P. No. 7-K, Crl. M.A. No.25- K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No.32-K/2018 in Cr1. Org. P. No.7-K, Crl. M.A. No.38-K/2018 in Crl. Org. P. No.7-­K, Crl. M.A. No.44-K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No.52-K/ 2018 in Crl. Org. P. No.7-K, Cr1. M.A. No.59-K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No.7-K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No.72-K/2018 in Crl. Org. P. No.7-­K, Crl. M.A. No.95-K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No.199-K; 2018 in Crl. Org. P. No.7-K, Crl. M.A. No.214-K/2018 in Crl. M.A. No.229-K/2018 in Crl. Org. P. No.7-K, Cr1. M.A.No.1-K/2019 in Crl. Org. P. No.7-K, Crl. M.A. No.2-K/2019 in Crl. Org. P. No.7, Crl. M.A. No.34-K/2020 in Crl. Org. P. No.7-K, Const. P. No.47/2011, Crl. Org. P. No.11/2015 in Const. P. No.47/2011, Crl. Org. P. No.199/2016 in Const. P. No.47 and H.R.C. No.22978-S/2014, decided on 11th August, 2020.

(a) Constitution of Pakistan---

----Art. 184(3)---Matter regarding electrocution of citizens of Karachi due to snapped electric wires falling from polls---No valid explanation was given to Court as to why such incidents took place---Most of the deaths (by electrocution) took place on the streets where snapped electric wires from the polls fell down and people got electrocuted more particularly during rains when snapped wires were inundated---Supreme Court directed that the concerned utility company (K-Electric) shall take all steps and measures to ensure that in future no electrocution of residents of Karachi took place and in case any such incident occurred, the CEO and other officers of the utility company (K-Electric) shall be taken to task and exceptional amount of damages shall be recovered from them; that criminal cases shall also be registered against the CEO and others officers of the utility company (K-Electric) including Director Operations and General Managers of the respective areas and other officials.

(b) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 12A--- [NEPRA] Appellate Tribunal--- Non-appointment of Members---Members of the [NEPRA] Appellate Tribunal had not been appointed as yet---Supreme Court asked the Attorney General to look into the matter and ensure that Members of [NEPRA] Appellate Tribunal were appointed and the Tribunal started functioning---Supreme Court directed that two months' time was allowed for doing the same, and the Federal Law Secretary shall also ensure that the Members of the Tribunal became functional within two months' time.

(c) Constitution of Pakistan---

----Arts. 9, 15, 18 & 25---Issue of load shedding in Karachi city---Infringement of Fundamental rights of citizens---Electricity was a Federal subject under the Constitution and it was incumbent upon the Federal Government to ensure that the citizens were not deprived of the facility of electricity as it was a matter of right to life, right of dignity of man and privacy of home, right to trade and business, profession or occupation and right to equality under the Constitution---Federal Government and NEPRA were under a duty to ensure that citizens of Karachi and other places in the country were not deprived of electricity and the menace of load shedding; that they had to ensure a secure and healthy life for the people, and also give them an opportunity of doing their trade, business, profession and occupation, which would ultimately make the State prosperous with content and happy citizens---Supreme Court directed that CEO of the concerned utility company (K-Electric) shall give to the Court a roadmap along with a timeline by which zero load shedding would be achieved in Karachi.

In Attendance:

Khalid Javed Khan, Attorney General for Pakistan, Salman Talib-ud-Din, Advocate General Sindh, Tauseef Farooqui, Chairman NEPRA, Ms. Nadia Nabi, Legal Advisor, Hafiz Irfan, Deputy Director (For NEPRA), Abid S. Zuberi, Advocate Supreme Court, Syed Moonis Abdullah Alvi, CEO (For K-Electric), Faisal Siddiqui, Advocate Supreme Court, Salahuddin Ahmed, Advocate Supreme Court and Arshad M. Tayabali, Advocate Supreme Court.

2020 S C M R 1493

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Amin-ud-Din Khan, JJ

MUHAMMAD JABRAN and others---Petitioners

Versus

The STATE---Respondent

Jail Petitions Nos. 228 and 157 of 2019, decided on 25th February, 2020.

(Against the judgment of the Lahore High Court, Rawalpindi Bench dated 21.02.2019 passed in Criminal Appeal No. 889 of 2017)

Penal Code (XLV of 1860)---

----Ss. 363, 364-A & 393---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Kidnapping of a child, attempt to commit robbery---Reappraisal of evidence---Discrepancies between evidence of complainant and eye-witnesses---Purpose of abduction and demand of ransom not proved---Case set up by prosecution did not appeal to commonsense as allegedly one out of four accused persons who had entered the house with intention to kidnap a child or for committing dacoity muffled his face due to fear of identification while the other three did not cover their faces---Moreover one of the alleged eye-witnesses in his cross-examination admitted that complainant party did not know the names of accused persons earlier and at the time of their arrest, they came to know about their names---One of the eye-witnesses who claimed to have stayed the night at the complainant's house, where the occurrence took place, had no pressing reason not to be at his own home, which was only 50 to 60 paces away---Complainant stated in his cross-examination that at the time of occurrence, they were sleeping in the verandah of the house, however, an alleged eye-witness stated in his cross examination that they were sleeping in a room at the time of occurrence and the room was closed---Investigating officer in his cross-examination stated that the accused persons were arrested from the courtyard of a house, where the abductee was kept, whereas it was the claim of the complainant and an eye-witness that accused persons were apprehended by the police while they were running from the place of recovery---Mother of abducted child, who was inmate of the house, was given up by the prosecution as being unnecessary---In the circumstances, she could have been the most natural witness of the occurrence and an adverse inference could legitimately be drawn under Art. 129(g) of the Qanun-e-Shahadat, 1984 that had she been produced, she would not have supported the case of the prosecution---Complainant and an eye-witness stated before the Trial Court that weapons were recovered from the accused persons at the time of their arrest at the place of recovery, however, the police officials stated in their court statements that pistols were recovered from two of the accused persons on their disclosure from an open place during the course of interrogation---Nothing was available on record to establish that after abduction of the child, the accused persons allegedly demanded ransom for his release or any amount as ransom was paid to them by the complainant---Prosecution had not brought on record as to what was the purpose of alleged abduction---Investigating officer admitted in his cross examination that the accused persons had made no demand of ransom from the complainant, and that no TV or other valuable articles were stolen from the place of occurrence (house of the complainant)---Another important aspect of the matter was that an affidavit was filed by the complainant before the High Court wherein he stated that he had forgiven the accused persons and had no objection if they were acquitted---In this behalf, statement of complainant was also recorded before the High Court on the basis whereof the accused persons were acquitted of the charge under S. 343, P.P.C., which was compoundable---Prosecution case was doubtful from its very inception--- Jail petitions were converted into appeals and the same were allowed, consequently, the convictions and sentences of accused persons were set aside and they were acquitted of the charges framed against them.

Ghufran Khurshid Imtiazi, Advocate Supreme Court (without power of attorney) for Petitioners.

Ch. M. Sarwar Sidhu, Additional P.G. Punjab for the State.

2020 S C M R 1499

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

NAIMATULLAH KHAN ADVOCATE and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No.9/2010, C.M.A. No.6206/2013, C.M.A. No.1552-K/2018 in Const. P. No.9, C.M.A. No.1600-K/2018 in Const. P. No.9, C.M.A. No.22-K/2019 in Const. P. No.9, C.M.A. No.23-K/ 2019 in Const. P. No.9, C.M.A. No.59-K/2019 in Const. P. No.9, C.M.A. No.101-K/2019 in Const. P. No.9, C.M.A. No.311-K/2019 in Const. P. No.9, C.M.A. No.349-K/2019 in C.P. No.815-K/2016, C.M.A. No .394-K/2019 in Const. P. No.9, C.M.A. No.423-K/2019 in Const. P. No.9, C.M.A. No.425-K/2019 in Const. P. No.9, C.M.A. No.459-K/2019 in Const. P. No.9 C.M.A. No.460-K/2019 in Const. P. No.9, C.M.A. No.521-K/2019 in Const. P. No.9, C.M.A. No.527-K/ 2019 in Const. P. No.9, C.M.A. No.556-K/2019 in Const. P. No.9, C.M.A. No.606-K/2019 in Const. P. No.9, C.M.A. No.617-K/2019 in Const. P. No.9, C.M.A. No.631-K/2019 in Const. P. No,9, C.M.A. No.796-K/2019 in Const. P. No.9, C.M.A. No.830-K/2019 in Const. P. No.9, C.M.A. No.831-K/2019 in Const. P. No.9, C.M.A. No.875-K/ 2019 n Const. P. No.9, C.M.A. No.889-K/2019 in Const. P. No.9, C.M.A. No.896-K/2019 in Const. P. No.9, C.M. Appeal No.116/2019 in C.M.A. Ni1/2019 in Const. P. No.9, C.M.A. No.933-K/2019 in Const. P. No.9, C.M.A. No.964-K/2019 in Const. P. No.9, C.M.A. No.23-K/2020 in Const. P. No.9, C.M.A. No.74-K/2020 in Const. P. No.9, C.M.A. No. 78-K/2020 in Const. P. No. 9, C.M.A. No. 82-K/ 2020, in Const. P. No. 9, C.M.A. No. 83-K/2020, in Const. P. No. 9, C.M.A. No. 162-K/2020 in Const. P. No. 9, C.M.A. No. 163-K/2020 in Const. P. No. 9, C.M.A. No. 165-K/2020 in Const. P. No. 9, C.M.A. No. 167-K/2020 in Const. P. No. 9, C.M.A. No. 177-K/2020 in Const. P. No. 9, C.M.A. No. 179-K/2020 in Const. P. No. 9, C.M.A. No. 193-K/2020 in Const. P. No. 9, C.M.A. No. 202-K/2020 in Const. P. No. 9, C.M.A. No. 281-K/2020 in Const. P. No. 9, C.M.A. No. 282-K/2020 in Const. P. No. 9, C.M.A. No. 300-K of 2020 in Const. P. No. 9, C.M.A. No. 318-K/2020, C.M.A. No. 336-K/ 2020, C.M.A. No. 346-K/2020, C.M.A. No. 367-K/2020, C.M.A. No.391-K/2020, in Const. P. No. 9, C.M.A. No. 414-K/2020 in Const. P. No. 9, C.M.A. No. 442-K/2020 in Const. P. No. 9, Crl. O.P. No.1-K/2020 in Const. P. No. 9, Crl. Org. P. No. 2-K/2020 in Const. P. No. 9, Crl. Org. P. No. 4-K/2020 in C.M.A. No. 149-K/2020 in Const. P. No. 9, Crl. Org. P. No. 5-K/2020 in Const. P. No. 9, C.R.P. No.12-K/2020 in Const. P. No.9, C.M.A. No.334-K/2020 in C.R.P. No.Nil-K/2020 in Const. P. No.9, C.P. No. 422-K/2020, Crl. O.P. No.7-K/2020 in Crl. O.P. No. 11-K/2016, Crl. O.P. No. 19-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No. 121-K/2017 in Crl. O.P. No.7-K/2017, Crl. M.A. No. 124-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No.132-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No.111-K/2018, in Crl. M.A. No. 132-K/2017 in Crl. O.P. No. 7-K/ 2017, Crl. M.A. No. 243-K/2018 in Crl. M.A. No. 8-K/2018 in Crl. O.P. No.7, Crl. M.A. No. 8-K/2018, Cr1. Org. P. No.7-K, Crl. M.A. No.19-K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No.20-K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No.25- K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No.32-K/2018 in Cr1. Org. P. No.7-K, Crl. M.A. No.38-K/2018 in Crl. Org. P. No.7-­K, Crl. M.A. No.44-K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No.52-K/2018 in Crl. Org. P. No.7-K, Cr1. M.A. No.59-K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No.71-K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No.72-K/2018 in Crl. Org. P. No.7-­K, Crl. M.A. No.95-K/2018 in Crl. Org. P. No.7-K, Crl. M.A. No.199-K, 2018 in Crl. Org. P. No.7-K, Crl. M.A. No.214-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No.229-K/2018 in Crl. Org. P. No.7-K, Crl. M.A.No.1-K/2019 in Crl. Org. P. No.7-K, Crl. M.A. No.2-K/2019 in Crl. Org. P. No.7, Crl. M.A. No.34-K/2020 in Crl. Org. P. No.7-K, Const. P. No.47/2011, Crl. Org. P. No.1/2015 in Const. P. No.47/2011, Crl. Org. P. No.199/2016 in Const. P. No. 47, H.R.C. No. 22978-S/2014, HRMA No.87/2014, H.R.C.No.13058-S/2015, C.M.A. No.512-K/2020, C.M.A. No.517-K/2020 in C.R.P.No.7-K/ 2020, C.M.As. Nos. 522-K and 523-K/2020. H.R.C. No.20883/2018 C.M.A. No. 676-K/2018, C.M.A. No. 1547-K/2018, decided on 12th August, 2020.

(a) National Disaster Management Act (XXIV of 2010)---

----S. 9---Cleaning of drainage streams ('nullahs') in Karachi---National Disaster Management Authority ("NDMA")---Provincial Government had no objection to the NDMA cleaning nullahs of Karachi city---Supreme Court directed the NDMA to take over the work of cleaning of nullahs in Karachi City and preferably complete the same within three months.

Provincial Government had no objection to the NDMA cleaning nullahs of Karachi city. Supreme Court directed that the NDMA shall take over the work of cleaning of nullahs in Karachi City and ensure that such cleaning work of nullahs was completed and all encroachments in and around these nullahs were removed; that the Provincial Government shall provide all necessary assistance and support to the NDMA for rehabilitation of the people dislocated on account of removal of the said encroachments; that in rehabilitating the people, the Provincial Government shall ensure provision of all necessary facilities which were required for rehabilitation of a civilized society; that the NDMA shall put up its report before the Court on undertaking of such exercise and ensure that such cleaning work of nullahs was done at the earliest and preferably within a period of three months; that in addition to removing encroachments and cleaning the nullahs, NDMA was also authorized to undertake all other related and ancillary activities; including but not limited to disposal and transportation of silt, slush, etc. removed from such nullahs.

(b) Constitution of Pakistan---

----Art. 184(3)---Matter regarding encroachments and construction upon land belonging to Kidney Hill Park---Commissioner of the city admitted that such construction activity had started but stated that he had taken steps to stop the same---Supreme Court declared all sorts of construction in Kidney Hill Park by any person whosoever illegal, void ab initio and directed that if any such construction was found, the Commissioner shall take immediate steps to remove the same and restore it to its original position.

(c) Karachi Port Trust Act (VI of 1886)---

----Ss. 4, 18, 21, 25, 27, 29 & 29A---Constitution of Pakistan, Art. 184(3)---Matter regarding land belonging to Karachi Port Trust (KPT) leased out to different entities---Karachi Port Trust Employees Housing Society, legality of---Board of Trustees of KPT, powers of---Scope---Nowhere in the Karachi Port Trust Act, 1886 ('the Act'), the Board of Trustees of the KPT had been given power or authority to lease out, transfer or sell KPT property/land for residential purpose/housing society to its employees i.e. its officers and servants---Power of managing the affairs of the KPT did not give power and authority to the Board of Trustees to arrogate to itself or to any officer of KPT, the power to dole out land for lease for residential purposes to its own employees---Board of Trustees were not authorized by law to create housing societies for its officers and servants and such transfer or sale of property/land of the KPT to its own officers and servants was illegal and all actions of the Board of Trustees were contrary from the mandate of the Karachi Port Trust Act, 1886 and were thus declared to be wholly illegal being void ab initio---For purposes of refunding any amount to the allottees or subsequent lease-holders of land in the Karachi Port Trust Employees Housing Society, the Supreme Court directed that KPT would not be obliged to pay the differential between the value at which the land was allotted and current market value of the land; that the allottees shall only be entitled to receive the amount initially received by KPT together with up-to-date mark up by initiating proceedings before the competent fora; that the differential in the market value may be recovered by the claimant/ current owner of leasehold rights from the party from which it had purchased the plots in question through appropriate proceedings before the competent forum.

(d) Environmental Protection Act (XXXIV of 1997)---

----S. 12--- Projects having a negative impact on the ecology and environment---Even the Federal Government did not have the authority to sanction an act which was not supported by statutory dispensation and had a direct negative impact on the ecology and environment in which future generations of the people of the country had an overriding and inherent interest.

(e) Administration of justice---

----One alleged illegality did not furnish justification to repeat yet another illegality---Two wrongs did not make one right.

In Attendance:

Khalid Javed Khan, Attorney General for Pakistan, Salman Talibuddin, A.G Sindh, Kashif Sarwar Paracha, DAG, Shahid Jameel, Principal Law Officer, SBCA, Umar Masoom Wazir, CEO, Korangi Creek, Yawar Farooqui, Advocate Supreme Court, Syed Imtiaz Hussain, MIA, KPT, Salahuddin Ahmed, Advocate Supreme Court, K.A. Wahab, Advocate-on-Record, Dr. Raana Khan, Advocate-on-Record, Syed Jameel Ahmed, Advocate Supreme Court, M. Umar Riaz, Advocate Supreme Court, Muhammad Aqil, Advocate Supreme Court, Sarfaraz Metlo, Advocate Supreme Court, Muhammad Ashraf Samoo, Advocate Supreme Court, Nazar Hussain Dhoon, Advocate Supreme Court, Syed Ashiq Raza, Advocate Supreme Court, Badar Alam, Advocate Supreme Court, Iftikhar Shalwani, Commissioner of Karachi, Dr. Saif-ur-Rehman, Municipal Commissioner, KMC, Khawaja Naveed Ahmed, Advocate Supreme Court, Saeed Ahmed Qureshi Focal Person Govt. of Sindh, Masood Alam, Director, Mrs. Azra Muqeem, Law Officer, Munir A. Malik, Senior Advocate Supreme Court, Ghulam Rasool Mangi, Advocate-on-Record, Mazhar Hassan, AIG Legal, Syed Ali Zafar, Advocate Supreme Court (via video link from Lahore), Admiral Javed Akhtar, Chairman, KPT, Agha Zafar Ahmed, Advocate Supreme Court, Abdul Qadir Khan, Advocate Supreme Court, Abdul Rehman, Advocate Supreme Court, Arshad M. Tayebali, Advocate Supreme Court, Mushtaq Memon, Advocate Supreme Court, Anas Makhdoom, Advocate Supreme Court and Farooq H. Naik, Senior Advocate Supreme Court.

2020 S C M R 1507

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

HUBDAR HUSSAIN MALIK--Petitioner

Versus

DEPUTY COMMISSIONER CHAKWAL and another---Respondents

Civil Petition No. 4188 of 2019, decided on 5th August, 2020.

(Against the judgment dated 01.10.2019 of the Lahore High Court, Rawalpindi Bench passed in Intra Court Appeal No. 63 of 2019)

Constitution of Pakistan---

----Arts. 20 & 199---Religious events---Security plans and arrangements drawn up by government functionaries and security forces responsible for maintaining safety and peace---Such plans and arrangements were not justiciable issues.

Subject to law, public order and morality, the Constitution conferred upon every citizen the right to profess, practice and propagate his religion. In a normal/ideal situation, profession and practice of a particular faith by a believer or group thereof should not pose any issue, calling for intervention of State functionaries, however, the state of affairs unfortunately, over time, had deteriorated alarmingly. Routine events of the past had now become, more often than not, security nightmares with no recession or respite being in sight, therefore, with mounting pressures and threats, the functionaries, tasked with the responsibility to maintain peace and tranquility in the society in order to ensure safety of human lives, must be provided autonomy of discretion with enough space to carry out their job without let or hindrance. Security measures were resource intensive arrangements with financial impacts upon public exchequer, therefore, it was essential as well as expedient that exercise of freedom was reasonably regulated on administrative considerations on the paramountcy of larger public interest. Functionaries were the best Judges to evaluate the nature and magnitude of threats so as to take all appropriate remedial measures/steps required to obviate impending disasters, therefore, these were not justiciable issues.

Hassan Raza Pasha, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2020 S C M R 1510

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

NAIMATULLAH KHAN ADVOCATE and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No.9/2010. C.M.A. No. 6206/2013 in Const. P. No.9/2010, C.M.A. No. 1552-K/2018 in Const, P. No.9/2010, C.M.A. No.1600-K/2018 in Const. P. No.9/2010, C.M.A. No.22-K/2019 in Const. P. No.9/2010, C.M.A. No.23-K/2019 in Const. P. No.9/2010, C.M.A. No.59-K/2019 in Const. P. No.9/2010, C.M.A. No.101-K/2019 in Const. P. No.9/2010, C.M.A. No.311-K/2019 in Const. P. No.9/2010, C.M.A. No.349-K/2019 in C.P. No. 815-K/2016, C.M.A. No. 394-K/2019 in Const. P. No.9/2010, C.M.A. No.423-K/2019 in Const. P. No.9/2010, C.M.A. No.425-K/2019 in Const. P. No.9/12010, C.M.A. No.459-K/2019 in Const. P. No.9/2010, C.M.A. No.460-K/ 2019 in Const. P. No.9/2010, C.M.A. No.521-K/2019 in Const. P. No.9/2012, C.M.A. No.527-K/2019 in Const. P. No.9/2010, C.M.A. No.556-K/2019 in Const. P. No.9/2010, C.M.A. No.606-K/2019 in Const. P. No.9/2010, C.M.A. No.617-K/2019 in Const. P. No.9/2010, C.M.A. No.631-K/2019 in Const. P. No.9/2010, C.M.A. No. 796-K/ 2019 in Const. P. No.9/2010, C.M.A. No. 830-K/2019 in Const. P. No.9/2010, C.M.A. No.831-K/2019 in Const. P. No.9/2010, C.M.A. No.875-K/2019 in Const. P. No.9/2010, C.M.A. No.889-K/2019 in Const. P. No.9/2010, C.M.A. No. 896-K/2019 in Const. P. No.9/2010, C.M.A. No.116/2019 in Const. P. No.9/2010 in C.M.A. No.Nil/2019, C.M.A. No.933-K/2019 in Const. P. No.9/2019, C.M.A. No.964-K/ 2019 in Const. P. No.9/2010, C.M.A. No.23-K/2020 in Const. P. No.9/2010, C.M.A. No.74-K/2020 in Const. P. No.9/2010, C.M.A. No.78-K/2020 in Const. P. No.9/2010, C.M.A. No.82-K/2020 in Const. P. No.9/2010, C.M.A. No.83-K/2020 in Const. P. No.9/2010, C.M.A. No.162-K/2020 in Const. P. No.9/2010, C.M.A. No.167-K/2020 in Const. P. No.9/2010, C.M.A. No.177-K/2020 in Const. P. No.9/2010, C.M.A. No.179-K/2020 in Const. P. No.9/2010, C.M.A. No.193- K/2020 in Const. P. No.9/2010, C.M.A. No.202-K/2020 in Const. P. No.9/2010, C.M.A. No.281-K/2020 in Const. P. No.9/2010, C.M.A. No.300-K of 2020 in Const. P. No. 9, C.M.A. No. 318-K/2020, C.M.A. No. 336-K/2020, C.M.A. No. 346-K/2020, C.M.A. No. 367-K/ 2020, C.M.A. No. 391-K/2020, in Const. P. No. 9, C.M.A. No. 414-K/2020 in Const. P. No. 9, Crl. Org. P. No. 2-K/2020 in Const. P. No.9/2010, Crl. Org. P. No. 4-K/2020 in C.M.A. No. 149-K/2020 in Const. P. No. 9/2010, Crl. Org. P. No. 5-K/2020 in Const. P. No.9/2010, C.P. No. 422-K/2020, Crl. O.P. No. 7-K/2017 in Crl. O.P. No. 11-K/2016, Crl. O.P. No. 19-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No. 121-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No.124-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No. 132-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No. 111-K/2018 in Crl. M.A. No. 132-K/2017 in Crl. O.P. No. 7-K/2017, Crl. M.A. No. 243-K/2018 in Crl. M.A. No. 3-K/2018 in Crl. O.P. No. 7-K/2017, Crl. M.A. No.8-K/2018 in Crl. O.P. No. 7-K/2017, Crl. M.A. No. 19-K/2018 in Cr1. O.P. No. 7-K/2017, Crl. M.A. No. 20-K/2018 in Cr1. O.P. No.7-K/2017, Crl. M.A. No.25-K/2018 in Crl. O.P. No.7- K/2017, Crl. M.A. No. 32-K/2018 in Crl. O.P. No. 7-K/2017, Crl. M.A. No.38-K/2018 in Crl. O.P. No.7-K/2017, Crl. M.A. No.44-K/2018 in Crl. O.P. No. 7-K/2017, Crl. M.A. No. 52-K/2018 in Cr1. O.P. No.7-K/2017, Crl. M.A. No.59-K/2018 in Crl. O.P. No.7-K/2017, Crl. M.A. No. 71-K/2018 in Crl. O.P. No. 7-K/2017, Cr1. M.A. No.72-K/2018 in Cr1. O.P. No.7-K/2017, Crl. M.A. No.95-K/2018 in Cr1. O.P. No. 7-K/2017, Crl. M.A. No.199-K/2018 in Cr1. O.P. No.7-K/2017 Crl. M.A. No.214-K/2018 in Crl. O.P. No.7-K/2017, Crl. M.A. No. 229-K/2018 in Cr1. O.P. No. 7-K/2017, Crl. M.A. No.1-K/2019 in Crl. O.P. No.7-K/2017, Crl. M.A. No.2-K/2019 in Crl. O.P. No.7-K/2017, Crl. M.A. No.34-K/2020 in Cr1. Org. P. No.7-K/ 2017, H.R.C.No.13058-S/2015, C.M.A. No. 512-K/2020, C.M.A. No.517-K/2020 in C.R.P. No.7-K/2020, C.M.As. Nos.522-K and 523-K/2020, H.R.C. No.20883/2018, C.M.A. No.676-K/2018 in H.R.C. No.20883/2018 and C.M.A. No.1547-K/2018 in C.M.A. No.676-K/ 2018, decided on 13th August, 2020.

(a) Constitution of Pakistan---

----Art. 184(3)---Matter regarding over charging of customers by

K-Electric (utility company)---Electricity consumers of K-Electric had many grievances against the utility company regarding them being over charged for usage of electricity---Further there were grievances that electricity meters of K-Electric were defective and showed more consumption of electricity than the actual consumption and the whole system with which K-Electric operated was not fair or justifiable---If one consumer did not pay the electricity bill, the whole area was declared as a default area and electricity of the whole area was disconnected---Supreme Court observed that such state of affairs could not be allowed to continue and it had to be stopped for which the Federal Government was required to take action in such regard---Matter was adjourned.

(b) Constitution of Pakistan---

----Art. 184(3)---Matter regarding construction of Customs Club on an amenity plot---Customs Club had already been demolished pursuant to an order passed by the Supreme Court---Subject plot on which the club was constructed was an amenity plot and such plot could only be used for the public purposes and not for any private club---In any case, the Customs Club was being used for business purposes in that it was used as a Marriage Hall and was being rented out to private parties---As such it could not be a valid use of an amenity plot---Application was dismissed.

(c) Constitution of Pakistan---

----Art. 184(3)---Matter regarding quarters in P&T colony leased out to third parties---In the P&T colony, the Federal Government had constructed quarters for living of employees of P&T Department and such quarters were now claimed to have been leased to the applicants---Supreme Court had already passed an order on 9.5.2019 wherein it was observed that P&T Colony belonged to P&T Department, which was a Federal Government Department, and the leases in question were found to be totally illegal, void ab initio and were cancelled---No other view of the present matter could be taken except for the one taken by the Supreme Court in its previous order---Application was dismissed having become infructuous.

In Attendance:

Khalid Javed Khan, Attorney General for Pakistan, Salman Talibuddin, A.G Sindh, Kashif Sarwar Paracha, DAG, Abid S. Zubari, Advocate Supreme Court, Syed Moonis Abdullah Alvi, CEO, K. Electric, Tauseef Farooqi, Chairman, NEPRA, Faisal Siddiqui, Advocate Supreme Court, Muhammad Iqbal Chaudhry, Advocate-on-Record (in C.M.A.1552-K of 2018), Dr. Saif-ur-Rehman, Municipal Commissioner, KMC, Iftikhar Ali Shalwani, Commissioner Karachi, K.A. Wahab, Advocate-on-Record (in C.M.As.1600-K, 25-K and 44-K of 2018), In Person (in C.M.As.59-K, 423-K, 521-K, 875-K, 933-K and 964-K of 2019), Abdul Rehman, Advocate Supreme Court (in C.M.A. 311-K of 2019), Arshad M. Tayebaly. Advocate Supreme Court (in C.M.A.349-K of 2019), Muhammad Aqil, Advocate Supreme Court (in C.M.A.556-K of 2019), Ibrar Hassan, Advocate Supreme Court (in C.M.A.606-K of 2019), Barrister Umar Riaz, Advocate Supreme Court (for Cantonment Board), Muhammad Sarfraz Methlo, Advocate Supreme Court (in C.M.A..796-K of 2019), Zia-ul--Haq Makhdoom, Advocate Supreme Court, Muhammad Haseeb Jamali, Agha Zafar Ahmed, Advocate Supreme Courts (in C.M.A.74-K of 2020), Abdul Sattar Pirzada, Advocate Supreme Court, Malik Ejaz, Director, SBCA, Ms. Jameela Jabeen, DD, SBCA, Ms. Azra Muqeem, Legal Advisor, KMC, Masood Alam, Senior Director, KMC, Khalid Mehmood Sheikh, M.D. Water Board, Shahid Jamil-ud-Din Ahmad Khan, Principal Law Officer, SBCA, Ashkar Dawar, DG, SBCA, Syed Jamil Ahmed, Advocate Supreme Court (for SBCA), Dr. Saeed Ahmed Qureshi, Focal Person to Chief Secretary Sindh, Salahuddin Ahmed, Advocate Supreme Court, Dr. Raana Khan, Advocate-on-Record, Badar Alam, Advocate Supreme Court, Mazhar Hassan, AIG Legal, Nemo (in C.M.As.23-K, 101-K, 394-K, 459-K, 460-K, 527-K, 617-K, 830-K and 896-K of 2019), Zaheer Ahmed Sheikh, Chief Engineer, HESCO and Muhammad Salim, CEO, SEPCO, Sukkur.

2020 S C M R 1517

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

IFTIKHAR AHMED---Appellant

Versus

Mst. SAIMA ZIA and others---Respondents

Civil Appeals Nos. 1198 to 1201 of 2014, decided on 9th July, 2020.

(On appeal from the judgment dated 02.05.2014 passed by the Peshawar High Court, Abbottabad Bench in C.Rs. Nos. 12, 13 and 18 of 2012)

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

----Ss. 6(a) & 6(c)---Right of pre-emption---Shafi-sharik---Shafi-jar---Suit property, sold through different sale deeds, comprised of a 'haveli' owned by predecessor of the vendors---After demise of their predecessor the property devolved upon his legal heirs (vendors)---All the legal heirs, due to their family settlement, retained their separate possessions of their respective shares---Appellant being a pre-emptor had also purchased specific share from the suit 'haveli'---Contention on behalf of appellant that since he had purchased the shares of some of the legal heirs from the joint property, he had become- co-owner in the 'haveli' and as such had superior right of pre-emption as shafi-sharik---Held, that sales made in favour of the appellant as well as the impugned sales (under pre-emption) would show sale of specific areas with their separate specific boundaries---Contention on behalf of appellant, in the given circumstances, had no force at all---Appellant could not be termed as a co-owner of the property as all the legal heirs were in possession of their respective shares due to family settlement which amounted to private partition and the 'haveli' as such was no more a joint property---Appellant, in the given situation, had become owner to the extent of his share he had purchased with the specific boundaries and could not be termed as co-­owner in the entire property---Perusal of all sale deeds, including the impugned sales (under pre-emption) reflected that each impugned sale deed had different boundaries from the boundaries given in the sale deeds of the appellant---Such factum clearly showed that the property owned by the appellant was not adjacent/contiguous with any of the suit property, so, the appellant could not be termed as a pre­-emptor having superior right of pre-emption as shafi-jar---Appellant having failed to establish his superior right of pre-emption was rightly non-suited by the fora below---Appeals were dismissed.

Muhammad Munir Paracha, Advocate Supreme Court for Appellant (in all cases).

Khalid Rehman Qureshi, Advocate Supreme Court for Respondents (in all cases).

2020 S C M R 1519

[Supreme Court of Pakistan]

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

PROVINCE OF THE PUNJAB through Secretary School Education, Government of the Punjab, Lahore and others---Petitioners

Versus

Mst. NARGAS PARVEEN and others---Respondents

Civil Petitions Nos. 194-L, 229-L to 233-L, 243-L to 247-L, 271-L to 275-L, 283-L to 285-L, 322-L, 323-L, 330-L to 332-L, 348-L, 349-L, 370-L, 378-L, 381-L, 397-L to 404-L, 422-L to 433-L, 443-L, 444-L, 452-L to 455-L and 478-L to 480-L of 2020, decided on 24th July, 2020.

(On appeals from the order of Punjab Service Tribunal dated 09.10.2019 passed in Appeals Nos. 565, 865 to 902 of 2015)

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

----R. 22(5), proviso---Punjab Civil Servants Act (III of 1974), S. 2(1)(a)---Ad hoc employees regularized in service---Seniority---Seniority in the case of ad-hoc employees was to be granted from the date of their regularization and not from the date of their ad-hoc appointment.

In the present case the respondents were appointed in the year 1995 on ad-hoc basis and their services were terminated after one year in accordance with Rule 22(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. However, the respondents and others challenged their termination and were successful in obtaining injunctive orders in their favour and since then the matter of regularization remained pending before the courts or the administrative authorities. Finally in the year 2009, the Government was directed by the court that the case of the ad-hoc employees be considered in light of a certain Supreme Court precedent. As a result vide order dated 15.06.2012 passed by the department the services of the respondents were regularized from the date of issuance of the order. The respondents while accepting their regularization from the said date contended that their seniority be reckoned from the date of their ad-hoc appointments. Any such claim of the respondents was opposed to proviso to Rule 22(5) of the Civil Servants (Appointment and Conditions of Service) Rules, 1974. Seniority in the case of ad-hoc employees was to be granted from the date of their regularization.

Abu Bakar Farooq through Chairman and others v. Muhammad Ali Rajpar and others 2019 SCMR 830; Nadir Shah, S.D.O. Minor Canal Cell, Irrigation Sub-Division, Dera Murad Jamali and 2 others v. Secretary, Irrigation and Power Department, Balochistan, Quetta and 7 others 2003 PLC (C.S.) 961; Federation of Pakistan and others v. Rais Khan 1993 SCMR 609 and Mian Muhammad Afzal and others v. Government of the Punjab and others 1982 SCMR 408 ref.

In light of provision of proviso to Rule 22(5) of the Civil Servants (Appointment and Conditions of Service) Rules, 1974, especially when the department was not at fault and did not extend any expectations to the ad-hoc employees in such regard, the regularization of ad-hoc employee shall be reckoned from the order of regularization and seniority was also to be reckoned from the date of regularization and not from the date of their ad-hoc appointment.

Petitions for leave to appeal were converted into appeals and allowed.

Rana Shamshad Khan, Additional A.G., Asif Afzal Bhatti, Additional A.G. along with Ali Ahmad Sial, CEO, Faisalabad, Aftab Ahmed, CEO, T.T. Singh, M. Ramzan, Litigation Officer, Saeed Shahid, Litigation Officer, Ahmed Naseem, Litigation Officer and Ammad ud Din, Litigation Officer for Petitioners (in all Petitions).

Sharjeel Adnan Sheikh, Advocate Supreme Court for Respondents (in all Petitions except C.Ps. Nos. 233-L, 397-L, 443-L and 444-L of 2020).

Nemo for Respondents (in C.Ps. Nos. 233-L, 397-L and 444-L of 2020).

Mahmood Ahmed Qazi, Advocate Supreme Court for Respondents (in C.P. No. 443-L of 2020).

2020 S C M R 1610

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Yahya Afridi, JJ

DISTRICT POLICE OFFICER, MIANWALI and another---Appellants

Versus

MUHAMMAD HANIF---Respondent

Civil Appeal No. 324 of 2020, decided on 30th July, 2020.

(Against the order dated 31.07.2019, passed by the Punjab Service Tribunal, Lahore in Appeal No. 360 of 2018)

Punjab Police Efficiency and Discipline Rules, 1975---

----Rr. 3(b) & 4(1)(b)(iv)---Police official---Receiving a bribe/illegal gratification---Serious misconduct---Dismissal from service---Taking/accepting of illegal gratification itself was a heinous offence and a serious misconduct requiring imposition of major penalty---Civil servant who was found guilty of the offence of accepting illegal gratification could not be retained in the civil service and major penalty had to be imposed on him.

Respondent was proceeded against departmentally under Punjab Police (E&D) Rules, 1975. He was issued a charge sheet; the department conducted an inquiry into the matter and the competent authority i.e. District Police Officer, after issuing final show cause notice awarded him major penalty of dismissal from service. The respondent filed a departmental appeal before RPO, Police who took a lenient view of the matter and partially accepting the appeal converted the major penalty of dismissal from service to that of compulsory retirement. Aggrieved, the respondent filed a service appeal before the Tribunal which found the act of the respondent a minor act which did not deserve an extreme penalty. Accordingly, the Tribunal modified the major penalty of compulsory retirement from service into "withholding of one increment for one year". The respondent was directed to be reinstated into service and the intervening period was to be treated as leave of the kind due.

A thorough investigation and inquiry was conducted by the department through its internal Accountability Division/Cell. Independent evidence in the form of statement of a Constable was recorded who was approached by the complainant to inform the respondent to return his money which he had obtained from him to arrange a DNA test. Recordings in a CD produced by the complainant also showed that the version of the complainant was correct. The internal accountability mechanism of the department found enough material against the respondent to prove him guilty. The appellate authority (RPO, Police) also heard the respondent, gave him an opportunity to defend himself and produce whatever evidence or material he wished to produce in order to show that the findings of the inquiry were incorrect. Respondent was unable to do so. Other than pleading that he was innocent nothing specific was said by the Respondent at any stage to explain his position. Even the appellate authority (RPO, Police) after examination of the entire record and hearing the respondent found him guilty of the charge.

Taking of illegal gratification itself was a heinous offence, requiring imposition of major penalty. Accepting illegal gratification was a heinous offence and a civil servant, who was found guilty of such offence, could not be retained in the civil service and major penalty had to be imposed on him. The impugned decision of Member, Provincial Service Tribunal considering it a minor act and imposing a minor penalty showed that the said Member was neither sensitive nor alive to the offence of taking illegal gratification, which by law was considered serious misconduct.

Bashir Ahmad, Line Superintendent-I Lahore v. Water and Power Development Authority, through its Chairman, Lahore 1991 SCMR 2093; Muhammad Inam v. Federal Service Tribunal 1995 SCMR 37; Javed Akhtar v. WAPDA through Chairman, WAPDA House, Lahore and 2 others 1996 SCMR 867; Ali Akbar v. Inspector-General of Police 2001 SCMR 83; Safdar Ali v. D.I.G. Traffic, Lahore and others 2007 PLC (C.S.) 1284; Ghulam Rasool Ranjha v. Government of the Punjab through Chief Secretary, Province of Punjab, Lahore and others 2008 SCMR 1265 and Muhammad Shehzad Zaheer v. Federation of Pakistan through Secretary, Establishment Division and others 2014 SCMR 1169 ref.

Perusal of the impugned judgment (of the Tribunal) showed that the Tribunal was of the view that the departmental inquiry was defective. However, no reasons were recorded by the Tribunal to substantiate its conclusions. It was also observed that defective procedure was adopted to award major penalty to the respondent. However, the said observation was neither elaborated nor reasoned as to how and why the Tribunal was of the view that the procedure adopted by the department was defective. Tribunal did not explain as to how and on what legal basis and in exercise of which jurisdiction it came to the conclusion that the respondent deserved lenient treatment, and that what was the basis for finding that the act of an official of a disciplined force of receiving illegal gratification/bribe constituted, "a minor act". Perusal of the impugned judgment of the Tribunal ex facie indicated that it did not qualify as a judicial order, had been passed in a slipshod manner, without due appreciation and application of the relevant laws, rules, regulations and principles of law enunciated by the Supreme Court. Member of the Tribunal who authored the impugned judgment lacked the requisite professional capacity and was unable to perform functions within the parameters mandated by law. Member in question had shown a trend of writing judgments in a number of cases similar to the impugned judgment. His continuing to hold his position would not be in the best interest of the litigants or the system of administration of justice.

Impugned judgment of the Tribunal was set aside. Consequently, the major penalty of dismissal from service awarded to the respondent by the department was maintained. Appeal was allowed accordingly with the directions that the Provincial Government shall replace the Member, Tribunal in question with some other qualified person whose knowledge, aptitude and experience was suitable for the post in question; that in the meantime, said Member was restrained from performing functions as a Member of the Provincial Service Tribunal.

Barrister Qasim Ali Chohan, Additional A.G. Punjab and Zaka Ullah, Acting DSP, Legal Mianwali for Appellants.

Muhammad Bashir Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2020 S C M R 1618

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

Mst. BRIKHNA---Petitioner

Versus

FAIZ ULLAH KHAN and others---Respondents

Civil Petition No. 989 of 2015, decided on 1st July, 2020.

(On appeal from the judgment dated 6.4.2015 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in C.R. No. 88-P/2008)

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

----Ss. 41(3) & 42(3)--- Mutation--- Scope---Mutation was not a document of title--- Sole purpose of a mutation was to keep the record of rights updated and to maintain the fiscal records straight.

(b) Islamic law---

----Inheritance---Sister, share of---Brother attempting to disentitle sister from her share in inheritance---Sister-petitioner being one of the legal heirs of the deceased-father became entitled to inherit the legacy of her father from the day her father died and as such became co-sharer/co-owner in the property---Such entitlement of petitioner was based on operation of Islamic law and the law of inheritance---Amongst her three brothers, only one of them i.e. the respondent was avoiding to give the petitioner her due share---Respondent had also failed to establish the stance taken by him in his written statement that their father died by leaving only the three sons and that the petitioner was not the real daughter of their father---Petitioner being one of the legal heir of her deceased father was entitled to get her due Sharai share which in the circumstances came to 1/7 share---Petition for leave to appeal was converted into appeal and allowed with the observation that people belonging from the region where the present case originated from normally avoided giving their daughters/sisters i.e. women folk, their due shares in the inheritance of their predecessors which was totally against Sharia and the law of inheritance prevailing in the country.

Grana v. Sahib Kamala Bibi PLD 2014 SC 167 distinguished.

Mst. Gohar Khanum v. Jamila Jan 2014 SCMR 801 ref.

Rehman Ullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court for Respondent No.1 along with Respondent No. 1 in person.

2020 S C M R 1621

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Amin-ud-Din Khan, JJ

NAJAF IQBAL---Appellant

Versus

SHAHZAD RAFIQUE---Respondent

Civil Appeal No. 165-L of 2020, decided on 6th August, 2020.

(Against the judgment and decree dated 05.03.2020 passed by the Lahore High Court, Lahore in R.F.A. No. 209 of 2010)

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

----O. XXXVII---Negotiable Instruments Act (XXVI of 1881), S. 118---Summary suit---Admittedly the subject cheque belonged to the bank account and cheque book of the defendant---Defendant claimed that the cheque in question was lost and he had reported the matter to the police---When the plaintiff presented the cheque to the bank it was dishonoured on the ground of "insufficient funds" and "payment stopped by the drawer", which fact was supported by the statement of the bank manager---Neither it was the statement of the bank manager nor mentioned on memorandum of refusal of cheque that the cheque did not contain signatures of the defendant---Presumptions mentioned in S. 118 of the Negotiable Instruments Act, 1881 were attached with a negotiable instrument unless proved to the contrary---Said presumptions were to be rebutted by the defendant---When the ground for dishonour of a cheque was "insufficiency of funds" and "stopped payment", there could be no presumption that cheque was not having signatures of the defendant---Defendant had the choice to produce a Handwriting Expert when he disputed his signatures upon the cheque, but he opted not to produce any such expert---Suit filed by plaintiff had been rightly decreed by the High Court---Appeal was dismissed.

Salar Abdur Rauf v. Mst. Barkat Bibi 1973 SCMR 332; Rohithai Jivanlal Patel v. State of Gujarat and another AIR 2019 SC 1876; Uttam Ram v. Devinder Singh Hudan and another 2019 (10) SCC 287 and Abdul Rasheed v. Fazal Ali Shah 2016 SCMR 2163 ref.

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

----O. XIV, R. 1 & O. XXXVII---Summary suit---Issues, framing of---Defendant raising objection regarding framing of issues for the first time before the Supreme Court---Before the Supreme Court when the pleadings of the parties were in their knowledge and both the parties had led evidence of their own choice in the shape of oral as well as documentary, the objection of non-framing of proper issues was not relevant---Appeal was dismissed.

Jahangir A. Jhoja, Senior Advocate Supreme Court for Appellant.

Imran Muhammad Sarwar, Advocate Supreme Court for Respondent.

2020 S C M R 1625

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Mazhar Alam Khan Miankhel, JJ

Miss NAUREEN NAZ BUTT---Appellant

Versus

PAKISTAN INTERNATIONAL AIRLINES through Chairman, PIA and others---Respondents

Civil Appeal No. 451 of 2017, decided on 14th July, 2020.

(On appeal against the judgment dated 24.01.2017 passed by the Lahore High Court, Lahore in Intra Court Appeal No. 608 of 2009)

(a) Master and servant---

----Airhostess of Pakistan International Airlines---Contract appointment---No vested right to remain in employment after expiry of contract period---Contract employee, whose period of contract employment expired by afflux of time, carried no vested right to remain in employment of the employer and the Courts could not force the employer to reinstate or extend the contract of such employee.

Ms. Samina Abid v. Pakistan International Airlines through its Chairman, PIA Head Office, Karachi and others C.A. No. 450 of 2017 distinguished.

Mubarak Ali and another v. Government of Punjab through Secretary Industries and Mineral Development Department 1997 PLC (C.S.) 284; Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2005 SCMR 642 and Muzaffar Khan and others v. Government of Pakistan and others 2013 SCMR 304 ref.

(b) Constitution of Pakistan---

----Art. 199---Master and servant relationship of---Employment in Pakistan International Airlines---Constitutional petition filed by an employee of PIA--- Maintainability--- Employment in Pakistan International Airlines, being not governed by 'statutory rules, principle of 'Master and Servant' would apply and thus, a constitutional petition filed by an employee before the High Court would not be maintainable.

PIA Corporation v. Syed Suleman Alam Rizvi and others 2015 SCMR 1545 and Pakistan International Airline Corporation and others v. Tanweer-ur-Rehinan and others PLD 2010 SC 676 ref.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court, Ahmed Nawaz Ch., Advocate-on-Record along with Appellant in person for Appellant.

Tariq Aziz, Advocate-on-Record, Adnan Ahmed Channa, Manager HR and Javed Hassan, Assistant Manager, HR for Respondents.

2020 S C M R 1629

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Mazhar Alam Khan Miankhel, JJ

PROVINCE OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others---Appellants

Versus

FARASATULLAH and others---Respondents

Civil Appeals Nos. 188 to 193 of 2020, decided on 15th July, 2020.

(Against the judgment dated 07.02.2018, 20.06.2019, 19.09.2019, 21.11.2019, 30.10.2019 and 24.10.2019 passed by the Peshawar High Court, Peshawar and Peshawar High Court, Abbottabad Bench in Writ Petitions Nos. 2243-P/17, 4328-P/18, 1472-A/18, 4595-P/17, 3952-P/18 and 4397-P/2019)

(a) Higher Education Commission Ordinance (LIII of 2002)---

----S. 10---Government notification allowing grant to a particular set of employees---Interpretation---M.Phil allowance/grant for employees having a M.Phil degree---Whether employees having L.L.M degree or MS in Agriculture were also eligible for M.Phil allowance on the basis that said qualifications were equivalent to M.Phil as held by the (defunct) University Grants Commission (now Higher Education Commission)---Held, that the perusal of impugned notification showed that the M.Phil allowance was specifically meant for persons who held M.Phil degrees which were recognized by the Higher Education Commission, and that it was not expressly or by implication mentioned that the allowance would be payable to all who held an "M.Phil or equivalent degree"---Intent and purpose of the competent authority in granting the allowance was clear and unambiguous and there was no room to read something into the notification which was not there --- Higher Education Commission did not have any power or authority to advise that all those who held LLM or MS degrees should be eligible to draw the allowance in question.

The main controversy involved in the present case related to a notification dated 14-07-2016 issued by the Provincial Secretary, Government of Khyber Pakhtunkhwa, Finance Department ('the impugned notification') through which an allowance @ Rs.2500/- per month was granted to the employees who held M.Phil degrees. The said notification was challenged by the respondents before the High Court praying that the respondents may also be granted the M.Phil allowance because they held LLM degrees or MS degrees in Agriculture, which were equivalent to M.Phil. The High Court allowed the constitutional petitions filed by respondents and directed the concerned authorities to grant M.Phil allowance to all employees who held any degree equivalent to M.Phil i.e. LLM and MS in Agriculture from the date of acquiring such degree. The High Court based its judgment on a letter of the University Grants Commission (UGC) dated 23-08-2000 stating that Master of Law degree was equivalent to M.Phil.

Plain reading of the impugned notification made it abundantly clear that the intent of the competent authority was to grant M.Phil allowance @ of existing amount of Ph.D allowance @ Rs.2500/- per month; that the allowance in question was not admissible to those who were already getting Ph.D. allowance @ Rs. 10,000/-: per month; that the M.Phil allowance was specifically meant for persons who held M.Phil degrees which were recognized by the Higher Education Commission; that it was not expressly or by implication mentioned in the impugned notification that the allowance would be payable to all who held an "M.Phil or equivalent degree". Intent and purpose of the competent authority in granting the incentive was clear and unambiguous and there was no room to read something into the notification which was not there.

It was not understandable as to how and under what authority of law had the Higher Education Commission advised that all those who held M.Phil or MS degrees should be eligible to draw Higher Education Commission allowance @ Rs.2500/- per month. There was neither any power nor authority available with the Higher Education Ordinance to issue any such letter or clarification as the mandate of Higher Education Commission was limited only to academic matters and determining equivalence for academic reasons. High Court erred in law in relying upon letters issued by the Higher Education Commission/University Grants Commission (defunct) which was clearly beyond its mandate in granting relief to the respondents.

There was intelligible differentia between holders of M.Phil degrees and those who did not hold such degrees. Holders of M.Phil degrees in different disciplines constituted a class by themselves and could be granted incentives without offering similar incentives to holders of equivalence certificates from Higher Education Commission. To hold otherwise would in effect negate and nullify the very concept of the rule of "intelligible differentia". A class of employees who held M.Phil degrees had been earmarked for grant of an allowance which had specifically been called and termed as "M.Phil allowance". All those who fulfilled the requirement of the notification had been granted the allowance and were entitled for the same. It was not the case of the respondents that some of them had M.Phil degrees and had been refused or that the employees holding degrees other than M.Phil had been allowed the such allowance. Appeals were allowed and judgments of High Court were set-aside.

(b) Constitution of Pakistan---

----Art. 25---Civil service---Discrimination, plea of---Allowance/grant allowed by Provincial Government of one Province but not by other(s)---If certain actions had been done in a certain Province(s) within the powers available to it/them under the Constitution, it was not necessary that the same be replicated in all other Provinces.

S.M.C. No.15 of 2010 and C.M.As. Nos.2689, 3244 of 2010 and C.M.As. Nos.5383, 3068 of 2011 (Suo Motu action regarding Regularization of the Contract Employees of Zakat Department as well as appointment of Chairman of Central Zakat Council 2013 SCMR 304 ref.

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa, Mian Saadullah Jandoli, Advocate-on-Record (absent), Shafiullah, Deputy Director (Legal), M. Imran, Deputy Director, Agriculture, M. Arif, L.O., Archaeology, Tauheed Iqbal, A.D. and Ilyas Khan (Sr. Statistician) for Appellants.

Khalid Rehman, Advocate Supreme Court for Respondents (in C.A. No. 189 of 2020).

Afzal Malik, Advocate Supreme Court for Respondents (in C.A. No. 193 of 2020).

M. Adeel Qureshi, Sajid Khan and Ehtasham (all in person).

Nemo for Respondents (in other cases).

2020 S C M R 1664

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

PAKISTAN RAILWAYS through Chairman, Islamabad and another---Appellants

Versus

SAJID HUSSAIN and others---Respondents

Civil Appeals Nos. 17 to 29 of 2020, decided on 7th August, 2020.

(Against the judgment dated 18.07.2019 passed by the Federal Service Tribunal, Islamabad in Appeals Nos. 1885(R)CS to 1887(R)CS of 2016 and 1960(R)CS to 1969(R)CS of 2016)

(a) Civil service---

----Temporary Labour Appointment Workers of Pakistan Railways---Regularization in service---Gatekeepers operating gates on railway level crossings receiving salaries from other government departments under an agreement between Pakistan Railways and various government departments---Whether posts of gatekeeper "temporary project posts"---Held, that gatekeepers (respondents) had been in continuous service of Pakistan Railways in excess of 10 years since their initial appointment with a gap of one day after expiry of every 89 days---Level crossings for all intents and purposes were permanent in nature and in any event the same would continue to exist as long as trains plyed on the tracks passing through areas where level crossings were constructed---Posts of gate keepers were permanent in nature in so far as where level crossings existed and gate keepers were hired, it could not possibly be argued that such hiring was for a limited period---Service Tribunal had rightly given directions to Pakistan Railways for extending the benefit of Regularization Policy, 2012 to the respondents.

Respondents (employees) joined service of the Pakistan Railways as Temporary Labour Appointment Workers (TLAs) on 15-04-2010 initially for a period of 89 days and after a gap of one day they were reappointed and such process was repeated over a period of 10 years inasmuch as the respondents continued to serve in the same capacity and under the same system. On the basis of various Regularization Policies announced by Pakistan Railways from time to time, the respondents sought regularization of their services in terms of the Regularization Policies applicable to them, however, such relief was declined to them. Service Tribunal directed Pakistan Railways to extend the benefit of Regularization Policy, 2012 to the respondents on the same lines as had been given to other TLAs. Arguments advanced by Pakistan Railways were that the respondents were employed against project posts and were paid out of contingency funds under the Project Head; that a document titled "agreement for the public road manned level Crossing provided at the cost of other Government/Semi-Government Departments and Autonomous Bodies" executed between Pakistan Railways and various Government Departments including Highways Department and Local Governments envisaged construction and maintenance of level crossings falling within the jurisdiction of the respective Departments and local Governments by Pakistan Railways at the cost and expense of such Departments and Local Governments; that said agreement also envisaged that in addition to maintenance charges of level crossings payable to Pakistan Railways from time to time the Government Departments/Local Governments shall also provide the requisite funds for paying salaries of Gatekeepers appointed by Pakistan Railways to operate the gates on such level crossings. The question arose as to whether the said arrangement could be termed as a project and Pakistan Railways was justified in holding that the respondents had been appointed against temporary project posts.

Respondents had been in continuous service of Pakistan Railways in excess of 10 years since their initial appointment in 2010 with a gap of one day after expiry of 89 days. Level crossings for all intents and purposes were permanent in nature and in any event the same would continue to exist as long as trains plyed on the tracks passing through areas where level crossings were constructed, and gate keepers were hired to operate the gates on such level crossings. The posts of gate keepers were permanent in nature in so far as where level crossings existed and gate keepers were hired, it could not possibly be argued that such hiring was for a limited period. The arguments of Pakistan Railways fell short of meeting the requirements of a project with funding for duration of the project only in view of the fact that neither the so-called project nor the funding made available by the Government Departments/Local Governments was for a limited period. The arrangement between Pakistan Railways and the Government Departments/Local Governments was of a permanent nature which was evident from the contents of the agreement placed on record. Therefore, the argument of Pakistan Railways that the respondents were employed temporarily for duration of the project was misconceived and without lawful basis in addition to being unsupported by the record.

Ikram Bari v. National Bank of Pakistan 2005 SCMR 100 ref.

Prima facie Regularization Policy of Pakistan Railways dated 20-12-2012 was attracted to the case of the respondents. Service Tribunal had rightly given directions for extending the benefit of Regularization Policy, 2012 to the respondents. Appeals were dismissed.

(b) Civil service---

----Project posts---Scope---In ordinary terms the word 'project' was used to denote any undertaking which was for a limited period and after the objective for which the said project had been set up was achieved; funding for the same dried up and employees who were hired for a limited period for duration of the project had to be relieved of their duties owing to the fact that the project had concluded---Funding ceased and the very basis on which such employees were hired came to an end.

Jawad Mahmood Pasha, Advocate Supreme Court, Raja Ghazanfar Ali Khan, Advocate Supreme Court, Syed Rafaqat H. Shah, Advocate-on-Record, Habib-ur-Rehman Gillani, Secretary, Pakistan Railways and Shoaib Adil, D.S. Multan for Appellants.

M. Ramzan Khan, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Respondents (in C.A. No. 17 of 2020).

Nemo for Respondents (in all other cases).

2020 S C M R 1672

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

HAZRAT NABI SHAH alias HAZRAT KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Petition No. 520 of 2020, decided on 25th August, 2020.

(Against the order dated 30.4.2020 passed by the Lahore High Court, Lahore in Cr. M. No. 8114-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Pakistan Arms Ordinance (XX of 1965), S. 9---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Possession of illegal weapons, explosives and grenade, act of terrorism---Bail, refusal/recalling of---Accused and co-accused, both teenagers, belonged to different parts of the Province and apparently had no business to be in a distant city, from where they were intercepted and caught---As such hypothesis of their manipulated arrest, was not convincing---Seizure of considerable quantity of explosives that included a hand grenade, a pistol and cash could not be brushed aside on a bald denial alone as the local authorities did not appear to have an axe to grind against the accused and co-accused---On the contrary, their surprise arrest and recovery of contraband constituted 'reasonable grounds" to bring their case within the remit of prohibition under S. 497, Cr.P.C., standing as an impediment to their release on bail---Bomb Disposal Expert, who diffused the grenade, prepared a memo which stated that the explosive material was alive, serviceable, operational and could be used for terrorist activities---Said observations of the expert confirming lethality of items seized, escaped the notice of the High Court that erroneously misdirected itself to grant bail to the co-accused, who was inexorably placed in an identical position with the accused, who was rightly denied concession of bail---Seizure of high intensity explosives/devices given their devastating potential/threat to unsuspecting public at large must be viewed with appropriate caution---Accused was refused bail, whereas bail granted to co-accused by the High Court was recalled---Petition for leave to appeal was dismissed and leave was refused.

Muazzam Butt, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Rana M. Arif Kamal Noon, Prosecutor General, Punjab for the State (on Court's Notice).

Rana Abdul Majeed, Addl. P.G. Punjab, Sarwar Sindhu, Addl. P.G. Punjab, Rai Tahir, Addl. I.G. CTD Punjab, Sohail Khan, Inspector/IO, CTD, Sargodha, Syed Asad Muzaffar, SP Model Town Lahore, Altaf Hussain, DSP, Nisar Ahmed, SI/Incharge Investigation and Munir Ahmed, SI for the State.

Aftab Alam Yasir, Advocate Supreme Court along with Ismail Khan, in person for co-accused (Ismail Khan).

2020 S C M R 1675

[Supreme Court of Pakistan]

Present: Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

KHUSH RANG---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 698 of 2020, decided on 5th August, 2020.

(Against the order of the Peshawar High Court, Peshawar dated 10.07.2020 passed in Crl. M.B.A. No. 1740-P/2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 365, 34, 419, 420, 468, 471, 170 & 171---Qatl-i-amd, abduction with murder, using fake number plate on vehicle---Bail, grant of---Further inquiry---Crime report itself disclosed that the time of occurrence had been mentioned as 'unknown'---During the course of investigation it transpired that the actual registration number of the vehicle recovered from a place belonging to the accused was '914', whereas, vehicle with the number '871' was used for the purpose of committing the crime---Nothing was available on the record to specify that vehicle used in the crime was properly numbered and its number plate was manipulated---No direct evidence against the accused was available on the record---Complainant nominated the accused for the first time in his statement under S. 164, Cr.P.C. at belated stage---Applicability and value of the same as "supplementary statement" would be resolved by the Trial Court after recording of evidence and providing an opportunity of hearing---As far as recovery of dead body was concerned that had not been recovered on the pointation of the accused---Question of accused sharing common intention with co-accused was also within the domain of Trial Court after recording of evidence---Case of the accused squarely fell within ambit of S. 497(2), Cr.P.C. entitling him for concession of bail---Petition for leave to appeal was converted into appeal and allowed and accused was released on bail.

Raja Rizwan Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court and Iqbal Mushwany, SI Police Station Saddar, Mardan for the State.

2020 S C M R 1678

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, QUETTA and others---Appellants

Versus

ASMATULLAH KAKAR---Respondent

Civil Appeal No. 507 of 2020, decided on 18th August, 2020.

(Against the judgment dated 30.09.2018 passed by the Balochistan Service Tribunal Quetta in Service Appeal No. 611 of 2018)

Balochistan Government Initial Appointment to Civil Service Posts (Age and Relaxation of Upper Age Limit), Rules, 2012---

----R. 3(6)---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, R. 11---Civil servant---Date of birth, change in---Principles---Date of birth of a civil servant once recorded in his service book and other service record at the time of his entry into the Government service could not be changed, except where an error occurred in recording the correct date of birth on account of a clerical error or in accordance with the exceptions provided in the Rules themselves.

Before joining service the respondent-civil servant filed an application form in order to sit for the civil service examination. In the said form which the respondent filled in his own hand and was duly signed by him, he mentioned his date of birth as 08-01-1959. The form was accompanied by his Secondary school certificate which also reflected the same date of birth. Likewise, the same date of birth was entered in his service record from the day he joined service and was not changed within the time frame provided by law. Date of birth of a civil servant once recorded in his service book and other service record at the time of his entry into the Government service could not be changed, except where an error occurred in recording the correct date of birth on account of a clerical error or in accordance with the exceptions provided in the Rules themselves. In this respect all relevant service rules including Rule 3(6) of the Balochistan Government Initial Appointment to the Civil Service Posts (Age and Relaxation of Upper Age Limit) Rules, 2012 as well as the Balochistan Civil Servants (Appointments, Promotions and Transfers) Rules, 2009 were clear and categorical. It was never the case of the respondent that his case fell within any of the exceptions or that his date of birth was wrongly recorded on account of a clerical error.

Qamaruddin v. Pakistan through Secretary, Establishment Division, Islamabad and another 2007 SCMR 66; Dr. Muhammad Aslam Baloch v. Government of Balochistan through Secretary Health Department and others 2014 SCMR 1723, Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 and Dr. Zulfiqar Ahmed Malik v. Federation of Pakistan through Secretary Revenue Division, Chairman FBR, Islamabad and others 2019 SCMR 1973 ref.

Respondent filed a declaratory suit before the civil court in the year 1983 for changing his date of birth and obtained a judgment and decree dated 07-09-1989. However significantly in the said suit respondent only impleaded the Provincial Chairman, Board of Intermediate and Secondary Education, and the Headmaster, Government High School. He did not implead his employer namely, the Provincial Government which was the most material and necessary party in the suit in question. Further, armed with the said judgment and decree, he filed an application for alteration in his date of birth which was rightly declined vide letter dated 07-04-1991 issued by the Provincial Government, Services and General Administration Department. He did not agitate this matter any further which became past and closed transaction. Thereafter, the respondent kept quiet for the next 17 years. It was only on the eve of his retirement when the notification for his retirement was issued, that he moved an application agitating the matter again knowing that the request had already been declined in 1991, and thereafter filed the service appeal. Such act on part of the respondent was a mala fide and seemingly clever attempt to hoodwink the system and extend his date of retirement by a few years.

Appeal was allowed and judgment of Service Tribunal was set aside.

Arbab Muhammad Tahir, A.G. Balochistan (in video link from Quetta), and Ayaz Khan Swati, Additional A.G. Balochistan (from Islamabad) for Appellants.

M. Akram Shah, Advocate Supreme Court (via video link from Quetta (appeared without filing of enter appearance)) for Respondent.

2020 S C M R 1685

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

TAHIR ZEB and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 658 of 2020, decided on 25th August, 2020.

(Against the judgment dated 16.04.2020 passed by the Peshawar High Court, Peshawar in Cr. M. B.A. No. 815-P of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Deceased was run over by a vehicle allegedly being driven by the co-accused---Accused was alleged to have been sitting on the front seat besides the co-accused---Situation cropped up all of a sudden resulting into injuries to the deceased---Culpability of accused for being in the community of intention on account of his presence on the next seat to the co-accused was an issue that in the facts and circumstances of the case could be best settled after recording of evidence---Unconventional mode adopted by the co-accused to take the life of the deceased and suddenness of the incident squarely brought case of accused within the remit of further probe---Accused was allowed bail---Petition for leave to appeal was converted into appeal and allowed to the extent of accused.

Arshad Hussain Yousafzai, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Anis Muhammad Shahazad, Advocate Supreme Court (State counsel KP) along with Anwar Khan, SI/I.O. for the State.

Abdul Ahad Khan, Advocate Supreme Court for the Complainant.

2020 S C M R 1687

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Sayyed Mazahar Ali Akbar Naqvi, JJ

FARMAN ULLAH---Petitioner

Versus

The STATE through Additional Advocate General and another---Respondents

Criminal Petition No. 911 of 2020, decided on 13th August, 2020.

(Against the order of Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat dated 29.06.2020 passed in Cr. M. (B.A.) No.293-M of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 337-A(v) & 34---Shajjah-i-ammah, common intention---Bail, grant of---Injury ascribed to accused was on non-vital part of the body---No explanation was offered by prosecution for the inordinate delay of nine days in lodging of the FIR---Injured victim was discharged from the hospital after two days, but still did not report the matter to the police immediately, when the distance between the place of occurrence and police station was merely 6 to 7 kms---Incident took place at the spur of the moment without any prior preparation---No conventional weapon was used during the occurrence and it was specifically mentioned in the FIR that the injury was caused by a stone---Prosecution witnesses in their statements before police admitted that stone pelting was done by both sides during the occurrence---Possibility could not be ruled out that the allegation against the accused was an afterthought---Petition for leave to appeal was converted into appeal and allowed and the accused was released on bail.

Kausar Ali Shah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Malik Akhtar Hussain, AAG, Khyber Pakhtunkhwa for the State.

2020 S C M R 1689

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

GOVERNMENT OF BALOCHISTAN through Chief Secretary Quetta and others---Appellants

Versus

Dr. MUHAMMAD TARIQ JAFAR and others---Respondents

Civil Appeals Nos. 429, 430 and 442 of 2020, decided on 20th August, 2020.

(Against the judgment dated 12.04.2019 passed by the Balochistan Service Tribunal, Quetta in Service Appeals Nos. 195 and 404 of 2017 and 326 of 2016)

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

----S. 5---Constitution of Pakistan, Art. 185---Appeal to Supreme Court---Condonation of delay---Scope---Three appeals filed before the Supreme Court against the same judgment of the Service Tribunal---Two appeals barred by time, whereas one filed within time---Held, that admittedly one of the three appeals was filed within time---Further, important questions of law had been raised in the three appeals and in order to avoid legal complications and anomalous situations arising out of the judgment of the Tribunal being left intact in appeals which were barred by time and possibly setting aside the same in the appeal which was filed within time, a case had been made out for condonation of delay---Accordingly, applications for condonation of delay were allowed and the delay caused in filing the two appeals was condoned.

(b) Constitution of Pakistan---

----Art. 25---Civil service---Distinct and separate groups---Intelligible differentia---Orderly allowance and special additional pension in lieu of such orderly allowance after retirement ('allowances in question'), payment of---Doctors working in teaching cadre as Professors (BS-20) in Province of Balochistan not paid allowances in question, whereas, officers and employees of Grade-20 and above working in the Civil Secretariat of the Province of Balochistan, the Federal Government as well as the other Provinces (Punjab, Sindh and Khyber Pakhtunkhwa) paid the allowances in question---Whether the doctors were discriminated against---Held, that respondents by reason of their job descriptions, service structure, emoluments and allowances constituted a distinct and separate group of officers compared to the Secretaries and other officials placed in Grade-20 and above in Balochistan Civil Secretariat---Intelligible differentia existed between the two sets of officers which could easily be differentiated and such differentiation was clearly understood as logical and lucid and it was neither artificial nor contrived---Furthermore respondents had and continued to be adequately and sufficiently compensated by reason of special allowances which were specific and germane to their cadre and were not available to other civil servants despite the fact that such civil servants were working in BS-20 and above---Respondents had not been discriminated against as alleged by them and none of their rights guaranteed by the Constitution had been violated by reason of denial of the allowance in question.

Respondents were doctors working in teaching cadre as Professors (BS-20) and their grievance was that orderly allowance and special additional pension in lieu of orderly allowance was given to officers in Grade-20 and above who were working in the Civil Secretariat of the Province of Balochistan; that allowance in question had also been extended to Government employees in BS-20 and above working in the Federal Government as well as the Governments of the Provinces of Punjab, Sindh and Khyber Pakhtunkhwa, however, the respondents were singled out and discriminated against by denial of such allowance and pension. Respondents filed departmental representations which were not responded to. This prompted them to file Service Appeals before the Tribunal, which allowed their appeals vide the impugned judgment.

The respondents on the one hand and the civil servants including Secretaries and others placed in Grade-20 and above working in the Province of Balochistan Civil Secretariat on the other, could neither be placed in the same category nor were in the same classification in so far as they belonged to two totally different cadres, performed totally different functions, had different job descriptions and career progression channels. Such difference and classification based on such aspects could clearly and unambiguously be understood on the basis of an intelligible differentia.

By reason of different classifications and job descriptions, the respondents were receiving a number of additional allowances which were not paid to the Secretaries and other employees working in Grade-20 and above in Balochistan Civil Secretariat. Such Secretaries and others placed in Grade-20 and above working in Balochistan Civil Secretariat had not and could not claim the same additional allowances as were being paid to the respondents.

On the basis of different classifications, job descriptions, salary and allowances structure, a considered policy had been formulated by the Government of Balochistan on the basis of its own ground realities by incentivising various cadres with different allowances. Such policy decisions unless they were arbitrary, capricious and ex facie discriminatory or violative of constitutional guarantees and norms of justice could not be interfered with in exercise of powers of judicial review.

The facts and circumstances of the present matter did not admit of interference in policy matters and the Tribunal had not recorded any reasons or furnished any justification other than a perceived and an overly simplistic view and interpretation of the concept of discrimination to support its judgment.

The finding of the Tribunal that since the allowance in question was being paid to all civil servants working in Grade-20 and above in the Federal as well as other Provincial Governments, the respondents are also entitled to the same was clearly and patently in ignorance of the law laid down by the Supreme Court in its order dated 10-03-2015 passed in Civil Appeals Nos.46 and 47 of 2013 titled Government of Balochistan through Secretary Public Health Engineering Department, Quetta and others v. Muhammad Daud and others.

Finding of the Tribunal that there was no intelligible differentia was also ex facie erroneous and incorrect in so far as the job descriptions, nature of job and qualifications, career structures and progression scheme of civil servants, Secretaries etc working in Balochistan Civil Secretariat was diametrically different from that of the respondents who were medical doctors and working in the teaching cadres as Professors. One could not be equated with the other, both constituted a different class and the concept of intelligible differentia between the two was clearly and patently discernable could be easily understood being logical and lucid and it was neither artificial nor contrived. There has been no discrimination against the respondents as alleged by them and held in the impugned judgment of the Tribunal and none of their rights guaranteed by the Constitution had been violated by reason of denial of the allowance in question.

Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Alleged Corruption in Rental Power Plants etc in the matter of Human Rights Cases Nos.7734-G/2009, 1003-G/2010 and 56712 of 2010, decided on 30th March, 2012 2012 SCMR 773 and Mehar Muhammad Nawaz v. Managing Director, Small Business Finance Corporation and 2 others 2009 SCMR 187 distinguished.

Each Province had its own ground realities, policies and priorities and freedom to formulate such policies as were permissible within the framework of the Constitution while maintaining provincial autonomy provided under the law and the Constitution. The policy subject matter of present appeals which had been framed by the Government of Balochistan was not in conflict with any provision of the Constitution or the law. Appeals were allowed and judgment of Service Tribunal was set-aside.

Ayaz Khan Swati, Additional A.G. Balochistan for Appellant.

M. Rauf Atta, Advocate Supreme Court for Respondents Nos. 1, 3 to 6 (in C.A. No. 429 of 2020).

Nemo for Respondents (in C.As. Nos. 430 and 442 of 2020).

2020 S C M R 1701

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD MUMTAZ AHMAD and others---Appellants

Versus

The STATE and another---Respondents

Criminal Petition No. 630 of 2020, decided on 24th August, 2020.

(Against the order dated 4.6.2020 passed by the Lahore High Court, Multan Bench, Multan in Crl. Misc. No. 1598-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 149---Causing injuries after forming an unlawful assembly---Bail, refusal of---Misuse of bail---Failure to deposit bail bonds---Accused persons were alleged to have caused injuries, after forming an unlawful assembly, to the witnesses inside the complainant's home---Accused persons agitated a cross-version for the occurrence but the same failed before the police---Sessions Court declined their request for bail in anticipation to their arrest on the ground that after the assault they repeated violence for which two further FIRs were lodged during the period they were on ad interim bails---High Court admitted the accused persons to ad interim pre-arrest bail on the condition of bonds, however, till the time of their final hearing they were found to have failed to submit the bonds as directed by the High Court---Held, that in the face of failure in their cross-version, the accused persons remained away from law and invoked remedy of ad interim pre-arrest bail which had judicially been devised to protect the innocent from the rigors of abuse of process of law initiated for purposes other than noble---Such protection could not be granted to stifle the investigative process---Conduct of accused persons before the Courts below was far from being enviable, therefore, they were not entitled to ad interim pre-arrest bail---Petition for leave to appeal was dismissed, and leave was refused.

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners with petitioners in person.

M. Sarwar Sidhu, Additional Prosecutor General Punjab with Taj Muhammad, SI for the State.

Zulfiqar Khalid Maluka, Advocate Supreme Court for the Complainant.

2020 S C M R 1702

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

EXCESSIVE AND UNANNOUNCED LOAD SHEDDING IN SINDH: In the matter of

Human Rights Case No. 20883 of 2018, decided on 1st September, 2020.

(a) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 26---Human rights case---Matter of excessive and unannounced load shedding in Province of Sindh and the Provincial capital (i.e. Karachi')---Lack of coordination between private electricity utility company (K-Electric) and relevant government departments---Infrastructure of utility company submerged in rain waters---Whether it was in the public interest for the utility company to have the exclusive right to generate and distribute electricity---Observations and directions recorded by the Supreme Court to resolve the issue of excessive and unannounced load shedding.

There seemed to be no coordination between the Power Division (Ministry of Energy), the National Electric Power Regulatory Authority (NEPRA) and the National Transmission and Despatch Company (NTDC) in the matter of acting against the private electricity utility company (K-Electric), which was exclusively distributing electricity in the Provincial capital. The Ministry of Energy (Power Division) was required to ensure that there was proper coordination between all the departments and whatever was to be done with regard to the utility company (K-Electric), a coordinated decision should be taken by all the relevant departments, agencies and companies, and the same should be executed by one department, in that, there should be one window operation with the utility company (K-Electric). The utility company (K-Electric) should not be allowed to go about dealing with various departments of the Government or companies or agencies for achieving its objectives.

Infrastructure of the utility company (K-Electric) was submerged or inundated in rain waters. Utility company (K-Electric) being a private company, should apply its own resources for ensuring clearing of its sub-stations and other distribution network from the rain waters and in such regard, it could not be allowed to wait for any assistance from the Government.

Utility company (K-Electric) had to do its own work and its basic work being supply of electricity to the Provincial capital, such work could not be interrupted for the mere reason that its installations had been affected by rain. As a private institution, it should immediately care for such installations and have them cleared immediately, so that, electricity supply was restored to its consumers. The utility company(K-Electric) could not blame any institution of the Government in such regard, for that, it had to do its own work and maintain its installations and also secure them from any effect of weather.

Law officer informed the court that the issue of electricity in Provincial capital was that the utility company (K-Electric) had exclusive right of generation and distribution of electricity in the Provincial capital, and therefore, to overcome the issue of exclusivity, section 26 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 ('the 1997 Act'), which provided the procedure for changing the conditions of license issued to a licensee (utility company), had to be given effect and the determination had to be made by NEPRA. As the law had provided the said provision, there was no impediment as to why NEPRA was not empowered to give effect to the said provision of law. The Authority (NEPRA) may proceed to implement section 26 of the Act and make its determination. While making such determination, NEPRA shall not be hampered by any Court, either by issuing of any injunctive order or issuing of any writ. The Authority (NEPRA), after making the determination, within one month, shall file a report before the Supreme Court. Case was adjourned.

(b) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 12A---Human rights case---Appellate Tribunal---Members, appointment of---Under S. 12A of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, the Federal Government was required to constitute an Appellate Tribunal---Notification of constitution of the Appellate Tribunal had already been issued but Members of the same had not been appointed yet---Supreme Court directed that Federal Government shall appoint Members of the Appellate Tribunal within 10 days and make the same functional and provide all necessary infrastructure for its immediate working---Case was adjourned.

In Attendance

Khalid Javed Khan, Attorney General for Pakistan, Sohail Mehmood, Deputy Attorney General, Farrukh Dall, Assistant Attorney General, Umer Rasool, Secretary, Power Tauseef Farooqi, Chairman, NEPRA, Kashif Hanif, Advocate Supreme Court (for NEPRA), Abid S. Zuberi, Advocate Supreme Court (for K-Electric) along with Syed Moonis Abdullah Alvi, CEO, K-Electric (via video link from Karachi), Muhammad Munir Paracha, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record (for HESCO and SEPCO), Muhammad Yaqoob, CEO, HESCO, Zaheer Sheikh, Chief Operating Officer, HESCO, Muhammad Saleem Khan, CEO, SEPCO, Sukkur, Sattar Bux Soomro, Director, SEPCO, Arshad M. Tayebaly, Advocate Supreme Court, Tariq Aziz, Advocate-on-Record (in C.M.A. No.76/2020) and Faisal Siddiqui, Advocate Supreme Court (via video link from Karachi).

2020 S C M R 1707

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

AAMIR SIDDIQUE---Petitioner

Versus

ADDITIONAL INSPECTOR GENERAL OF POLICE PHP, LAHORE and another---Respondents

Civil Petition No. 2366 of 2018, decided on 12th March, 2020.

(Against the judgment dated 11.04.2018 of the Punjab Service Tribunal, Lahore passed in Appeal No. 4638 of 2016)

Punjab Police Efficiency and Discipline Rules, 1975---

----Rr. 3(b) & 4(1)(b)(iv)---Police official---Absence from duty without any explanation---Misconduct---Dismissal from service---Petitioner (police official) deliberately avoided the disciplinary proceedings and offered no defence for his period of absence---Service record of petitioner reflected 23 previous bad entries for similar misconduct---As a member of the disciplined force the petitioner clearly acted in defiance of the code of conduct governing police officers---Petitioner had been rightly dismissed from service in circumstances---Petition for leave to appeal was dismissed and leave was refused.

Malik Matee Ullah, Advocate Supreme Court for Petitioner and Petitioner in person.

Shaukat Rauf Siddiqui, Additional A.G. and Farooq Ahmed, SSP for Respondents.

2020 S C M R 1708

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

Dr. SOHAIL HASSAN KHAN and others---Petitioners

Versus

DIRECTOR GENERAL (RESEARCH), LIVESTOCK AND DAIRY DEVELOPMENT DEPARTMENT, PUNJAB, LAHORE and others---Respondents

Civil Petitions Nos. 4185, 4209 and 4504 of 2019, decided on 20th August, 2020.

(Against the judgment dated 28.10.2019 of the Punjab Service Tribunal passed in Appeal No. 2872/2014)

(a) Constitution of Pakistan---

----Art. 13(a)---Civil service---Concurrent departmental proceedings and criminal proceedings---Acquittal in criminal proceedings---Double jeopardy, principle of---Application---Civil servant could not escape departmental proceedings or consequences thereof on account of his acquittal/exoneration on a criminal charge arising out of the same impugned transaction; these two were entirely different jurisdictions with different standards of proof as well as procedures---Criminal prosecution required strict proof through a narrowly jacketed procedure and, thus, State's failure on the criminal plane did not provide shield of double jeopardy to a delinquent officer.

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

----S. 4---Officials of Poultry Research Institute ('the petitioners')---Procurement of birds through an aid package granted by foreign donor organization---Allegation of operating fake departmental accounts for fraudulent transactions; procuring goods of questionable quality to make illicit profit; and receiving commission in procurement---Petitioners who were officials of Poultry Research Institute were found guilty by the inquiry officer and awarded punishments including compulsory retirement and removal from service---Said penalties were maintained by the Service Tribunal---Held, that multiple transactions involving the grant package through privately held bank accounts inescapably established petitioners' culpability, as official channels were available in the form of departmental accounts to effect payments to the vendors---Similarly without approval or authority purchase from outlets through private arrangements could not be viewed as an innocent omission, that too, by officers with considerable standing/experience--- Petitioners' stress on the principle of proportionately in the award of punishment was entirely beside the mark---Petition for leave to appeal was dismissed and leave was declined.

(c) Civil service---

----Public servant, duty of---Financial impropriety---Public trust, breach of---Consequences---Public authority was a most sacred trust and a very high onus was cast upon a State functionary to uphold the highest degree of rectitude in financial matters---Financial corruption or misappropriation of public money were wrongs of most repugnant depravity---Once a public servant was found to have the capacity to betray the public trust, it would be most unwise as well as inexpedient to retain him on the job.

Mrs. Shireen Imran, Advocate Supreme Court for Petitioners (in C.Ps. Nos.4185 and 4209/2019)

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioners (in C.P. No. 4504/2019)

Nemo for Respondents.

2020 S C M R 1713

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Mazhar Alam Khan Miankhel, JJ

Dr. SHAHNAWAZ MUNAMI and others---Petitioners

Versus

The FEDERAL GOVERNMENT OF PAKISTAN and others---Respondents

And

H.R.C. No. 8267-G/2014 in Const. P. 64/2013 (Application by Muhammad Waqas Ilyas)

And

C.M.A. No. 2872/2017 in Const. P. 64/2013 (Application for impleadment by Muhammad Saleem Akhtar)

And

H.R.C. No.14017-P/2018 in Const. P. 64/2013 (Application by Syed Umair Ali Shah)

And

Const.P. No. 77/2014 (Muhammad Ikhlaq Khan and others v. Federation of Pakistan and others)

And

C.M.A. No. 10803/2018 in Const. P. 77/2014 (Impleadment application on behalf of Muhammad Bilal)

And

H.R.C. No. 40739-P/2018 (All Blind Persons through Dr. Abdul Qayum Naz)

And

H.R.C. No. 41415-P/2018 (Yousaf Alkarim Nomani)

And

H.R.C. No. 42482-P/2013 (Rasheed ul Hasan)

And

Const. P. No.54/2018 (Adeel Hussain v. Federation of Pakistan through Secretary, Ministry of Law Justice and Parliamentary Affairs, Islamabad and others)

And

H.R.C. No.41408-S/2013 (Saleem Qasim Olia)

And

C.M.A. No. 10499/2018 in Const. P. 77/2014 (Impleadment application on behalf of Shoukat Ali)

And

C.M.A. No. 10500/2018 in Const. P.77/2014 (Impleadment application on behalf of Inam-ud-Din)

And

C.M.A. No.3068/2019 in Const. P.64/2013 (Impleadment application on behalf of Khurram Ejaz)

And

C.M.A. No.3069/2019 in Const.P.64/2013 (Impleadment application on behalf of Ejaz Ahmed)

And

C.M.A. No 3131/2019 in Const. P. 64/2013 (Application for impleadment of Muneeba Ishfaq)

And

C.M.A. No.5239/2019 in Const. P.64/2013 (Application for impleadment of Muhammad Saleem)

Constitutional Petition No. 64 of 2013, decided on 14th July, 2020.

(Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973)

Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----Preamble---Constitution of Pakistan, Art. 184(3)---Constitutional petition before the Supreme Court for welfare of persons with disabilities---Supreme Court observed that it was satisfied that the broad framework of guidelines provided by it from time to time to ensure implementation of laws and providing Fundamental Rights to persons with disabilities were being followed and implemented by the Federal as well as the Provincial Governments, however much more still needed to be done; that it was encouraging to note that the process had been initiated and earnest efforts were being made to create an environment and framework where citizens with disabilities were given respect, protection and support and the requisite facilities were also made available to provide them opportunities of getting education, training and a conducive environment where they could be assimilated in the mainstream of the society---Constitutional petition along with connected applications were disposed of with relevant directions.

In relation to differently abled persons Supreme Court issued the following directions and guidelines to the Federal and Provincial Governments and all concerned Ministries, Divisions, Departments, Agencies, Authorities and other entities working in connection with the affairs of the Federation, the Provinces or any local authorities:

(i) All vacant posts in the employment quota of Federal Government as well as Provincial Governments should be advertised and filled. It must be ensured that disabled persons from the same area/region were accommodated/ appointed against regional quotas;

(ii) The provisions of laws relating to rehabilitation and employment of the disabled persons be followed and implemented in letter and spirit;

(iii) The Federal and Provincial Governments shall ensure establishment of grievance redressal mechanisms to redress grievances of disabled persons, and awareness campaigns regarding availability of these grievance redressal mechanism should be run;

(iv) The Federal Government, Provincial Governments, PEMRA, PTV, PBA and PBS shall raise awareness through public service broadcasts of programs or messages;

(v) The Federal and Provincial Governments as well as development authorities shall ensure enforcement of the Accessibility Code of Pakistan, 2006;

(vi) Road Transport Authorities shall make public transport accessible for persons with disabilities;

(vii) Pakistan Railways shall progressively build proper ramps at train stations;

(viii) The transport and development authorities will ensure availability of accessible toilets at train stations, local bus stands, service areas of bus stations, motorways and highways;

(ix) The transport and development authorities shall arrange for construction of ramps and arrange safe and reliable facilities for boarding of buses and trains by disabled persons;

(x) The concerned authorities and agencies at the Federal as well as Provincial level shall make appropriate arrangements for availability of accessible parking and ramps at public parks, and provision of accessible washroom and ramps in malls, parks and public places;

(xi) All development authorities will ensure enforcement of quota in allotment of residential plots and houses as provided in the relevant laws, rules and regulations;

(xii) All concerned were to implement order of the Supreme Court dated 11-10-2018 in letter and spirit; and

(xiii) Pakistan Bureau of Statistics in consultation with NADRA and other departments and agencies of the Federal and Provincial Governments shall publish and periodically update, complete, accurate and updated figures and statistics regarding persons with disabilities and upload the same on its website. [p. 1720] A & B

Raheel Kamran Sh., Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record (absent) for Petitioners (in Const. P. 64 of 2013).

M. Qasim Mirjat, Advocate Supreme Court/Advocate-on-Record for Petitioners (in Const. P.77 of 2014).

M. Iqbal Hashmi, Advocate Supreme Court and M. Bilal for Petitioners (in C.M.A. 10803 of 2018)

Sajid Ilyas Bhatti, Additional Attorney General for Pakistan, Syed Abdul Kalam Ashrafi, Asstt. Commissioner, Junaid Akhlaq, J.S. (A/E) Ministry of Law and Wajid Aziz Qureshi, S.O. for the Federation.

Niazullah Khan Niazi, A.G. for the ICT.

Ch. Faisal Fareed, Addl. A. G. Pb., Tariq Ismail, L.O. (S.W.), M. Ashraf Janjua, Director (S.W.), Zahid Mehmood, L.O. (Labour), Adnan Bashir, L.O. (Spl. Education) and Aflan Khan, Dy. Director for Government of the Punjab.

Shabbir Shah, Addl. A.G. (through video link from Karachi) and Farhan Ali, Dy. Director (PCRDP) for Government of Sindh.

M. Ayyaz Sawati, Addl. A.G. for Government of Balochistan.

Zahid Yousaf Qureshi, Addl. A.G. KP for Government of Khyber Pakhtunkhwa.

Malik Javed Iqbal Wains, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for CDA.

2020 S C M R 1814

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

KAMRAN---Petitioner

Versus

KAMRAN MALIK and another---Respondents

Criminal Petition No.640 of 2020, decided on 30th July, 2020.

(Against order dated 5.6.2020 passed by the Peshawar High Court Peshawar in Cr. Misc. (B.A.) No.1446-P/2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302(b) & 109---Qatl-i-amd, abetment---Bail, grant of---Further inquiry---Son instigating his father to commit murder---Act contrary to tradition---Accused was statedly present with other family members outside his home where the deceased persons had come to lodge complaint for a previous incident---According to the prosecution's own showing the accused was not attributed any harm to the deceased persons, and he allegedly instigated his father (the co-accused) to murder the deceased persons---Question as to whether, instead of taking the deadly initiative himself, the accused preferred to persuade his father for the misadventure, a role, contrary to the traditions, brought the accusation within the ambit of S. 497(2), Cr.P.C., and, would be best settled after recording of evidence---Accused could not be kept behind bars merely as a measure of punishment---Investigation being complete, continuous detention of accused was not likely to serve any useful purpose beneficial to the prosecution---Petition for leave to appeal was converted into appeal and allowed, and accused was released on bail.

Hussain Ali, Advocate Supreme Court for Petitioner.

Ms. Aisha Tasneem, Advocate Supreme Court with Siraj, I.O. for the State.

2020 S C M R 1816

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Maqbool Baqar and Munib Akhtar, JJ

LIAQAT ALI---Petitioner

Versus

FAYASUDDIN and others---Respondents

C.P. No. 651-K of 2018, decided on 11th June, 2018.

(Against the order dated 25.4.2018 passed in C.P. No. S-65 of 2007 by High Court of Sindh Karachi)

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

----Ss. 3 & 15---Eviction petition---Landlord and tenant, relationship of---Subject premises, which was Evacuee Trust property, was allotted to the respondent, who inducted the petitioner as a tenant in the same---Subsequently Evacuee Trust Board cancelled the Permanent Transfer Deed (PTD) in favour of respondent and the issue went into litigation---Question as to whether after cancellation of PTD in favour of respondent, the relationship of landlord and tenant remained between the parties---Held, that admittedly the petitioner was inducted as tenant in the premises by the respondent, who was owner at that time---Although the PTD in favour of respondent may have been cancelled but such fact alone was not sufficient to make the petitioner a tenant of Evacuee Trust Property Board as the matter regarding cancellation of PTD was in dispute between the respondent and Evacuee Trust Property Board and was pending before the relevant forum---Petition for leave to appeal was dismissed and leave was refused.

Abdul Qadir Khan, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2020 S C M R 1818

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD SHARIF and 2 others---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 262/2015, Criminal Petitions Nos.402-L/2015 and 412-L/2015, decided on 16th July, 2020.

(Against the judgment dated 13.03.2015 passed by the Lahore High Court Lahore in Criminal Appeal No.2628/2010 with M.R. No.33/2012)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---According to the crime report, the assailants distinctively targeted the deceased with multiple shots, as a consequence whereof, he received five fire shots on different parts of the body---In a sudden crisis situation, it would be unrealistic to expect from a terror stricken witness to furnish immaculate details with precision, nonetheless, the complainant by his own choice took specific positions regarding the fire shots wherefrom he deviated in the private complaint---Since there were three persons assigned fire shots, shift in complainant's position could not be viewed as trivial or inconsequential as it realigned his entire case---Evidence on record confirmed beyond doubt that police were available with the deceased at 3:20 p.m. and, thus, recording of complaint as late as at 8:30 p.m. was mind boggling---Argument that crime report was outcome of consultations and deliberations could not be dismissed out of hand and as such cast doubt upon the possibility of witnesses' presence who otherwise surprisingly survived a devastating assault unscathed---Presence of a .30 caliber pistol with the deceased and his failure to use it in a situation when it was most warranted was also part of an incomplete tale---Despite an elaborate investigative process, said weapon was never recovered---Exoneration of two co-accused persons during the investigation was yet another dilemma confronting the prosecution; it required a serious consideration as seemingly there was no reason for three assailants to jointly take on the deceased, lying at their mercy when any one of them could have individually accomplished the premeditated murder without incurring corporal consequences for the entire clan---In such circumstances plea of a wider net could not be ignored---In the absence of proof beyond doubt, it would be unsafe to maintain the convictions of accused persons---Petitions were converted into appeals and allowed, and accused persons were acquitted of the charge.

M. Yar Khan Daha, Advocate Supreme Court for Petitioners (in J.P. No.262 of 2015).

Zubair Afzal Rana, Advocate Supreme Court for Petitioners (in Cr. P. No.402-L of 2015).

Rai Sajid Ali Kharal, Advocate High Court for Petitioners (with permission of the Court in Cr. P. No.412-L of 2015).

Khurram Khan, Additional Prosecutor General Punjab for the State.

2020 S C M R 1822

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Munib Akhtar, JJ

The COMMISSIONER INLAND REVENUE, ZONE-III, RTO-II, LAHORE---Petitioner

Versus

Messrs HAMZA NASIR WIRE and others---Respondents

Civil Petition No. 398-L of 2018 along with Civil Petitions Nos. 584-L, 671-L to 675-L, 774-L, 775-L, 812-L, 815-L, 911-L, 912-L, 913-L, 919-L, 984-L, 985-L, 1005-L, 1148-L, 1684-L, 1688-L TO 1690-L, 1729-L, 1796-L, 1812-L, 1821-L to 1827-L, 1850-L to 1854-L, 1859-L, 1860-L, 1878-L, 1887-L, 2038-L, 2085-L, 2086-L, 2090-L, 2091-L, 2129-L and 3480 of 2018, decided on 20th November, 2018.

(On appeal from the judgments/orders passed by Lahore High Court, Lahore dated: 08.12.2017 passed in W.Ps. Nos.37295 of 2016, 77996, 113697, 92863, 104518 of 2017, 29.03.2018 passed in W.P. No.187666 of 2018, 19.04.2018 passed in I.C.As. Nos.192176, 192180, 192217, 183611 of 2018 11.05.2018 passed in W.Ps. Nos.201969, 205022 of 2018, 11.06.2018 passed in W.Ps. Nos.212424, 218052, 215434 of 2018, 12.06.2018 passed in W.P. No.217297 of 2018 13.12.2018 passed in W.Ps. Nos.89391, 97850 of 2017 18.12.2017 passed in W.P. No.121977 of 2017 22.12.2017 passed in W.P. No. 28023, 21680, 96042, 97089, 97184 of 2017, 22.09.2017 passed in W.P. No. 34945 of 2017 13.02.2018 passed in W.P. No.158509 of 2018 27.02.2018 passed in W.P. 123944 of 2017, 152517, 152606, 166893 of 2018, 01.03.2018 passed in W.Ps Nos.21606 of 2012, 12.03.2018 passed in W.P. No.122208 of 2018 19.04.2018 passed in I.C.As. Nos.183611, 192187, 192191, 201079 of 2018, 07.06.2018 passed in I.C.As. Nos.218132, 218135, 218129 of 2018, 11.06.2018 passed in I.C.As. Nos.218125, 218127, 217617 of 2018, 25.06.2018 passed in I.C.As. Nos.218128, 218134, 218137, 218131 of 2018 26.06.2018 passed in I.C.A. No.220510 of 2018, 28.06.2018 passed in I.C.As. Nos.222208, 222316 of 2018)

Sales Tax Act (VII of 1990)---

----Ss. 11(3), 30(1), 30(3) & 31---Non-payment or short payment of sales tax---Commissioner Inland Revenue ('CIR') authorizing his subordinate Officers of Inland Revenue ("OIRs") to exercise their powers and perform their functions as conferred by the Sales Tax Act, 1990 ("Act") and its subordinate Rules---Legality---Show cause notices issued to taxpayers for non-payment or short payment of sales tax by 'OIRs' namely, Deputy Commissioners of Inland Revenue ("DCIRs") and Assistant Commissioners of Inland Revenue ("ACIRs")---Legality---Plain reading of Ss. 2(18), 30 & 31 of the Act, made it clear that all OIRs appointed by the Federal Board of Revenue (FBR) could only exercise the powers and discharge the duties vested in them by the Act; these included the powers and duties of their subordinate officers---Accordingly, after designating the posts of OIRs including the respective delineation of their territorial and personal jurisdiction by the FBR and the CIRs, the appointed OIRs performed and exercised the functions, powers or duties vested in them by the Act---Neither the FBR nor the CIR had authority under the Act to select or limit the functions, powers and duties that may be exercised by their subordinate OIRs---All OIRs of different grades appointed under S. 30(1) of the Act possessed the power to issue show cause notices under S. 11 of the Act---Exercise of such powers by the OIRs formed a part of their functions under the Act---Consequently, the impugned show cause notices were issued by the OIRs competently under S. 11(3) in aid of proceedings commenced for recovery of tax.

Show cause notices were issued to the respondent-taxpayers under Section 11(3) of the Sales Tax Act, 1990 ("Act") by Officers of Inland Revenue ("OIRs"), namely, Deputy Commissioners of Inland Revenue ("DCIRs") and Assistant Commissioners of Inland Revenue ("ACIRs"). The notices alleged non-payment or short payment of sales tax by the respondent-taxpayers during the tax periods mentioned therein. Federal Board of Revenue ("FBR") vide notification dated 21.07.2016 ("Notification-I") appointed eight Commissioners of Inland Revenue ("CIRs") heading different Zones functioning under the Corporate Regional Tax Office, to exercise powers and perform functions as conferred under the Act and the Rules made thereunder. Rather than exercising such powers themselves, inter alia, the Commissioner of Inland Revenue, Zone-III, RTO-II ("CIR"), vide notification dated 01-08-2016 ("Notification-II") authorised his subordinate OIRs, to exercise their powers and perform their functions as conferred by the Act and its subordinate Rules in relation to specified cases or classes of cases of tax payers falling within their territorial jurisdictions. By way of impugned judgment the High Court held that "Notification-II" by the CIR delegated the powers that had been assigned to him by the FBR vide "Notification-I". Such delegation by the CIR under the subsequent "Notification-II" to the OIRs constituted sub-delegation without the sanction of law. Therefore, in the presence of "Notification-I" whereunder the CIR was himself a delegate of the FBR, the further delegation of powers and functions by the CIR through "Notification-II" in favour of his nominated subordinate OIRs was unlawful and void. This rendered the latter "Notification-II" issued by the CIR and the impugned show cause notices issued by the OIRs (DCIRs and ACIRs) to be of no legal effect.

From a close reading of section 30 of the Act, it became clear that the said provision vested the FBR with the exclusive power to appoint OIRs while also conferring a concurrent power on the FBR and CIRs to delineate the territorial (area) and personal (persons or classes of persons) jurisdiction of OIRs. Such powers were granted to the FBR by virtue of section 30(1) of the Act and to the CIRs by section 30(3) of the same. Primary purpose of section 30 of the Act was to ensure a smooth and efficient working of the OIRs operating under the Act. It did not vest the FBR or the CIRs with any authority to confer functions and powers on the OIRs as they deemed fit.

Plain reading of sections 2(18), 30 and 31 of the Act, made it clear that all OIRs appointed by the FBR could only exercise the powers and discharge the duties vested in them by the Act. These included the powers and duties of their sub-ordinate officers. Accordingly, after designating the posts of OIRs including the respective delineation of their territorial and personal jurisdiction by the FBR and the CIRs, the appointed OIRs performed and exercised the functions, powers or duties vested in them by the Act. Neither the FBR nor the CIR had authority under the Act to select or limit the functions, powers and duties that may be exercised by their sub-ordinate OIRs.

All OIRs of different grades appointed under section 30(1) of the Act possessed the power to issue show cause notices under section 11 of the Act. Consequently, the impugned show cause notices were issued by the OIRs competently under section 11(3) in aid of proceedings commenced for recovery of tax.

In the impugned judgment of the High Court it had wrongly been assumed that simply because the FBR in exercise of its authority under Section 30(1) of the Act had assigned territorial and personal jurisdiction to CIRs for the exercise of their functions and powers under the Act, the latter were prevented from exercising their statutory power under Section 30(3) of the Act. The impugned judgment did not give any reasons for such a reading of section 30(1) and (3) of the Act. In fact, on a perusal of section 30(3) it became clear that the said provision operated independently of section 30(1) of the Act. Nowhere does section 30(3) restrain the CIRs from delineating the territorial and personal jurisdiction of their subordinate OIRs. The conferment of power under section 30(3) on the CIRs was meant to efficiently organise the team of officers subordinate to them.

By disallowing distribution of functions by the CIR, the impugned judgment expected all such functions to be performed by the CIR himself. Apart from rendering the subordinate OIRs redundant, the other immediate consequence of the impugned judgment was that the CIR was disabled from exercising his administrative and supervisory functions under the Act.

The impugned judgment incorrectly assumed that by specifying the limits of the territorial and personal jurisdiction of CIRs in "Notification-I", the FBR had assigned its own powers and functions to the CIRs. The distribution and assignment of functions was undertaken by the FBR in the exercise of its statutory power under section 30(1) of the Act which provision did not contemplate the delegation of any of the FBR's own powers.

The FBR did not derive its power of assessment or recovery of tax from section 11 of the Act. Equally, the Act did not provide for the delegation of FBR's powers to CIRs nor did Notification-I expressly or impliedly delegate any powers of the FBR to the CIRs. As there had not been any delegation of its powers by FBR to CIRs, therefore, the finding of sub-delegation in the impugned judgment was merely an illusion.

In the present case since there could not have been any delegation of the power of issuance of show cause notice in relation to assessment and recovery of tax by the FBR, which was actually conferred upon the OIRs by section 11 of the Act, it was plain that the exercise of such powers by the OIRs formed a part of their functions under the Act. Accordingly, the view that "Notification-I" was the only source of vesting of powers in OIRs was incorrect. Such view overlooked the effect of section 31 of the Act and the proper meaning of the term 'functions' used in section 30(2A) to (3) of the Act. Petitions for leave to appeal were converted into appeals and allowed and impugned judgment of the High Court was set-aside.

Ibrar Ahmed, Advocate Supreme Court, Sarfraz Ahmed Cheema, Advocate Supreme Court, Ch. Muhammad Zafar Iqbal, Advocate Supreme Court, Mrs. Kausar Parveen, Advocate Supreme Court, Dr. Tariq Masood, Member Legal FBR and Dr. Ishtiaq Ahmad, Director Legal for Petitioner.

M. Ajmal Khan, Advocate Supreme Court for Respondents (in C.Ps. Nos. 671-L, 672-L, 675-L and 815-L of 2018).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.Ps. No. 3480 of 2018).

Imtiaz Rashid Siddiqui, Advocate Supreme Court and Shehryar Kasuri, Advocate Supreme Court for Respondents (in C.P. No. 2091-L of 2018).

2020 S C M R 1841

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ASHRAF---Petitioner

Versus

The STATE---Respondent

Jail Petition No.263 of 2018, decided on 3rd August, 2020.

(Against the judgment dated 7.3.2018 of the Lahore High Court, Lahore passed in Cr. Appeal No.190-J/2015 and M.R. No.227/2015)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence was a daylight affair, details whereof, had been furnished by the witnesses who were not merely injured but inmates of the premises as well---Situation cropped up all of a sudden and in such backdrop, the complainant or the witnesses had no axe to grind so as to swap the accused with the real offender---Witnesses had been thoroughly cross-examined during the trial and no serious flaw, contradiction or infirmity was found therein reflecting upon their depositions---Ocular account furnished by the witnesses was duly corroborated by medical evidence---Weapon recovered upon accused's disclosure though excluded from consideration by the High Court, nonetheless, was consistent with the injuries received both by the deceased as well as the witnesses---Investigative conclusions in the wake of various steps taken with remarkable promptitude inescapably pointed upon accused's culpability who remained away from law for a considerable span of time---Conviction of accused under S. 302(b), P.P.C. was in accord with the principles of safe administration of criminal justice and he was rightly sentenced to life imprisonment by the High Court---Jail petition was dismissed and leave was refused.

Muddasir Khalid Abbasi, Advocate Supreme Court for Petitioner.

Nemo for the State.

2020 S C M R 1844

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Amin-ud-Din Khan, JJ

Messrs STATE LIFE INSURANCE CORPORATION OF PAKISTAN and others---Petitioners

Versus

Mst. Begum RASHIDA JAMIL---Respondent

Civil Petition No. 237-L of 2014, decided on 3rd August, 2020.

(Against the order dated 10.12.2013 passed by the Lahore High Court, Lahore passed in R.F.A. No. 1024 of 2012)

(a) Insurance Rules, 2002---

----R. 12---Statement and declaration required of insurance agents---Primary school teacher/insurance agent---Declaration given by insurance agent at time of his re-appointment in the year 2002, that "I am not working for any other insurer and in future also I will not work for any other insurer while associated with the Corporation without written permission of the Corporation"---Whether such declaration covered employment of agent as school teacher---Held, that it was clear that the said declaration given by the deceased agent at the time of his re-appointment in 2002 did not include any undertaking with reference to his employment with any other private or government entity---In fact, the deceased was a primary school teacher with the Education department of the Provincial Government---Such employment was not covered by the declaration given by him at the time of his re-appointment---Consequently, the denial of his insurance benefits by the State Life Insurance Corporation on the basis of his previous declaration in 1997 (before re-appointment) was unfair and unlawful---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 115--- Employee of State Life Insurance Corporation ('the Corporation')---Group insurance, self-subscribed compulsory insurance and field self-subscribed group insurance--- Section 115 of the Insurance Ordinance, 2000--- Whether applicable---Perusal of provisions of the S. 115 of the Insurance Ordinance, 2000 made it clear that the jurisdiction of the Insurance Tribunal had nexus with the date of issuance of a policy of insurance by the insurer after the commencement of the Insurance Ordinance, 2000---In the present case, three types of insurance schemes were availed by the deceased, i.e. group insurance, self-subscribed compulsory insurance and field self-subscribed group insurance, which were meant for employees and not for policy holders who secured the issuance of life insurance policies from the Corporation---Said schemes were connected with the day to day employment of the deceased and other employees of the Corporation---No policy was issued to the employees in respect of any of said insurance covers provided to employees---Consequently, S. 115 of the Insurance Ordinance, 2000 had no application to the present case---Petition for leave to appeal was dismissed and leave was refused.

Ibrar Ahmed, Advocate Supreme Court for Petitioners.

Liaqat Ali Butt, Advocate Supreme Court for Respondent.

2020 S C M R 1846

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz-ul-Ahsan, JJ

DIRECTOR GENERAL OF INTELLIGENCE AND INVESTIGATION, F.B.R., ISLAMABAD and others---Appellants

Versus

MUHAMMAD ASLAM KHAN---Respondent

Civil Appeal No. 551 of 2020, decided on 21st September, 2020.

(Against the judgment dated 18.12.2018, passed by the Peshawar High Court, Peshawar in W.P. No.5030-P of 2017)

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

----R. 8-B---Constitution of Pakistan, Art. 27---Lower division clerk (LDC) in Federal Board of Revenue (FBR), post of---Direct recruitment post---Respondent-employee promoted to LDC post on acting charge basis in violation of the direct recruitment method---Respondent seeking confirmation to post of LDC after probationary period---Held, that FBR itself violated the mandate of Art. 27 of the Constitution when it promoted the respondent from the post of Sepoy to the post of LDC, on acting charge basis, against the post specifically reserved for direct recruitment---Granting of such promotion to the respondent was a voluntary act of the FBR---Respondent for almost 10 years served on the post of LDC and when he asked for confirmation, it was refused to him---In such circumstances FBR could not be allowed to take refuge under R. 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, and approbate and reprobate at the same time, and in law, FBR would be estopped from taking such position---Federal Board of Revenue (FBR) could not be allowed to make its ministerial staff hostage to its own arbitrary, whimsical and capricious conduct and play with the employment of its ministerial staff---High Court had rightly held that respondent shall be deemed to be confirmed as LDC (BPS-7), immediately, after completion of probationary period with all service benefits --- Appeal was dismissed with a direction to Chairman, FBR to take appropriate action against the delinquent officials.

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

----R. 8-B---Appointment/promotion on acting charge basis---Scope---Rule 8-B of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provided for promotion on acting charge basis, but said Rule was to be used in bona fide situations and for bona fide purposes, and not to exploit employees.

M.D. Shahzad Feroz, Advocate Supreme Court with Muhammad Israr ul Haq, Intelligence Officer for Appellants.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2020 S C M R 1850

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

IBRAR HUSSAIN and another---Petitioners

Versus

The STATE---Respondent

Criminal Petition No.263-L of 2015 and Jail Petition No.407 of 2018, (Against the judgment dated 16.01.2015 passed by the Lahore High Court Lahore in Criminal Appeal No.1626/2010 with M.R. No.413/2010)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Solitary statement of a chance witness---Delayed postmortem---Suspect source of light---Failure to establish motive---After death of the complainant and a witness during the trial, there was only one alleged witness left to narrate the crime---Said witness lived at a distance of 9 kms from the place of incident, and was allegedly present at the spot sans any purpose or justification on a weekday apparently after close of the day---In such circumstances argument that he was a chance witness could not be summarily dismissed and in retrospect warranted a more cautious scrutiny of his statement---Similarly the position that occurrence took place much later in point of time than mentioned in the crime report merited serious consideration in view of observations recorded by the Medical Officer, who found that "Stomach was perforated and damaged and it was full of partially digested food" as it did not synchronize with the hypothesis of last intake to tally with the stated time of occurrence---Five entry wounds on the body of deceased prima facie negated the prosecution story of three fire shots---Absence of any casing was yet another intriguing aspect of the case---Prosecution had relied upon an electric bulb as the sole source of light to identify the accused persons, however, the sole alleged eye-witness admitted in his cross-examination that there was load shedding at the time of occurrence---Said witness did claim that there was a UPS (Uninterrupted Power Supply) apparatus available, but said apparatus did not figure anywhere on the record---In a sizzling hot season, presence of alleged witnesses in the courtyard without any apparent purpose made their presence all the more doubtful---Petitions were converted into appeals and allowed and accused persons were acquitted of the charge.

Mrs. Nighat Saeed Mughal, Advocate Supreme Court for Petitioners (in Cr.P. 263-L/2015)

Nemo for Petitioners (in J.P.407/2018).

Rana Abdul Majeed, Additional Prosecutor General Punjab for the State.

2020 S C M R 1853

[Supreme Court of Pakistan]

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

GHOUS BUKHSH---Petitioner

Versus

COMMANDER (A&Q) CHOLISTAN RANGERS, RAHIM YAR KHAN and others---Respondents

Civil Petition No. 2222 of 2018, decided on 19th March, 2020.

(On appeal from the judgment dated 25.4.2018 passed by the Federal Service Tribunal, Lahore in Appeal No. 191(L) of 2017)

Pakistan Rangers Ordinance (XIV of 1959)---

----S. 15(1)---Member of Pakistan Rangers---Absence from duty for 12 days without a valid reason and authorization---Misconduct---Dismissal from service converted into removal from service---Plea of petitioner that he had a genuine reason for his absence, namely, the involvement of his mother in an accident and therefore, he had to leave his post in an emergency---Held, that admittedly leave was not obtained by the petitioner nor was any written application submitted by him for seeking such leave---During the period of his absence his mobile phone remained switched off---When the petitioner's Sector Commander received a SMS message from the petitioner, he wanted to contact him but the petitioner was not available---Petitioner's mother was admittedly advised rest for a few days after her thigh injury had been attended to---In the circumstances, the petitioner could have returned immediately thereafter, which he did not---Petitioner did not have a valid reason to remain absent from duty for 12 days---Petitioner belonged to a disciplined force/service and his absence from duty without authorization was a serious misconduct---Service record of petitioner showed that it was the third time during his service span that he remained absent without authorization---Action taken against the petitioner was justified, however the severity of the punishment of dismissal was the consequence that the petitioner could not seek government employment in any other department or office---Petitioner was an able bodied young man and may qualify for government employment where strict discipline was not enforced---Consequently, petition for leave to appeal was converted into appeal and partly allowed converting the petitioner's penalty of dismissal into removal from service.

Malik Mateeullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Sajid Ilyas Bhatti, Additional A.-G. and Afzal Mehmood, Dy. Supdt. Rangers for Respondents.

2020 S C M R 1855

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

SAEED ZAMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition Nos.654 of 2020, decided on 7th August, 2020.

(Against the order dated 1.6.2020 passed by the Islamabad High Court Islamabad in C.M. No.137/2020 in Crl. Misc. No.689-B/2020)

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

----Ss. 497 & 499--- Offences punishable with imprisonment of less/more than 10 years---Bail---Scope and purpose---Bond of accused and sureties --- Scope.

Bail was an interlocutory arrangement to ensure physical presence of an accused so as to confront the indictment pending conclusion of the trial, either under judicial custody or with a surety to produce him before the Court as and when required. In the non-bailable category of offences, grant of bail in crimes punishable with imprisonment of less than 10 years, presumably with charges on the lower side of gravity scale, the release of accused, after conclusion of investigation was a rule, however, even in appropriate cases, the Court may still validly decline the concession. In offences punishable with death or for imprisonment for 10 years or above, the accused could not be released on bail unless he succeeded in making out a case calling for further probe. In the event of his release on bail, the Court may require an accused to execute a bond either personally or through sureties amount whereof "shall be fixed with due regard to the circumstances of the case, and shall not be excessive." The bond by the accused or the sureties, as the case may be, had to be executed to ensure compliance, contemplated by section 499, Cr.P.C.

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

----Ss. 497, 499, 513 & 514---Bail, grant of---Bond of accused and sureties, quantum of---Scope---Forfeiture of bond---Scope.

In case the Court considered it expedient to release an accused on bail pending conclusion of his trial, it could certainly require him to execute a bond either personally or through sureties, setting conscionable amounts therein, having regard to the facts and circumstances of each case with a view to ensure future attendance and may proceed to forfeit such bond in the event of default/non-compliance as contemplated by section 514, Cr.P.C. Criminal Procedure Code, 1898, did not envisage cash deposit except for an undertaking for good behavior within the framework of section 513 thereof.

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

----Ss. 497 & 499---Financial scam---Bail, grant of---Bond of accused and sureties---Post-arrest bail granted by High Court with the direction to the accused to deposit Rs.5.16 million, the amount allegedly siphoned off by him, with the Court, besides furnishing a bond in the sum of Rs.100,000/- with one surety---Legality---While granting bail court could not coerce the accused to surrender or deposit amounts, forfeiture or settlement whereof was consequent upon final adjudication of the case---Impugned condition imposed by the High Court was set-aside and accused's plea for bail was deemed as pending before the High Court for decision afresh in accordance with law.

Interlocutory arrangement of bail could not be equated with the final adjudication of a criminal case, to be essentially settled on the strength of evidence with all procedural safeguards to conveniently enable the accused to vindicate his position without any embarrassment. During pendency of the process, accused could secure interim freedom only if a case for his release was made out and in such eventuality, he could not be additionally coerced to surrender or deposit amounts, forfeiture or settlement whereof was consequent upon final adjudication, that too, subject to the law.

Riffat Saghiry Kureshy, Advocate Supreme Court for Petitioner.

Sajid Ilyas Bhatti, Additional Attorney General along with Qaiser Masood, Ad. Dir. (L), Fazal Mabood, I.O. and Qaisar Imam Ch. AD (L) for Respondents.

2020 S C M R 1859

[Supreme Court of Pakistan]

Present: Faisal Arab and Sayyed Mazahar Ali Akbar Naqvi, JJ

ABBAS RAZA---Petitioner

Versus

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

Criminal Petition No. 682 of 2020, decided on 15th September, 2020.

(Against the order of Lahore High Court, Lahore dated 08.06.2020 passed in Crl. Misc. No. 22166-B/2020)

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of 1300 grams of opium---Bail, grant of---Allegation against the accused was that he was selling opium from a Baithak adjacent to his house in late hours of the night (12:50 a.m.) in the month of February---In the month of February, when the weather was cold, selling of narcotics while sitting in a "Baithak" seemed to be something astonishing, when there was remote possibility of attracting any customer at such odd time---Even otherwise accused was alleged to be selling "opium", a contraband the use of which affected the central nervous system of the user, pouring negative impact in the body while making the user dull, depressed, of impaired reflexes, lacking sharpness, turning the user into a sluggish entity---All said aspects when evaluated conjointly, lent support to the argument of the accused qua prosecution story being result of fabrication---Petition for leave to appeal was converted into appeal and allowed and accused was admitted to post-arrest bail.

Saeed Ahmed v. State through P.G. Punjab and another PLJ 2018 SC 812 ref.

Rana Muhammad Akram, Advocate Supreme Court for Petitioner.

Mirza Muhammad Usman, Deputy Prosecutor General and Khizar Hayat SI, Police Station Ghulam Muhammad Abad, Faisalabad for Respondents.

2020 S C M R 1862

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

MUHAMMAD UZAIR JAMAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.290 of 2020, decided on 22nd July, 2020.

(Against the judgment dated 28.2.2020 of the Peshawar High Court, Peshawar passed in Cr. Revision No.200-P of 2019)

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

----S. 465---Penal Code (XLV of 1860), Ss. 84 & 302(b)---Qatl-i-amd---Act of a person of unsound mind---Scope---Depressive illness---Plea on behalf of accused that he was undergoing psychiatric trauma, and was neither cognizant of the consequences of his act nor he could properly defend himself during the trial on account of his ongoing mental disorder---Held, that present case involved homicidal death of a young lady in her prime youth, assassinated inside her parental dwelling with repeated fire shots, seven in number, with an offensive/lethal weapon, on a function held for deciding her marriage dates---Circumstances of the occurrence unmistakably evinced a design to eliminate the deceased with no chance of survival---Given the occasion/gathering, the deceased being the sole target to the exclusion of others, additionally indicated that the accused had a preconceived/premeditated target and a purpose that he flawlessly achieved in a short span of time without any bullet left in the chamber---Expecting such a meticulous execution from a person with frail faculties or capacities without inflicting slightest harm to his own person or anyone else present at the venue would be rather naive---Admittedly the accused and the deceased studied together in the same university and, thus, former's inclination for a bond, a suggested motive for the crime, was a possibility that could not be viewed as being unrealistic---Sole purpose of the deadly assault appeared to be chauvinistically motivated to deny the deceased a life of her own choice, a trend not uncommon in the society---Furthermore "depressive illness" was not a disease or incapacity recognized by law as a justification to deny justice to the victims of crimes or their families--- Application filed by accused under S. 465, Cr.P.C. had been rightly dismissed by courts below---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 465---Penal Code (XLV of 1860), Ss. 84 & 302(b)---Qatl-i-amd---Act of a person of unsound mind--- Depressive illness---Whether S. 465, Cr.P.C. and S. 84, P.P.C. were applicable in case of depressive illness.

Depression was a natural concomitance of the crime and one may hardly find a prisoner facing corporal consequences, possibly the gallows, to stay unperturbed. It was a state of mind primarily governed by a variety of factors including fear, regret or remorse. Such inevitable disequilibriums were not recognized by law to hold the process of justice in abeyance. An offender could claim immunity from prosecution on the basis of unsound mind if at the time of commission thereof, he by reason of unsoundness of mind, was incapable of knowing the nature of the act or lacked knowledge on account thereof about its being wrong or contrary to law, and in so asserting he had to be clear and categorical in his claim. By raising such a plea, an offender took upon himself the responsibility to discharge the onus and in the event of his failure, the Court would draw a contra presumption.

"Depressive illness" was not a disease or incapacity recognized by law as a justification to deny justice to the victims of crimes or their families nor did it allow digging out of acclaimed incapacity by a physician of offender's own choice, other than the designated medical officers.

Syed Asghar Hussain Shah Sabzwari and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court for the State.

2020 S C M R 1957

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Amin-ud-Din Khan and Sayyed Mazahar Ali Akbar Naqvi, JJ

LAHORE DEVELOPMENT AUTHORITY and another---Appellants

Versus

MUHAMMAD TARIQ NIAZ---Respondent

Civil Appeal No. 152-L of 2010, decided on 27th August, 2020.

(Against the judgment of Lahore High Court, Lahore dated 24.06.2002 passed in R.F.A. No. 180/1994)

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

----Ss. 12 & 42---Suit for declaration and specific performance---Open public auction---Plot bought by highest bidder in open public auction put up for re-auction by the (Lahore) Development Authority ('the Authority')---Legality---Admittedly the plaintiff participated in the open auction qua the subject plot, and during the bidding proceedings he was declared the highest bidder---Plaintiff deposited Rs. 1,50,000/- at the time of bid and later on he deposited Rs.1,18,500/- as 1/3rd of the bid---Authority never denied the fact that the plaintiff visited the Authority's office various times in order to complete the bidding process by depositing the rest of the amount to discharge his liability qua payment of amount of auction---After the auction was complete the Authority enhanced the price of bid belatedly on the pretext that a third party, which had not participated in the open auction, had made a higher offer for the subject plot than the plaintiff---Plaintiff even agreed to meet such enhanced offer, under protest, which enhanced offer did not have sanction of any law---Despite plaintiff agreeing with the enhanced offer, the Authority gave public notice in a newspaper for re-auction of the plot---Such enhanced offer made belatedly by a third party could not be made basis for re-auction of the plot and such practice seemed to be un-precedented being without any lawful authority---Authority was grossly unjustified to issue another proclamation for public auction relating to the subject plot, once its valid acceptance was made by the plaintiff---Suit filed by plaintiff against the Authority had been rightly decreed---Appeal filed by Authority was dismissed.

(b) Public functionary---

----Public functionaries were expected to perform their duties well within the prescribed limits of the law of the land---Any act by a public functionary against the dictates of justice might frustrate public confidence qua public functionaries which might be detrimental to uphold the public order which was paramount to keep the society peaceful.

Ch. Waseem Arif Bhaddar, Advocate Supreme Court and M. Sabir, Deputy Director for Appellants.

Ahmad Waheed Khan, Advocate Supreme Court for Respondent.

2020 S C M R 1962

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Amin-ud-Din Khan, JJ

GOVERNMENT OF THE PUNJAB through Chief Secretary---Petitioner

Versus

MUHAMMAD ARSHAD and 2 others---Respondents

Civil Petitions Nos. 813, 814 and 815-L of 2020, decided on 7th September, 2020.

(Against the judgment dated 4.11.2019 passed by the Punjab Service Tribunal, Lahore in Appeal No. 5830 of 2015)

Punjab Service Tribunals Act (IX of 1974)---

----S. 4--- Service Tribunal---Jurisdiction---Retribution, concept of---Applicability--- Punishment, quantum of--- Civil servant, after departmental proceedings was awarded punishment of reduction to four stages in pay scale and recovery of loss caused to government---Service Tribunal allowed appeal filed by civil servant and penalty imposed by authorities was set aside---Validity---Penalty was proportionate and commensurate with gravity of offence considering amount of loss caused to public funds on account of extreme negligence and inefficiency on the part of civil servants and the same was substantial which ran into millions---Service Tribunal wrongly relied upon the philosophy of basing punishment on the concept of retribution which according to the Tribunal could either to be through method of deterrence or reformation but such concept was neither relevant nor apt in the matter---Power of Tribunal to interfere in quantum of punishment was to be carefully exercised with utmost caution, care and circumspection---If such power was exercised, elaborate, cogent and legally sustained reasons were to be recorded---Judgment passed by Service Tribunal was devoid of any such reasoning let alone cogent or logical or legally sustainable---Service Tribunal exercised its jurisdiction carelessly and casually---Principles of law laid down by Supreme Court in its various pronouncements escaped notice of Service Tribunal---Supreme Court set aside judgment passed by Service Tribunal and punishment imposed by departmental authorities was restored---Appeal was allowed in circumstances.

Raja Muhammad Arif, Additional A.-G. with M. Abbas, Superintendent Agriculture Department for Petitioner.

Muhammad Yasin Bhatti, Advocate Supreme Court for Respondents.

2020 S C M R 1966

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

KHALID NASEER and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petitions Nos. 534 and 513 of 2019, decided on 17th September, 2020.

(Against the judgment dated 11.03.2019 passed by the Lahore High Court Rawalpindi Bench Rawalpindi in Crl. Appeal No.728-J/2016 with M.R. No.10/2017)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Occurrence statedly took place at 7:25 p.m., whereas the deceased was brought to the hospital in semi unconscious condition where he was attended by the medical officer at 9:00 p.m. under a police docket---Interregnum between the occurrence and deceased's initial medical examination excluded possibility of any manipulation, consultation or deliberation in recording of complaint at 8:40 p.m., 20 minutes before the conclusion of medical examination---Disappearance of accused from the scene for about three years was a circumstance that could not be viewed with favour---No serious challenge had been thrown to the motive, set up in the crime report, although the same was disbelieved by the High Court for prosecution's failure to establish the acrimony between the parties through independent evidence---Dissimilarity of casings secured from the spot with the weapon shown to have been belatedly recovered was not of much consequence inasmuch as the accused was not expected to retain the pistol during the lengthy period of his absconsion as a trophy of his crime---Given the short timeframe wherein the deceased was initially medically examined and recording of complaint did not support the hypothesis of complainant's absence from the scene; he had comfortably faced the cross-examination by sharing all the relevant details compatible with the salient features of the incident and events collateral therewith---Statement of other eye-witness was in complete unison with the complainant---Despite three entry wounds, nomination of single accused by the complainant in the backdrop of persisting bad blood between the parties revealed a truthful restraint from casting a wider net, confined to the actual offender alone, who could not have been possibly swapped through substitution in a small rural neighbourhood---Petition for leave to appeal was dismissed, leave was refused, and sentence of life imprisonment imposed by the High Court was maintained.

Ch. Afrasiab Khan, Advocate Supreme Court for Petitioners (in Cr. P. No.534 of 2019)

Nemo for the State.

Raja Ikram Amin Minhas, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Complainant (in Cr. P. No. 513 of 2019)

2020 S C M R 1970

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Faez Isa, JJ

OBIDULLAH and another---Petitioners

Versus

The STATE through A.G. Khyber Pakhtunkhwa and another---Respondents

Criminal Petitions Nos. 201 and 656 of 2020, decided on 29th July, 2020.

(Against the judgment dated 20.12.2019 passed by Peshawar High Court, Bannu Bench in Cr. M.B.A. No. 416-B of 2019 and Cr. Misc. B.A. No. 25-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)--- Qatl-i-amd---Petition for cancellation of bail, dismissal of---Allegation against the accused-female was that she had illicit relationship with the co-accused and facilitated him in murdering her husband---High Court, while granting bail to accused, had considered that she did not make any concessions in her statement recorded under S. 164, Cr.P.C., but merely stated that the accused persons were interested in her---Mere interest of the accused would not be enough to reflect her being of easy virtue---Evidence as to the recovery of cell number in her use and possession was not of much help---Such tentative conclusions called for further inquiry into the guilt of accused, and if, at all, prosecution was able to establish otherwise, the accused may be convicted during her trial---Petition for leave to appeal seeking cancellation of bail granted to accused was dismissed.

Muhammad Shahzad Siddique, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in both cases).

Arshad Hussain Yousafzai, Advocate Supreme Court along with Ahmed Janan, SI for the State.

Respondent No. 2 in person.

2020 S C M R 2017

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD IRFAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 958 of 2020, decided on 15th October, 2020.

(Against the order dated 14.4.2020 passed by the Peshawar High Court Peshawar in Criminal M.B.A. No. 106-D/2020)

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

----S. 497(5)---Bail, cancellation/recalling of---Principles---Once bail was granted by a competent tribunal, a different regime, somewhat narrowly jacketed, was applied to consider the propriety/desirability of cancellation of bail, on the assumption that apprehended fallout of interim freedom under an interlocutory arrangement, even though granted under error, could be indemnified through final adjudication---Such concept of condonation could not be applied,in cases structured upon findings inherently anomalous, flawed or mutually destructive and inconsistent, more so in category of offences with restrictions statutorily heavier on offender's release on bail.

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

----S. 497(5)---Bail, cancellation/recalling of---Principles---Grant of bail was not an irrevocable charter of freedom---In appropriate cases, while exercising charitable restraint, nonetheless, it was a judicial responsibility to rectify situations (i.e. bail granting orders) which led towards embarrassing anomalies.

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

----S. 497(5)---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S. 6---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Possession of 12 kilograms of cannabis---Bail, cancellation of---Anomalies in bail granting order---On a tip off, the accused, accompanied by the co-accused, were intercepted by a contingent of Anti Narcotic Force---Upon search, a substantial cache of cannabis, weighing 12 kilograms, stealthily concealed underneath the rear seat of the vehicle, driven by them, was recovered, a portion whereof, was wrapped around the belly of co-accused---High Court granted bail to co-accused, whereas accused was denied bail despite pleading the principle of consistency---Held, that the co-accused was equally disentitled to be released on bail in view of the merits of the case that manifested interception of both the accused and co-accused in a vehicle carrying a substantial quantity of the contraband, craftily concealed and recovered on disclosures, by both of them, from underneath the seat inside the cabin as well as wrapped around the body of co-accused, bringing their case within the 'prohibition' provided under S. 51 of the Control of Narcotic Substances Act, 1997---Failure by the police contingent to register the case under the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, an error open to rectification, did not by itself mitigate the enormity of the crime nor possibly furnish a ground for their release on bail---Overwhelming evidence, prima facie pointed, equally upon both the accused and co-accused, admitting no space to contemplate any distinction and as such did not allow to countenance the error in granting bail to co-accused---Bail granted to co-accused was cancelled, whereas petition for leave to appeal filed by accused for his release on bail was dismissed and leave was refused.

Ch. Muhammad Ayub Arbab Gujar, Advocate Supreme Court for Petitioner.

Raja Inaam Ameen Minhas and Ch. Ehtisham ul Haq, Special Prosecutors, ANF for the State.

Khawaja Azhar Rasheed, Advocate Supreme Court with Dilshad Khan, co-accused for the co-accused.

2020 S C M R 2020

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Sajjad Ali Shah, JJ

AKHTAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 270-L of 2020, decided on 12th October, 2020.

(On appeal from the judgment of the Lahore High, Lahore dated 20.03.2014 passed in Criminal Appeal No. 168 of 2010 and M.R. No.366 of 2010)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Delay in lodging of FIR explained---Matter was reported to police about four days after the occurrence, however such delay had been explained by the complainant in the FIR and before the Trial Court---In the FIR which was registered on the written application of complainant, it was mentioned that after his son went missing, the complainant and others started searching him and in that search, they also went to the accused and asked from him about the whereabouts of the deceased---In his cross examination, the complainant stated that he orally informed Moharrar of police station that his son was missing on the next day of occurrence and the said Moharrar told him that police would search his missing son---Deceased was the only son of complainant and was aged 12/13 years, therefore, it was quite natural for a father to put his best efforts in searching his missing son before reporting the matter to the police particularly when he had no suspicion against anyone---In the circumstances, delay in reporting the matter to police was not fatal to the prosecution---Conviction of accused under S. 302(b), P.P.C. was maintained.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Extra-judicial confession of accused corroborated by medical evidence---Accused had allegedly made an extra judicial confession before the complainant and another prosecution witness---While appearing before the Trial Court, the complainant and said witness reiterated the contents of FIR with full confidence; they explained in detail how they along with other witnesses went to the accused and asked him about whereabouts of deceased; how the complainant told the accused regarding initiation of legal proceedings if he did not disclose the whereabouts of deceased; how the accused disclosed before them that he took deceased to a house with intention to commit sodomy and on his failure to do the unnatural act, he tied up and strangulated the deceased with an iron wire and concealed his body in an iron box---Complainant and the other witness of extra judicial confession also stated that they apprehended the accused and proceeded towards the police station---Despite lengthy cross examination, the defence was not able to elicit anything from these witnesses regarding false implication of accused in the case---Autopsy report of deceased mentioned contusion mark all around the neck of deceased, and a contusion marks around the wrists---Such observations of the doctor supplemented the extra judicial confession of accused that he tied up and strangulated the deceased with an iron wire---Furthermore three swabs were taken from the anal region of deceased and sent to the Chemical Examiner, who opined that the said swabs were stained with semen---On disclosure of accused before police, dead body of deceased was recovered from a vacant house---Accused also got recovered the keys of said house, a shirt, bag, books and a register belonging to the deceased--- All said circumstances outweighed the claim of accused that he had been falsely implicated in the case--- Prosecution had been successful in proving its case against the accused, therefore, his conviction under S . 302(b), P.P.C. was maintained.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Death sentence reduced to imprisonment for life---Case based on circumstantial evidence only---No direct evidence was available against the accused and the prosecution case hinged upon circumstantial evidence---Conviction of accused under S. 302(b), P.P.C. did not call for any interference, but considering the overall circumstances of the case, and to meet the ends of justice, the death sentence awarded to accused and maintained by the High Court was converted to sentence of imprisonment for life---Appeal was partly allowed.

Shahid Azeem, Advocate Supreme Court and Mrs. Tasnim Amin, Advocate-on-Record for Appellant.

Malik Rab Nawaz, Advocate Supreme Court for the Complainant.

Amjad Rafiq, Additional P.G. Punjab for the State.

2020 S C M R 2025

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD ARSHAD---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 335 of 2017, decided on 7th October, 2020.

(Against the judgment of the Lahore High Court Lahore dated 04.04.2017 passed in Murder Reference No.467/2012 and Criminal Appeal No.443-J/2012)

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-A(i), 337-A(ii) & 337-A(iii)--- Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-mudihah, shajjah-i-hashimah---Reappraisal of evidence---Present occurrence had taken place in broad daylight in which one person was done to death in a brutal manner whereas two women folk were inflicted severe injuries---Crime report was lodged with promptitude, despite a distance of 10 kms between the place of occurrence and the police station---Facts and figures of the case ruled out any possibility of deliberation and consultation---Only one accused was nominated in the crime report which showed the fairness of the prosecution---Injuries inflicted by accused upon the deceased and injured women were fully established from the medical evidence and reports---Ocular account was supported by two injured witnesses, whose statements coincided with each other on salient features of the prosecution version---Recovery of hatchet further lent support to the prosecution case---Accused claimed that he was also injured during the occurrence but it was suppressed by the prosecution---Medico legal report of the accused placed on the record reflected that it was caused at a different point of time in comparison to the date of occurrence---Accused never made any endeavor to lodge counter version with the local police qua the injury he sustained during the occurrence---Similarly, the doctor who examined the accused was never produced---High Court had rightly maintained the conviction of accused under S. 302(b), P.P.C. and altered his sentence from death to imprisonment for life---Petition for leave to appeal was dismissed and leave was refused.

Miss Syed BH Shah, Advocate Supreme Court for Petitioner.

Nemo for the State.

2020 S C M R 2029

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

Mst. KALSOOM BEGUM---Appellant

Versus

RIZWAN SHAH and others---Respondents

Civil Appeal No. 1664 of 2014, decided on 10th September, 2020.

(Against judgment dated 22.09.2014 passed by the Peshawar High Court Abbottabad Bench in C.R. No.225 of 2008)

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

----Ss. 41(3) & 42(3)---Mutation---Scope---Mutation by itself did not create or destroy an existing right; it was merely a reflection of the revenue record, authenticity/validity whereof was to be essentially ascertained in the underlying transaction.

Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338; Saadat Pervaz Sayan v. Chief Secretary, Government of Punjab, Lahore and 3 others 2003 PLC (C.S.) 1277; Muhammad Munir v. Muhammad Saleem and others 2004 SCMR 1530; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Mst. Janntan and others v. Mst. Taggi through LRs and others PLD 2006 SC 322; Muhammad Ishaq v. Muhammad Shafiq and 9 others 2007 SCMR 1773; Haji Muhammad Anwar v. Muhammad Ahmed and others 2007 SCMR 1961; Abdul Rasheed through LRs and others v. Manzoor Ahmad and others PLD 2007 SC 287; Mst. Suban v. Allah Ditta and others 2007 SCMR 635 and Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338 ref.

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

----S. 13(3)---Khyber Pakhtunkhwa General Clauses Act (VI of 1956), S. 26---Suit for pre-emption---Talb-i-Ishhad, notice of---Absence of the postman from witness-box who had delivered the notices along with relevant receipts---Such absence did not violate the law as an official clerk of General Post Office appeared as a witness to bring on record the relevant details and thereby successfully established dispatch of the required notice to the purchaser---Pre-emptor had discharged the onus to prove dispatch of notice by producing official witnesses from the concerned post office as the mode adopted by her was in accord with the provisions of S. 26 of the Khyber Pakhtunkhwa General Clauses Act, 1956---Appeal was allowed and suit of pre-emptor was decreed.

Liaqat Ali and others v. Safdar Khan 2020 SCMR 863 ref.

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

----S. 13---Suit for pre-emption---Contradictions in statements of witnesses produced to establish Talbs---Mere insignificant narrative variations---Held, that statements of said witnesses showed that alleged contradictions in their depositions were not major or significant---Pre-emptor acquired knowledge of the impugned sale soon after her return to the country after performance of Hajj-pilgrimage---Some variations in the statements of witnesses, blown out of proportion, were merely narrative variations that inevitably occurred in honest human discourse after flux of time---Such variations did not destroy the contextual integrity of the declarations so as to defeat a valuable statutory right, vesting in the pre-emptor---Appeal was allowed and suit of pre-emptor was decreed.

Barrister Umar Aslam, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Manzoor Hussain, Advocate Supreme Court for Respondents.

2020 S C M R 2033

[Supreme Court of Pakistan]

Present: Ijaz-ul-Ahsan, Amin-ud-Din Khan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD IBRAHIM (DECEASED) through LRs and another---Appellants

Versus

TAZA GUL and others---Respondents

Civil Appeal No. 712-L of 2009, decided on 27th August, 2020.

(Against the judgment and decree dated 05.10.2009 passed by the Lahore High Court, Lahore in Civil Revision No. 512-D of 2004)

Civil Procedure Code (V of 1908)---

----O. VI, R. 1 & O. XIV, R. 1---Issue, framing/non-framing of---Scope and effect---Framing or non-framing of issue could not be a ground for reversing the judgment and decree of any court and a party could not pray for remand of the matter at a later stage on the basis that any issue which was required in accordance with the pleadings of the parties was not framed---Evidence of the parties was to be led in accordance with the pleadings---Moreover it was not a legal defect if any specific issue was not framed and party claiming that issue did not agitate the matter for decades, and also if the language of existing issues was not in accordance with the wishes of any of the parties---Party had to prove the case pleaded by it through oral as well as documentary evidence, therefore, framing of any specific issue or non-­framing thereof did not prejudice the case of the party in any manner unless the party claiming a fresh issue had raised its voice at the time of framing of issues and claimed specific prejudice for non-framing of the issue and prima facie its claim was borne out from the record and in the upper fora the party was continuously raising such issue.

Syed Muhammad Kaleem Ahmed Khurshid, Advocate Supreme Court for Appellants.

Muhammad Iqbal Khan, Advocate Supreme Court for Respondents Nos. 1 to 67.

2020 S C M R 2037

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

ABDUL REHMAN MALIK---Petitioner

Versus

SYNTHIA D. RITCHIE, AMERICANS NATIONAL and others---Respondents

Civil Petition No. 2231 of 2020, decided on 30th September, 2020.

(Against the order dated 1.9.2020 of the Islamabad High Court, Islamabad passed in W.P. No.2267/2020)

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

----Ss. 22-A & 22-B---Constitution of Pakistan, Art. 25---Petitioner, a former Federal Minister and current Member of Senate accused of raping a foreign national in Pakistan---In the face of a negative police report, the Justice of Peace declined to issue direction for registration of a criminal case against the petitioner---Alleged victim (respondent) assailed such refusal before the High Court, which vide the impugned order remitted the complaint to the Session Judge for re-assigning the matter before another Ex-Officio Justice of Peace---Held, that petitioner was certainly entitled to all statutory safeguards, available to any accused confronting an accusation, nonetheless, he could not claim immunity for having held high offices or on account of his current status of being a member of the Senate---Constitution commanded equality before law and extended equal protection thereof to the citizens regardless of their stature or status in life; the law was above them all---Petitioner, like holder of any other office, ministerial, judicial or otherwise, was required to respond to the accusation before the designated tribunals so as to vindicate his position before a Justice of Peace---No jurisdictional error or flaw was found in the impugned order calling for interference in remission of the issue to the Justice of Peace for a decision afresh within the framework of law---Petition for leave to appeal was dismissed and leave was declined.

Mst. Sughran Bibi v. The State PLD 2018 SC 595 and Younas Abbas and others v. Additional Sessions Judge Chakwal and others PLD 2016 SC 581 distinguished.

(b) Constitution of Pakistan---

----Art. 248---Immunity provided to the President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, a Chief Minister and a Provincial Minister---Scope.

Immunity provided to the President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, a Chief Minister and a Provincial Minister was confined to the exercise of powers and performance of functions of their respective offices and for the acts done or purported to be done in exercise of powers and performance of their official functions. The President or the Governor could only escape prosecution on a criminal charge during incumbency in the office. Since the law did not authorize holder of any office, howsoever high to commit a crime or do anything inconsistent with law, even the limited functional immunity could not be pressed into service to hold the process of law in abeyance.

Ch. Zahur Ilahi, M.N.A. v. Zulfikar Ali Bhutto and others PLD 1975 SC 383; Abrar Hassan V. Government of Pakistan and respondents PLD 1976 SC 315; Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and others PLD 2012 SC 870 and Contempt Proceedings against Syed Yousaf Raza Gillani, The Prime Minister of Pakistan 2012 SCMR 909 ref.

Holders of public positions were under a heavier onus to live up to the highest standards of rectitude so as to command respect and inspire public confidence.

(c) Police Rules, 1934---

----R. 24.4---Criminal Procedure Code (V of 1898), Ss. 154, 169 & Pt. V [Ss. 46 to 67]---Action when report was doubtful---Scope---Law requires that a police officer should first register a case and then form an opinion in terms of R. 24.4 of the Police Rules, 1934, as to whether the facts stated in the FIR were true or not---Officer Incharge could possibly invoke R. 24.4 of the Police Rules, 1934, for reasons strong and manifest after registration of First Information Report.

Rule 24.4 of the Police Rules, 1934 did not tyrannically foreclose doors to a complainant to voice his/her grievance nor it dogmatically empowered an Officer Incharge to terminate a prosecution before its inception on his subjective belief of its being false; its application was subservient to the scheme laid down in Part V of Cr.P.C., and, thus, had to be essentially read in conjunction with section 169 thereof. Therefore, an Officer Incharge could possibly invoke Rule 24.4 of the Police Rules, 1934, for reasons strong and manifest after registration of First Information Report.

Law required that a police officer should first register a case and then form an opinion whether the facts stated in the FIR were true or not. However, Rule 24.4 of the Police Rules, 1934, certainly empowered the Officer Incharge to decline to take adverse action against an accused whom he justly and fairly considered, being hounded on a trump up charge for motives, obliquely calculated. [View taken in Zulfiqar Ali alias Dittu and another v. The State (1991 PCr.LJ 1125) approved].

Mst. Sughran Bibi v. The State PLD 2018 SC 595 ref.

Younas Abbas and others v. Additional Sessions Judge Chakwal and others PLD 2016 SC 581 approved.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court, Shahbaz Ali Khosa, Advocate Supreme Court, Ch. Abdul Rehman Hur Bajwa, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Petitioner.

Saif-ul-Malook, Advocate Supreme Court and Sharif Janjua, Advocate-on-Record for Respondent No.1 and Respondent No. 1 in person.

Niazullah Khan Niazi, A.G. Islamabad Umar, SP City, Naeem, SP Investigation, Iqbal Khan, DSP, Haider Ali, SHO, PS Secretariat and Zahid Akhtar, S.I. on Court's Notice.

2020 S C M R 2044

[Supreme Court of Pakistan]

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

WARIS and another---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 456 of 2015, Criminal Petitions Nos. 121-L of 2017 and 1304-L of 2015, decided on 23rd July, 2020.

(On appeal against the judgment dated 01.10.2015 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 116-J, 700 of 2011 and Murder Reference No. 222 of 2011)

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Leave to appeal, petition for---Contentions of accused that that there was a delay of about three hours in the registration of FIR: that the doctor stated in his cross examination that death might have been caused twelve hours prior to the postmortem examination; that as per prosecution case apart from the accused, two other co-accused persons also caused kasi blows on the head of the deceased, whereas another co-accused caused a blunt injury on the back of the deceased; that the doctor observed that the three injuries on the body of deceased individually and collectively were sufficient to cause death in ordinary course of nature; that the Trial Court while disbelieving the evidence of complainant and a prosecution witness acquitted all three co-accused persons; that the appeal against acquittal of said co-accused persons was dismissed by the High Court through the impugned judgment: that motive behind the occurrence was disbelieved by the High Court and kasi recovered on pointation of accused was not blood stained; that the same set of evidence which had been disbelieved by the courts below qua acquitted co-accused persons could not be relied to convict the accused on a capital charge particularly when there was no independent corroboration---Held, that said contentions needed consideration---Leave to appeal was granted to re-appraise the entire evidence on record for safe administration of justice.

Malik Rab Nawaz, Advocate Supreme Court for Petitioners (in J.P. No. 456 of 2015).

Muhammad Amjad Rafiq, Additional P.G., Punjab for the State.

Dr. Abdul Basit, Advocate Supreme Court for the Complainant.

2020 S C M R 2046

[Supreme Court of Pakistan]

Present: Mushir Alam and Yahya Afridi, JJ

Haji WAJDAD---Appellant

Versus

PROVINCIAL GOVERNMENT through Secretary Board of Revenue Government of Balochistan, Quetta and others---Respondents

Civil Appeal No. 1522 of 2013, decided on 2nd October, 2020.

(On appeal against the judgment of the High Court of Balochistan, Quetta dated 07.08.2013 passed in Civil Revision No. 73 of 2008)

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Revisional Court (High Court), while exercising its jurisdiction under S. 115, C.P.C., as a rule was not to upset the concurrent findings of fact recorded by the two courts below---Said principle was essentially premised on the touchstone that the appellate court was the last court of deciding disputed questions of facts---However, the said principle was not absolute, and there may be circumstances warranting exception to the above rule, as provided under S. 115, C.P.C.: gross misreading or non-reading of evidence on the record; or when the courts below had acted in exercise of its jurisdiction illegally or with material irregularity.

Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24; Mandi Hassan alias Mehdi Hussain and another v. Muhammad Arif PLD 2015 SC 137; Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639; Nabi Bakhsh v. Fazal Hussain 2008 SCMR 1454; Abdul Hameed and others v. Khalid and others 2007 SCMR 938; Abdul Sattar v. Mst. Anar Bibi and others PLD 2007 SC 609; Abdul Mateen v. Mst. Mustakhia 2006 SCMR 50; Habib Khan and others v. Mst. Bakhtmina and others 2004 SCMR 1668 and Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 ref.

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

----Ss. 3 & 5---Void order---Limitation period for challenging a void order---Condonation of delay---Scope---Limitation would run even against void order affecting rights of any person---No one could seek condonation of delay by challenging solely on the said ground---Aggrieved person who filed a belated claim against an allegedly void order would have to first plead his knowledge thereof, and then prove the same by cogent and reliable evidence, so as to legally justify his claim to be within the period of limitation from the date of his knowledge.

General (Retd.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585; Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587; Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi 2014 SCMR 1594 and Raja Khan v. Manager (Operation) Faisalabad Electric Supply Company (WAPDA) and others 2011 SCMR 676 ref.

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

----Ss. 8 & 42---Baluchistan Land Revenue Act (XVII of 1967), S. 52---Suit for declaration and possession of immoveable property---Long standing mutations in favour of Provincial Government---Triple presumption of correctness---In the present case, triple presumption of correctness was attached to the impugned mutation: firstly, it was the result of the first settlement (Bundubast) of the area; secondly, the recording of ownership was based on long standing mutations; and finally, the recording was in favour of the Provincial government that was protected under S. 52 of the Land Revenue Act, 1967---Such presumption of correctness attached to such entries in the Revenue Record, was, however, rebuttable---Said presumption, could not be controverted by mere oral evidence---To rebut the said presumption of correctness, sufficient and convincing evidence must be produced---Appellant-plaintiff, in the present case, failed to bring on record, a single supportive entry reflecting his possession in the official revenue record or any other reliable piece of evidence---Moreover, the plaintiff also failed to bring any positive assertion confirming his possession or any other finding in his favour during the cross examination of the official witness produced by the Provincial government---Instead, the plaintiff only produced two private persons, whose standing in the area and credence of their testimony did not come up to the required threshold to dispel the presumption of correctness attached to the impugned long standing mutation.

Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840 ref.

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

----S. 115--- Suo motu revisional jurisdiction of the High Court---Scope---Revisional Court under S. 115, C.P.C. could exercise jurisdiction either on an application of an aggrieved person or suo motu to effectively correct any material error of facts or law committed by any subordinate court.

Hafeez Ahmad v. Civil Judge, Lahore PLD 2012 SC 400 ref.

Tariq Mehmood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Ayaz Khan Swati, Additional Advocate-General, Balochistan for Respondents.

2020 S C M R 2053

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

NEHAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 960 of 2020, decided on 2nd September, 2020.

(Against the order dated 17.07.2020 passed by the Peshawar High Court, Peshawar in Criminal Misc. B.A. No. 1665-P of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 376---Rape---Bail, refusal of---Accused by his own choice placed on record prescription/medical certificate, issued by an orthopedic/spine surgeon that indicated fracture of a foot, suggested by the Investigating Officer as result of a fall during his quest to flee from the scene---Victim was also beaten during the occurrence, seemingly without fault---Duration of the injuries suffered by the accused corresponded with the time of occurrence mentioned in the crime report---Accused lived in the same neighborhood and apparently neither the victim nor her husband, had an axe to grind against the accused at the cost of their family honour---Investigative conclusions vindicated stance taken by the victim whose statement coupled with the attending circumstances of the case constituted 'reasonable grounds' within the contemplation of S. 497(2), Cr.P.C., standing in impediment to his release on bail, in the absence of any consideration calling for further probe---Accused was rightly denied bail by courts below---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Usman Khan Turlandi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court with Gul Pasha, SI for the State.

2020 S C M R 2055

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

The COMMISSIONER INLAND REVENUE---Appellant

versus

The SECRETARY REVENUE DIVISION and others---Respondents

Civil Appeal No. 647 of 2018, decided on 28th September, 2020.

(On appeal from the judgment dated 16.6.2011 passed by the Peshawar High Court, Peshawar in W.P. No. 602 of 2011)

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

----Second Sched. Pt. I, Cl. 126F [since omitted]---Franchisee of mobile company (franchisor) carrying out business in District Nowshera---Payment of commission by franchisor to the franchisee---Exemption from deduction of advance tax on payment of commission for a period of three years starting from tax year 2010 ('the exemption clause')---Applicability---Held, that Sr. No. 1 of paragraph 3 of Circular No.14 of 2011 dated 6.10.2011 issued by the Federal Board of Revenue ('the Circular) provided benefit of exemption clause to those tax payers located inside the affected and moderately affected areas of Khyber Pakhtunkhwa, ('the specified areas') and whose business was also carried on inside the specified areas---Place of business of respondent-tax payer in the present case was admittedly located in a 'moderately affected area' within the meaning of the exemption clause---Case of respondent-tax payer fell squarely within Sr. No. 1 of paragraph 3 of the 'Circular'---Department itself regarded the income of taxpayers such as the respondent as entitled to the benefit of the exemption clause---Such scenario was also clearly confirmed in para 7 of the judgment in Husnain Cotex Limited v. Commissioner Inland Revenue 2017 SCMR 822 = 2017 PTD 1561, wherein such tax-payers had been described as the "affectees" of the "adverse business environment" for whom the exemption clause was intended---Respondent-tax payer was clearly entitled to the benefit of the exemption clause--- Appeal filed by department was dismissed.

Husnain Cotex Limited v. Commissioner Inland Revenue 2017 SCMR 822 = 2017 PTD 1561 ref.

(b) Constitution of Pakistan---

----Art. 185(3)---Leave refusing order passed by the Supreme Court---Such order did not constitute a binding authority.

Ghulam Shoaib Jally, Advocate Supreme Court and Masud Akhtar, Chief Legal, FBR for Appellant (in both cases).

Respondent No. 3, ex parte.

Qazi Ghulam Dastegir, Advocate Supreme Court for Respondent No. 4.

2020 S C M R 2062

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

DAD KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 606 of 2020, decided on 31st August, 2020.

(Against the judgment dated 15.05.2020 passed by the Peshawar High Court Peshawar in Cr. M. B.A. No.1276-P/2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 14 & 51--- Aiding, abetment or association in trafficking of methamphetamine---Bail, grant of---Further inquiry---Anti-Narcotic Force contingent, on a tip off, intercepted co-accused in the departure lounge of an airport, while boarding an international flight with a substantial quantity of methamphetamine---Name of accused was subsequently added as being part of the cartel behind the consignment, and he had allegedly booked a room in a local hotel where the co-accused and accused, three in number, stayed the night preceding the flight---However, the prosecution had not been able to point out any material to confirm presence of the principal co-accused with the accused except for latter's statement recorded during custody nor there was any data available with the prosecution to establish presence of accused at or around the airport before departure of the flight, therefore, accused's culpability as an abettor, aiding the crime in association with the principal offender, within the contemplation of S. 14 of the Control of Narcotic Substances Act, 1997 so as to attract the bar provided under S. 51 thereof, warranted further probe---Petition for leave to appeal was converted into appeal and allowed, and accused was released on bail.

Ms. Neelam A. Khan, Advocate Supreme Court for Petitioner.

Raja Inaam Ameen Minhas, Special Prosecutor, ANF along with Shamim Raza, SI for the State.

2020 S C M R 2064

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Munib Akhtar, JJ

The DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, RAWALPINDI and others---Appellants

Versus

Syed IRSHAD ALI ABID---Respondent

Civil Appeal No. 1470 of 2015, decided on 29th November, 2018.

(On appeal from the judgment/order dated 24.08.2015 of the Federal Service Tribunal, Islamabad passed in Appeal No. 1912(R)CS/ 2012)

Constitution of Pakistan---

----Art. 25---Employee of Pakistan Railways---Scheme for encouraging higher education---Employees with higher education entitled for advance increments---Withdrawal of scheme---Plea of discrimination---No vested right--- Promissory estoppal--- Applicability--- Scope---Respondent-employee secured his LL.B degree in the year 2002 on the basis of the scheme in question introduced by the Railway Authorities in the year 1996---Respondent claimed four advance increments on account of having secured the said degree---Employer/Pakistan Railways contested the claim on the ground that the incentive scheme was discontinued by the Railway authorities vide notification dated 13.9.2001---Service Tribunal found that the employee was entitled to the advance increments for two reasons; firstly, in similar cases the relief was granted in the year 2011 after the closure of the scheme and secondly, the Railway authorities had conceded and granted the right to such relief in the case of several similarly placed persons---Consequently, denial of the relief to the employee would constitute discrimination---Held, that perusal of the record showed that the persons who were granted relief by the Service Tribunal had obtained their higher qualification prior to the year 2001, consequently, they enjoyed same entitlement which was given judicial recognition---In the second category of cases the judgments given by the Service Tribunal were given ex-parte against Pakistan Railways---Furthermore, neither of the said orders dealt with the withdrawal of the scheme vide notification dated 13.9.2001---Respondent was making his claim in the year 2012 before the Service Tribunal although the benefit scheme had been withdrawn in the year 2001---Although Railways had given an assurance that an alternative scheme would be introduced again in due course, but till date that had not happened---No promissory estoppel had arisen in the present case because the scheme was withdrawn before the employee secured his higher qualification in the year 2002---Consequently, there was no vested right in the employee to be granted the benefit of abolished scheme---Appeal was allowed and impugned judgment of Service Tribunal was set aside.

M.D. Shahzad Feroz, Advocate Supreme Court for Appellants.

Kh. Muhammad Arif, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2020 S C M R 2066

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD WAHEED---Petitioner

Versus

The STATE through A.G. Khyber Pakhtunkhwa and another---Respondents

Criminal Petition No. 916 of 2020, decided on 1st September, 2020.

(Against the order dated 9.6.2020 passed by the Peshawar High Court, D.I. Khan Bench in Cr. M.BC No. 10-D/2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 377---Sodomy with a minor boy---Bail, refusal of---After the assault, the child was examined the same day and the Medical Officer observed a bleeding anal orifice with abrasions on the knee joint---Whitish material on the clothes of the victim was forensically opined as seminal stains---Such available material on record constituted "reasonable grounds" within the contemplation of S. 497, Cr.P.C. so as to bring case of accused within the remit of prohibition provided thereunder---Given extreme tender age of the child, and trauma apparently endured by him, which was positively confirmed by medical evidence, the parallel story of denial by accused, structured upon complainant's alleged animosity based upon some previous litigation, was not persuasive---Petition for leave to appeal was dismissed and accused was refused bail.

Muhammad Yousaf Khan, Advocate Supreme Court for Petitioner.

Anis Muhammad Shahzad (State counsel) with Haq Nawaz, SI for the State.

2020 S C M R 2068

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Mazhar Alam Khan Miankhel, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA, WORKERS WELFARE BOARD through Chairman---Appellant

Versus

RAHEEL ALI GOHAR and others---Respondents

Civil Appeal No. 73 of 2020, decided on 16th July, 2020.

(Against judgment dated 29.03.2018 of Peshawar High Court, Peshawar in Writ Petition No. 4765-P of 2017)

(a) Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----S. 11-B(3)---Contractual employees of Workers' Welfare Board, Khyber Pakhtunkhwa ('the Board') employed in technical institutes---Regularization in service---Legality---Employment of all the respondents (employees) was contractual in nature and none of their contracts contained any provisions for regularization---Besides all the appointments in the present case were illegal and not made through the mechanism provided for in the Workers' Welfare Fund Ordinance, 1971 ('the Ordinance')---All such appointments were made by a person who was not authorized to make the same by virtue of S. 11-B(3) of the Ordinance---Appointments made by the Secretary of the Board had come under question based on the various allegations and charges of corruption, nepotism, and illegal acts brought against him and several other officers of the department before the accountability courts---Impugned judgment of the High Court whereby respondent-employees were regularized in service was set aside---Supreme Court highlighted some of the irregularities and violation of laws in the process of making appointments to different posts by the Board and passed appropriate directions.

All the contractual appointments made, in the present case, were illegal and were not made through the mechanism provided for in the Workers' Welfare Fund Ordinance, 1971 ('the Ordinance').

The Board was neither performing nor was it capable of performing its functions under the law, rules and regulations. This has led to indiscriminate loss and wastage of funds, a deluge of litigation and gross abuse and misuse of authority for personal or political motives. [p. 2081] H

Following were some of the flaws, irregularities and violation of laws, rules and regulations, etc in the process of making appointments to different posts by the Workers' Welfare Board, Khyber Pakhtunkhwa ('the Board'):

(i) Large number of appointments were made by persons, who did not have the power nor were competent to make such appointments. In a number of cases, there was no independent, impartial and duly approved Selection Board authorized by the competent authorities on the basis of rules or regulations to evaluate the academic credentials, competence, merit and suitability of applicants/candidates and make recommendations for appointments based upon merit;

(ii) Large number of vacancies were made available or created, whether the same were required or not, for which no justification was ever given or was available on record. There were no job descriptions, organograms, minimum academic qualifications, required experience (if any) or a selection criterion laid down for various posts;

(iii) Stopgap and ad hoc arrangements and criteria were utilized to tailor to the needs and objectives of the persons who were interested in making appointments for extraneous considerations which had no correlation or nexus with the needs or requirements of the Board and there was no internal and external accountability of any nature;

(iv) There was a constant rift between the Chairman of the Board and its Secretary which led to collapse of whatever system (if any) was there resulting in total disarray and chaos in the organization as well as amongst employees who worked and operated according to their own whims and caprices;

(v) The Board invariably acted as a helpless, hapless and disinterested onlooker with no sense of responsibility and no inclination to interfere or assert its powers to stop this blatant abuse of power; and

(vi) No effort was made to put in place an employment policy and a well thought and well designed service structure for employees of the Board and the hundreds of teachers and other staff hired much in excess of the actual requirement for schools set up and run by the Board.

In public interest Supreme Court passed the following directions in relation to the Board and persons employed by it for its various projects:

(i) The Provincial Government of Khyber Pakhtunkhwa shall constitute a committee headed by its Chief Secretary and consisting of highly respected and independent professionals possessing high degree of integrity from the fields of education, administration, finance, human resource and employment laws, etc. Such committee shall in the first instance examine the laws, rules and regulations governing the setting up, operation and functioning of the schools systems set up by the Board;

(ii) The Board shall provide the Committee all data, information financial documents, employment documentations, etc relating to terms and conditions of employment of the entire staff working in these Schools and such other information as the Committee may require. The Committee may with the approval of Chief Secretary/Chairman of the Committee co-opt any other member from any Government or private entity who may in the majority opinion of the Committee facilitate and add value to its deliberations;

(iii) The Committee shall also have the power to constitute sub-committees consisting of two or more members who will examine and streamline the entire process of employing persons in the projects of the Board especially its school projects. It will also examine and suggest changes in the system of appointments which would be made by Selection Boards constituted on the basis of recommendations to be made by this Committee. It shall also make recommendations for promulgating afresh or amending rules dealing with all existing staff in the schools/institutions and all matters related to their appointments. The Committee shall also get conducted an independent audit of the Board with special reference to school projects for the past seven years in order to fix responsibility for cronyism, favoritism, unnecessary litigation and leakage and wastage of funds with relation to illegal appointments made at various stages;

(iv) The Committee shall also prepare a comprehensive report regarding other aspects of the workings of the Board and its school projects within a period of three months and submit such report not only to the Provincial Government of Khyber Pakhtunkhwa but also to the Supreme Court for perusal in Chambers. It shall also review the powers, working and procedures of the Board and make recommendations to streamline its working and making all major decisions including sanction of projects and allocation of funds subject to approval of the Board. Recommendations shall also include measures to create a workable balance between the powers of the Board, the Chairman and Secretary and suggest inbuilt counterchecks on exercise of power at every stage;

(v) The Committee shall also coordinate with the National Accountability Bureau and Anti-Corruption Establishments and such other entities as may be charged with the responsibility to oversee and undertake accountability initiatives where public funds were utilized. It shall also point out the individuals who had been found by it to be involved in financial mismanagement, corruption, favoritism and misuse/ abuse of authority for initiation of proceedings against them in accordance with law;

(vi) The Committee shall also look into the working of the Board, its Management Committee, Chairmen as well as Secretaries of the Board for the past seven years and recommend appropriate action where any violation of the rules, regulations and laws, etc had been found;

(vii) It shall also examine the decisions taken by the Board and notifications issued from time to time to determine the objective behind the same; ensure that the same had been issued in the best interest of the Board and were in accordance with laws and rules failing which appropriate actions against those responsible for the same shall be recommended;

(viii) The Committee shall make such other and further recommendations as it may consider appropriate for better functioning of the Board so that it ran as an efficient, well structured, well planned and responsible entity; and

(ix) An exercise to scrutinize and screen teachers hired from February, 2011 to June, 2016 and to propose a rationalization programme to streamline the strength of teaching and non-teaching staff was undertaken by a rationalization Committee by the Khyber Pakhtunkhwa Workers Welfare Board in the year 2016. The said Committee after an elaborate and painstaking exercise submitted a comprehensive report on June 20, 2016 along with its recommendations. However said report was put in cold storage and never saw the light of the day. The reasons for such in action were not hard to fathom. The Committee constituted herein shall consider the said report, replicate the exercise for the period between 2016 to 2020 and then ensure implementation of recommendations in letter and spirit.

Appeal was allowed and impugned judgment of High Court, whereby the respondent-employees of the Board were regularized, was set aside.

(b) Master and servant---

----Contract employees--- Regularization in service--- Scope---Contractual employees had no automatic right to be regularized unless the same had specifically been provided for in law.

Civil Petitions Nos. 4504 to 4576, 4588 and 4589 of 2017 dated 08.01.2013 ref.

(c) Constitution of Pakistan---

----Art. 199---Master and servant, relationship---Contract employees---Constitutional petition filed by contractual employees seeking regularization in service---Maintainability---Contractual employees, who were governed by the principle of master and servant, did not have the right to approach the High Court (in its constitutional jurisdiction) to seek redressal of their grievances relating to regularization.

Chairman NADRA, Islamabad and another v. Muhammad Ali Shah and others 2017 SCMR 1979 ref.

(d) Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----Ss. 4(1), 6 & 11---Funds provided to the Workers' Welfare Board ('the Board')---Scope---Such funds were in the nature of a trust and it was the responsibility first of the Provincial Government and thereafter of the Board to ensure that such funds were utilized in a most responsible, conscientious and honest manner with the object of advancing the welfare of the workers, contributions on whose account, constituted the substratum of the funds---Further, its affairs must be subjected to regular audit by an independent government agency.

Khawaja Azhar Rasheed, Advocate Supreme Court, Ahmed Nawaz Chaudhary, Advocate-on-Record, M. Azhar Hussain Shah, Dir. (Edu), Taj Wali Said, Dir. (Fin.), Qudrat Ullah, AD (L) and Said Umer (LA) for Appellant.

M. Shoaib Shaheen, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Respondents.

2020 S C M R 2084

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Qazi Muhammad Amin Ahmed, JJ

AMJAD and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petitions Nos. 457-L and 400-L of 2016, decided on 19th October, 2020.

(Against the judgment dated 16.02.2016 passed by the Lahore High Court, Lahore in Criminal A. No.364-J/2011, Crl. Revision No.1211/2011 along with M.R. No.476/2011)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---According to the crime report as well as statements of the witnesses, the deceased received both the shots on a cot covered by a bedding, a position that ran counter to depiction of the dead body in the inquest report---Prosecution remained completely silent on the receipt of a firearm injury by one of the co-accused during the occurrence---Medical examination of said co-accused under a police docket, shortly after the incident suggested he may have received the bullet injury before the time he allegedly fired at the deceased, implying he was physically incapacitated to shoot the deceased at the stated point of time as alleged by all the witnesses with one voice---According to the witnesses, accused first shot the deceased who then fell on the cot inside a room and it was thereafter that the co-accused targeted him with the second shot, landing on the same part of the body---However, there did not appear any earthly reason for the co-accused to join the undertaking already being effectively carried out by his son i.e the accused---Presence of a cot with a bedding in a small room, otherwise designed to manage tube-well apparatus, nonetheless, appeared to be a circumstance fraught with suspicion---Massive suppression of injuries endured by the accused side was a circumstance that inevitably cast its shadow on the prosecution case---Occurrence did not appear to have taken place in the manner as alleged in the crime report---Petition for leave to appeal was converted into appeal and allowed and accused and co-accused were acquitted of the charge.

M. Baleegh-uz-Zaman, Advocate Supreme Court for Petitioners (in Cr. P.457-L/2016).

Imran Raza Chadhar, Advocate Supreme Court for Petitioners (in Cr. P.400-L/2016).

Amjad Rafique, Additional Prosecutor General for the State.

2020 S C M R 2089

[Supreme Court of Pakistan]

Present: Faisal Arab and Sajjad Ali Shah, JJ

SIDRA ABBAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 105-K of 2020, decided on 10th September, 2020.

(Against the order dated 19.05.2020 of the High Court of Sindh, Karachi passed in Criminal Bail Application No. 131 of 2020)

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

----S. 497(5)---'Perverse' bail granting order---Bail, cancellation/ recalling of---Grounds.

Bail granting order could be cancelled if the same was perverse. In legal parlance, a perverse order was defined as an order which was, inter alia, entirely against the weight of the evidence on record. An order granting bail would be perverse and contrary to the principles of law if the same was passed by ignoring material evidence on record and without giving reasons. In cases where the court granting bail ignored relevant material indicating prima facie involvement of the accused in the commission of crime or took into account irrelevant material, which had no relevance to the question of grant of bail to the accused, then the Court reviewing such order would be justified in cancelling the bail.

Sami Ullah and another v. Laiq Zada and another 2020 SCMR 1115; The State/Anti-Narcotic v. Rafique Ahmed Channa 2010 SCMR 580 and Puran v. Rambilas (2001) 6 SCC 338 ref.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intention--- Bail, cancellation/recalling of--- Active participation of accused in the crime---Only consideration which prevailed with the High Court to upset the bail-declining order of the Court of first instance and to enlarge the accused on bail was that there was nothing against him except his presence at the spot which could not lead to a conclusion that the accused shared a common intention with the co-accused---However, the alleged presence of accused with the co-accused, who was also his brother, at both the crime scenes where two murders one after the other within a short span of half an hour were committed, coupled with the fact that both the accused and co-accused were real brothers and the pistol used in the crime belongs to the accused, spoke volumes which could hardly be rated as a coincidence---Eye-witness had assigned active role of facilitation to the accused, both in his Ss. 161 & 164, Cr.P.C. statements---Material available on record suggested active role of the accused in the commission of the offence---Impugned bail granting order of the High Court was perverse and was accordingly set aside---Petition for leave to appeal was converted into appeal and allowed, and bail granted to accused by the High Court was cancelled.

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

----S. 497(5)---Bail cancellation order by the court of first instance---Interference in such order by the Appellate Court---Scope---In cases where the Court of first instance had through a reasoned order refused concession of bail to an accused in non-bailable cases, then the Court of Appeal while reversing such order could not simply ignore the reasoning which prevailed with the Court of first instance while refusing the concession of bail---Of course the Court of Appeal exercised concurrent jurisdiction and had all the powers to review such orders by taking a different view on the same facts if it found that the Court of first instance in the circumstances of the case had failed to exercise its discretion in accordance with settled principles by unnecessarily withholding such concession---However, the Court of Appeal while reviewing such order should not simply ignore the reasoning that prevailed with the Court of first instance for declining bail.

Faisal Siddiqui, Advocate Supreme Court for Petitioner.

Hussain Bux Baloch, Additional Prosecutor General for the State.

Fareed Ahmed A. Dayo, Advocate Supreme Court for Respondent No.2.

2020 S C M R 2096

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

Criminal Petitions Nos.371 to 373 and 680 of 2020

(Against the judgment dated 2.4.2020 passed by the High Court

of Sindh at Karachi in Special Criminal Anti Terrorism Appeals Nos.66, 67 of 2002 and confirmation case No.12 of 2002)

AND

Criminal M.As. Nos.37-K and 38-K of 2020 in Crl. Ps. NIL/2020

(Permission to file and argue)

The STATE through P.G. Sindh and others---Petitioners

Versus

AHMAD OMER SHAIKH and others---Respondents

Criminal Petitions Nos.371 to 373 and 680 of 2020 and Criminal M.As. Nos.37-K and 38-K of 2020 in Crl. Ps. NIL/2020, decided on 28th September, 2020.

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

----Ss. 302(b), 120-A, 362 & 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 6(a) & 7---Constitution of Pakistan, Art. 185(3)---Kidnapping and murder of a foreign journalist, criminal conspiracy---Trial Court convicted the accused and co-accused persons under Ss. 120-A, 365-A & 302, P.P.C., read with Ss. 6(a) & 7 of the Anti-Terrorism Act, 1997---Accused was sentenced to death, whereas the co-accused persons were sentenced to imprisonment for life with fine---High Court altered conviction of accused to that under S. 362, P.P.C. and sentenced him to 7-years rigorous imprisonment, whereas the co-accused persons were acquitted of the charges---Plea on behalf of prosecution that with a web of circumstances, inescapably implicating the accused and co-accused persons with the commission of the crime, there was hardly an occasion to acquit them from the charge, particularly when the High Court itself maintained conviction and sentence on the charge of abduction qua the accused; that various incriminating pieces of evidence, both physical as well as scientific, constituted an uninterrupted/ continuous chain that inexorably linked the deceased with the accused and co-accused persons; that forensic evidence, generated without any possibility of human interference, conclusively proved the homicidal death of deceased subsequent to his abduction; that since charge of abduction having nexus with terrorism was upheld by the High Court, the acquittal from the coordinate charges was not a possible option through any mode of appraisal of evidence; that the prosecution successfully proved the conspiracy hatched to induce/ensnare the deceased to travel to another city, where he was abducted and murdered; that the relevant witnesses had identified the accused; that the source generating the emails was traced through forensic means by associating internet service providers; that recovery of digital apparatus i.e. laptop, scanner, polaroid as well as zoom cameras, used by the accused and co-accused persons to communicate with the deceased's family, established a continuous chain of circumstances pointing upon their culpability, which was additionally reinforced by the confessional statements of the two co-accused persons, leaving no space for the High Court to entertain any hypothesis other than guilt of accused and co-accused persons---Supreme Court granted leave to appeal, inter alia, to reappraise the evidence so as to consider the said contentions, and directed that till the next date of hearing, the accused and co-accused persons shall not be released from prison.

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

----Ss. 302(b), 120-A, 362 & 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 6(a) & 7--- Constitution of Pakistan, Art. 185(3)---Kidnapping and murder of a foreign journalist, criminal conspiracy---Trial Court convicted the accused and co-accused persons under Ss. 120-A, 365-A & 302, P.P.C., read with Ss. 6(a) & 7 of the Anti-Terrorism Act, 1997---Accused was sentenced to death, whereas the co-accused persons were sentenced to imprisonment for life with fine---High Court altered conviction of accused to that under S. 362, P.P.C. and sentenced him to 7-years rigorous imprisonment, whereas the co-accused persons were acquitted of the charges---Supreme Court granted leave to appeal to consider as to whether after en bloc acquittal of the co-accused persons and rejection of bulk of prosecution's evidence, the High Court was still justified to convict and sentence the accused in isolation to the totality of charge.

Farooq H. Naek, Senior Advocate Supreme Court assisted by Dr. Faiz Rasool, Prosecutor General Sindh, Usman Walid Sheikh, Advocate, Hussain Bux Baloch, Additional P.G. Sindh, Adnan Shuja Butt, Advocate Supreme Court and Muhammad Kassim Mirjat, Advocate-on-Record for Petitioners (in Cr. Ps. Nos.371 to 373/2020).

Faisal Siddiqui, Advocate Supreme Court assisted by Sheza Ahmed, Advocate for Petitioner (in Cr. M.As. Nos.37-K and 38-K of 2020).

Nemo for Petitioner (in Cr. P. No.680/2020).

Nemo for Respondents (in Cr. Ps. Nos.371 to 373/2020 and Cr. M.As. Nos.37-K and 38-K/2020).

2020 S C M R 2101

[Supreme Court of Pakistan]

Present: Faisal Arab, Sajjad Ali Shah and Munib Akhtar, JJ

NASRULLAH KHAN and another---Appellants

Versus

Mst. KHAIRUNNISA and others---Respondents

Civil Appeal No. 2-K of 2020, decided on 3rd August, 2020.

(Against the judgment dated 18.04.2018 passed by the High Court of Sindh, Circuit Court Hyderabad in R.A. No.6 of 2014)

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

----O. I, R. 3--- Gift deed--- Plea of fraud--- Necessary party/defendant---Scope---Person who acted as attorney and sold the disputed property to a third party was not arrayed as defendant in the suit---Attorney was a necessary party as it was he who on the strength of the disputed power of attorney sold the suit property to a third party---Attorney also appeared to be real uncle of one of the donees and brother of the donor---Forgery, if any, could only be pointed towards the attorney, therefore, he ought to have been made a party in the suit---Unless it was established that forgery had been committed by the attorney the suit of the appellants (donees) could not be decreed---Fact that the donees had not made the attorney a party showed that such an omission was fatal to the suit even if it had been filed within the period of limitation---Such omission looked deliberate as the person who could only commit fraud had not been sued and thus the donees appeared to have not come to the court with clean hands---Suit filed by donees had rightly been rejected by courts below---Appeal was dismissed.

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

----O. I, R. 9---Non-joinder of a party to the suit---Effect---Non-joinder did not amount to dismissal of the suit in terms of O. I, R. 9, C.P.C., however, where the Court considered it necessary that a person ought to have been made a party in the suit and had not been made, this would certainly lead to failure to prove one's case.

Mian Zafar Ali v. Mian Khursheed Ali 2020 SCMR 291 ref.

(c) Limitation---

----Limitation was not merely a technicality---Court could not allow the law of limitation to be bypassed---Court would not come to the rescue of persons who slept over their rights.

Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 ref.

Syed Shehenshah Hussain, Advocate Supreme Court for Appellants.

Neel Keshar, Advocate Supreme Court/Advocate-on-Record for Respondents Nos. 3 - 6.

2020 S C M R 2105

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ASHRAF---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 923 of 2020, decided on 22nd September, 2020.

(Against the order dated 22.07.2020 passed by the Lahore High Court Lahore in Crl. Misc. No. 28210-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Bail, grant of---Further inquiry---Accused was not initially named in the crime report---Deceased was found to have sustained three entry wounds, which were individually assigned to the nominated co-accused persons---Attribution belatedly assigned to the accused did not correspond both with the findings recorded by the Medical Officer as well as the number of unknown assailants mentioned in the crime report---Although the accused was identified by the witnesses in a test identification parade, but the circumstances of the case brought his case, squarely within the remit of S. 497(2), Cr.P.C.---Alleged culpability of accused being a paid participant/assassin in the crime could be best settled after recording of evidence---Petition for leave to appeal was converted into appeal and allowed, and the accused was released on bail.

Javed Imran Ranjha, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Rana Abdul Majeed, Additional Prosecutor General Punjab with M. Riaz, SI P.S. Civil Lines, M.B. Din for the State.

Khadim Hussain Qaiser, Advocate Supreme Court for the Complainant.

2020 S C M R 2107

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

ABDUL HAMEED---Petitioner

Versus

JAHANGIR KHAN---Respondent

Civil Petition No. 3097 of 2015 and Civil Appeal No. 1074 of 2015, decided on 9th July, 2020.

(On appeal from the judgments dated 29.9.2015 passed by the Peshawar High Court, D.I. Khan in C.R. No.65-D/2014 and C.R. 93-D of 2014)

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

----S. 54---Qanun-e-Shahadat (10 of 1984), Art. 79---Agreement to sell immoveable property---Proof---Plaintiff being beneficiary of the agreement and fully aware of the bounden duty laid down by the law on him, had fully proved the transaction between the parties---Plaintiff had proved the execution of the agreement and its contents by producing the scribe, the property dealer/middleman/negotiator of the transaction between the parties, witness of making payment of sale consideration to the defendant/vendor through his hands and also the attesting/marginal witness of the agreement, and the other attesting/marginal witness to the agreement---To further strengthen the said evidence, plaintiff also appeared as a witness---Even though the petitioner alleged the agreement to sell to be fake, he did not initiate any criminal or civil proceedings whatsoever against the plaintiff or the writer who scribed the agreement to justify and support his stance---Defendant's CNIC number was on the agreement along with his signatures, and in such circumstances it was humanly impossible that a valuable property of a person was being fraudulently alienated and he simply denied the execution of the agreement and only defended litigation of the person who was allegedly going to grab his property through fraudulent means---Agreement to sell had been proved in accordance with the requirements of the Qanun-e-Shahdat, 1984---Petition for leave to appeal and connected appeal were dismissed.

Sardar Ali v. Sardar Bibi 2010 SCMR 1066 distinguished.

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

----Ss. 3 & 54---Qanun-e-Shahadat (10 of 1984), Art. 79---Agreement to sell immoveable property---Proof and attestation---When terms and conditions of a sale were reduced into writing between the parties, the document of sale required attestation as contemplated in S. 3 of the Transfer of Property Act, 1882---Where the sale agreement was in black and white, then it required proof in line with the different modes of proof provided in Qanun-e-Shahadat, 1984, as per requirements of the case.

Muhammad Sattar v. Tariq Javaid 2017 SCMR 98 ref.

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

----S. 54---Land Reforms Regulation, 1972 (M.L.R. No. 115), Para. 18(3)---Subject land allotted to petitioner/vendor under MLR No. 115---Petitioner/vendor entered into a sale agreement for the subject land but subsequently failed to perform his obligations under the said agreement by taking the plea that he was not legally competent to enter into subject sale agreement because of ban/restrictions under MLR No. 115---Held, that order of allotment of subject land issued by the Deputy Land Commissioner had not been tendered in evidence to consider and evaluate the nature of any such alleged bar, if any---Copy of mutation was also silent in such regard and showed the vendor as a complete owner without any sort of ban or restrictions---When proprietary rights were transferred in full by the government then no such bar could be imposed---If at all there was a bar on further alienation for any specific period, then that period had elapsed during pendency of the suit and there remained no clog on further alienation when the agreement between the parties had been proved through an overwhelming evidence---Once a person entered into an agreement of genuine sale, then there remained no moral or legal justification for him to challenge the validity of such sale or to take advantage of any defect in the sale---Petition for leave to appeal and connected appeal were dismissed.

Mohd. Saeed v. Province of West Pak. PLD 1964 SC 572; Fakhar Imam Shah v. Abdul Haq 2006 SCMR 550 and Sakhi Jan v. Shah Nawaz 2020 SCMR 832 ref.

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

----S. 54---Land Reforms Regulation, 1972 (M.L.R. No. 115), Para. 18(3)---Agreement to sell land allotted under MLR No. 115---Sale of such land (when proved) even if in violation of MLR 115 or S. 54 of the Transfer of Property Act, 1882, could not be held to be void ab-initio.

Mohd. Saeed v. Province of West Pak. PLD 1964 SC 572; Fakhar Imam Shah v. Abdul Haq 2006 SCMR 550 and Sakhi Jan v. Shah Nawaz 2020 SCMR 832 ref.

Syed Mastan Ali Shah, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner (in both cases).

Malik Qamar Afzal, Advocate Supreme Court for Respondent (in both cases).

2020 S C M R 2116

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD JAVED---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 501 of 2018, decided on 7th August, 2020.

(Against the judgment dated 5.6.2018 passed by the Lahore High Court Rawalpindi Bench Rawalpindi in Criminal Appeal No.90 of 2016)

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Deceased, in injured condition, was medically examined under a police docket; he was fully conscious, well-oriented with stable vitals, but surprisingly despite capacity, he did not opt for a statement---Alleged first informant who claimed to have witnessed the incident, allegedly reached the scene, located at some distance from his residence, exactly at the point of time when the deceased received solitary fire shot---Said witness also showed ignorance about the injuries received by the accused side comprising of bruises, abrasions and lacerated wounds, duration whereof, coincided with the time of occurrence---In the face of unanimous suppression of injuries by the prosecution witnesses, the prosecution case lacked "proof beyond doubt" as it did not reconcile with the parallel story recorded by the Investigating Officer himself duly supported by the statements of medical officers who attended the trial as court witnesses---One of the prosecution witnesses mentioned in his examination-in-chief that the accused and his mother were confined inside the house of the deceased wherefrom they were rescued by the police---In view of the discrepant positions of the prosecution witnesses, implicit reliance upon their statements could not be placed without potential risk of error as the entire episode was shrouded into a mystery, further compounded by an entry wound without exit on the back of the deceased---Prosecution case was found fraught with doubts, benefit whereof, could not be withheld, particularly after its failure qua the co-accused--- Petition for leave to appeal was converted into appeal and allowed, impugned judgment was set aside and by extending benefit of doubt, the accused was acquitted of the charge.

Syeda B.H. Shah, Advocate Supreme Court for Petitioner.

Ahmad Raza Gillani, Additional Prosecutor General Punjab for the State.

2020 S C M R 2119

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Energy (Power Division), Islamabad and others---Petitioners

Versus

SHAFIQ UL HASSAN and others---Respondents

Civil Petition No. 2482 of 2020, decided on 2nd October, 2020.

(On appeal against order dated 09.09.2020 passed by the Lahore High Court, Lahore in Writ Petition No. 39841 of 2020)

Constitution of Pakistan---

----Art. 199---Civil service---Interim order passed by High Court in its constitutional jurisdiction---Scope and principles---Grant of interim relief which had the effect of permanence was violative of the rule laid down by the Supreme Court in the case of Islamic Republic of Pakistan v. Muhammad Zaman Khan (1997 SCMR 1508)---Constitutional jurisdiction by Superior Courts must be exercised according to the settled principles of law---Granting longevity to a suspensory order without hearing the other side was, if at all, done exceptionally, as this was necessary for ensuring the majesty of the law and preserving public trust in the courts of law---Policy of Supreme Court was that it interfed with interim orders passed by the High Court only exceptionally; this would be in cases of serious violation of the law or wrongful exercise of jurisdiction.

Islamic Republic of Pakistan v. Muhammad Zaman Khan 1997 SCMR 1508 ref.

Aamir Rehman, Additional A.G. Pakistan for Petitioners.

Shohaib Shaheen, Advocate Supreme Court, Syed Khawar Ameer Bokhari, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Respondents.

2020 S C M R 2122

[Supreme Court of Pakistan]

Present: Faisal Arab, Ijaz ul Ahsan and Munib Akhtar, JJ

APPLICATION FOR RELEASE OF FUNDS TO BE PAID BY BAHRIA TOWN TO THE GOVERNMENT OF SINDH PURSUANT TO ORDER DATED 21.3.2019: In the matter of

Civil Miscellaneous Applications Nos.7923 and 7617 of 2019 in Civil Miscellaneous Application No. 8758 of 2018, Civil Miscellaneous Application No.1878 of 2020 in Civil Miscellaneous Application No.7617 of 2019 in Civil Miscellaneous Application No. 8758 of 2018 and Civil Miscellaneous Application No.2012 of 2020 in Civil Miscellaneous Application No. 8758 of 2018 in Civil Miscellaneous Application No. 376-K of 2014 in Suo Motu Case No. 03 of 2009, decided on 20th October, 2020.

Malir Development Authority Act, 1993 (XI of 1994)---

----Ss. 4, 8(2)(iii), 9 & 14---Colonization of Government Lands (Sindh) 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, Senior Member Board of Revenue Sindh and others (PLD 2018 SC 468)---Illegalities in adjustment of Government land with land belonging to a private real estate developer ('the developer')---Developer's offer of paying Rs. 460 billion in installments within a period of seven years for settlement of the case was accepted by the Supreme Court---Question as to how the installments being deposited by the developer and the profit/ markup that had accrued thereon were to be utilized---Held, that as of 29.06.2019, an amount of Rs.52,694,270,554/- has been deposited by the developer, and an amount of Rs.5,466,940,230/- had been earned by way of profit/markup---Disbursement of said funds should be in the hands of a high powered Commission to be headed by a Chairman and having five voting members permanently residing in Sindh with no political affiliation and six non-voting members taking such position by virtue of their office---Chairman of the Commission was to be nominated by the Chief Justice of Pakistan on the recommendations of the Implementation Bench---All decisions of the Commission relating to selection of projects, the cost of such projects and all financial matters directly, indirectly or by implication relating to projects to be undertaken shall be subject to approval of the Implementation Bench of the Supreme Court---Since the Commission would have to be in operation for a number of years to come, it would have to be established and function accordingly and guidelines for its scope, mandate and funds needed to be given---Detailed provisions regarding the Commission and its functioning provided by the Supreme Court.

In attendance:

Khalid Javed Khan, Attorney General, Salman Talibuddin, A.G. Sindh, Syed Ali Zafar, Advocate Supreme Court for BTPL.

Farooq H. Naek, Senior Advocate Supreme Court for MDA.

2020 S C M R 2129

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

AJMIR SHAH, EX-SEPOY---Petitioner

Versus

The INSPECTOR-GENERAL, FRONTIER CORPS KHYBER PAKHTUNKHWA and another---Respondents

Civil Petition No. 4862 of 2018, decided on 19th August, 2020.

(Against the judgment dated 23.11.2018 of the Federal Service Tribunal, Islamabad passed in Appeal No. 508(P)CS/2012)

(a) Frontier Corps Rules, 1961---

----R. 14---Frontier Corps Ordinance (XXVI of 1959). S. 10---Sepoy in Frontier Corps---Appeal against dismissal from service---Time barred appeal---Reading of R. 14 of the Frontier Corps Rules, 1961 and S. 10 of the Frontier Corps Ordinance, 1959, made it clear that petitioner-Sepoy was entitled to file departmental appeal against the order imposing upon him penalty of dismissal from service and such departmental appeal had to be filed by the petitioner within one month from the date on which he was informed of the order appealed against---Admittedly the petitioner filed the departmental appeal against the order of dismissal dated 23-10-2008 on 28-03-2013, i.e. after more than 4 years and 5 months---In terms of R. 14 of the Frontier Corps Rules, 1961 the petitioner was required to apply to the authority against whose order he wished to file an appeal for extension of time citing unavoidable causes of delay and only after the authority had so certified, the delay in filing of the departmental appeal could be condoned---However the record showed that the petitioner had not applied to the authority seeking extension of time for filing of a departmental appeal--- Furthermore the principle of implied extension could not be pressed in the present case, for that, in terms of the R. 14 the appellate authority was not vested with the power of granting extension in filing of a departmental appeal---Service Tribunal had rightly found the service appeal of the petitioner to be time barred---Petition for leave to appeal was dismissed and leave was refused.

Usman Ali Chhachhar v. Moula Bukhsh Chhachhar 2019 SCMR 2043) = 2020 PLC (C.S.) 34 distinguished.

(b) Frontier Corps Rules, 1961---

----R. 14---Frontier Corps Ordinance (XXVI of 1959). S. 10---Sepoy in Frontier Corps---Appeal against dismissal from service---Time barred appeal---Departmental appeal against dismissal order had to be filed by the petitioner-Sepoy within one month from the date on which he was informed of the order appealed against, however he filed the same after more than 4 years and 5 months---Plea of petitioner that he did not file the departmental appeal within time, for the reason that service appeal of one of his colleagues was pending before the Tribunal and petitioner waited for the decision of the said service appeal, and only after such service appeal of his colleague was decided by the Tribunal, converting his penalty of dismissal to compulsory retirement, upheld by the Supreme Court and implemented by the department, the petitioner filed the departmental appeal---Validity---Such plea was not a sufficient cause or reason for the petitioner to file his departmental appeal after more than 4 years and 5 months---Petitioner himself did not seem to be aggrieved of the order by which he was .dismissed from service and his assertion that he waited for the result of the service appeal of his colleague showed that the petitioner relied upon the grievance of his colleague and not of his own---Law did not leave choice to an employee to raise his grievance after his colleague succeeded in his case---Employee had to raise his grievance immediately when cause to him had arisen and more so within the limitation period for it provided by law---Service Tribunal had rightly found the service appeal of the petitioner to be time barred---Petition for leave to appeal was dismissed and leave was refused.

(c) Administration of justice---

----Where a law required doing of something in a particular manner it had to be done in the same manner and not otherwise.

Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189; Shahida Bibi v. Habib Bank Limited PLD 2016 SC 995 and Human Rights Cases Nos.4668 of 2006 etc. PLD 2010 SC 759 ref.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nasir Mehmood, Advocate Supreme Court for Respondents Nos.1 and 2.

2020 S C M R 2134

[Supreme Court of Pakistan]

Present: Faisal Arab and Sajjad Ali Shah, JJ

MUHAMMAD JAWED---Petitioner

Versus

FIRST WOMEN BANK LTD. and others---Respondents

Civil Petition No. 686-K of 2019, decided on 8th September, 2020.

(Against the judgment dated 5.12.2019 of the High Court of Sindh, Karachi passed in First Appeal No. 109 of 2019)

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 84, 85, 89, 90, 91 & 92---Mortgaged immoveable property---Court auction proceedings---Highest bidder---Vested right---Judgment debtor depositing entire decretal amount, cost of funds and cost of suit in court before acceptance of highest bidder's bid by the court---Question as to whether after having been declared the highest bidder any vested right in the subject property was created in his favour extinguishing the judgment debtor's right of redemption---Held, that nature of a bid made in court auctions involving immoveable property, notwithstanding whether it was the highest or the lowest, was that of an offer which did not by itself give rise to any rights, as the same was always subject to acceptance by the Court after proper application of its judicial mind followed by the deposit of full purchase-money under O. XXI, R. 85, C.P.C.---Bid made at an auction was in the nature of an offer which did not mature into a contract/sale till its acceptance by the court---Sale of property factually took place when the bid was accepted by the court---Court always held the power to reject any or all the bids without assigning any reason which itself reflected that the declaration by the auctioneer as the highest bidder was not a "sale"---Since a bid, being an offer, standing alone did not create any legal relationship, and neither did the deposit by the highest bidder, it logically followed that no rights could be said to arise out of the same---Vested/third party rights accrued in favour of a bidder when the auction sale became complete, i.e. when a bid was accepted by the Court and thereafter the full purchase-money was deposited in terms of O. XXI, R. 85, C.P.C.---However, such vested right again was defeatable and would not take away the right of the mortgagor/ judgment debtor to redeem his/her property if he/she brought his/her case within the parameters of O. XXI, Rr. 89, 90, or R. 91, C.P.C.---If, however, no application under said provisions was made within the time limit prescribed by law or the same was rejected, the Court mandatorily confirmed the qualified sale and made it absolute under O. XXI, R. 92, C.P.C., transferring the title of the property in the name of the successful bidder/purchaser, unless a delayed application to set aside the sale was entertained---Supreme Court observed that once the auction was conducted successfully the auctioneer's report must be taken up in Court for orders at the earliest, if not on the next day, accepting or rejecting the sale; that to prolong the proceedings or to keep the auctioneer report pending for months altogether not only discouraged the public in general to participate in Court sale but affected the sanctity of the proceedings and also caused loss to financial institutions and recovery of public money---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Attique v. Jami Limited PLD 2010 SC 993; Navalkha and Sons v. Ramanya Das (1969) 3 SCC 537; Union Bank of India v. Official Liquidator (2000) 5 SCC 274; FCS Software Solutions LTD v. LA Medical Devices LTD (2008) 10 SCC 440; Hudaybia Textile Mills LTD v. Allied Bank of Pakistan Ltd. PLD 1987 SC 512 and Muhammad Khalil v. Messrs. Faisal M.B. Corporation 2019 SCMR 321 ref.

Khawaja Shamsul Islam, Advocate Supreme Court for Petitioner.

Syed Kazim, Legal Advisor, FWB for Respondent No. 2.

Abrar Hussain, Senior Advocate Supreme Court for Respondent No.4.

2020 S C M R 2143

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

ALI MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 138-L of 2017, decided on 18th September, 2019.

(Against the judgment dated 02.03.2015, passed by the Lahore High Court, Lahore in Criminal Appeal No. 443-J of 2013 and Capital Sentence Reference No. 29-T of 2013)

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 21-L---Qatl-i-amd, common intention, acts of terrorism---Reappraisal of evidence---Present case involved murder of seven persons during a night and the present accused was nominated in the FIR as one of the culprits and a specific as well as a general role of firing at

the deceased had been attributed to him therein---Eye-witnesses produced by the prosecution had made consistent statements vis-a-vis the role played by the accused in the incident and the medical evidence had provided sufficient support to the specific allegation levelled against the accused by the eye-witnesses---Accused had remained a Proclaimed Offender for about fourteen long years---Co-accused, who was also the brother of accused, was tried in the absence of accused and all his convictions and sentences recorded and upheld by the courts below had been maintained by the Supreme Court whereafter the death sentences passed against the co-accused were executed and he was hanged to death---In the order passed by the Supreme Court vis-a-vis the co-accused the entire story of the prosecution had been believed and it was found that the eye-witnesses produced by the prosecution had received sufficient corroboration and support---In such backdrop it was not possible for the Supreme Court to take a different view of the eyewitnesses produced by the prosecution and of some corroboratory and supportive pieces of evidence adduced during the trial of the co-accused---Besides an independent evaluation of the evidence showed that the prosecution had succeeded in establishing its case against the accused beyond reasonable doubt---Convictions recorded against the accused and upheld by the appellate court below were maintained---Appeal was dismissed.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 21-L---Qatl-i-amd, common intention, acts of terrorism---Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---Motive set up by the prosecution mainly revolved around the co-accused and nexus of the accused with the said motive was remote---During the investigation a gun had allegedly been recovered from the custody of accused but the record of the case showed that the said gun never stood connected with the alleged offences whereas the firearm recovered from the possession of co-accused had matched with some crime-empties secured from the place of occurrence---One of the eye-witnesses mentioned in the FIR had refused to support the case of the prosecution in the accused's trial and he had appeared as a defence witness in which capacity he had categorically stated before the Trial Court that the accused was in fact innocent---During the investigation of the case a Joint Investigation Team was constituted and, for whatever its evidentiary value, the opinion recorded by the said Team was that the accused was not present at the spot at the time of the alleged occurrence---Many of the co-accused persons attributed effective firing during the occurrence had already been acquitted by the courts below---Exercising caution in the matter of sentence of death awarded to the accused, the Supreme Court reduced the same to imprisonment for life---Appeal was dismissed.

Hamad Akbar Wallana, Advocate Supreme Court for Appellant.

Muhammad Amjad Rafiq, Additional Prosecutor-General, Punjab for the State.

2020 S C M R 2147

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, Maqbool Baqar, Faisal Arab, Ijaz ul Ahsan and Sajjad Ali Shah, JJ

MARTIN DOW MARKER LTD., QUETTA and others---Appellants

Versus

ASADULLAH KHAN and others---Respondents

C.As. Nos. 1076 to 1089 of 2019, decided on 5th December, 2019.

(Against the judgment dated 20.02.2018, passed by the High Court of Balochistan, Quetta in W.Ps. Nos. 288-292, 296-297 of 2012)

(a) Constitution of Pakistan---

----Arts. 185 & 199---Appeal before the Supreme Court---Concurrent findings of fact recorded by lower courts, also upheld by the High Court in its constitutional jurisdiction---For displacing such concurrent finding of fact, the appellant (before the Supreme Court) was required to show and establish misreading of evidence and wrongful exercise of jurisdiction by the forums below.

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

----S.O. 15---Employees reinstated in service refusing to report for employer's duty---Lack of bona fides of employees in pursuing their grievance before the courts---After having succeeded in the three forums below, the respondents (employees) were issued respective letter of reinstatement in service by their employer (appellant)---Respondents admitted to the presence of the reinstatement letters and also admitted not joining duty in pursuance of the same---In such circumstances very bona fides of the respondents in pursuing their remedies before the Courts of law seeking their reinstatement in service, became doubtful, in that, the contention of the employer that the respondents were pursuing their cases only for obtaining monetary benefits and had no intention, desire or will, to work as workmen in the establishment of the employer, seemed convincing---Furthermore the respondents had not sent any written communication to the employer in response to their letters of reinstatement, meaning thereby that they had not objected to the said letters---Non objection to the letter of reinstatement and also non-reporting for duty reflected gravely on the part of the respondents---Respondents remained absent from duty for more than one year and nine months and gave no reason whatsoever for not complying with their letters of reinstatement in service, except an oral assertion that they were offered reinstatement as workmen and not as officers---Such assertion was self-contradictory, for that, they had themselves approached the Labour Court and Labour Appellate Tribunal claiming to be workmen, and now it was altogether unbecoming on their part to claim their reinstatement as officers---Respondents themselves abandoned the relief they had obtained from the forums below---When the respondents were content with their current situation, and were not willing and prepared to work in the establishment of the employer, and they were not going to get any monetary back benefits pursuant to the impugned judgment of the High Court, the only conclusion which could be arrived at was to set-aside their reinstatement in service---Appeals filed by the employer were allowed and impugned judgment passed by the High Court allowing the reinstatement in service of the respondents was set aside.

(c) Constitution of Pakistan---

----Art. 187(1)---Power of Supreme Court to issue such directions, orders or decrees, as may be necessary for doing complete justice---Scope---In doing complete justice the Supreme Court was also empowered to look at the changed circumstances of the case as they had appeared before it and also to mould relief as was just and proper for meeting the ends of justice--- In exercising the jurisdiction to do complete justice and to issue directions, orders or decrees, as may be necessary, the Supreme Court was not bound by any procedural technicality when a glaring fact was very much established on the record.

Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan and 9 others PLD 2017 SC 265; Muhammad Zahid v. Dr. Muhammad Ali PLD 2014 SC 488; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Mst. Amatul Begum v. Muhammad Ibrahim Shaikh 2004 SCMR 1934; Imam Bakhsh and 2 others v. Allah Wasaya and 2 others 2002 SCMR 1985; Muhammad Shafi v. Muhammad Hussain 2001 SCMR 827; Gul Usman and 2 others v. Mst. Ahmero and 11 others 2000 SCMR 866; and S.A.M. Wahidi v. Federation of Pakistan through Secretary Finance and others 1999 SCMR 1904 ref.

Shahid Anwar Bajwa, Advocate Supreme Court and Habib ur Rehman, Head of Admn. Martin Dow for Appellants (in C.As. Nos.1076-1082 of 2019).

Shahid Anwar Bajwa, Advocate Supreme Court and Habib ur Rehman, Head of Admn. Martin Dow for Respondents (in C.As. Nos.1083 - 1089 of 2019).

Muhammad Sajid Khan, Advocate Supreme Court and Ayaz Khan Swati, Additional A.-G. Balochistan for Respondents (in C.As. Nos. 1076-1082 of 2019).

Muhammad Sajid Khan, Advocate Supreme Court and Ayaz Khan Swati, Additional A.-G. Balochistan for Appellants (in C.As. Nos.1083-1089 of 2019).

2020 S C M R 2155

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Sajjad Ali Shah, JJ

AMJAD KHAN---Petitioner

Versus

MUHAMMAD IRSHAD (DECEASED) through LRs---Respondent

Civil Petition No. 720 of 2020, decided on 28th September, 2020.

(Against the order dated 31.12.2019 passed by the Islamabad High Court in W.P. No. 2286 of 2019)

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

----O. VII, R. 14. O. XIII, Rr. 1, 2 & O. XVI---Summoning and attendance of witnesses---Embargo on summoning of witnesses---Witnesses called through process of court and witnesses voluntarily produced by the parties--- Distinction---Scope and purpose of O. XVI, C.P.C.

Order XVI, C.P.C. regulated the summoning and attendance of witnesses in order to protect the interests of litigating parties. To this end, its Rule 1 put an embargo on the right of litigants to summon witnesses in support of their claims. This embargo provided that litigating parties shall submit in court a list of witnesses to be called for attendance within seven days following the framing of issues, and that they shall not be permitted to call any witnesses outside of this list, except with the permission of the court. The purpose of this embargo was to ensure that the litigating parties may prepare their cases with a measure of certainty and know the kind of evidence that was going to be produced, so that they may make necessary preparation for rebuttal and cross-examination and were not taken by any surprise at a belated stage in the proceedings.

Muhammad Anwar Ali v. Ilyas Begum PLD 2013 SC 255 ref.

None of these provisions of O. XVI, C.P.C. mention the category of witnesses that the litigants produce on their own motion. To the contrary, said provisions repeatedly refer to summoning of witnesses and the related matters, meaning thereby that the scope of O. XVI, C.P.C. did not go beyond summoning and attendance of witnesses through court. In this context, it stood to reason that the embargo under O. XVI, C.P.C. was also limited to the witnesses who were to be summoned through the court, and did not extend to the witnesses that the parties sought to produce voluntarily without invoking the summoning powers of the court.

Voluntary production of witnesses by the parties did not jeopardize the purpose of O. XVI, C.P.C. because such witnesses either supported the claims made in the pleadings and/or the documents mentioned in the list annexed to the plaint under O. VII, R. 14, C.P.C. or produced in court at the first hearing of the suit, i.e. after the framing of issues, under O. XIII, R. 1, C.P.C. Furthermore, the parties were not allowed to produce any document that had not been brought to the notice of the court in terms of these provisions, except with the permission of the court under O. XIII, R. 2, C.P.C. This meant that such witnesses could never depose about anything that the opposing party did not already know, either through the pleadings or through the annexed and submitted documents, foreclosing any chance of taking the latter by surprise. On the other hand, the witnesses which were summoned through the court to give evidence or to produce documents were not bound by the pleadings or the case set up by the parties. They could introduce new elements in the case which may shock the opposing party and adversely impact its case without giving sufficient notice. It was to guard against such surprises by summoned witnesses that the embargo of O. XVI, R. 1, C.P.C. was introduced.

Sher Baz Khan v. The State PLD 2003 SC 849 and Javed Rafat Khan v. Messrs Shabbir Tiles and Ceramics Ltd. PLD 2005 Kar. 1 ref.

It was open for the court to allow the production or summoning of the witnesses at a belated stage upon showing of a good cause.

Fact that the embargo contained in O. XVI, R. 1, C.P.C. was inapplicable to witnesses that the parties voluntarily produced did not mean that the parties were at liberty to produce such witnesses at any time during the proceeding. Such witnesses could only be examined if they were produced and were in attendance on the day for recording of evidence.

Ghulam Murtaza v. Muhammad Ilyas PLD 1980 Lah. 495 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---High Court must not exercise its constitutional jurisdiction in order to interfere with the discretion exercised by lower courts unless the same suffered from jurisdictional, factual or legal errors---Such interference would be justified in cases where the impugned order had been passed without jurisdiction or was based on misreading or non-reading of evidence, or was not in accordance with the law---If none of these errors was present, the High Court must not exercise its constitutional jurisdiction to interfere with the findings of lower courts merely because it reached a different conclusion as to the controversy than the latter.

Mst. Mobin Fatima v. Muhammad Yamin PLD 2006 SC 214 and Nadira Shahzad v. Mubashir Ahmad 1995 SCMR 1419 ref.

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

----O. XVI, R. 1---Summoning and attendance of witnesses---List of witnesses presented in court---Embargo on calling any witness outside the said list---Marginal witnesses and arbitrator of agreement---In the present case list of witnesses as required under O. XVI, R. 1(1), C.P.C. was not available on record---Consequently, an application was moved by the plaintiff seeking permission to produce two marginal witnesses of the agreement, which was the subject-matter of the suit and was duly produced and exhibited by the plaintiff in his evidence, and one arbitrator of the said agreement---Held, that the witnesses sought to be produced were marginal witnesses of the agreement and the arbitrator of the said agreement---Said agreement which found mention in the plaint, had been produced and exhibited by the plaintiff in his evidence---In such circumstances the plaintiff was entitled to produce witnesses on his own motion as of right on the day of recording of evidence even if no application had been made---Supreme Court directed that the Trial Court shall allow the production of two witnesses to the agreement and the arbitrator, and the plaintiff shall produce all the witnesses together for recording of the evidence on the same day---Petition for leave to appeal was converted into appeal and allowed.

Syed Mastan Ali Zaidi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2020 S C M R 2166

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

FAYYAZ HUSSAIN and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Islamabad and others---Respondents

Civil Petitions Nos. 4041 and 4077 of 2019, decided on 17th August, 2020.

(Against judgment dated 10.10.2019 of Peshawar High Court, Peshawar passed to Writ Petition No. 1311-P of 2018 and Writ Petition No. 3577-P of 2017)

Federal Investigation Agency Act, 1974 (VIII of 1975)---

----S. 4(2)---Absorption of deputationist---Constable in Provincial Traffic Police ('the petitioner')sent to Federal Investigation Agency ('FIA') on deputation and ultimately absorbed as employee of FIA---Legality---Internal inquiry into absorption of petitioner into FIA recorded findings against the petitioner to the effect that he had been absorbed in violation of Standing Order No.21/84 as well as in violation of FIA Personnel Policy framed in exercise of powers under S. 4(2) of Federal Investigation Agency Act, 1974---Service history of petitioner showed that he was initially employed as a Constable/Computer Operator in the Provincial Traffic Police; he manipulated his successive promotions in a short span of time; he managed his promotions firstly as Head Constable, thereafter as ASI on officiating basis and subsequently as Sub-Inspector/Computer Operator---All such promotions happened within a span of few months which was not only unprecedented but quite surprising considering the mode and manner in which promotions were required to be given in terms of the rules and regulations of the department---Further, on transfer to FIA on deputation basis, the petitioner managed his permanent absorption within a period of one year and 28 days, which was a classical example of clever manipulation of the system through devious means and influence mongering---Considering the conduct and the manner in which the petitioner had quite cleverly manipulated the system for his personal benefits in violation of all applicable regulations, rules and laws, no discretionary and equitable relief could be granted to him---Petitioner's case was also squarely covered by the ratio of the judgment of the Supreme Court in Contempt Proceedings against Chief Secretary, Sindh and others (2013 SCMR 1752)---Petition for leave to appeal was dismissed and leave was refused.

Contempt Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 ref.

Arshad Hussain Yousafzai, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Petitioners (in C.P. No. 4041 of 2019).

M. Shoaib Shaheen, Advocate Supreme Court for Petitioners (in C.P. No. 4077 of 2019).

Nemo for Respondents.

2020 S C M R 2171

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Faisal Arab and Munib Akhtar, JJ

SENIOR GENERAL MANAGER/CEO, PAKISTAN RAILWAYS EADQUARTERS, LAHORE and others---Appellants

Versus

ASIF ALI and others---Respondents

Civil Appeals Nos. 675 to 988 of 2019, decided on 15th May, 2019.

(On appeal from the judgment/order dated 30.08.2018 of the Federal Service Tribunal, Islamabad passed in Appeals Nos. 336 to 386, 404 to 405, 1084 to 1198(R)CS/2018, 4428 to 4500(R)CS/2017, 23 to 67(P)CS/2018, 259 to 263(R)CS/2018, 1523 to 1545(R)CS/2018)

Pakistan Railways Personnel Manual---

----Cl. 214(G)---Apprentice employees---Annual increments, entitlement to---Apprentice loco cleaners in Pakistan Railways sent for T-4 training course for a period of two years at the Walton Training Academy ('the Academy')---Question as to whether the respondents (apprentice loco cleaners) were entitled to the grant of annual increments for the period of two years training undergone by them at the Academy---Held, that Cl. 214 of the Pakistan Railways Personnel Manual ('the Manual') provided that during their period of apprenticeship the apprentices were not eligible to be in regular employment of the Pakistan Railways---During the training period for the T-4 course, the Apprentices/ Stipendiary students did not qualify as regular employees of the Pakistan Railways and were therefore not entitled to service benefits which included annual increments that were undoubtedly an incident of regular employment---Service benefits corresponding to regular employment, namely, inter alia, annual increment was not available to apprentices as clarified in sub clause (G) of Cl. 214 of the Manual.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record and Rizwan Saeed Khan, Dy. Chief for Appellants.

Ms. Shireen Imran, Advocate Supreme Court for Respondents.

2020 S C M R 361

[Supreme Court of Canada]\

Present: Wagner, C.J.,Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin, JJ

BELA KOSOIAN---Appellant

Versus

SOCIÉTÉ DE TRANSPORT DE MONTRÉAL, VILLE DE LAVAL AND FABIO CAMACHO---Respondent and CANADIAN CIVIL LIBERTIES ASSOCIATION---Intervener

Decided on 29th November, 2019.

(On Appeal from the Court of Appeal for Quebec)

(a) Damages---

----Police officials---Unlawful orders---Civil liability---Immunity---Appellant used an escalator in a subway station without holding the handrail---Police officer employed by the city, who had been designated as an inspector by the transport authority responsible for the subway system, ordered her several times to hold the handrail, since the authority taught police officers that holding the handrail was an obligation under a by-law---Appellant refused to comply and to identify herself, where after the police officer arrested her and searched her bag---Police officer gave the appellant two separate fine tickets, one for disobeying a pictogram indicating that the handrail should be held, which the transport authority had posted near the escalator pursuant to its by-law, and another ticket for hindering the police in their duties---After being acquitted in the Municipal Court, the appellant instituted a civil liability action against the police officer, his employer and the transport authority, contending that the arrest was unlawful and unreasonable and that it constituted a fault because holding the handrail was not an obligation under the by-law, but simply a caution/warning---Trial judge dismissed the action, finding that the police officer had not committed any civil fault and that it was the appellant who had behaved in an inconceivable manner by refusing to comply with the officer's order---Court of Appeal affirmed the decision of the trial judge---Held, that the police officer committed a civil fault by ordering the appellant to identify herself and by arresting her and conducting a search based on a non-existent offence, namely disobeying the pictogram indicating that the handrail should be held---Reasonable police officer in the same circumstances would not have concluded that disobeying the pictogram was an offence under a by-law, and would necessarily have doubted the existence in law of the offence and, as a result, would not have required the appellant to identify herself so that she could be given a fine ticket---Such an officer would certainly not have arrested her if she refused, but would instead have allowed her to continue on her way---Before depriving the appellant of her liberty, the officer had to ensure that there was valid legal justification for his actions---Reasonable police officer would have concluded that the pictogram simply advised users to be careful, despite the training received---Police officer's conduct necessarily constituted a fault insofar as it resulted from an unreasonable belief in the existence of an offence that did not exist in law---As principal, the city was also bound to make reparation for the injury caused, [pursuant to Arts. 1463 & 1464 of the Civil Code of Quebec, 1994], because it was not in dispute that the police officer was acting in the performance of his duties when the fault was committed, even though his conduct was also unlawful---Transport authority had no public law immunity---Legal person established in the public interest may be civilly liable if it made an error of law in implementing its own regulations or by-laws---In the present case, the training provided to police officers by the transport authority was part of the implementation of a by-law---In this respect, the transport authority committed a direct fault in the implementation of the by-law by providing training that suggested to police officers called upon to enforce its by-laws that holding the handrail was an obligation---Once the transport authority undertook to provide police officers with training, it had to ensure that the training would be appropriate and that it would reflect the law---If the police officer was at fault for believing that holding the handrail was an obligation, the transport authority was equally at fault for misinterpreting the by-law and providing training accordingly---Transport authority was also liable as mandator for the police officer's fault---Designation of a police officer as a subway inspector created a legal relationship analogous to that of mandate (within the meaning of Art. 2130, para. 1 of the Civil Code of Quebec, 1994), in which a public transit authority may incur civil liability to a third person---In enforcing the by-laws of a public transit authority, a police officer ipso facto represented that authority in the performance of a juridical act, which must be interpreted broadly---Appellant was entitled to refuse to obey an unlawful order and therefore committed no fault that would justify an apportionment of liability---Unless a statutory provision or common law rule clearly imposed it, there was no obligation to identify oneself to, or indeed to cooperate with, a police officer---Similarly, the appellant could not be faulted for not doing anything to mitigate the injury she suffered---Reasonable, prudent and diligent person was not under an obligation to obey an unlawful order---In a free and democratic society, no one should accept or expect to be subjected to unjustified state intrusions---Interference with freedom of movement, just like invasion of privacy, must not be trivialized---Appellant suffered minor bodily injuries, but also above all, moral injury as a result of her unlawful arrest, the force used against her and the unreasonable search of her personal effects---Compensation for suffering, anguish and humiliation had to be awarded in the present case---Appellant was awarded $20,000 with interest in damages, with the transport authority and the police officer, each liable to pay 50% of said amount---Appeal was allowed accordingly.

Moore v. The Queen, [1979] 1 S.C.R. 195, at pp. 205-06; R. v. Guthrie, 1982 ABCA 201, 21 Alta. L.R. (2d) 1, at p. 8; R. v. Coles, 2003 PESCAD 3, 221 Nfld. and P.E.I.R. 98, at para. 14; R. v. Houle, 1985 ABCA 275, 41 Alta. L.R. (2d) 295, at pp. 297-99, paras. 4-8; Crépeau v. Yannonie, [1988] R.R.A. 265 (Que. Sup. Ct.), at p. 269; P. Ceyssens, Legal Aspects of Policing (loose-leaf), vol. 1, at pp. 2-3; Maska Auto Spring Ltée v. Ste-Rosalie (Village), [1991] 2 S.C.R. 3 and R. v. Gagné, [1987] R.J.Q. 1008 (C.A.), aff'd [1989] 1 S.C.R. 1584 ref.

(b) Damages---

----Police officials---Civil liability---Circumstances in which a police official could be held civilly liable for his conduct and the test on basis of which such conduct was to be assessed stated.

To carry out their mission of maintaining peace, order and public security, police officers were required to limit citizens' rights and freedoms using the coercive power of the state. Since the risk of abuse was undeniable, it was important that there always be a legal basis for the actions taken by police officers; in the absence of such justification, their conduct was unlawful and could not be tolerated. In exercising their powers, police officers were therefore bound by strict rules of conduct that were meant to prevent arbitrariness and unjustified restrictions on rights and freedoms. Police officers who deviated from these rules had no public law immunity. Police officer, like any other person, was held civilly liable for the injury caused to another by his or her fault, in accordance with Art. 1457 of Civil Code of Quebec, 1994., which imposed on every person "a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another". A police officer committed a civil fault where he or she acted in a manner that departed from the conduct of a reasonable officer in the same circumstances. Police conduct must be assessed according to the test of the normally prudent, diligent and competent police officer in the same circumstances. Said reasonable police officer test recognized the largely discretionary nature of police work.

Dedman v. The Queen, [1985] 2 S.C.R. 2, at pp. 28-29; R. v. Sharma, [1993] 1 S.C.R. 650, at pp. 672-73; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41; [2007] 3 S.C.R. 129, at para. 71; Jauvin v. Québec (Procureur général), [2004] R.R.A. 37 (C.A.), at para. 46; Jauvin, at para. 42; Régie intermunicipale de police des Seigneuries v. Michaelson, [2005] R.R.A. 7 (Que. C.A.), at para. 22; Popovic v. Montréal (Ville de), 2008 QCCA 2371, [2009] R.R.A. 1, at para. 63; St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392, at para. 21; Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214, at para. 24; J.-L. Baudouin, P. Deslauriers and B. Moore, La responsabilité civile (8th ed. 2014), vol. 1, at Nos. 1-182; 1-195; V. Karim, Les obligations (4th ed. 2015), vol. 1, at paras. 2505, 2508 and 2514-15; Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474, at pp. 512-13; Lacombe v. André, [2003] R.J.Q. 720 (C.A.), at para. 41; St-Martin v. Morin (Succession de), 2008 QCCA 2106, [2008] R.J.Q. 2539, at para. 101 ref.

The standard of conduct that a reasonable police officer was expected to meet corresponded to an obligation of means: it was not enough to show that the officer's conduct was unlawful. Mere fact that there was a legal basis for a police officer's actions did not necessarily exempt the officer from civil liability. Police officers were obliged to have an adequate knowledge and understanding of criminal and penal law, of the offences they were called upon to prevent and repress and of the protected rights and freedoms of the citizens. They must be able to exercise judgment with respect to the applicable law and could not rely blindly on the training and instructions received, which, although they must be considered in assessing an officer's conduct, were not conclusive in themselves. Police officers could not avoid personal civil liability simply by arguing that they were merely carrying out an order that they knew or ought to have known was unlawful.

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Le, 2019 SCC 34, at para. 149; R. v. Genest, [1989] 1 S.C.R. 59, at p. 87; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-33; Gounis v. Ville de Laval, 2019 QCCS 479, at para. 112 (CanLII); Simard v. Amyot, 2009 QCCS 5509, at para. 41 (CanLII); Bellefleur v. Montréal (Communauté urbaine), [1999] R.R.A. 546 (Que. Sup. Ct.), at p. 550; R. v. Rouleau, 2002 CanLII 7572 (C.Q.), at para. 103; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 44-46;Chartier, at p. 498; Chaput v. Romain, [1955] S.C.R. 834, at p. 842 and Pelletier v. Cour du Québec, [2002] R.J.Q. 2215 (C.A.), at para. 37 ref.

Where there was uncertainty about the law in force, it is incumbent on police officers to make the inquiries that were reasonable in the circumstances, for example by suspending their activities in order to consult with a prosecutor or by rereading the relevant provisions and the available documentation. In principle, an error would be judged less severely if it was made during an emergency response, or in a situation where public safety was at stake, rather than in the context of a carefully planned operation or the routine application of a by-law. In other words, unless the circumstances required immediate intervention, it was not appropriate to act first and make inquiries later. Even in an emergency - the fact that conduct seemed dangerous to a police officer did not permit the officer to presume the existence of an offence.

Police officers sometimes commit a civil fault if they acted unlawfully, even where their conduct was otherwise consistent with the training and instructions received, with existing policies, directives and procedures and with the usual practices. It was all a matter of context; the question was whether a reasonable police officer would have acted in the same manner.

Police officers would generally not be civilly liable for enforcing a provision - presumed to be valid at the time of the events - that was subsequently declared invalid, provided that they did not otherwise commit a fault in exercising their powers. Furthermore, once the courts had recognized the existence of an offence or clarified its scope, police officers could certainly rely on it without fear that their conduct in such regard would be found to constitute a fault. It does not follow, however, that the existence in law - or the scope - of an offence must be assumed in a civil liability action on the basis of bare assertions to this effect made by the state, a legal person established in the public interest or one of their representatives.

(c) Public law---

----Legal person established in public interest---Civil liability---Immunity---Legal person established in the public interest generally incurred no civil liability where it made or passed a regulation or by-law that was subsequently held to be invalid, unless its decision to do so was made in bad faith or was irrational---Purpose of said immunity was to preserve the latitude that a legal person established in the public interest must have in order to make policy decisions in the interests of the community---However, legal person established in the public interest that made an error of law in implementing its own regulations or by-laws may be civilly liable.

Entreprises Sibeca, at para. 27; Welbridge Holdings Ltd. v. Greater Winnipeg, [1971] S.C.R. 957, at pp. 966 and 968-70; Entreprises Sibeca, at paras. 23-27; Papachronis v. Ste-Anne-de-Bellevue (Ville), 2007 QCCA 770, 38 M.P.L.R. (4th) 161, at para. 25; Hétu and Duplessis, vol. 2, at pp. 11152-57; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 90; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 23; Entreprises Sibeca, at para. 24; Welbridge, at p. 968; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705, at pp. 722 and 725 and Maska Auto Spring Ltée v. Ste-Rosalie (Village), [1991] 2 S.C.R. 3 ref.

Aymar Missakila and Ghassan Hamod for the appellant.

Daniel Maillé, for the respondent Société de transport de Montréal.

Alexandre Thériault-Marois, Maryann Carter and Marie-Pier Dussault-Picard, for the respondents Ville de Laval and Fabio Camacho.

Sylvie Rodrigue and Emma Loignon-Giroux, for the intervener the Canadian Civil Liberties Association.

2020 S C M R 541

[Supreme Court of Canada]\

Present: Wagner C.J., Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe, JJ

MITRA JAVANMARDI---Appellant

Versus

HER MAJESTY THE QUEEN AND ATTORNEY GENERAL

OF QUEBEC---Respondents

and

ASSOCIATION DES AVOCATS DE LA DÉFENSE DE MONTRÉAL, QUÉBEC ASSOCIATION OF NATUROPATHIC MEDICINE, ASSOCIATION DES NATUROPATHES AGRÉÉS DU QUÉBEC, CANADIAN ASSOCIATION OF NATUROPATHIC DOCTORS AND CRIMINAL LAWYERS' ASSOCIATION---Interveners

Decided on 14th November, 2019.

(On appeal from the Court of appeal for QUEBEC)

Per Abella,J; Moldaver, Karakatsanis, Côté and Brown JJ. concurring; Wagner C.J. and Rowe, J. dissenting.

(a) Criminal trial---

----'Criminal negligence resulting in death', offence of---'Unlawful act manslaughter', offence of---Elements of 'actus reus' and 'fault' for both offences explained.

The actus reus of 'criminal negligence causing death required that the accused undertook an act or omitted to do anything that it was his or her legal duty to do, and that the act or omission caused someone's death. The fault element was that the accused's act or omission showed wanton or reckless disregard for the lives or safety of other persons. As with other negligence based criminal offences, the fault element of criminal negligence causing death was assessed by measuring the degree to which the accused's conduct departed from that of a reasonable person in the circumstances. In the context of criminal negligence causing death, the requisite degree of departure was as an elevated one i.e. marked and substantial.

R. v. J.F.[2008] 3 S.C.R. 215; R. v. Tutton [1989] 1 S.C.R. 1392, at pp. 1429-31; R. v. Morrisey [2000] 2 S.C.R. 90, at para. 19; R. v. Beatty [2008] 1 S.C.R. 49, at para. 7 and R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.) ref.

The actus reus of unlawful act manslaughter required the prosecution to prove that the accused committed an unlawful act and that the unlawful act caused death. The underlying unlawful act was described as the "predicate" offence. Where the predicate offence was one of strict liability, the fault element for that offence must be read as a marked departure from the standard expected of a reasonable person in the circumstances. The prosecution was not required to prove that the predicate offence was objectively dangerous. An objective dangerousness requirement added nothing to the analysis that was not captured within the fault element of unlawful act manslaughter. An unlawful act, accompanied by objective foreseeability of the risk of bodily harm that was neither trivial nor transitory, was an objectively dangerous act. Resultantly, the actus reus of unlawful act manslaughter was satisfied by proof beyond a reasonable doubt that the accused committed an unlawful act that caused death. There was no independent requirement of objective dangerousness.

R. v. Creighton, [1993] 3 S.C.R. 3, at pp. 42-43 and R. v. DeSousa, [1992] 2 S.C.R. 944, at pp. 959 and 961-62 ref.

The fault element of both offences i.e. criminal negligence causing 'death' and 'unlawful act manslaughter' required that an accused's conduct be measured against the standard of a reasonable person in their circumstances. An activity-sensitive approach to the modified objective standard should be applied. While the standard was not determined by the accused's personal characteristics, it was informed by the activity. Evidence of training and experience may be used to rebut an allegation of being unqualified to engage in an activity or to show how a reasonable person in the circumstances of the accused would have performed the activity.

R. v. Creighton, [1993] 3 S.C.R. 3 ref.

(b) Criminal trial---

----'Criminal negligence resulting in death' and 'unlawful act manslaughter', offences of---Accused-naturopath recommended intravenously administered nutrients to his patient, who reacted negatively to the injection and died of endotoxic shock---Accused was charged with criminal negligence causing death and unlawful act manslaughter---Trial judge acquitted the accused of both charges but the Court of Appeal set aside both acquittals, substituted a conviction on the charge of unlawful act manslaughter, and ordered a new trial on the criminal negligence charge---[Per Abella, J (Majority view): Court of Appeal erred in holding that an intravenous injection was objectively dangerous regardless of the circumstances in which it was administered or the training, qualifications and experience of the person who administered it---Court of Appeal also erred in disturbing the accused's acquittals based on its conclusion that her conduct markedly departed from that of a reasonable person---Said conclusions could not be squared with the trial judge's findings of fact which the Court of Appeal replaced with its own---Fault element of 'criminal negligence causing death' and 'unlawful act manslaughter' required that an accused's conduct be measured against the standard of a reasonable person in their circumstances---In measuring the accused's conduct against such standard in the present case, the trial judge was obliged to consider the accused's prior training, experience and qualifications as a naturopath---Trial judge found that the accused was properly qualified to administer intravenous injections and took the necessary precautions at every stage of administering the intravenous injection, including observing sufficient protocols to prevent sepsis---All of the trial judge's factual findings, which were based on the evidence, supported the conclusion that an intravenous injection, performed properly by a naturopath qualified to administer such injections, did not pose an objectively foreseeable risk of bodily harm in the circumstances---Appeal was allowed and acquittals of accused for both criminal negligence causing death and unlawful act manslaughter were restored]---[Per Wagner, C.J (Minority view): Injecting a substance across physiological barriers was an inherently dangerous activity---Experience of accused did not alter this---Dangerousness of the act would have been established even if it had been performed by a health professional who was authorized to do so---Trial judge erred in failing to find that the unlawful injection given by the accused was objectively dangerous; she also applied the wrong standard of proof concerning the mens rea of manslaughter, since she required objective foreseeability of the risk of death rather than of the risk of bodily harm---Finally, the judge erred in considering accused's professional training when assessing the objective nature of the risk posed by the injection---Said errors, whose effect was to invalidate most of the legal conclusions reached on the essential elements of the offence of manslaughter, had a sufficient impact , which required a new trial for both charges.]

Per Wagner C.J. and Rowe, J. dissenting.

(c) Criminal trial---

----'Unlawful act manslaughter', offence of---Elements of 'actus reus', 'mens rea' and 'fault' for the offence explained.

Offence of unlawful act manslaughter required proof of an underlying unlawful act. The actus reus of the offence had three elements: (i) an underlying unlawful act; (ii) the objective dangerousness of that act; and (iii) a causal connection between the act and the death.

Regarding the first element of the actus reus i.e. unlawful act, verdict of manslaughter could validly be based on either a federal underlying offence or a provincial underlying offence. Absolute liability offences were clearly excluded, whether they were enacted by Parliament or by a legislature. Once an unlawful act was proved, the first element of the actus reus (the underlying unlawful act) was therefore satisfied.

R. v. DeSousa, [1992] 2 S.C.R. 944, at p. 957 ref.

The second element of the actus reus, the objective dangerousness of the unlawful act, meant that it must be an act that a reasonable person would know was likely to subject another person to a risk of bodily harm. While the objectively dangerous conduct was relevant to the actus reus and to the fault element, it could not be said that it was assessed from the same perspective at both stages of the analysis. The actus reus would be proved if the court was satisfied that the accused did something that a reasonable person would have known was likely to subject another person to a risk of harm. In considering the actus reus, the court was not to assess the extent to which the accused's conduct departed from this standard of care or the accused's state of mind. Rather, the actus reus of penal negligence, like that of civil negligence, would be established where the court was satisfied that the impugned conduct deviated from the standard expected of a reasonably prudent person. This evidentiary threshold reflected the fact that, at such stage of the analysis, the court was considering whether the accused committed the physical element of the offence, not whether the accused had the state of mind required for a conviction. The second element of the actus reus, the objective dangerousness of the unlawful act, was therefore assessed without reference to the accused's personal characteristics. This does not involve the application of the modified objective test, which allowed the court to consider limited contextual factors. That test was instead applied in analyzing mens rea and, where it was met, had the effect of exculpating an accused who had not breached the standard of care sufficiently for criminal liability to be imposed.

Unlawful act manslaughter also had two cumulative fault elements: the mens rea of the underlying act and the mens rea specific to manslaughter.

With regard to the underlying act, a verdict of manslaughter could be based on a violation of a statute or of regulations. A number of such violations, whether under a federal or a provincial enactment, involved" strict liability" and therefore laid midway between absolute liability offences, for which there was no fault element, and "mens rea" offences, for which the prosecution must prove fault. To ensure a minimum degree of moral blame worthiness, the prosecution must therefore establish a negligent state of mind corresponding to a "marked departure". The purpose was to ensure that the accused had a culpable state of mind reflecting the seriousness of the crime.

Fault element for manslaughter was objective foreseeability of the risk of bodily harm, regardless of how the death was caused (through an unlawful act or through criminal negligence). [Minority view]

Isabel J. Schurman, Julius Grey, Francis Villeneuve Ménard and Rose-Mélanie Drivod, for the appellant.

Christian Jarry, for the respondent Her Majesty The Queen.

Julien Bernard, Jean-Vincent Lacroix and Alexandre Duval, for the respondent the Attorney General of Quebec.

Michel Marchand and Christian Desrosiers, for the intervener Association des avocats de la défense de Montréal.

Giuseppe Battista, for the interveners the Québec Association of Naturopathic Medicine and Association des naturopathes agréés du Québec.

Benjamin Grant, Marion Sandilands and David Wilson, for the intervener the Canadian Association of Naturopathic Doctors.

Anil K. Kapoor and Dana C. Achtemichuk, for the intervener the Criminal Lawyers' Association.

2020 S C M R 765

[Supreme Court of Canada]\

Present: Wagner C.J., Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer, JJ

HER MAJESTY THE QUEEN---Appellant

Versus

JUSTYN KYLE NAPOLEON FRIESEN---Respondent

and

ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL

OF BRITISH COLUMBIA, ATTORNEY GENERAL OF ALBERTA, CRIMINAL TRIAL LAWYERS' ASSOCIATION AND LEGAL AID SOCIETY OF ALBERTA---Interveners

Decided on 2nd April, 2020.

(On appeal from the Court of Appeal for Manitoba)

(a) Criminal trial---

----Sentence--- Sentencing range--- Appellate Court, powers of---Sentence imposed by Trial Court---Interference by Appellate Court---Grounds---Appellate Court could only intervene in sentence imposed by Trial Court if such sentence was demonstrably unfit, or, the sentencing judge made an error in principle that had an impact on the sentence---Appellate courts should give sentencing judges the tools to depart from past precedents and provide appropriate sentences when a body of precedent no longer responded to society's current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament---However, appellate courts could not interpret or apply the standard of review to enforce ranges or starting points of sentences, as doing so would be to usurp the role of Parliament in creating categories of offences.

Appellate courts must generally defer to sentencing judges' decisions and could only intervene to vary a sentence if the sentence was demonstrably unfit, or, the sentencing judge made an error in principle that had an impact on the sentence. Errors in principle included an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. If appellate intervention was justified, the court would apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence fell within the applicable range. Where an appellate court had found that an error in principle had an impact on the sentence, it was not a further precondition to appellate intervention that the existing sentence was demonstrably unfit or fell outside the range of sentences imposed in the past.

R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para 48; R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46 and R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35 ref.

Appellate courts had a dual role in sentence appeals; they corrected errors in sentencing to ensure both that the principles of sentencing were correctly applied and that sentences were not demonstrably unfit, and they had a role in developing the law and providing guidance. Appellate courts would distill many precedents into a single statement, a range of sentences or perhaps a starting point, that sentencing judges could more readily use. As a general rule, appellate courts should give sentencing judges the tools to depart from past precedents and craft fit sentences when a body of precedent no longer responded to society's current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament.

R. v. Stone, [1999] 2 S.C.R. 290, at para. 239 ref.

Appellate courts (in Canada) often provided guidance in the form of ranges of sentences, which were summaries of the minimum and maximum sentences imposed in the past and served as guides for the application of all relevant principles and objectives. Some courts used starting points as an alternative. However, sentencing ranges and starting points were guidelines, not hard and fast rules. Appellate courts could not treat the departure from or failure to refer to either as an error in principle. Nor could they intervene simply because the sentence was different from the sentence that would have been reached had the range or starting point been applied. Appellate courts could not interpret or apply the standard of review to enforce ranges or starting points, as doing so would be to usurp the role of Parliament in creating categories of offences.

R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras 57 & 60; R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44 and R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-118 & 273 ref.

(b) Criminal trial---

----Sentence--- Sentencing range--- Principles--- Proportionality of sentence---Factors to be considered by sentencing court stated.

All sentencing started with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing judges must also consider the principle of parity. Similar offenders who committed similar offences in similar circumstances should receive similar sentences. Parity was an expression of proportionality and gave meaning to proportionality in practice. A proportionate sentence for a given offender and offence could not be deduced from first principles; instead, judges calibrated the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflected the range of factual situations in the world, embodied the collective experience and wisdom of the judiciary, and were the practical expression of both parity and proportionality.

R. v. Wilmott, [1966] 2 O.R. 654 (C.A.) ref.

(c) Criminal trial---

----Sexual offences against children---Sentence, proportionality of---Court considerations---Courts were required to focus their attention on both the emotional/psychological and physical harm caused to children---Courts needed to take into account the wrongfulness and harmfulness of sexual offences against children as it was important in imposing a proportionate sentence---Courts must impose sentences that were commensurate with the gravity of sexual offences against children and that reflected the normative character of the offender's actions and the consequential harm to children and their families---During sentencing courts must give proper weight to the offender's underlying attitudes because they were highly relevant to assessing the offender's moral blameworthiness and to the sentencing objective of denunciation---Since the legislature/Parliament (of Canada) had increased maximum sentences for sexual offences against children and prioritized denunciation and deterrence in sentencing, and because society's understanding of the gravity and harmfulness of these offences had deepened, courts needed to impose more severe sanctions than the sentences imposed in cases that preceded the increases in maximum sentences---Maximum sentence should be imposed whenever the circumstances warranted it.

At the sentencing stage, in order to effectively respond to sexual violence against children, sentencing judges needed to properly understand the wrongfulness of sexual offences against children and the profound harm that they caused and give effect to both in imposing a sentence. This would help bring sentencing law into line with society's contemporary understanding of the nature and gravity of sexual violence against children and would ensure that past biases and myths did not filter into the sentencing process. Parliament's creation of the modern legislative scheme of sexual offences against children shifted the focus of the sexual offences scheme from sexual propriety to wrongful interference with sexual integrity. The prime interests that the legislative scheme of sexual offences against children protected were the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. Emphasis on these interests required courts to focus their attention on emotional and psychological harm, not simply physical harm. In particular, courts needed to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle, as these factors impacted both the gravity of the offence and the degree of responsibility of the offender and understanding them was important in imposing a proportionate sentence.

R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752; R. v. McCraw, [1991] 3 S.C.R. 72; R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81 at para. 76 and R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752 at paras. 56, 90 & 135 ref.

Courts must impose sentences that were commensurate with the gravity of sexual offences against children and that reflected the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities. Particularly, courts must recognize and give effect to, first, the inherent wrongfulness of these offences; second, the potential harm to children that flowed from these offences; and third, the actual harm that children suffer as a result of these offences. Sexual offences against children were inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materialized, and actual harm vary from case to case.

R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35 ref.

Courts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender's degree of responsibility. Intentionally applying force of a sexual nature to a child was highly morally blameworthy because the offender was or ought to be aware that this action could profoundly harm the child, because it involved the wrongful exploitation of the child by the offender, and because children were so vulnerable. Courts must give proper weight in sentencing to the offender's underlying attitudes because they were highly relevant to assessing the offender's moral blameworthiness and to the sentencing objective of denunciation. The fact that the victim was a child increased the offender's degree of responsibility.

J. Benedet, "Sentencing for Sexual Offences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences" (2019), 44 Queen's L.J. 284, at pg. 310; R. v. Hajar, 2016 ABCA 222, 39 Alta. L.R. (6th) 209, at para. 67 and R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para.153 ref.

Parliament (of Canada) had increased maximum sentences for sexual offences against children and prioritized denunciation and deterrence in sentencing. Parliament's decision to repeatedly increase maximum sentences for sexual offences against children should be understood as shifting the distribution of proportionate sentences for these offences. To respect Parliament's decision, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. Parliament's decision to prioritize denunciation and deterrence for offences that involved the abuse of children [by enacting s. 718.01 of the Criminal Code (of Canada)] confirmed the need for courts to impose more severe sanctions for sexual offences against children.

R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para 7 ref.

To ensure that sentences for sexual offences against children corresponded to Parliament's legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children caused, guidance on three particular points was required; first, departure from prior precedents and sentencing ranges should occur for sexual offences against children because Parliament increased the maximum sentences for these offences and because society's understanding of the gravity and harmfulness of these offences had deepened. Courts were justified in departing from dated precedents that did not reflect society's current awareness of the impact of sexual violence on children in imposing a fit sentence. Imposing proportionate sentences would frequently require substantial sentences. Parliament's statutory amendments had strengthened that message. Mid-single digit sentence terms for sexual offences against children were normal and upper-single digit and double-digit sentence terms should be neither unusual nor reserved for rare or exceptional circumstances. A maximum sentence should be imposed whenever the circumstances warranted it. Second, sexual offences against children should generally be punished more severely than sexual offences against adults, as Parliament had determined by clear indication in the Criminal Code (of Canada). Third, treating the offence of sexual interference with a child as less serious than that of sexual assault of a person under the age of 16 was an error of law. Parliament had established the same maximum sentences for both offences. The elements of the offences were also similar, and a conviction for sexual assault of a child and for sexual interference with a child could frequently be supported on the same factual foundation.

R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras 62-64 & 74; R. v. Vautour, 2016 BCCA 497, at para. 52 (CanLII)); R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 62 and R. v. M. (S.J.), 2009 ONCA 244, 247 O.A.C. 178, at para. 8 ref.

(d) Criminal trial---

----Sexual offences against children--- Sentence---Significant factors to be considered by courts to determine a proportionate/fit sentence stated.

To promote the uniform application of the law of sentencing, the following non-exhaustive significant factors to determine a fit sentence for sexual offences against children must be considered; first, the higher the offender's risk to re-offend, the more the court needs to emphasize the sentencing objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm. Second, an offender who abused a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who was a stranger to the child. Any breach of trust was likely to increase the harm to the victim and thus the gravity of the offence, and it also increased the offender's degree of responsibility. Third, sexual violence against children that was committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflected the full cumulative gravity of the crime and the offender's increased degree of responsibility. Fourth, the age of the victim was also a significant aggravating factor because children who were particularly young were even more vulnerable to sexual violence. The moral blameworthiness of the offender was enhanced in such cases. Fifth, defining a sentencing range based on the specific type of sexual activity at issue posed several pitfalls. In particular, courts must be careful to avoid certain errors, such as attributing intrinsic significance to the occurrence or non-occurrence of sexual acts based on traditional notions of sexual propriety; assuming that there was correlation between the type of physical act and the harm to the child; failing to recognize the wrongfulness of sexual violence in cases where the degree of physical interference was less pronounced; and understanding the degree of physical interference factor in terms of a type of hierarchy of physical acts. Sixth, a child's participation was not a mitigating factor, nor should it be a legally relevant consideration at sentencing. In particular, a child's non-resistance should not be equated to "defacto consent". Victim's participation should not distract the court from the harm that the victim suffered as a result of sexual violence; a breach of trust or grooming that led to the victim's participation was an aggravating factor; and, adults always had a responsibility to refrain from engaging in sexual violence towards children.

R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 30; R. v. M. (S.J.), 2009 ONCA 244, 247 O.A.C. 178, at paras 39 & 84; R. v. J.R. (1997), 157 Nfld. & P.E.I.R. 246 (N.L.C.A.), at paras.14 and 18; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 127; R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 66; R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 38; R. v. Hajar, 2016 ABCA 222, 39 Alta. L.R. (6th) 209, at para. 38; R. v. E.C., 2019 ONCA 688, at para. 13 (CanLII); R. v. Norton, 2016 MBCA 79, 330 Man.R. (2d) 261, at para. 42; R. v. P.M. (2002), 155 O.A.C. 242, at para. 19; R. v. F. (G.C.) (2004), 71 O.R. (3d) 771 (C.A.), at paras. 7 & 21; R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81 at para.43; R. v. Audet, [1996] 2 S.C.R. 171, at para. 23 and R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 2 ref.

Rekha Malaviya and Renée Lagimodière for the Appellant.

Gerri Wiebe and Ryan McElhoes for the Respondent.

Lisa Joyal, for the intervener the Attorney General of Ontario.

John R.W. Caldwell, for the intervener the Attorney General of British Columbia.

Joanne B. Dartana, for the intervener the Attorney General of Alberta.

Daniel J. Song, for the intervener the Criminal Trial Lawyers' Association.

Dane Bullerwell, for the intervener the Legal Aid Society of Alberta.

2020 S C M R 1125

[Supreme Court of Canada]\

Present: Wagner C.J. Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer, JJ

K.G.K.---Appellant

Versus

HER MAJESTY THE QUEEN---Respondent

and

DIRECTOR OF PUBLIC PROSECUTIONS, ATTORNEY GENERAL OF ONTARIO, DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS AND CRIMINAL LAWYERS' ASSOCIATION OF ONTARIO---Interveners

Decided on 20th March, 2020.

(On appeal from the Court of Appeal for Manitoba)

(a) Fundamental Rights---

----Right to be tried within reasonable time [section 11(b) of Canadian Charter of Rights and Freedoms-Time taken to deliberate upon judgment---Delay between conclusion of evidence and argument at trial and trial judge's judgment---Whether S. 11(b) of Canadian Charter of Rights and Freedoms ('the Charter') applied to verdict deliberation time, and if so whether verdict deliberation time was included in the time limits (presumptive ceilings) established in the judgment R v Jordan [2016] 1 S.C.R. 631 ('the Jordan case')---Test to be applied in assessing whether right to be tried within reasonable time infringed by delay occasioned by verdict deliberation time---[Per Moldaver, J: Where an accused claimed that the trial judge's verdict deliberation time breached their S. 11(b) Charter right to be tried within a reasonable time, they must establish that the deliberations took markedly longer that they reasonably should have in all of the circumstances---Said test should be approached in light of the presumption of judicial integrity attached with judges---Burden laid on the accused to rebut such presumption by explaining why, in all the circumstances of the case, the verdict deliberation time was markedly longer than it reasonably should have been---Presumptive ceilings (or time limits) established in the Jordan case were not intended to cover the entire period of time to which S. 11(b) of the Charter applied, therefore, said presumptive ceilings did not include verdict deliberation time]---[Per Abella, J concurring: For determining whether the judgment deliberation time took markedly longer than it reasonably should have did not require assessing the judge's integrity---Test for unreasonable deliberative delay would be more effective and fair, if it assessed only the objective and contextual factors for the delay, without the added hurdle on the accused of having to demonstrate that the trial judge acted without integrity.]

Per Moldaver, J

Although the right to be tried within a reasonable time enshrined in section 11(b) of Canadian Charter of Rights and Freedoms ('the Charter') extended beyond the end of the evidence and argument at trial and encompassed verdict deliberation time, the presumptive ceilings (or time limits) established by the Court in the case of R v Jordan [2016] 1 S.C.R. 631 ('the Jordan case') did not. Given that section 11(b) of the Charter protected an accused from unreasonable delay up to and including the time of sentencing, it necessarily followed that the time taken by a judge to deliberate and render a verdict, all of which preceded the sentencing process, was also included. Where an accused claimed that the trial judge's verdict deliberation time breached their section 11(b) right to be tried within a reasonable time, they must establish that the deliberations took markedly longer that they reasonably should have in all of the circumstances. The burden on the accused was a heavy one due to the operation of the presumption of judicial integrity.

R. v. Rahey, [1987] 1 S.C.R. 588 and R. v. MacDougall, [1998] 3 S.C.R. 45 ref.

The presumptive ceilings (or time limits) established in the Jordan case were not intended to cover the entire period of time to which section 11(b) of the Charter applied. Properly construed, the time limits laid down in the Jordan case applied from the date of the charge until the actual or anticipated end of the evidence and argument, and no further. They represented a specific solution designed to address a specific problem i.e. the culture of complacency towards excessive delay associated with bringing those charged with criminal offences to trial. There was no suggestion in the Jordan case, that delay arising from verdict deliberation time contributed to the systemic problem that the Jordan case sought to address. Jordan case was squarely focused on delay in bringing accused persons to trial and that was the scope of its application. Further, numerous practical problems would arise if the presumptive ceilings or time limits were to include verdict deliberation time, which would run counter to goals of clarity and predictability laid down in the Jordan case.

When assessing whether an accused person's right to be tried within a reasonable time had been infringed by reason of delay occasioned by verdict deliberation time, the question to be asked was whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances. This test should be approached in light of the presumption of integrity from which judges benefited. The presumption of judicial integrity operated in this context to create a presumption that the trial judge balanced the need for timeliness, trial fairness considerations, and the practical constraints they faced, and took only as much time as was reasonably necessary in the circumstances to render a just verdict. The burden laid on the accused to rebut such presumption by explaining why, in all the circumstances of the case, the verdict deliberation time was markedly longer than it reasonably should have been. The threshold was high because of the considerable weight that the presumption of integrity carried. In conducting such objective assessment, the reviewing court should consider all of the circumstances. Some relevant considerations included; the length of the verdict deliberation time; how close to the relevant time limits prescribed in Jordan case the case was before the trial judge reserved judgment; the complexity of the case; and anything on the record from the judge or the court. It may also be helpful to compare the length of time taken with the time that a case of a similar nature in similar circumstances would typically take to be decided.

Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 17 and R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, at para. 29 ref.

Per Abella, J; concurring with Moldaver, J:

There is no basis for requiring an accused to rebut the presumption of judicial integrity to show deliberative delay to be unreasonable. The objective and contextual factors laid out by the majority opinion in the present case for determining whether the deliberation time took markedly longer than it reasonably should have did not require assessing the judge's integrity. The "markedly longer" standard already created a high threshold. Adding an additional, conceptually irrelevant, burden on the accused of demonstrating that the trial judge acted without integrity elevated the burden to an impossible threshold.

Furthermore, the majority opinion appeared to have eliminated the role of the reasonable person in the assessment of whether the presumption had been rebutted. Eliminating the role of the reasonable person, a key feature of the assessment of whether the presumption of judicial integrity had been rebutted, compounded the weight of the accused's burden by essentially requiring the reviewing court to make a direct finding about the judge's subjective state of mind and integrity. The test for unreasonable deliberative delay would be more effective and fair, and more consistent with the Jordan case, if it assessed only the objective and contextual factors for the delay, without the added hurdle of having to rebut the pre-sumption of judicial integrity.

Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at para. 64 and Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at p. 636 ref.

Per Moldaver, J:

(b) Fundamental Rights---

----Right to be tried within reasonable time [section 11(b) of Canadian Charter of Rights and Freedoms ('the Charter')]--- Scope---Section 11(b) of the Charter provided that any person charged with an offence had the right to be tried within a reasonable time---Said provision reflected and reinforced the notion that timely justice was one of the hallmarks of a free and democratic society---Section 11(b) protected both an accused's interests and society's interests---Individual dimension of S. 11(b) protected an accused person's interests in liberty, security of the person, and a fair trial---Societal dimension of S. 11(b) recognized, among other things, that timely trials were beneficial to victims and witnesses, as well as accused persons, and they served to instill public confidence in the administration of justice.

R v. K.J.M. 2019 SCC 55 at Para 38 and R v Jordan [2016] 1 S.C.R. 631 at para. 1 ref.

(c) Criminal trial---

----Judgment reserved by trial judge for a significant amount of time---Whether parties should be able to communicate with the judge or court to get updates on the matter reserved---Supreme Court (Canada) observed that there was no reason why the parties could not, in appropriate circumstances and through appropriate channels, communicate with the trial judge regarding a matter under reserve; that this might entail meeting briefly in court or communicating through another procedure approved by the court; that whatever method or channel was used, a counsel can and should expect judges to be sufficiently resolute to consider a request for information without consequences to counsel, the accused, or the trial; that jurisdictions may find it useful to set out a standardized procedure through which counsel could inquire as to the status of a verdict; that this may involve a practice guideline contemplating a joint communication from the parties to the trial judge themselves, or to the regional senior judge or another appropriate person, after a certain amount of time had passed; that ultimately, instituting such procedures could serve to attenuate the anxiety and concern that accompanied the inherent unknowability of a verdict date and delay more generally.

R. v. MacDougall, [1998] 3 S.C.R. 45 at para. 19 and R. v. Potvin, [1993] 2 S.C.R. 880, at pg. 887 ref.

Katherine L. Bueti and Amanda Sansregret for Appellant.

Michael Conner, Renée Lagimodière and Charles Murray for Respondent.

John Walker for the intervener the Director of Public Prosecutions.

Joanne Stuart for the intervener the Attorney General of Ontario.

Nicolas Abran for the intervener the Director of Criminal and Penal Prosecutions.

Jill R. Presser for the intervener the Criminal Lawyers' Association of Ontario.

2020 S C M R 1162

[Supreme Court of Canada]\

Present: Karakatsanis, Brown, Rowe, Martin and Kasirer, JJ

KEN CHUNG---Appellant

Versus

HER MAJESTY THE QUEEN---Respondent

Decided on 27th March, 2020.

(On appeal from the Court of Appeal for British Columbia)

Per Martin, J; Brown, Rowe and Kasirer JJ, concurring; Karakatsanis, J dissenting.

(a) Appeal against acquittal---

----Scope---Question of law---Error of law---Under S. 676(1)(a) of the Criminal Code, R.S.C. 1985 (Canada), the State could only appeal an acquittal on a question of law alone---Appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it met the standard of proof---State could not appeal merely because an acquittal was unreasonable---Errors of law arose, for example, where the legal effect of findings of fact or of undisputed facts raised a question of law and where there was an assessment of the evidence based on a wrong legal principle---When interpreting a trial judge's reasons, appellate courts should not parse the reasons of the trial judge in a line by line search for errors---Instead, the reasons were to be read as a whole, in the context of the evidence, the issues and the arguments at trial, together with an appreciation of the purposes or functions for which they were delivered---Appellate courts must attempt to understand the reasoning of the trial judge---However, even if the trial judge articulated the right test, appellate courts may find an error of law if the judge's reasoning and application demonstrated a failure to properly apprehend the law.

R v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25-27; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at paras. 15-17); R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33; R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 16 and R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16 ref.

(b) Criminal law---

----Dangerous operation of motor vehicle causing death [section 249(4) of the Criminal Code, R.S.C. 1985 (Canada)]---Mens rea for offence---Reasonable person standard---Scope---Momentary speeding---Momentary excessive speeding on its own could establish the mens rea for dangerous driving where, having regard to all the circumstances, it supported an inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited---Court had to analyse whether the reasonable person would foresee the dangers to the public from the momentary conduct---Fact that foreseeable consequences occurred within a short period of time after someone engaged in highly dangerous behaviour could not preclude a finding of mens rea for dangerous driving---When undertaking the mens rea analysis, the trial judge must work with the facts as found and consider whether, in the totality of the circumstances, a reasonable person would have foreseen the risk and taken the same actions as the accused---Duration and nature of an accused's conduct were only some of the factors to be considered with all of the circumstances in the mens rea analysis; they were not factors that could be taken out of context; it was conceivable that in some contexts, even grossly excessive speed may not establish a marked departure from the standard of care, while in other circumstances speed may not need to be grossly excessive in order to still be a marked departure---Concerning the required mental element it was not necessary to find that accused was subjectively aware of the risk of his conduct and intentionally created this risk, as the test for mens rea was based on the reasonable person.

Per Martin, J (Majority view):

In the present case the trial judge made two inter-related errors of law; he applied the wrong legal principle and most importantly, failed to apply the correct legal test by not assessing what a reasonable person would have foreseen and done in accused's circumstances.

R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 36 ref.

Focus of the trial judge in the present case on the momentariness of the speeding by the accused demonstrated an error of law. Momentary excessive speeding on its own could establish the mens rea for dangerous driving where, having regard to all the circumstances, it supported an inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited. Momentary conduct was not assessed differently from other dangerous conduct. Conduct that occurred over a brief period of time that created foreseeable and immediate risks of serious consequences could still be a marked departure from the norm. Trial judge erred in focusing on the momentary nature of accused's conduct, rather than analyzing whether the reasonable person would foresee the dangers to the public from the momentary conduct. In the present case the brief period of rapidly changing lanes and accelerating towards an intersection by the accused was not comparable to momentary mistakes that may be made by any reasonable driver. Risky conduct at excessive speeds foreseeably could result in immediate consequences. Fact that foreseeable consequences occurred within a short period of time after someone engaged in highly dangerous behaviour could not preclude a finding of mens rea for dangerous driving.

R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 36 ref.

Secondly, the trial judge in the present case did not apply the correct legal test. Trial judge did not turn to the core question at issue in the present case i.e. whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. At some point in the mens rea analysis, the trial judge must work with the facts as found and consider whether, in the totality of the circumstances, a reasonable person would have foreseen the risk and taken the same actions as the accused. Only when there had been an active engagement with the full picture of what occurred could the trial judge determine whether the accused's conduct was a marked departure from the conduct of a reasonable and prudent driver.

In the present case instead of focussing on what a reasonable person would have foreseen and done in the circumstances, the trial judge engaged in reasoning focussed on the type (speeding) and duration (momentariness) of accused's conduct, to the exclusion of the full picture. Trial judge found that accused was not inattentive while driving, but did not consider how the accused's awareness of his surroundings contributed to his conduct being a marked departure from the conduct of a reasonable person. A full analysis in the present case would have considered the duration of the speeding, as well as the accused's control of the car (he switched lanes and then accelerated), the magnitude of speeding (almost three times the speed limit), the location of speeding (approaching a major intersection), and the accused's awareness of at least two vehicles at the intersection as he approached it. The trial judge then had to consider whether, on these facts as found, a reasonable person would have foreseen the risk of endangering the public by engaging in such conduct and taken steps to avoid it, presumably by not driving so fast.

Duration and nature of an accused's conduct were only some of the factors to be considered with all of the circumstances in the mens rea analysis. They were not factors that could be taken out of context. It was conceivable that in some contexts, even grossly excessive speed may not establish a marked departure from the standard of care, while in other circumstances speed may not need to be grossly excessive in order to still be a marked departure. Courts must be careful to avoid adopting hard and fast rules regarding when isolated factors would or would not be marked departures. Although case law may be helpful in providing examples of what had previously been determined to be a marked departure, courts must still analyze the accused's actions relative to the reasonable person in the specific circumstances at issue.

Concerning the required mental element, it was not necessary to find that accused was subjectively aware of the risk of his conduct and intentionally created this risk. The test for mens rea was based on the reasonable person. A reasonable person would have foreseen the immediate risk of reaching a speed of almost three times the speed limit while accelerating towards a major city intersection. Accused's conduct in such circumstances was a marked departure from the norm. Accused had been rightly convicted by the Court of Appeal. Appeal was dismissed.

Per Karakatsanis, J, dissenting (Minority view):

Trial judge's decision to acquit the accused in the present case was not tainted by an identifiable legal error. Trial judge's reasons disclosed that he was aware that both excessive speed and momentary conduct could meet the marked departure standard, depending on the circumstances. Questions about whether the trial judge should have placed less weight on the short duration of speeding, and more weight on the degree to which speeding exceeded the limit, where the speeding occurred, or on other factors relating to accused's control of the car and awareness, were not questions of law alone. The trial judge understood that what represented a marked departure in the circumstances was a matter of degree, and that the mens rea test was fundamentally comparative. Inferring that the trial judge failed to compare accused's conduct to that of a reasonable person because he did not explicitly describe what a reasonable person would have done in the circumstances was tantamount to presuming that he misunderstood the applicable legal principles. The trial judge was ultimately left with a reasonable doubt as to whether the manner of driving met the mens rea standard. Whether his decision to acquit on such basis was reasonable under the circumstances was not an issue in an appeal against acquittal such as the present one. Trial judge's decision to acquit the accused was not tainted by an identifiable legal error. Acquittal of accused should therefore be restored.

Richard S. Fowler, Q.C., and Eric Purtzki, for Appellant.

David Layton, Q.C., for Respondent.

2020 S C M R 1279

[Supreme Court of Canada]\

Present: Wagner C.J., Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer, JJ

UBER TECHNOLOGIES INC. and others---Appellants

Versus

DAVID HELLER---Respondent

And

ATTORNEY GENERAL OF ONTARIO, YOUNG CANADIAN ARBITRATION PRACTITIONERS, ARBITRATION PLACE, DON VALLEY COMMUNITY LEGAL SERVICES, CANADIAN FEDERATION OF INDEPENDENT BUSINESS, SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC, INCOME SECURITY ADVOCACY CENTRE, PARKDALE COMMUNITY LEGAL SERVICES, UNITED FOOD AND COMMERCIAL WORKERS CANADA, WORKERS' HEALTH AND SAFETY LEGAL CLINIC, MONTREAL ECONOMIC INSTITUTE, CANADIAN AMERICAN BAR ASSOCIATION, CHARTERED INSTITUTE OF ARBITRATORS (CANADA) INC., TORONTO COMMERCIAL ARBITRATION SOCIETY, CANADIAN CHAMBER OF COMMERCE, INTERNATIONAL CHAMBER OF COMMERCE, CONSUMERS COUNCIL OF CANADA, COMMUNITY LEGAL ASSISTANCE SOCIETY AND ADR CHAMBERS INC.---Interveners

Decided on 26th June, 2020.

(On appeal from the Court of Appeal for ONTARIO)

Per Abella and Rowe, JJ; Wagner, C.J, Moldaver, Karakatsanis, Martin and Kasirer, JJ concurring; Brown, J also concurring but with his own reasons; Côté, J dissenting.

(a) Contract---

----Adhesion contract--- Unnegotiated standard form contract---Arbitration clause, validity of--- Unconscionability, doctrine of---Inequality of bargaining power between parties---Improvident bargain---Standard form service agreement between a driver (employee) and a multinational ride-hailing company ('the company')---Clause in said agreement required that disputes be submitted to arbitration in the Netherlands and imposed substantial administrative and filing costs for arbitration proceedings---Driver commenced proceedings in Ontario court in Canada against the company for violation of employment standards legislation---Company sought stay of proceedings based on arbitration clause---Questions as to whether proceedings in Ontario court should be stayed; whether validity of arbitration agreement should be decided by the court or arbitrator, and whether arbitration agreement unconscionable---[Per Abella and Rowe, JJ (Majority view): Due to the extensive fees for initiating arbitration, there was a real prospect that if the matter was sent to be heard by an arbitrator, the driver's challenge to the validity of the arbitration agreement may never be resolved---Validity of the arbitration agreement must therefore be resolved by the court---Driver's claim that the arbitration clause was unconscionable required considering two elements: whether there was an inequality of bargaining power and whether there was a resulting improvident bargain---In the present case, there was inequality of bargaining power between the company and driver because the arbitration clause was part of an unnegotiated standard form contract, there was a significant gap in sophistication between the parties, and a person in the driver's position could not be expected to appreciate the financial and legal implications of the arbitration clause---Arbitration clause was improvident because the arbitration process required US$ 14,500 in up-front administrative fees---Resultantly, the arbitration clause was unconscionable and therefore invalid]---[Per Brown, J (concurring but with his own reasons): Arbitration clause, in the present case, was invalid, not due to the doctrine of unconscionability but because of being contrary to public policy as it denied access to justice---Arbitration agreement effectively barred any claim that the driver might have against the company and was disproportionate in the context of the parties' relationship---Such form of limitation on legally determined dispute resolution undermined the rule of law and was contrary to public policy]---[Per Côté, J dissenting (Minority view): Validity of the arbitration clause, in the present case, should be determined by an arbitral tribunal under the rule of systematic referral---Arbitration clause was not unconscionable as it did not result in a improvident bargain---Evidence did not support a finding that the company had constructive knowledge of the driver's alleged peculiar vulnerability---Arbitration clause was also not invalid under public policy as the Arbitration Act, 1991 (of Canada) and the International Commercial Arbitration Act, 2017 (of Canada) were strong statements of public policy which favoured enforcing arbitration agreements---Even if the arbitration clause was held to be unconscionable or contrary to public policy, the selection of the International Chamber of Commerce Rules and the place of arbitration clause could be severed from the agreement under the doctrine of severance---In the light of the evidence that the driver could not afford the upfront fees, the company should be required to advance the filing fees to enable him to initiate arbitration proceedings---Arbitration clause in the present case should be upheld and the parties referred to arbitration]---Appeal was dismissed.

Per Abella and Rowe, JJ (Majority view):

The Court set out a framework in Dell Computer Corp. v. Union des consommateurs, [2007] 2 S.C.R. 801, and Seidel v. TELUS Communications Inc., [2011] 1 S.C.R. 531, for when a court should decide if an arbitrator had jurisdiction over a dispute instead of referring that question to the arbitrator. According to the framework, the general rule was that court should refer all challenges to an arbitrator's jurisdiction to the arbitrator unless they raised pure questions of law, or questions of mixed fact and law that required only superficial consideration of the evidence in the record - that is, if the necessary legal conclusions could be drawn from facts that were either evident on the face of the record or undisputed by the parties. Court may depart from the general rule of arbitral referral if an issue of accessibility arose. Furthermore, a court should not refer a challenge to an arbitrator's jurisdiction to the arbitrator if there was a real prospect that doing so would result in the challenge never being resolved. To determine whether only a court could resolve the challenge to arbitral jurisdiction, the court must first determine whether, assuming the facts pleaded to be true, there was a genuine challenge to arbitral jurisdiction. Second, the court must determine from the supporting evidence whether there was a real prospect that, if the stay was granted, the challenge may never be resolved by the arbitrator. While the second question required some limited assessment of the evidence, this assessment must not devolve into a mini-trial. The only question at such stage was whether there was a real prospect, in the circumstances, that the arbitrator may never decide the merits of the jurisdictional challenge. If there was a real prospect that referring a challenge to an arbitrator's jurisdiction to the arbitrator would result in the challenge never being resolved, a court may resolve whether the arbitrator had jurisdiction over the dispute and, in so doing, may thoroughly analyze the issues and record. The Supreme Court (of Canada), therefore, should resolve the arguments raised by the driver in the present case.

Dell Computer Corp. v. Union des consommateurs, [2007] 2 S.C.R. 801 and Seidel v. TELUS Communications Inc., [2011] 1 S.C.R. 531 ref.

Driver's claim that the arbitration clause was unconscionable required considering two elements: whether there was an inequality of bargaining power and whether there was a resulting improvident bargain. Applying the unconscionability doctrine to the present case, there was clearly inequality of bargaining power between the company and the driver. The arbitration agreement was part of a standard form contract. The driver was powerless to negotiate any of its terms. His only contractual option was to accept or reject it. There was a significant gulf in sophistication between the driver, a food deliveryman, and the company, a large multinational corporation. The arbitration agreement, moreover, contained no information about the costs of mediation and arbitration in the Netherlands. A person in the driver's position could not be expected to appreciate the financial and legal implications of agreeing to arbitrate under foreign law or international mediation rules. Even assuming that the driver was the rare person who would have read through the contract in its entirety before signing it, he would have had no reason to suspect that behind an innocuous reference to mandatory mediation "under the International Chamber of Commerce Mediation Rules" that could be followed by "arbitration under the Rules of Arbitration of the International Chamber of Commerce", there laid a US$ 14,500 hurdle to relief. Exacerbating this situation was that these Rules were not attached to the contract, and so the driver would have had to search them out himself.

The improvidence of the arbitration clause was also clear. The mediation and arbitration processes required US$ 14,500 in up-front administrative fees. This amount was close to the driver's annual income and did not include the potential costs of travel, accommodation, legal representation or lost wages. The costs were disproportionate to the size of an arbitration award that could reasonably have been foreseen when the contract was entered into. The arbitration agreement also designated the law of the Netherlands as the governing law and Amsterdam as the "place" of the arbitration. This gave the driver the clear impression that he had little choice but to travel at his own expense to the Netherlands to individually pursue claims against the company through mandatory mediation and arbitration in the company's home jurisdiction. Any representations to the arbitrator, including about the location of the hearing, could only be made after the fees had been paid.

Respect for arbitration was based on its being a cost-effective and efficient method of resolving disputes. When arbitration was realistically unattainable, it amounted to no dispute resolution mechanism at all. In the present case, the arbitration clause was the only way the driver was permitted to vindicate his rights under the contract, but arbitration was out of reach for him and other drivers in his position. His contractual rights were, as a result, illusory.

Based on both the financial and logistic disadvantages faced by the driver in his ability to protect his bargaining interests and on the unfair terms that resulted, the arbitration clause in the present case was unconscionable and therefore invalid.

Per Brown, J, concurring but with his own reasons:

Mandatory arbitration clause in the present case was invalid, not due to the doctrine of unconscionability but because of being contrary to public policy as it denied access to justice. Contractual stipulations that foreclosed access to legally determined dispute resolution, such as the arbitration agreement in thepresent case did, were unenforceable not because they were unconscionable, but because they undermined the rule of law by denying access to justice. They were therefore contrary to public policy.

The majority view in the present case, vastly expanded the scope of the doctrine of unconscionability's application. This was unnecessary, because the law already contained settled legal principles outside the doctrine of unconscionability which operated to prevent contracting parties from insulating their disputes from independent adjudication. It was also undesirable, because it drastically expands the doctrine's reach without providing any meaningful guidance as to its application. Charting such a course would serve only to compound the uncertainty that already plagued the doctrine, and to introduce uncertainty to the enforcement of contracts generally.

In the present case, the arbitration agreement between the company and the driver was disproportionate in the context of the parties' relationship. The driver was the only one who would experience undue hardship in attempting to advance a claim against the company, regardless of the claim's legal merit. Such form of limitation on legally determined dispute resolution undermined the rule of law and was therefore contrary to public policy. The arbitration agreement between the company and the driver was, thus, invalid.

Per Côté, J dissenting (Minority view):

One of the most important liberties prized by a free people was the liberty to bind oneself by consensual agreement. Party autonomy and freedom of contract informed the policy choices embodied in the Arbitration Act, 1991 (of Canada) ['the Arbitration Act"] and the International Commercial Arbitration Act, 2017 (of Canada) ["the International Act"], one of which was that the parties to a valid arbitration agreement should abide by their agreement. The parties to the agreement, in the present case, had bound themselves to settle any disputes arising under it through arbitration. The Arbitration Act, the International Act, the jurisprudence of the Supreme Court (of Canada) and compelling considerations of public policy required the Court to respect the parties' commitment to submit disputes to arbitration.

Hofer v. Hofer, [1970] S.C.R. 958, at p. 963 and TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144, at para. 52 ref.

The validity of the arbitration clause, in the present case, should be determined by an arbitral tribunal. There was a general rule that in any case involving an arbitration clause, a challenge to the arbitrator's jurisdiction must be resolved first by the arbitrator. This was the rule of systematic referral. A court may depart from the rule of systematic referral only if the jurisdictional challenge was based solely on a question of law or a question of mixed law and fact that required only a superficial review of the documentary evidence, was not a delaying tactic, and would not unduly impair the conduct of the arbitration proceeding. A review was not superficial if the court was required to review testimonial evidence. Arguments on behalf of the driver challenging the validity of the arbitration clause required more than a superficial review of the documentary evidence. Driver's arguments were dependent upon testimonial evidence regarding his financial position, his personal characteristics, the circumstances of the formation of the contract and the amount that would likely be at issue in a dispute to which the arbitration clause applied. The rule of systematic referral applied in the present case, and the parties should be referred to arbitration.

Dell Computer Corp. v. Union des consommateurs, [2007] 2 S.C.R. 801 ref.

Driver's claim that the bargain was improvident rested on three propositions: first, that the place of arbitration clause required him to travel to Amsterdam at his own expense; second, that the choice of law clause excluded the application of the Employment Standards Act, 2000 ("ESA"); and third, that the selection of the International Chamber of Commerce Rules ("ICC Rules") entailed the payment of fees which he alleged were disproportionately high. As to the place of arbitration clause, the place of arbitration was a legal concept which denoted the parties' selection of a particular jurisdiction whose arbitration law governed proceedings, and under whose law the arbitral award was made. There was no obligation to actually conduct the arbitration at the place of arbitration. As to the choice of law clause, arguments directed at the alleged unfairness of having the service agreement governed by foreign law were analytically distinct from those concerning alleged unfairness arising from the arbitration clause itself. The separability doctrine holds that arbitration clauses embedded in contracts should be treated as independent agreements that were ancillary or collateral to the underlying contract. The result was that the alleged invalidity of the choice of law clause on the basis that it was unconscionable did not affect the validity of the arbitration clause. As to the selection of the ICC Rules, arbitration agreements involved a mutuality of exchange, so mandatory fees which applied to disputes initiated by either party would make pursuing a claim for a small amount just as uneconomic for the company as for the driver. Therefore, if unfairness resulted from the imposition of the fees on hypothetical claims for small amounts, the unfairness was mutual. In any event, the actual amount of driver's claim was unknown, and establishing that a dispute over a small amount was likely would require the production and review of testimonial evidence. The proportionality of the fees to the driver's ability to finance a larger claim must be measured as of the time the contract was formed, and the Court had no evidence regarding his financial position at that time.

The evidence did not support a finding that the company had constructive knowledge of the driver's alleged peculiar vulnerability. It would have been impossible for the company to be aware of the driver's specific income and education level when he decided to become a driver on the company's platform, or that he intended to use the platform as his primary source of income. In any event, such questions would require the production and review of testimonial evidence, which would lead the Court to stray impermissibly beyond the documentary record.

The arbitration clause was also not invalid under public policy. The Court should not create a new common law rule that contractual provisions which had the effect of prohibiting access to dispute resolution were contrary to public policy. The Arbitration Act and the International Act were strong statements of public policy which favoured enforcing arbitration agreements.

Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at para. 123 ref.

The pro-arbitration stance taken by legislatures (across Canada) and by the Supreme Court (of Canada) supported a generous approach to remedial options which would facilitate the arbitration process. Two such options included ordering a conditional stay of proceedings and applying the doctrine of severance. Although it would usually be unnecessary for a court to order a conditional stay, it may be appropriate to do so to ensure procedural fairness in the arbitration process. Courts should be careful not to impose conditions which impinge on the decision-making jurisdiction of the arbitral tribunal, but a condition which facilitated the arbitration process could protect the tribunal's jurisdiction by ensuring that the parties were able to proceed with the arbitration. In addition, compelling policy considerations supported a generous application of the doctrine of severance in cases in which the parties had clearly indicated an intent to settle any disputes through arbitration but in which some aspects of their arbitration agreement had been found to be unenforceable. In deciding whether to apply the doctrine of severance, a court should also consider whether it would be both commercially practical and consistent with the parties' intentions for it to enforce the remainder of the arbitration agreement. Where the parties' intention to submit disputes to arbitration was clearly established, applying the doctrine of severance would usually be consistent with their intentions. In the present case, even if the arbitration clause was unconscionable or contrary to public policy, the selection of the ICC Rules and the place of arbitration clause could be severed. In light of the evidence that the driver could not afford the upfront fees, the company should be required to advance the filing fees to enable him to initiate arbitration proceedings. The arbitration clause in the present case should be upheld.

Per Abella and Rowe, JJ (Majority view):

(b) Contract---

----Unconscionability, doctrine of---Inequality of bargaining power between parties---Improvident bargain---Scope and purpose of doctrine of unconscionability and its implications for standard form contracts, stated.

Unconscionability was an equitable doctrine that was used to set aside unfair agreements that resulted from an inequality of bargaining power. When the traditional assumptions underlying contract enforcement lost their justificatory authority, said doctrine provided relief from improvident contracts. The purpose of unconscionability was the protection of those who were vulnerable in the contracting process from loss or improvidence in the bargain that was made.

John D. McCamus, The Law of Contracts (2nd ed. 2012), at p. 424); Mitchell McInnes, The Canadian Law of Unjust Enrichment and Restitution (2014), at p. 521; see also pp. 520-24; Bradley E. Crawford, "Restitution - Unconscionable Transaction - Undue Advantage Taken of Inequality Between Parties" (1966), 44 Can. Bar Rev. 142, at p. 143); S.M. Waddams, "Good Faith, Unconscionability and Reasonable Expectations" (1995), 9 J.C.L. 55, at p. 60; Hodgkinson v. Simms, [1994] 3 S.C.R. 377, at pp. 405 and 412; Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426, at p. 462, per Dickson C.J., and p. 516, per Wilson J.; Norberg v. Wynrib, [1992] 2 S.C.R. 226, at p. 247; see also Bhasin v. Hrynew, [2014] 3 S.C.R. 494, at para. 43; Mindy Chen-Wishart, Unconscionable Bargains (1989), at p. 109; see also James Gordley, "Equality in Exchange" (1981), 69 Cal. L. Rev. 1587, at pp. 1629-34; Birch, at para. 44 ref.

Unconscionability required both an "inequality of bargaining power" and a resulting "improvident bargain".

An inequality of bargaining power existed when one party could not adequately protect its own interests in the contracting process. One common example of inequality of bargaining power came in the "necessity" cases, where the weaker party was so dependent on the stronger that serious consequences would flow from not agreeing to a contract. This imbalance could impair the weaker party's ability to contract freely and autonomously. When the weaker party would accept almost any terms, because the consequences of failing to agree were so dire, equity intervened to prevent a contracting party from gaining too great an advantage from the weaker party's unfortunate situation. The second common example of an inequality of bargaining power was where, as a practical matter, only one party could understand and appreciate the full import of the contractual terms, creating a type of "cognitive asymmetry". This may occur because of personal vulnerability or because of disadvantages specific to the contracting process, such as the presence of dense or difficult to understand terms in the parties' agreement. In these cases, the law's assumption about self-interested bargaining lost much of its force. Unequal bargaining power could be established in such scenarios even if the legal requirements of contract formation had otherwise been met. Regardless of the type of impairment involved, what matters was the presence of a bargaining context where the law's normal assumptions about free bargaining either no longer held substantially true or were incapable of being fairly applied.

Douez v. Facebook Inc., [2017] 1 S.C.R. 751; McCamus, at pp. 426-27 and 429; Crawford, at p. 143; Chen-Wishart (1989), at p. 31; Morrison, at p. 713; Gustafson, at para. 45; Hess v. Thomas Estate, 2019 SKCA 26, 433 D.L.R (4th) 60, at para. 77; Blomley v. Ryan (1956), 99 C.L.R. 362 (H.C.A.), at p. 392; Commercial Bank of Australia, at pp. 462-63, and 477-78; Bartle v. GE Custodians, [2010] NZCA 174, [2010] 3 N.Z.L.R. 601, at para. 166; Stephen A. Smith, Contract Theory (2004), at pp. 343-44; John R. Peden; The Law of Unjust Contracts: Including the Contracts Review Act 1980 (NSW) With Detailed Annotations Procedure and Pleadings (1982), at p. 36; Andrew Burrows, A Restatement of the English Law of Contract (2016), at p. 210; Downer, at para. 54; McInnes, at p. 525; Janet Boustany v. George Pigott Co (Antigua and Barbuda), [1993] UKPC 17, at p.6 (BAILII), quoting Alec Lobb (Garages) Ltd. v. Total Oil (Great Britain) Ltd., [1985] 1 W.L.R. 173, at p. 183 and Lloyds Bank Ltd. v. Bundy, [1975] 1 Q.B. 326 (C.A.), at pp. 336-37 ref.

Second element of unconscionability was an "improvident bargain". A bargain was improvident if it unduly advantaged the stronger party or unduly disadvantaged the more vulnerable. Improvidence was measured at the time the contract was formed and must be assessed contextually. The question was whether the potential for undue advantage or disadvantage created by the inequality of bargaining power had been realized. An undue advantage may only be evident when the terms were read in light of the surrounding circumstances at the time of contract formation, such as market price, the commercial setting or the positions of the parties. For a person who was in desperate circumstances, for example, almost any agreement would be an improvement over the status quo. In these circumstances, the emphasis in assessing improvidence should be on whether the stronger party had been unduly enriched. This could occur where the price of goods or services departed significantly from the usual market price. Where the weaker party did not understand or appreciate the meaning and significance of important contractual terms, the focus was on whether they had been unduly disadvantaged by the terms they did not understand or appreciate. These terms were unfair when, given the context, they flouted the "reasonable expectation" of the weaker party or caused an "unfair surprise". This was an objective standard, albeit one that had regard to the context. Because improvidence could take so many forms, such exercise could not be reduced to an exact science.

John-Paul F. Bogden, "On the 'Agreement Most Foul': A Reconsideration of the Doctrine of Unconscionability" (1997), 25 Man. L.J. 187, at p. 202 and American Law Institute and National Conference of Commissioners on Uniform State Laws, Proposed Amendments to Uniform Commercial Code Article 2 - Sales: With Prefatory Note and Proposed Comments (2002), at p. 40 ref.

Although one party knowingly taking advantage of another's vulnerability may provide strong evidence of inequality of bargaining power, it was not essential for a finding of unconscionability. Unconscionability did not require that the transaction was grossly unfair, that the imbalance of bargaining power was overwhelming, or that the stronger party intended to take advantage of a vulnerable party.

The doctrine of unconscionability had particular implications for standard form contracts. The potential for such contracts to create an inequality of bargaining power was clear, as was the potential to enhance the advantage of the stronger party at the expense of the more vulnerable one, particularly through choice of law, forum selection, and arbitration clauses that violated a party's reasonable expectations by depriving them of remedies. Applying the unconscionability doctrine to standard form contracts also encouraged those drafting such contracts to make them more accessible to the other party or to ensure that they were not so lop-sided as to be improvident, or both.

Margaret Jane Radin, "Access to Justice and Abuses of Contract" (2016), 33 Windsor Y.B. Access Just. 177, at p. 179; Stephen Waddams, "Review Essay: The Problem of Standard Form Contracts: A Retreat to Formalism" (2013), 53 Can. Bus. L.J. 475, at pp. 475-476; Thal, at pp. 27-28 and William J. Woodward, Jr., "Finding the Contract in Contracts for Law, Forum and Arbitration" (2006), 2 Hastings Bus. L.J. 1, at p. 46 ref.

Per Brown, J: (Concurring Judge giving independent view not dealt with by the majority view)

(c) Contract---

----Arbitration clause---Clause limiting access to a legally determined dispute resolution---Validity---Public policy, doctrine of---Scope---Grounds and factors to be considered by a court to determine whether a limitation on dispute resolution imposed by a clause or arbitration clause in an agreement caused undue hardship, and thus was invalid for public policy reasons.

The public policy doctrine was fundamental to (Canadian) contract law and provided grounds for setting aside specific types of contractual provisions including those that harmed the integrity of the justice system. This head of public policy applied when a provision penalized or prohibited one party from enforcing the terms of their agreement, which served to uphold the rule of law. At a minimum, the rule of law guaranteed citizens and residents a stable, predictable and ordered society in which to conduct their affairs. Such a guarantee was meaningless without access to an independent judiciary that could vindicate legal rights. While public policy did not require access to a court of law in all circumstances, any means of dispute resolution that served as a final resort for contracting parties must be just. Arbitration was an acceptable alternative to civil litigation because it could provide a resolution according to law, but where a clause expressly provided for arbitration while simultaneously having the effect of precluding it, the considerations which promoted curial respect for arbitration dissolved. This was where the public policy principle preventing an ouster of court jurisdiction operated.

Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 70; Jonsson v. Lymer, 2020 ABCA 167, at para. 10 (CanLII)); Sport Maska Inc. v. Zittrer, [1988] 1 S.C.R. 564, at p. 581 and Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, at para. 43 ref.

Applying public policy to determine whether an arbitration agreement prohibited access to justice was neither stating a new common law rule nor an expansion of the grounds for judicial intervention in arbitration proceedings. Common law courts had long recognized the right to resolve disputes according to law. The law had simply evolved to embrace arbitration as means of achieving that resolution. Contractual stipulations that prohibited such resolution altogether, whether by express prohibition or simply by effect, continued to be unenforceable as a matter of public policy.

In evaluating a clause that limited access to a legally determined dispute resolution, the court's task was to decide whether the limitation was reasonable as between the parties, or instead caused undue hardship. A court must show due respect for arbitration agreements, particularly in the commercial setting. It would be the rare arbitration agreement that imposed undue hardship and acted as an effective bar to adjudication. Public policy should not be used as a device to set aside arbitration agreements that were proportionate in the context of the parties' relationship and the possibility for timely resolution but that one party simply regretted in hindsight.

To decide whether a limitation on dispute resolution imposed undue hardship, the first factor to consider was the nature of disputes that were likely to arise under the parties' agreement. Where the cost to pursue a claim was disproportionate to the quantum of likely disputes arising from the agreement, this suggested the possibility of undue hardship. Courts should also consider the relative bargaining positions of the parties. However, an imbalance in bargaining power was not required to find that a provision barred access to dispute resolution. An outright prohibition on dispute resolution would undermine the rule of law, even in the context of an agreement between sophisticated parties. That said, the hardship occasioned by a limit on legally determined dispute resolution was less likely to be "undue" if it was the product of negotiations between parties of equal bargaining strength. What was reasonable between the parties must be considered in light of the parties' relationship. Finally, it may be relevant to consider whether the parties had attempted to tailor the limit on dispute resolution. Arbitration agreements may, for example, be tailored to exclude certain claims or to require the party with a stronger bargaining position to pay a higher portion of the upfront costs.

Per Côté, J. (Minority view):

(d) Contract---

----Unconscionability, doctrine of---Pre-requisites---Unconscionability doctrine applied where there was a significant inequality of bargaining power stemming from a weakness or vulnerability; a resulting improvident bargain; and where the stronger party knew of the weaker party's vulnerability---Key question in relation to the significant inequality of bargaining power was whether the weaker party had a degree of vulnerability that had the potential to materially affect their ability, through autonomous, rational decision making, to protect their own interests, thereby undermining the premise of freedom of contract---Personal characteristics or attributes of the weaker party were a fundamental consideration in such regard. [Minority view]

Downer v. Pitcher, 2017 NLCA 13, 409 D.L.R. (4th) 542, at paras. 37 and Input Capital Corp. v. Gustafson, 2019 SKCA 78, 438 D.L.R. (4th) 387, at para. 39 ref.

(e) Contract---

----Standard form contracts--- Inequality of bargaining power---Unconscionability, doctrine of---Scope---Argument that vulnerability in the contracting process may arise from provisions in standard form contracts which were dense or difficult to read or understand---Such argument set the threshold so low as to be both practically meaningless and open to abuse---Such sweeping restriction on arbitration clauses in standard form contracts would be best left to the legislature, especially since the vital and growing concept of "sharing economy", which depended on standard form contracts that were agreed to electronically, could be stifled if a reduced threshold for inequality of bargaining power was adopted. [Minority view]

(f) Contract---

----Severance, doctrine of---'Notional severance' and 'blue-pencil severance'---Scope and distinction---Doctrine of severance took two forms; 'notional severance' and 'blue-pencil severance'---Notional severance involved reading down a contractual provision so as to make it legal and enforceable---Blue-pencil severance consisted of removing the illegal part of a contractual provision---Whereas notional severance called for the application of a bright line test of illegality, blue-pencil severance could be effected where the court could strike out the portion of the contract it wanted to remove by drawing a line through it without affecting the meaning of the part that remained.

Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6, [2009] 1 S.C.R. 157, at paras. 2 and 29-30 ref.

APPEAL from a judgment of the Ontario Court of Appeal (Feldman, Pardu and Nordheimer JJ.A.), 2019 ONCA 1, 145 O.R. (3d) 81, 430 D.L.R. (4th) 410, 31 C.P.C. (8th) 1, 52 C.C.E.L. (4th) 10, 85 B.L.R. (5th) 1, 2019 CLLC 210-027, [2019] O.J. No. 1 (QL), 2019 CarswellOnt 1 (WL Can.), setting aside a decision of Perell J., 2018 ONSC 718, 421 D.L.R. (4th) 343, 17 C.P.C. (8th) 342, 79 B.L.R. (5th) 136, [2018] O.J. No. 502 (QL), 2018 CarswellOnt 1090 (WL Can.). Appeal dismissed, Côté J. dissenting.

Linda M. Plumpton, Lisa Talbot and Sarah Whitmore for the Appellants.

Michael Wright, Lior Samfiru and Danielle Stampley for the Respondent.

Christopher P. Thompson and Paul Sheridan, for the intervener the Attorney General of Ontario.

John Siwiec, for the intervener the Young Canadian Arbitration Practitioners.

Robert Deane and Craig Chiasson, for the intervener the Arbitration Place.

Alexandra Monkhouse and Andrew Monkhouse, for the intervener Don Valley Community Legal Services.

Anthony Daimsis, for the intervener the Canadian Federation of Independent Business.

Marina Pavlovic and Johann Kwan, for the intervener the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic.

Nabila F. Qureshi and Karin Baqi, for the interveners the Income Security Advocacy Centre and Parkdale Community Legal Services.

Steven Barrett and Joshua Mandryk, for the intervener the United Food and Commercial Workers Canada.

Kevin Simms and John Bartolomeo, for the intervener the Workers' Health and Safety Legal Clinic.

Robert Carson and Lauren Harper, for the intervener the Montreal Economic Institute.

Alyssa Tomkins and James Plotkin, for the intervener the Canadian American Bar Association.

Joseph C. McArthur and Rahat Godil, for the interveners the Chartered Institute of Arbitrators (Canada) Inc. and the Toronto Commercial Arbitration Society.

Matthew Milne-Smith and Chantelle Cseh, for the intervener the Canadian Chamber of Commerce.

Andres C. Garin and Alison FitzGerald, for the intervener the International Chamber of Commerce.

Mohsen Seddigh and David Sterns, for the intervener the Consumers Council of Canada.

Wes McMillan and Greg J. Allen, for the intervener the Community Legal Assistance Society.

Andrew D. Little and Ranjan K. Agarwal, for the intervener ADR Chambers Inc.

2020 S C M R 1972

[Supreme Court of New Zealand]\

Present: Winkelmann, C.J., William Young, Glazebrook, O'Regan and Ellen France, JJ

NEW ZEALAND LAW SOCIETY---Appellant

Versus

JOHN LLEWELLYN STANLEY---Respondent

Decided on 17th August, 2020.

Per Ellen France, J;William Young and O'Regan, JJ. agreeing; Winkelmann CJ and Glazebrook, JJ. dissenting.

(a) Legal practitioner---

----Law society---Admission as an advocate---"Certificate of character" as a pre-requisite for admission as an advocate---Previous convictions of applicant---"Fit and proper person" standard (in section 55 of Lawyers and Conveyancers Act, 2006)---Scope and purpose---Purpose of the "fit and proper standard" was to ensure that those admitted (to practice) could be entrusted to meet the duties and fundamental obligations imposed on lawyers---Such obligations included upholding the rule of law---Reflecting such purpose, the assessment of fitness and propriety focused on the need to protect the public and to maintain public confidence in the legal profession---Such exercise had a protective, not punitive, purpose, and it also involved consideration of whether the applicant was honest, trustworthy and a person of integrity---Where the applicant had prior convictions, the Court must consider whether the convictions remained relevant; this was a fact-specific inquiry and the Court must look at all the evidence to make a judgment as to the applicant's present ability to meet the duties and obligations of a lawyer---Applicant had the onus to show the standard was met---Although the standard was a high one, the Court should not lightly deprive qualified persons from the opportunity to practise law.

The respondent, completed the necessary academic and professional qualifications for admission as a Barrister and solicitor of the High Court as a mature student. The New Zealand Law Society (the Law Society), the appellant, refused to give him a certificate of character essentially because of concerns about his character. Those concerns related to his history of criminal offending, which included four convictions for driving with excess breath/blood alcohol, and his attitude towards that offending. Without a certificate of character from the Law Society, the respondent could not be admitted in the usual way. Instead, the matter proceeded to a contested hearing in the High Court. Subsequently, the High Court concluded that the respondent was not a fit and proper person to be admitted in terms of the Lawyers and Conveyancers Act, 2006 (the Act) and refused his application. The respondent appealed successfully to the Court of Appeal, which concluded that, subject to the respondent taking the statutory oath, he was entitled to an order admitting him as a Barrister and solicitor of the High Court. The Law Society unsuccessfully sought a stay of the Court of Appeal judgment. As a result, the respondent was admitted as a barrister and solicitor and had been issued with a practising certificate. The Law Society appealed to the Supreme Court.

[Per Ellen France, J (Majority view): The issue in the present appeal was as to what was the approach to be taken to section 55(1) of the Act. Said section provided that the Court could take into account a number of factors to determine if a person was fit and proper. The relevant factors included any prior convictions.

The fit and proper person standard had to be interpreted in light of the purposes of the Act. Those purposes broadly reflected two aspects. The first aspect was the need to protect the public, in particular by ensuring that those whose admission was approved could be entrusted with their clients' business and fulfil the fundamental obligations in section 4 of the Act. The second aspect was a reputational aspect reflecting the need to maintain the public confidence in the profession at the present time and in the future. This second aspect also encompassed relationships between practising lawyers and between lawyers and the court.

Re Lundon [1926] NZLR 656 (CA) at 658; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 298 and New South Wales Bar Association v Cummins [2001] NSWCA 284, (2001) 52 NSWLR 279 at [20] ref.

The fit and proper person evaluation was a forward-looking exercise. That is because the Court or the Law Society, as the decision maker, was required to make a judgment at the time of undertaking the evaluation as to the risks either to the public or of damage to the reputation of the profession if the applicant was admitted. Those risks have to be construed in light of the fundamental obligations on lawyers. Of particular relevance were the obligations to uphold the rule of law and to protect the interests of the client subject to duties as an officer of the Court or under any other enactment.

Lincoln v New Zealand Law Society [2019] NZCA 442 at [34(d)] ref.

The fit and proper person evaluation was a protective exercise focused on either the need for public protection or the maintenance of public confidence in the profession. The approach was not punitive. Punishment for past conduct had no place. Further, what comprised fitness to practise must be referable to the good character appropriate to the particular profession. For an applicant for admission to the legal profession, the appropriate aspects of the fit and proper person standard were whether the applicant was honest, trustworthy and a person of integrity.

Re Davis (1947) 75 CLR 409 at 426; Law Society of Upper Canada v Schuchert [2001] LSDD No 63 at [20]; Cohen v Legal Practitioners Admissions Board (No 2) [2012] QCA 106 at [12]; DeMaria v Law Society of Saskatchewan [2013] SKQB 178, (2013) 420 Sask R 230 at [46] and New Zealand Law Society v Mitchell [2010] NZCA 498, [2011] NZAR 81 at [24]-[25] ref.

Where the applicant had prior convictions, the Act indicated three aspects of previous convictions may be relevant. Those aspects were the nature of the offence, the time that had elapsed since the offending, and the applicant's age when the offence was committed.

Lawyers and Conveyancers Act, section 55(1)(c) ref.

The nature of the offence was an important consideration. Some convictions would inevitably be problematic by their very nature. Dishonesty offences were in that category because of the direct connection with legal practice. Offending involving a failure to comply with disclosure obligations was treated in a similar way. Very serious prior convictions, such as murder, posed their own issues.

GE Dal Pont Lawyers' Professional Responsibility (6th ed, Thomson Reuters, Sydney, 2017) at [2.60]; Hart v Auckland Standards Committee 1 of The New Zealand Law Society [2013] NZHC 83, [2013] 3 NZLR 103 at [186]; Re Owen [2005] 2 NZLR 536 (HC) at [34]; Thomas v Legal Practitioners Admission Board [2004] QCA 407, [2005] 1 Qd R 331 at 335 and Preyra v Law Society of Upper Canada [2003] LSDD No 25 at [69] ref.

The inquiry into the effect of prior convictions was an inquiry into whether the "frailties" or "defects of character" reflected by the previous convictions could now be regarded as "entirely spent" or "safely ignored". The decision maker was essentially trying to assess whether the convictions remained relevant to whether the applicant met the fit and proper person standard and, if so, to what extent the conduct remained relevant at the time of the current inquiry. The inquiry into relevance would commonly require consideration of the circumstances of the offending and of whether the applicant could be seen to have moved on in the sense of being either reformed or having undertaken steps towards rehabilitation. Alternatively, there may be other features of character which meant that the convictions should assume less relevance. That it was not always easy to draw the line emphasised the fact-specific nature of the inquiry.

Re Lundon [1926] NZLR 656 (CA) at 658; Brown v New Zealand Law Society [2018] NZHC 1263, [2018] NZAR 1192 at [39(e)]; Lincoln v New Zealand Law Society [2019] NZCA 442 at [34(f)]; Layne v Attorney General of Grenada [2019] UKPC 11, [2019] 3 LRC 459 at [58]; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 283; Re Owen [2005] 2 NZLR 536 (HC) at [35] and [37]; Pou v Waikato/Bay of Plenty District Law Society HC Rotorua CIV-2004-463-0511, 10 May 2005 at [43]; Venton v Solicitors Regulation Authority [2010] EWHC 1377 (Admin) at [17]; Re an application for admission as a legal practitioner by MCF [2015] QCA 154 at [10] and [18] and Law Society of British Columbia v De Jong 2017 LSBC 44, [2017] LSDD No 293 at [117]-[118] ref.

Due to the focus on the potential risk to the public and to the public confidence in the profession, the fit and proper person standard was necessarily a high one. But the Court should not lightly deprive someone who had otherwise met the qualifications of the opportunity of practising as a lawyer. Perfection was not required. Finally, the onus was on the applicant to show that he or she was a fit and proper person. Applications were unlikely to turn on fine questions of onus.

Jideofo v The Law Society [2007] EW Misc 3 (EWLS) at [16(i)]-[17]; Lincoln v New Zealand Law Society [2019] NZCA 442 at [34(a)]; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 298; Preyra v Law Society of Upper Canada [2003] LSDD No 25 at [71] and Re M [2005] 2 NZLR 544 (HC) at [16] ref.

In the present case the Court of Appeal was correct to conclude that the respondent was a fit and proper person, and thus met the standard for admission. When the evidence was viewed, the concerns arising from the respondent's convictions were not a controlling factor given his otherwise good character, including the fact that he had led a productive life and contributed to the community. Although the respondent's offending was of obvious concern, it was not of a character that had a direct connection with legal practice. There was also no suggestion of a lack of candour or dishonesty given the respondent's full disclosure and cooperation with the Law Society's requests for further information. Further, there was a gap of some seven years since the respondent's last offence and the offending was not at the serious end of the range of drink driving. It was also relevant that both of the Courts below accepted the sincerity of respondent's commitment to reform].

Hawke's Bay Lawyers Standards Committee v Beacham [2012] NZLCDT 29; Canterbury-Westland Standards Committee v Taffs [2013] NZLCDT 13; Waikato/BOP Lawyers' Standards Committee No 1 v Pou [2014] NZLCDT 86; Auckland Standards Committee No 5 v Rohde [2016] NZLCDT 9; Auckland Standards Committee No 1 v Chen [2017] NZLCDT 7 and Otago Standards Committee v Copland [2019] NZLCDT 29 ref.

[Per Glazebrook, J (Minority view): The High Court was correct to hold that the respondent was not a fit and proper person. Drink driving was very serious offending as it was inherently dangerous and could cause serious injury or death. Further, multiple drink driving convictions would often signal a drinking problem, a contempt for the law or both. Both would directly affect a person's ability to operate as a lawyer. There must be a risk that a drinking problem could adversely affect a lawyer's judgment and thus their ability to serve their clients competently. Contempt for the law raised serious questions as to a lawyer's ability to fulfil their fundamental obligation to uphold and promote the rule of law.

Since driving while impaired was inherently dangerous, multiple drink driving convictions should always be treated as very serious offending for the purpose of admission and professional disciplinary decisions, even where they were not at the serious end of the range of drink driving.

In the present case, the respondent had multiple drink driving convictions over a long period, including one following the completion of his law degree. Although the respondent did express regret for his offending but he continued, even before the High Court, to minimise the seriousness of his offending. He admitted he may have had an alcohol problem but asserted that he had largely stopped drinking. He did not, however, provide any evidence of an independent alcohol assessment or of having undertaken any treatment. Lack of an expert report was fatal to the respondent's case. Respondent's own assertions as to reform were an insufficient basis for the Court of Appeal's conclusion that his risk of reoffending was not high.

The High Court was right to consider that the effect of respondent's latest conviction (in 2014) could not be considered "spent" and thus that it could not safely be ignored. That conviction had to be seen in the context of respondent's long history of drink driving, the possibility of an untreated drinking problem and the minimisation of his offending.

It was also a relevant factor that the respondent committed the offending as amature man and that he could be seen as acting as though different rules applied to him.

The effect of respondent's past convictions remained relevant and the fact that he was of otherwise good character was therefore irrelevant.

Although the respondent was not a fit and proper person to be admitted as a barrister and solicitor at the time of the High Court hearing, this did not mean he could never be admitted. He would need to supply an expert report, complete any treatment recommended and provide independent and cogent evidence that he had given up drinking].

[Per Ellen France, J (Majority view):

(b) Legal practitioner---

----Law society---Admission as advocate---"Fit and proper person" standard or "good character" requirements for entry to the legal profession as applicable in England and Wales, Australia and Canada.

P N Collins for Appellant.

J C Gwilliam and H Joubert for Respondent.

2020 S C M R 1638

[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

UNITED STATES PATENT AND TRADEMARK OFFICE ET AL---Petitioner

Versus

BOOKING.COM B. V.---Respondent

Decided on 30th June, 2020.

(On writ of Certiorari to the United States Court of Appeals for the Fourth Circuit)

Per Ginsburg, J; John G. Roberts, CJ., Thomas, Alito, Sotomayor, Kagan, Gorsuch and Kavanaugh, JJ concurring; Breyer, J dissenting

(a) Trademark---

----Trademark protection---Generic terms---Internet domain name (Booking.com) containing a combination of generic terms---Prohibition on generic terms as trademarks---Scope---Distinctiveness requirement for registration of trademark---Question as to whether the addition by an online business of a generic domain (".com") to an otherwise generic term ("Booking") created a protectable trademark, notwithstanding the Lanham Act's (also known as the Trademark Act of 1946) prohibition on generic terms as trademarks.

Booking.com operated a website on which customers could make travel and lodging reservations and had used the name BOOKING.COM since at least 2006. In 2011 and 2012, Booking.com filed with the U.S. Patent and Trademark Office (USPTO) four trademark applications for the use of BOOKING.COM as a word mark and for stylized versions of the mark. Under the Lanham Act(also known as the Trademark Act of 1946), marks must be "distinctive" to be eligible for protection, and generic terms were not distinctive. The USPTO examiner rejected Booking.com's applications, finding that the marks were not protectable because BOOKING.COM was generic as applied to the services for which it sought registration (online hotel reservation services, among others). The Lanham Act also allowed protection for "descriptive" terms that had acquired secondary meaning, or a mental association in the minds of consumers between the proposed mark and the source of the product or service. In the alternative, the USPTO concluded that the marks were merely descriptive and that Booking.com had failed to establish that they had acquired secondary meaning as required for trademark protection. Booking.com appealed to the Trademark Trial and Appeal Board, which affirmed the rejection of Booking.com's applications. The Board found that BOOKING.COM was a generic term for these types of services and therefore ineligible for trademark protection. Because "booking" generically referred to "a reservation or arrangement to buy a travel ticket or stay in a hotel room" and ".com" indicates a commercial website, the Board reasoned that consumers would understand the resulting term "BOOKING.COM" to refer to an online reservation service for travel-the very services proposed in Booking.com's applications. The district court reversed, ruling Booking.com had acquired secondary meaning. A panel of the U.S. Court of Appeals (for the Fourth Circuit) affirmed the district court's reversal finding no error in the District Court's assessment of how consumers perceived the term "Booking.com." The Appellate court also rejected the USPTO's contention that, as a rule, combining a generic term like "booking" with ".com" yielded a generic composite. Question to be answered in the present case was whether the addition by an online business of a generic domain (".com") to an otherwise generic term ("Booking") created a protectable trademark, notwithstanding the Lanham Act's prohibition on generic terms as trademarks.

Per Ginsburg, J (Majority opinion): A term styled "generic(dot)com" was a generic name for a class of goods or services-and thus ineligible for federal trademark protection-only if the term had that meaning to consumers. Since the lower court determined that consumers did not perceive the term "BOOKING.COM" to signify online hotel-reservation services as a class, it was not a generic term and thus was eligible for federal trademark protection.

A generic name was ineligible for federal trademark registration. The parties in the present case did not dispute that the word "booking" was generic for hotel-reservation services. The USPTO, however, argued that the per se rule was that combination of a generic word and ".com" was also generic. Such rule proffered by the USPTO was not supported by the itsown past practice or by trademark law or policy.

Restatement (Third) of Unfair Competition §15, p. 142 (1993) and Otokoyama Co. v. Wine of Japan Import, Inc., 175 F. 3d 266, 270 (CA2 1999) ref.

The USPTO maintained that the judgment Goodyear's India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598, established that adding a generic corporate designation like "Company" to a generic term did not confer trademark eligibility, and that adding ".com" to a generic term- like adding "Company"-could convey no source-identifying meaning. Such premise was faulty as adding ".com" to a company name was different from adding "Company" in that only one company could occupy a particular internet domain name at a time, so even a "generic(dot)com" term could convey to consumers an association with a particular website. Moreover, a strict legal rule that entirely disregarded consumer perception was incompatible with a bedrock principle of the Lanham Act.

The generic (or non-generic) character of a particular term depended on its meaning to consumers, i.e., did consumers in fact perceive the term as the name of a class or, instead, as a term capable of distinguishing among members of the class.

The USPTO also argued that Booking.com had seized a domain name that no other website could use and was easy for consumers to find; and that consumers might enter the word 'booking' in a search engine or proceed directly to 'booking.com' in the expectation that online hotel-booking services would be offered at that ad­dress. Such competitive ad­vantages, however, did not inevitably disqualify a mark from federal registration. All descriptive marks were intuitively linked to the product or service and thus might be easy for consumers to find using a search engine or telephone direc­tory. The Lanham Act permitted registration nonetheless.

Per Sotomayor, J (concurring): The question before the Court in the present case was whether there was a nearly per se rule against trademark protection for a "generic.com" term. There was no such rule, and such finding accorded with how the USPTO had treated such terms in the past.

Sources such as dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceived a term's meaning may also inform whether a mark was generic or descriptive.

Consumer-survey evidence may be an unreliable indicator of genericness of a term and in the present case the USPTO might well have been correct in its assessment, but that question was not before the Court in the present case. Instead, the Supreme Court considered only the validity of the per se rule adopted by USPTO against trademark protection for a "generic.com" term.

Per Breyer, J. dissenting (Minority view): A generic term was not eligible for use as a trademark. Said principle applied even if a particular generic term had become identified with a first user in the minds of the consuming public.

CES Pub­lishing Corp. v. St. Regis Publications, Inc., 531 F. 2d 11, 13 (CA2 1975) ref.

Trademark law did not protect generic terms, meaning terms that did no more than name the product or service itself. This principle preserved the linguistic commons by preventing one producer from appropriating to its own exclusive use a term needed by others to describe their goods or services.Trademark law protected those distinctive marks - words, names, symbols, and the like that distinguished a particular artisan's goods from those of others.

Matal v. Tam, 582 U. S. ___, ___ (2017) (slip op., at 2) (quoting B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. 138, 142 (2015)) ref.

A descriptive term could be registered as a trademark only if it acquired secondary meaning i.e., the public had come to associate it with a particular firm or its product.

Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 769 (1992) ref.

It was not always easy to distinguish generic from descriptive terms. It was particularly difficult to do so when a firm wished to string together two or more generic terms to create a compound term. Despite the generic nature of its component parts, the term as a whole was not necessarily generic. In such cases, courts must determine whether the combination of generic terms conveyed some distinctive, source-identifying meaning that each term, individually, lacked. If the meaning of the whole was no greater than the sum of its parts, then the compound was itself generic. The principle from the judgment in Goodyear's India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598, recognized that designations such as "Company," "Corp.," and "Inc." merely indicated corporate form and therefore did nothing to distinguish one firm's goods or services from all others. The addition of such a corporate designation did not magically transform a generic name for a product or service into a trademark, thereby giving a right to exclude others. In other words, where a compound term consisted simply of a generic term plus a corporate designation, the whole was necessarily no greater than the sum of its parts.

2 J. McCarthy, Trademarks and Unfair Competition §12:39 (5th ed. June 2020 update) and Princeton Vanguard, LLC v. Frito-Lay North Am., Inc., 786 F. 3d 960, 966-967 (CA Fed. 2015); In re Gould Paper Corp., 834 F. 2d 1017, 1018 (CA Fed. 1987) ref.

In the present case the respondent sought to register a term, "Booking.com," that consisted of a generic term, "booking" (known as the second-level domain) plus ".com" (known as the top-level domain). The question at issue here was whether a term that took the form "generic.com" was generic in the ordinary course. When a website used an inherently distinctive second-level domain, it was obvious that adding ".com" merely denoted a website associated with that term. Appending ".com" to a generic term ordinarily yielded no meaning beyond that of its constituent parts. Because the term "Booking.com" was just such an ordinary "generic.com" term, it was not eligible for trademark registration. A top-level domain such as ".com" had no capacity to identify and distinguish the source of goods or services. Combination of "booking" and ".com" did not serve to identify a particular characteristic or quality of some thing; it connoted the basic nature of that thing - the hallmark of a generic term.

Blinded Veterans Assn. v. Blinded Am. Veterans Foundation, 872 F. 2d 1035, 1042-1048 (CADC 1989) ref.

The meaning conveyed by "Booking.com" was no more and no less than a website associated with its generic second-level domain, "booking." This would ordinarily be true of any generic term plus ".com" combination. The term as a whole was just as generic as its constituent parts.

As to the question of what stood in the way of automatic trademark eligibility for every "generic.com" domain, much of the time, that determination would turn primarily on survey evidence, just as it did in the present case. However, survey evidence had limited probative value in this context. Consumer surveys often tested whether consumers associated a term with a single source. But it was possible for a generic term to achieve such an association-either because that producer had enjoyed a period of exclusivity in the marketplace, or because it had invested money and effort in securing the public's identification. Evidence of such an association, no matter how strong, did not negate the generic nature of the term. For that reason, survey evidence was generally of little value in separating generic from descriptive terms. The approach adopted by the majority opinion in the present case was that a "generic.com" mark's eligibility for trademark protection turned primarily on survey data, however such data may be an unreliable indicator of genericness.

Schwan's IP, LLC v. Kraft Pizza Co., 460 F. 3d 971, 975-976 (CA8 2006); Hunt Masters, Inc. v. Landry's Seafood Restaurant, Inc., 240 F. 3d 251, 254-255 (CA4 2001); A. J. Canfield Co. v. Honickman, 808 F. 2d 291, 301-303 (CA3 1986); Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 F. 2d 990, 995 (CA7 1979) and In re Hikari Sales USA, Inc., 2019 WL 1453259, \13 (TTAB 2019) ref.

Granting trademark protection to "generic.com" marks also threatened serious anticompetitive consequences in the online marketplace. The owners of short, generic domain names enjoyed all the advantages of doing business under a generic name. These advantages existed irrespective of the trademark laws. Firstly, generic names were easy to remember. Because they immediately conveyed the nature of the business, the owner needed to expend less effort and expense educating consumers. Secondly, a generic business name may create the impression that it was the most authoritative and trustworthy source of the particular good or service. Thirdly, generic domains were also easier for consumers to find on the internet. Such advantages made it harder for distinctively named businesses to compete.

Under the reasoning given in the majority opinion of present case, many businesses could obtain a trademark by adding ".com" to the generic name of their product (e.g., pizza.com, flowers.com, and so forth). As the internet grows larger, as more and more firms use it to sell their products, the risk of anticompetitive consequences grew. Those consequences could nudge the economy in an anticompetitive direction. At the extreme, that direction pointed towards one firm per product, the opposite of the competitive multi firm marketplace that the basic economic laws sought to achieve.

A term that took the form "generic.com" was not eligible for federal trademark registration, at least not ordinarily. There being no special circumstance in the present case, "Booking.com" was a generic term not eligible for federal registration as a trademark.

Per Ginsburg, J (Majority view):

(b) Trademark---

----Trademark protection--- Scope and concept--- Trademark distinguished one producer's goods or services from another's---Guarding a trademark against use by others, secured to the owner of the mark the goodwill of his/her business and protected the ability of consumers to distinguish among competing producers---Trademark statutes aimed to protect the public so it may be confident that, in purchasing a product bearing a particular trademark which it favorably knew, it would get the product which it asked for and wanted to get--- Trademark protection had roots in common law and equity.

Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 198 (1985); see S. Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946) and Matal v. Tam, 582 U. S. ___, ___ (2017) (slip op., at 2) ref.

(c) Trademark---

----Trademark protection---Generic terms---Compound terms---Guiding principles stated.

Following are guiding principles concerning trademark protection for generic and compound terms:

(i) A 'generic' term named a "class" of goods or services, rather than any particular feature or exemplification of the class;

(ii) For a compound term, the distinctiveness inquiry trained on the term's meaning as a whole, not its parts in isolation;

(iii) The relevant meaning of a term was its meaning to consumers;

(iv) Eligibility for registration turned on the mark's capacity to distinguish goods in commerce;

(v) The primary significance of the registered mark to the relevant public shall be the test for determining whether the registered mark had become the generic name of goods or services;

(vi) A compound of generic el­ements was generic if the combination yielded no additional meaning to consumers capable of distinguishing the goods or services;

(vii) A competitor's use did not infringe a mark unless it was likely to confuse consumers;

(viii) When a mark incorporated generic or highly descriptive components, consumers were less likely to think that other uses of the common element emanated from the mark's owner; and

(ix) Even where some consumer confusion existed, the doctrine known as classic fair use, protected from liability anyone who used a descriptive term, fairly and in good faith and otherwise than as a mark, merely to describe his/her own goods. [pp. 1648, 1649, 1651, 1653] H, I, J, K, L, T, V, W & X

Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 198 (1985); see S. Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946); Estate of P. D. Beckwith, Inc. v. Commissioner of Patents, 252 U. S. 538, 545-546 (1920); Bayer Co. v. United Drug Co., 272 F. 505, 509 (SDNY 1921) and KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U. S. 111, 122-123 (2004) ref.

2020 S C M R 692

[Supreme Court of UK]\

Present: Lord Reed, President, Lord Carnwath, Lord Lloyd-Jones, Lord Sales and Lord Hamblen

R---Appellant

Versus

COPELAND---Respondent

Decided on 11th March, 2020.

(On appeal from [2019] EWCA Crim 36)

Per Lord Sales; Lord Reed (President) and Lord Carnwath, JJSC agreeing; Lord Lloyd-Jones and Lord Hamblen, JJSC dissenting.

Criminal trial---

----Possession of explosive substance---Defence---Possession for 'lawful object'---Scope---Possession of explosive substance for purpose of "experimentation and self-education"--- Whether such purpose qualified as 'lawful object'---[Per Lord Sales (Majority view): Under S. 4(1) of the Explosive Substances Act, 1883 (UK), it was for a defendant to prove on the balance of probabilities that he had possession or control of an explosive substance for a lawful object---In English law, a purpose was lawful unless it was made unlawful by statute or the common law---Lawful object may, however, be tainted by an ulterior, unlawful purpose, including by knowledge or recklessness of a risk of injury or damage; but these would be matters to be explored on the evidence at trial---Experimentation and self-education were objects within the ordinary meaning of that term and were capable of being lawful objects for the purposes of S. 4(1) of the Act]---[Per Lord Lloyd-Jones and Lord Hamblen, dissenting (Minority view): Personal experimentation and private education could not in law amount to lawful objects within the meaning of S. 4(1) of the Act---To make out the defence, a defendant was required to show the use to which the explosive substance was to be put, and to do so with sufficient particularity to demonstrate that that use was lawful.]

Defendant was charged with possessing explosive substances, contrary to section 4(1) of the Explosive Substances Act, 1883 (UK). Defence raised by defendant was that he had the explosive substances for the purpose of self-education and experimentation, which was a "lawful object" within section 4(1) of the Act; that in the past he had made other explosives and used them to create small explosions in the garden of his house without causing harm, and he intended to do the same this time. Trial judge held that the defendant's defence was bad in law. Court of Appeal dismissed the defendant's appeal.

[Per Lord Sales (Majority view)]:

Structure of section 4(1) of the Act was clear. If, under limb one of the section 4(1), the prosecution proved circumstances as to give rise to reasonable suspicion that the making or possession/control of an explosive substance which was in issue was not for a lawful object, that gave rise to a specific onus on the accused under limb two to identify the specific object or purpose for which he made the substance or had it in his possession/control. The burden of proof at the limb two stage was on the accused, and the standard of proof was the balance of probabilities.

It would also be open to the prosecution to show that pursuit of the object specified by a defendant, although the object might be lawful in a general sense, would involve such obvious risk to other people or their property from use of the explosive substance that the inference should be drawn that the object of the accused was mixed, and not wholly lawful. If the accused knew that his proposed use of the explosive substance in his possession would injure others or cause damage to their property or was reckless regarding the risk of this, the ostensibly lawful object identified by him would be tainted by the unlawfulness inherent in his pursuit of that object. Typically, these would be matters to be explored at trial.

In law, personal experimentation and self-education were lawful objects for the purposes of section 4(1) of the Explosive Substances Act, 1883 (UK) ('the Act'). As there was nothing unlawful about experimentation and self-education as objects in themselves, they were capable of being lawful objects. This view was re-enforced by the legislative background to the Act and was in accordance with the general legal principle that it was lawful for a person to do anything that was not prohibited by law. Neither statute nor the common law made such conduct unlawful.

R v Fegan (1971) 78 Cr App R 189 https://www.iclr.co.uk/document/2020003193/casereport_a437e861-1b8c-45b9-b658-4960e9af2d1b/html?query=&filter=&fullSearchFields=pubref%3A%22%5B2020%5D+UKSC+8%22&page=1&sort=relevance&pageSize=10&caseName=&court=&catchwords=&judge=&text=&fromDate=&toDate=&courts=&publicationReference=%5b2020%5d%20UKSC%208, CA(NI) and Attorney General's Reference (No 2 of 1983) [1984] QB 456 https://www.iclr.co.uk/document/1981000272/casereport_78540/html, CA ref.

There was no requirement in law that a defence statement in relation to a charge under section 4(1) of the Act had to give a more detailed account of the proposed use of the explosive substance in order to be able to prove lawful object. In the present case, for his defence under section 4(1), the defendant only had to establish that he proposed using the explosives in his possession for the lawful objects of experimentation and self-education. The term 'lawful object' in section 4(1) did not require specification of the precise way in which the substance in question would be used by the defendant. The defendant's proposed defence was that he intended to use the explosives in small amounts to produce insignificant detonations of the order to be expected from a simple domestic firework, ie at a level which was lawful. It was possible that he could have achieved this, or that he genuinely believed that he could, as he had done using other explosive substances on previous occasions. Therefore his defence of lawful object under section 4(1) should have been allowed to be presented at trial, where it could be tested in the light of all the evidence. Appeal was allowed. [Majority view]

R v Riding [2010] 1 Cr App R (S) 7 https://www.iclr.co.uk/document/2020003193/casereport_a437e861-1b8c-45b9-b658-4960e9af2d1b/html?query=&filter=&fullSearchFields=pubref%3A%22%5B2020%5D+UKSC+8%22&page=1&sort=relevance&pageSize=10&caseName=&court=&catchwords=&judge=&text=&fromDate=&toDate=&courts=&publicationReference=%5b2020%5d%20UKSC%208, CA distinguished.

[Per Lord Lloyd-Jones and Lord Hamblen, dissenting (Minority view)]

Personal experimentation and private education could not in law amount to lawful objects within the meaning of section 4(1) of the Act. The word "object" referred to the reason for doing something, or the result you wished to achieve by doing it. As such to make out the defence, a defendant was required to show the use to which the explosive substance was to be put, and to do so with sufficient particularity to demonstrate that that use was lawful. To say that something was done for one's own private education was not a sufficient object for the purposes of the section 4(1) defence, as it did not identify the use to which the explosives would be put in order to provide such education. Similarly, personal experimentation was not a sufficient object for this purpose as, although it identified in very general terms what was to be done with the explosives, it did not identify any purpose for so doing.

R v Riding [2010] 1 Cr App R (S) 7 https://www.iclr.co.uk/document/2020003193/casereport_a437e861-1b8c-45b9-b658-4960e9af2d1b/html?query=&filter=&fullSearchFields=pubref%3A%22%5B2020%5D+UKSC+8%22&page=1&sort=relevance&pageSize=10&caseName=&court=&catchwords=&judge=&text=&fromDate=&toDate=&courts=&publicationReference=%5b2020%5d%20UKSC%208, CA ref.

The defence under section 4(1) was only made out if it was shown that the way in which the explosives were intended to be used was lawful. It was not enough to show that it may be lawful. A defence statement in response to a charge under section 4(1) of the Act should elaborate upon this and provide some details of the intended use. In the present case, the defendant envisaged that experimentation would take the form of detonations of the explosives in his back garden, carrying an obvious risk of causing injury, damage to property, and a public nuisance. It was necessary to particularise how this would be carried out so as to avoid any such risk or would otherwise be lawful. Vague and general statements referring to personal experimentation or private education were insufficient and did not show how that was to be carried out lawfully. Trial judge was correct in his conclusion that the explanation set out in the defence statement of defendant was not capable of amounting to a lawful object within section 4(1) of the Act.] [Minority view]

R v Fegan (1971) 78 Cr App R 189 https://www.iclr.co.uk/document/2020003193/casereport_a437e861-1b8c-45b9-b658-4960e9af2d1b/html?query=&filter=&fullSearchFields=pubref%3A%22%5B2020%5D+UKSC+8%22&page=1&sort=relevance&pageSize=10&caseName=&court=&catchwords=&judge=&text=&fromDate=&toDate=&courts=&publicationReference=%5b2020%5d%20UKSC%208, CA(NI) and Attorney General's Reference (No 2 of 1983) [1984] QB 456 https://www.iclr.co.uk/document/1981000272/casereport_78540/html, CA distinguished.

Paul Bogan QC, Sarah-Kate McIntyre (Instructed by Hodge Jones and Allen LLP (London)) for Appellant.

Louis Mably QC, Tom Walking (Instructed by CPS Counter Terrorism Division (Westminister)) for Respondent.

2020 S C M R 718

[Supreme Court of UK]\

Present: Lady Hale, Lord Reed, Lord Kerr, Lord Hedge and Lord Lloyd-Jones

BARCLAYS BANK PLC---Appellant

Versus

VARIOUS CLAIMANTS---Respondents

Decided on 1st April, 2020.

(On appeal from [2018] EWCA Civ 1670)

Tort---

----Negligence--- Vicarious liability--- Independent contractor---Relationship akin to employment---Person could be held vicariously liable for the wrongful acts of someone who was not their employee if the relationship between them was sufficiently akin to employment to make it fair, just and reasonable to impose such liability---However, such liability would not arise if the person who committed the wrongdoing had been carrying on business on his own account.

Defendant-Bank required job applicants to pass a pre-employment medical examination as part of its recruitment and employment procedures. For such purposes the defendant arranged the appointments of prospective employees with a self-employed medical practitioner. Said medical practitioner was paid a fee for each report, and the defendant did not pay him a retainer. It was alleged that the medical practitioner sexually assaulted 126 claimants during their medical examinations. After the medical practitioner died, the claimants sought damages from the defendant. Trial judge held that the defendant was vicariously liable for any assaults that the medical practitioner was proved to have perpetrated. Court of Appeal agreed and dismissed the defendant's appeal.

Held, that before one person could be made vicariously liable for the torts of another, two elements must be shown. First, there must be a relationship between the two persons which makes it proper for the law to make one pay for the fault of the other. Second, there must be a sufficient connection between that relationship and the wrongdoing of the person who committed the tort. Present case concerns the first element.

A person could be held vicariously liable for the acts of someone who was not their employee, provided the relationship between them was sufficiently akin or analogous to employment. Question was whether the person who committed the tort was carrying on business on his own account, or whether he was in a relationship akin to employment with the defendant. In doubtful cases, the five factors or 'incidents' identified by Lord Phillips in the case reported as Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 https://www.iclr.co.uk/document/2011203059/casereport_62592/html, SC(E), may help to identify a relationship which was sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. But the key would usually lie in understanding the details of the relationship. Where it was clear that the person who committed the tort was carrying on his own independent business, it was not necessary to consider the said five incidents.

Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 https://www.iclr.co.uk/document/2011203059/casereport_62592/html, SC(E); Cox v Ministry of Justice [2016] AC 660 https://www.iclr.co.uk/document/2011207581/casereport_33490/html, SC(E); Armes v Nottinghamshire County Council [2018] AC 355 https://www.iclr.co.uk/document/2011211280/casereport_c50f2ee9-547a-426a-80a3-a3eeb9676bd7/html, SC(E); Kafagi v JBW Group Ltd [2018] EWCA Civ 1157 and Ng Huat Seng v Mohammad [2017] SGCA 58 ref.

In the present case, the medical practitioner was not at any time an employee or anything close to an employee of the defendant. Rather, he was in business on his own account as a medical practitioner, with a portfolio of patients and clients; he was not paid a retainer, which might have obliged him to accept a certain number of referrals from the defendant; he was paid a fee for each report and was free to refuse to conduct an offered examination, and he carried his own medical liability insurance. Accordingly, the defendant was not vicariously liable for any assaults that the medical practitioner was proved to have perpetrated in the course of the medical examinations he carried out for the defendant. Appeal was allowed.

Lord Faulks QC Nicholas Fewtrell and Katie Ayres (Instructed by Keoghs LLP (Liverpool)) for Appellant.

Elizabeth-Anne Gumbel QC and Robert Kellar QC (Instructed by Slater and Gordon (UK) LLP (Manchester)) for Respondents.

2020 S C M R 737

[Supreme Court of UK]\

Present: Lady Hale, Lord Reed, Lord Kerr, Lord Hodge and Lord Lloyd-Jones

MW MORRISON SUPERMARKETS PLC---Appellant

Versus

VARIOUS CLAIMANTS---Respondents

Decided on 1st April, 2020.

(On appeal from [2018] EWCA 2339)

Tort---

----Vicarious liability--- Employer-employee--- Wrongful acts of employee--- Vicarious liability of employer--- Scope--- Whether (wrongful) act of employee in course of employment---Test which generally applied in deciding whether an employer was vicariously liable for the wrongful conduct of one of its employees was that the wrongful conduct was so closely connected with acts that the employee was authorised to do, that, for the purposes of liability of the employer to third parties, it could fairly and properly be regarded as having been done by the employee while acting in the course of his employment---In cases where employees intentionally inflicted harm for their personal reasons, using opportunities available to them due to their employment, the general rule was that the employer was not vicariously liable, because the employee did not commit the wrong whilst engaged in his employer's business, but while engaged in an independent personal venture.

Defendant-employer, which operated a chain of supermarkets, had hired employee 'S' as an internal auditor. 'S' was tasked with transmitting payroll data for the entire workforce to the defendant's external auditors, as he had done in the past. 'S' did so, but also made and kept a personal copy of the data, which he subsequently uploaded on a publicly accessible website, intending thereby to cause harm to the defendant. 'S' later also sent the data anonymously to different newspapers, purporting to be a concerned member of the public who had found it online. The newspapers did not publish the information and alerted the defendant, which took immediate steps to have the data removed from the internet and to protect its employees. The claimants, who were employees of the defendant whose personal data had been disclosed, brought claims against the defendant for breach of statutory duty under the Data Protection Act, 1998, misuse of private information, and breach of confidence on the basis that the defendant was vicariously liable for the wrongdoing of 'S'. Trial judge allowed the claims, finding that what 'S' had done in disclosing the data was so closely related to what he had been employed to do that he had committed the acts in the course of his employment. Court of Appeal upheld the trial judge's decision holding that the wrongful disclosure of the data had been within the field of activities assigned to 'S' and the fact that his motive had been to harm the defendant was irrelevant.

Held, that the "close connection" test which was generally applied in deciding whether an employer was vicariously liable for the wrongful conduct of one of its employees was that the wrongful conduct was so closely connected with acts that the employee was authorised to do, that, for the purposes of liability of the employer to third parties, it could fairly and properly be regarded as having been done by the employee while acting in the course of his employment. In the simplest terms the court had to consider two matters; the first question was what functions or field of activities the employer had entrusted to the employee. Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice. Whether the employee was acting on his employer's business or for personal reasons was important, but the reason why he had committed the tort could not make a material difference to the outcome. [pp. 747, 749] A, B & C

Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 https://www.iclr.co.uk/document/1991001211/casereport_7386/html, HL(E); Mohamud v Wm Morrison Supermarkets plc [2016] AC 677, SC(E) and Lister v Hesley Hall Ltd [2002] 1 AC 215 https://www.iclr.co.uk/document/2001001530/casereport_12300/html, HL(E) ref.

Fact that an employee's employment gave him the opportunity to commit the wrongful act was not sufficient to warrant the imposition of vicarious liability. An employer was not normally vicariously liable where the employee was not engaged in furthering his employer's business, but rather was pursuing a personal vendetta.

Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 737 and Lister v Hesley Hall Ltd [2002] 1 AC 215 https://www.iclr.co.uk/document/2001001530/casereport_12300/html, paras 25, 45, 50, 59, 65, 75, and 81-82 ref.

In the present case the online disclosure of the data was not part of field of activities assigned to 'S' as it was not an act which he was authorised to do. Although there was a close temporal link and an unbroken chain of causation linking the provision of the data to 'S' for the purpose of transmitting it to external auditors and his disclosing it on the Internet, a temporal or causal connection did not in itself satisfy the close connection test. The reason why 'S' acted wrongfully was not irrelevant: on the contrary, whether he was acting on his employer's business or for purely personal reasons was highly material. No vicarious liability arose in the present case. 'S' was authorised to transmit the payroll data to the external auditors. His wrongful disclosure of the data was not so closely connected with that task that it could fairly and properly be regarded as made by 'S' while acting in the ordinary course of his employment. Defendant-employer could not therefore be held liable for the conduct of 'S'. Appeal was allowed accordingly.

Lord Pannick QC, Anya Proops QC, Rupert Paines and Gayatri Sarathy (instructed by DWF Law LLP (Manchester)) for Appellant.

Jonathan Barnes and Victoria Jolliffe (instructed by JMW Solicitors LLP (Manchester)) for Respondents.

2020 S C M R 1073

[Supreme Court of UK]\

Present: Lord Reed, President, Lord Wilson, Lord Briggs, Lady Arden and Lord Kitchin

MALKIEWICZ and others---Appellants

Versus

SERAFIN---Respondent

Decided on 3rd June, 2020.

(On appeal from: [2019] EWCA Civ 852)

(a) Fair trial---

----Conduct of judge---Unfair judicial treatment---Judge's conduct of intervening during recording of oral evidence and using ill-tempered and offensive language towards a litigant could render the trial unfair and would merit a complete retrial---Principles.

The judicial authorities on an inquiry into the unfairness of a trial establish the following principles:

(i) A judge's interventions should be as infrequent as possible during cross-examination of witnesses, because the very gist of cross-examination laid in the unbroken sequence of question and answer and because the cross-examiner was at a grave disadvantage if he was prevented from following a preconceived line of inquiry;

M & P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) and Jones v National Coal Board [1957] 2 QB 55 ref.

(ii) The core principle, that under the adversarial system the judge remained aloof from the fray and neutral during the elicitation of the evidence, applied no less to civil litigation than to criminal trials;

London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 281 and Michel v The Queen [2009] UKPC 41, [2010] 1 WLR 879 ref.

(iii) The quality of a written judgment could not render a trial fair in circumstances where the judge's interventions at the hearing prejudiced the exploration of evidence;

In re G (Child) [2015] EWCA Civ 834 ref.

(iv) Where a transcript of proceedings existed, it was not the present practice of appellate courts to invite the judge to comment on the allegations; but the absence of his ability to comment placed upon the judge a requirement to analyse the evidence punctiliously and with great care;

(v) Unrepresented litigants were unlikely to be equipped to withstand judicial pressure and so the judge must temper his conduct accordingly.

In the present case, the transcript of proceedings of the trial showed that the judge directed a barrage of hostility towards the claimant's case and towards the claimant himself acting in person. In doing so the judge used immoderate, ill-tempered and at times offensive language. The judge did not allow the claim to be properly presented, therefore he could not fairly appraise it, and as a consequence the trial was unfair. Instead of making allowance for the claimant being unrepresented, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented.

The logical consequence of a conclusion that a trial was unfair was an order for a complete retrial. Since the justice system had failed both sides in the present case, the Supreme Court ordered a full retrial.

(b) Defamation---

----Libel--- Defence--- 'Responsible journalism'--- 'Public interest' defence under common law (as developed in the judgment Reynolds v Times Newspapers Ltd [2001] 2 AC 127) and that under S. 4 of the Defamation Act, 2013 (UK)---Scope and distinction.

The decision in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 established the existence at common law of a specific defence to a claim for defamation brought in relation to publication of a statement on a matter of public interest. Where the defamatory material concerned such a matter, the defendant had to show that it had met the standard of "responsible journalism", measured by reference to a list of ten factors identified in the said judgment.

Reynolds v Times Newspapers Ltd [2001] 2 AC 127 ref.

Section 4 of the Defamation Act, 2013 (UK) replaced the "Reynolds defence" with a new defence which, on any view, drew on the principles in Reynolds and later cases. The section 4 defence was available where the defendant "reasonably believed that publishing the statement complained of was in the public interest" [section 4(1)(b)]. In assessing reasonableness, the Court must (among other things) have regard to all the circumstances of the case [section 4(2)]. Reference to the (ten) "Reynolds factors" was deliberately omitted by the legislature from section 4 and the said factors were not to be used as a checklist for purposes of section 4. "Reynolds defence" (under common law) and the section 4 defence were materially different: for the elements of the two could not be equated. It was wrong to consider that the elements of the statutory defence under section 4 could be compared with those of the "Reynolds defence" under common law.

Economou v De Freitas [2018] EWCA Civ 2591 ref.

David Price QC, Anthony Metzer QC and Dr Anton van Dellen (Instructed by David Price QC, Solicitor Advocate) for Appellants.

Adrienne Page QC and Alexandra Marzec (Instructed by Simon Burn Solicitors (Cheltenham)) for Respondent.

(Media Lawyers Association) (written submissions only) Heather Rogers QC, Romana Canneti, Jonathan Price (Instructed by Pia Sarma, Solicitor, Editorial Legal Director, Times Newspapers Limited) for Intervener.

2020 S C M R 1437

[Supreme Court of UK]\

Present: Lord Reed, President, Lord Hodge, Lady Black, Lord Briggs and Lord Sales

KYMAB LTD---Appellant

Versus

REGENERON PHARMACEUTICALS INC---Respondent

Decided on 24th June, 2020.

(On appeal from: [2018] EWCA Civ 671)

Per Lord Briggs, JSC (Majority view)

(a) Patent---

----Invention---Sufficient disclosure of information---Scope---Patent reflected a bargain between the inventor and the public---Essence of the bargain between the patentee and the public was that the patentee dedicated the invention to the public by making full disclosure of it, in return for a time-limited monopoly over its use---Benefit afforded to the public was not merely the disclosure, but the ability to "work the invention" after the expiry of the monopoly by the use of the disclosure---Where the invention enabled patentees to make a particular product, and they sought a monopoly over the making and exploitation of the product (which was what a product claim did), they must disclose enough in the teaching of the patent to enable the public also to make the product---If the patentee were able to obtain a product monopoly without disclosing how to make the product, the public would get nothing of substance in return for the grant of the monopoly---Furthermore, other inventors would be deterred from conducting the research and development in fact necessary to take advantage of the inventive idea for the benefit of society as a whole, since during the period of the monopoly they could derive no benefit from their own inventiveness.

Generics (UK) Ltd v H Lundbeck A/S [2008] EWCA Civ 311; [2008] RPC 19, para 30 ref.

(b) Patent---

----Invention---Sufficient disclosure of information---Sufficiency, principle of---Scope---Sufficiency was one of the established tools by which was measured the correspondence, or lack of it, between the protection afforded by the claim and the technical contribution to the art made by the disclosure of the invention in the patent---Other main tools were novelty, inventive step and industrial application---In relation to a product claim, sufficiency required substantially the whole of the range of products within the scope of the claim to be enabled to be made by means of the disclosure in the patent, and this both reflected and applied the principle that the contribution to the art was to be measured by the products which could thereby be made as at the priority date, not by the contribution which the invention may make to the value and utility of products, the ability to make which, if at all, laid in the future.

Actavis Group PTC EHF v ICOS Corpn [2019] UKSC 15; [2019] Bus LR 1318, para 57 ref.

(c) Patent---

----Invention---Principles regarding patents as found in European and United Kingdom case law.

Survey of case law from Europe and United Kingdom yielded the following principles with respect to patents:

i) The requirement of sufficiency imposed by Article 83 of the Convention on the Grant of European Patents (1978) ("EPC") existed to ensure that the extent of the monopoly conferred by the patent corresponded with the extent of the contribution which it made to the art.

ii) In the case of a product claim, the contribution to the art was the ability of the skilled person to make the product itself, rather than (if different) the invention.

iii) Patentees were free to choose how widely to frame the range of products for which they claimed protection. But they needed to ensure that they made no broader claim than was enabled by their disclosure.

iv) The disclosure required of the patentee was such as would, coupled with the common general knowledge existing as at the priority date, be sufficient to enable the skilled person to make substantially all the types or embodiments of products within the scope of the claim. That is what, in the context of a product claim, enablement meant.

v) A claim which sought to protect products which could not be made by the skilled person using the disclosure in the patent would, subject to de minimis or wholly irrelevant exceptions, be bound to exceed the contribution to the art made by the patent, measured as it must be at the priority date.

vi) This did not mean that the patentee had to demonstrate in the disclosure that every embodiment within the scope of the claim had been tried, tested and proved to have been enabled to be made. Patentees may rely,if they could, upon a principle of general application if it would appear reasonably likely to enable the whole range of products within the scope of the claim to be made. But they took the risk, if challenged, that the supposed general principle would be proved at trial not in fact to enable a significant, relevant, part of the claimed range to be made, as at the priority date.

vii) Nor would a claim which in substance passed the sufficiency test be defeated by dividing the product claim into a range denominated by some wholly irrelevant factor. The requirement to show enablement across the whole scope of the claim applied only across a relevant range. Put broadly, the range would be relevant if it was denominated by reference to a variable which significantly affected the value or utility of the product in achieving the purpose for which it was to be made.

viii) Enablement across the scope of a product claim was not established merely by showing that all products within the relevant range would, if and when they could be made, deliver the same general benefit intended to be generated by the invention, regardless how valuable and ground-breaking that invention may prove to be. [p. 1464] F

Generics (UK) Ltd v H Lundbeck A/S [2009] RPC 13, para 86; Unilever/Stable Bleaches (T 226/85) ECLI:EP:BA:1987: T022685.19870317, decided in March 1987; Exxon/Fuel Oils (T 409/91) EP:BA:1993:T040991.19930318, decided in March 1993; Unilever/Detergents (T 435/91) ECLI:EP:BA:2008, decided in March 1994; Mycogen/Modifying plant cells (T 694/92) ECLI:EP:BA:1996, decided in May 1996, at p 19; Genentech I/Polypeptide expression (T 292/85) ECLI:EP:BA:1988, was decided in January 1988, decided in June 1988, is Nabisco/Micro-organisms (T 361/87) ECLI:EP:BA:1988; Novartis II/Transgenic plant (G 1/98) ECLI:EP:BA:1999, decided by the Enlarged Board in December 1999; Novartis II/Transgenic plant (G 1/98) ECLI:EP:BA:1999; Biogen Inc v Medeva plc [1995] RPC 25 and [1997] RPC 1; Chiron Corpn v Organon Teknika Ltd (No 3) [1994] FSR 202. At pp 48-49; May and Baker Ltd v Boots Pure Drug Co Ltd (1950) 67 RPC 23; Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] RPC 9 and Generics (UK) Ltd v H Lundbeck A/S [2008] RPC 19 ref.

Per Lord Briggs, JSC; Lord Reed PSC, Lord Hodge DPSC and Lord Sales, JJSC. agreeing; Lady Black, JSC dissenting.

(d) Patent---

----Validity---Invention---Sufficient disclosure of information---Sufficiency, principle of---Scope---Information disclosed in patents only enabling some product types within range to be made---Question as to whether sufficiency test would be satisfied if an invention disclosed generally applicable principle with potential to yield benefits across range of product types---Per Lord Briggs (Majority view): Disclosure in the patent should enable substantially all products within the scope of a product claim to be made by the skilled person at the priority date---Where a range of products was claimed, subject to de minimis exceptions, the essential patent bargain was not satisfied in relation to products in that part of the range which could not be made, using the teaching in the patent---[Per Lady Black (Minority view): Protection covered by a patent should correspond to the technical contribution to the art made by the disclosure of the invention described therein---Assessing sufficiency (of information disclosed) depended on the nature of the invention and the facts of the particular case]

In the year 2001 respondent-company filed patents for a new type of genetically modified mouse. Respondent's breakthrough was a hybrid version of the gene that produced antibodies, combining a section of the mouse's genetic material (the "constant region" DNA) with a section of genetic material from a human (the "variable region" DNA). The resulting mouse could be used to produce antibodies which were suitable for medical treatment in humans, but were sufficiently similar to mouse antibodies that did not cause immunological sickness in the mouse. The idea of combining a human variable region with a mouse constant region was a major contribution to science. In 2013 respondent-company sued appellant-company for infringement of its patents. Appellant was producing its own genetically modified mice, with a similar genetic structure to respondent's mice. Appellant argued that the patents filed by respondent in 2001 were invalid because they fell foul of a patent law rule called sufficiency. Sufficiency meant documents filed with the patent must be detailed enough to enable scientifically skilled readers to make the invention for themselves. Appellant argued that mice developed by it did not infringe respondent's patents as their mice could only be produced as a result of improvements in biotechnological methods that post-dated the respondent's patents and which enabled the full repertoire of human antibody genes to be inserted into the mice. The High Court had held that respondent's patents were invalid as they sought to monopolise more than they contributed to the field - it was only later technological developments that allowed mice like appellant's to be produced. The Court of Appeal reversed that decision, holding that respondent's patents contained enough information to enable a skilled reader to insert some of the human material into a mouse's genes; that there was no need for the patents to explain how to make the full range of mice because respondent's idea was a "principle of general application"; that appellant's mice infringed the patents, even though they contained far more human genetic material than could be transferred using the technology disclosed by respondent.

Per Lord Briggs, JSC (Majority view): Respondent's patents did not enable a skilled person to make mice containing more than a very small section of the human variable region. The amount of human material was an important factor which was thought to affect the diversity of useful antibodies which the mice would produce. Mice at the more valuable end of the range could not be made using respondent's patents. Respondent was claiming a monopoly which was far wider than its contribution to the art.

The Court of Appeal upheld patents over a range of mice even though respondent could only make mice over a small part of the range, at the least beneficial end of the range with the smallest amount of human genetic material. Analysis of the Court of Appeal watered down the sufficiency requirement, a bedrock of patent law, which provided that the disclosure in the patent should enable substantially all products within the scope of a product claim to be made by the skilled person as at the priority date. By watering down the sufficiency requirement, the Court of Appeal tilted the balance of patent law in favour of patentees and against the public. Patents of respondent were invalid for insufficiency. Appeal was allowed.

Per Lady Black, JSC dissenting (Minority view): The Court of Appeal recognised the general language used in the claim and its broad scope, and it had well in mind that it extended to a mouse with its entire variable gene locus replaced with the entire human variable gene locus. The Court of Appeal characterised respondent's invention as a principle of general application which solved the problem of immunological sickness. Every mouse encompassed in the claim would have the reverse chimeric locus, or, would benefit from the technical contribution the disclosure of one of the patents had made to the art. Every such mouse would use the invention. This was what led the Court of Appeal to characterise the claim as a principle of general application. For sufficiency, it was necessary for the skilled team to be able to produce transgenic mice incorporating the reverse chimeric locus and producing hybrid antibodies, and this they could do, producing mice which would have had a near wild type response. That the claim encompassed inventive improvements (more human variable region incorporated) did not make it insufficient as any such improvement was still a way of working the original invention. Seen in this way, the sufficiency requirement was met since the invention was deployed in each mouse across the range, irrespective of the quantum of human material incorporated.

Per Lady Black, JSC dissenting (Minority view)

(e) Patent---

----Invention---Sufficient disclosure of information---Sufficiency---Scope---Protection covered by a patent should correspond to the technical contribution to the art made by the disclosure of the invention described therein---Said principle, and the other principles that were relevant to determining sufficiency, could only be applied having close regard to the facts of the particular case---Assessment of sufficiency did depend very much upon the nature of the individual invention and the facts of the particular case.

Iain Purvis QC, Michael Tappin QC (instructed by Powell Gilbert LLP (London)) for Appellant.

Lord Pannick QC, Adrian Speck QC and Justin Turner QC (instructed by Kirkland and Ellis International LLP (London)) for Respondent.

2020 S C M R 1867

[Supreme Court of UK]\

Present: Lady Hale, Lord Reed, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lord Kitchin and Lord Sales

MAREX FINANCIAL LTD.---Appellant

Versus

SEVILLEJA---Respondent

Decided on 15th July, 2020.

(On appeal from [2018] EWCA Civ 1468)

Per Lord Reed, JSC; Lady Black, Lord Lloyd-Jones and Lord Hodge, JJSC agreeing; Lord Sales, Lady Hale and Lord Kitchin, JJSC also agreeing but with their own reasoning.

(a) Company---

----Reflective loss, principle of---Rule against reflective loss---Scope---Claim filed by a creditor against a company---Whether rule against reflective loss applied to claims made by creditors against companies or was the rule limited to claims by shareholders for diminution in value of shares or dividends.

The claimant, a foreign exchange broker carrying on business in London, obtained judgment against two companies incorporated in the British Virgin Islands for sums due under a contract, but the companies' assets were found to be of an amount significantly below the judgment debt and the companies subsequently went into liquidation. The claimant alleged that, after the draft judgment had been released, the defendant, a resident of Dubai who was the ultimate beneficial owner and controller of the companies, had dishonestly stripped the companies of their wealth and moved it overseas out of the claimant's reach in order to prevent the judgment from being enforced. Claimant also alleged that the companies' liquidator, funded by the defendant, had taken no steps to recover the companies' losses. The claimant issued proceedings against the defendant in the Commercial Court seeking damages in tort for (i) inducing or procuring violation of its rights under the judgment and (ii) intentionally causing it loss by unlawful means, and was given permission to serve the claim form on the defendant out of the jurisdiction. The defendant applied for an order under Civil Procedure Rules, Pt. 11 to set aside service of the claim form on the ground, inter alia, that since it remained open to the companies' liquidator to pursue any claim against the defendant for any sums unlawfully removed, the 'rule against reflective loss' barred the claimant from making the same claim and so the claimant could not show a completed cause of action in tort. The judge, having rejected said argument and the other grounds of objection, dismissed the application. The Court of Appeal allowed the defendant's appeal, holding that the 'rule against reflective loss' covered claims by unsecured creditors of a company where each of the creditor and the company had its own cause of action against a third-party defendant in respect of the same wrongful conduct by him.

[Per Lord Reed (Majority view): The decisions in the cases of Prudential Assurance Co Ltd v. Newman Industries Ltd. (No 2) [1982] Ch 204 and Johnson v. Gore Wood & Co. [2002] 2 AC 1 established the 'reflective loss' principle in company law i.e. a diminution in the value of a shareholding or in distributions to shareholders, which was merely the result of a loss suffered by the company in consequence of a wrong done to it by the defendant, was not in the eyes of the law damage which was separate and distinct from the damage suffered by the company, and was therefore not recoverable. The principle was based on the rule in Foss v. Harbottle (1843) 2 Hare 461, which would be subverted if the shareholder could pursue a personal action in those circumstances.

Prudential Assurance Co. Ltd. v. Newman Industries Ltd. (No 2) [1982] Ch 204 and Johnson v. Gore Wood & Co [2002] 2 AC 1 ref.

It was necessary to distinguish between two types of cases; first, those cases where claims were brought by a shareholder in respect of loss which he had suffered in that capacity, in the form of a diminution in share value or in distributions, which was the consequence of loss sustained by the company, in respect of which the company had a cause of action against the same wrongdoer, and, second, those cases where claims were brought, whether by a shareholder or by anyone else, in respect of loss which did not fall within that description, but where the company had a right of action in respect of substantially the same loss.

Claims for first type of cases were barred by the rule in Prudential Assurance Co. Ltd. v. Newman Industries Ltd (No 2) [1982] Ch 204. Shareholder cannot bring proceedings in respect of the company's loss, since he had no legal or equitable interest in the company's assets. It was only the company which had a cause of action in respect of its loss. However, depending on the circumstances, it was possible that the company's loss may result (or, at least, may be claimed to result) in a fall in the value of its shares. Its shareholders may therefore claim to have suffered a loss as a consequence of the company's loss. Depending on the circumstances, the company's recovery of its loss may have the effect of restoring the value of the shares. In such circumstances, the only remedy which the law required to provide, in order to achieve its remedial objectives of compensating both the company and its shareholders, was an award of damages to the company. There may, however, be circumstances where the company's right of action was not sufficient to ensure that the value of the shares was fully replenished. One example was where the market's valuation of the shares was not a simple reflection of the company's net assets. Another was where the company failed to pursue a right of action which, in the opinion of a shareholder, ought to have been pursued, or compromised its claim for an amount which, in the opinion of a shareholder, was less than its full value. But the effect of the rule in Foss v. Harbottle (1843) 2 Hare 461 was that the shareholder had entrusted the management of the company's right of action to its decision-making organs, including, ultimately, the majority of members voting in general meeting. If such a decision was taken otherwise than in the proper exercise of the relevant powers, then the law provided the shareholder with a number of remedies, including a derivative action, and equitable relief from unfairly prejudicial conduct.

The position was different in the second type of cases, as recovery was permissible in principle, although it may be necessary to avoid double recovery. One could take as an example cases where claims were brought in respect of loss suffered in the capacity of a creditor of the company. The arguments which arose in the case of a shareholder had no application in such a case. There was no analogous relationship between a creditor and the company. There was no correlation between the value of the company's assets or profits and the "value" of the creditor's debt, analogous to the relationship on which a shareholder based his claim for a fall in share value. Where a company suffered a loss, it was possible that its shareholders may also suffer a consequential loss in respect of the value of their shares, but its creditors would not suffer any loss so long as the company remains solvent. Even where a loss caused the company to become insolvent, or occurred while it was insolvent, its shareholders and its creditors were not affected in the same way, either temporally or causally. In an insolvency, the shareholders would recover only a pro rata share of the company's surplus assets, if any. The value of their shares would reflect the value of that interest. The extent to which the company's loss may affect a creditor's recovery of his debt, on the other hand, would depend not only on the company's assets but also on the value of any security possessed by the creditor, on the rules governing the priority of debts, and on the manner in which the liquidation was conducted. Most importantly, even where the company's loss resulted in the creditor also suffering a loss, he did not suffer the loss in the capacity of a shareholder, and his pursuit of a claim in respect of that loss could not therefore give rise to any conflict with the rule in Foss v. Harbottle (1843) 2 Hare 461. The potential concern that arose in relation to claims brought by creditors was not, therefore, the rule in Foss v. Harbottle. On the other hand, the principle that double recovery should be avoided may be relevant, although it was not necessarily engaged merely because the company and the creditor had concurrent claims against the same defendant.

The 'reflective loss' principle laid down in Prudential Assurance Co. Ltd. v. Newman Industries Ltd (No 2) [1982] Ch 204 was, therefore, limited to claims by shareholders that, as a result of actionable loss suffered by their company, the value of their shares, or of the distributions they received as shareholders, had been diminished. Other claims, whether by shareholders or anyone else, should be dealt with in the ordinary way. [Approach adopted by Lord Bingham only in Johnson v. Gore Wood & Co [2002] 2 AC 1 re-affirmed].

Giles v Rhind [2003] Ch 618; Perry v Day [2004] EWHC 3372 (Ch); [2005] 2 BCLC 405 and Gardner v Parker [2004] EWCA Civ 781; [2004] 2 BCLC 554 held to be wrongly decided.

In the present case the principle of reflective loss laid down in Prudential Assurance Co. Ltd. v. Newman Industries Ltd (No 2) [1982] Ch 204 did not apply, since the claimant was a creditor and not a shareholder. Furthermore, no exception to the said principle applied in the present case. Claimant should be permitted to pursue the entirety of its claim against the defendant.]

[Per Lord Hodge; agreeing with Lord Reed (Majority view): Expansion of the so-called "principle" that reflective loss could not be recovered has had unwelcome and unjustifiable effects on the law. If the facts alleged by the claimant in the present case were established, the exclusion of the bulk of its claim under the reflective loss principle would result in a great injustice. Principle of reflective loss which the case of Prudential Assurance Co. Ltd. v. Newman Industries Ltd. (No 2) [1982] Ch 204 established, was not articulated as a general principle to be applied in all contexts; it was a rule of company law arising from the nature of the shareholder's investment and participation in a limited company and excluded a shareholder's claim made in its capacity as shareholder. Subsequent departure of the reflective loss principle from its foundations in Prudential Assurance Co. Ltd. v. Newman Industries Ltd (No 2) [1982] Ch 204 had given rise to problems and uncertainties in the law. However the said principle (if applied in its proper context) had a principled basis in company law and ought not to be departed from now].

[Per Lord Sales; agreeing with Lord Reed but with his own reasons (Minority view): Majority opinion in the present case lays down that the reflective loss principle was justified in a shareholder's case but that the rationale for it did not extend to cover a creditor's case; that the reflective loss principle laid down in Prudential Assurance Co. Ltd. v. Newman Industries Ltd (No 2) [1982] Ch 204 (the Prudential case') was a rule of law, and that the the loss suffered by a shareholder in relation to diminution in the value of shares or loss of dividends simply was to be regarded as irrecoverable in a case where the company had a parallel claim against the third party defendant. However, the court in the Prudential case did not lay down a rule of law that a shareholder with a claim against a third party defendant in parallel with, and reflective of, a claim by the company against the same defendant simply had to be deemed to suffer no different loss of his own which he could recover, whatever the true position on the facts. It did not purport to do so. Rather, the court set out reasoning why it thought the shareholder in such a case in fact suffered no loss. There clearly were some cases where the shareholder did suffer a loss which was different from the loss suffered by the company. In the face of such difficulty with the reasoning in the Prudential case, it was not appropriate to re-characterise the court's decision as one laying down a new rule which simply deemed loss suffered by the shareholder to be irrecoverable as a matter of law. If a shareholder had a valid cause of action against the third-party defendant in respect of different loss which he had in fact suffered, it was not open to a court to rule it out as a matter of judicial fiat. The governing principle of importance in relation to shareholder claims as well as in relation to creditor claims was issue of double recovery.

Johnson v. Gore Wood & Co [2002] 2 AC 1 ref.

Use of the word "reflective" in case law for the principle of 'reflective loss' was deceptive and unhelpful. Where the company suffered loss and this affected the value of shares in it, there was obviously some relationship between the loss suffered by the company and the loss suffered by a shareholder, so that in a loose sense it might be said that the latter loss reflected the former. But the loss suffered by the shareholder was not the same as the loss suffered by the company. There was no necessary, direct correlation between the two. The loss suffered by the shareholder did not reflect the loss suffered by the company, in the stricter sense of there being a one-to-one correspondence between them.

The Court of Appeal in the Prudential case conflated the rationale for the rule in Foss v. Harbottle (1843) 2 Hare 461 with that for the reflective loss principle and assumed that a personal action would subvert the rule. That was not the case.

A shareholder ought not to be prevented from pursuing a valid personal cause of action. The issue of double recovery could be prevented by other means.

The reasoning in the case of Johnson v. Gore Wood & Co. [2002] 2 AC 1, in so far as it endorsed the reflective loss principle as a principle debarring shareholders from recovery of personal loss which was different from the loss suffered by the company, ought not to be followed. Even if the said principle was accepted, it should not be extended to cover a case involving loss suffered by a creditor of the company. There were better ways to avoid double recovery in such a situation, such as by according the wrongdoer a right of subrogation to the extent he paid the creditor sums in respect of the debt owed by the company.

A creditor of a company had not chosen to be in a position where he was required to follow the fortunes of the company in the same way as a shareholder. Subject to the company having sufficient assets, whether the creditor got paid or not did not depend on the decision of the directors, as payment of a dividend to a shareholder did: when armed with a court judgment the creditor could execute it against the assets of the company. Moreover, in the present case there was a clear mechanism available to meet the problem of possible double recovery against the defendant in respect of the loss suffered by the claimant and the loss suffered by the two companies. To the extent that claimant sued the defendant and obtained recovery from him for the judgment sum, the defendant could be subrogated to claimant's rights against the two companies or allowed a right of reimbursement in respect of them. Subrogation was a flexible equitable remedy which would be available in the present case for basic reasons of equity and natural justice, in order to ensure that neither the two companies (if claimant did not sue them on the debts) nor the claimant (if it did sue them on the debts) would receive a windfall enrichment by virtue of the payment by the defendant of the judgment sum or part thereof.

Giles v Rhind [2003] Ch 618; Perry v Day [2004] EWHC 3372 (Ch); [2005] 2 BCLC 405 and Gardner v Parker [2004] EWCA Civ 781; [2004] 2 BCLC 554 ref.

Claimant should be permitted to proceed with its claim against the defendant for damages for inducing or procuring violation of claimant's rights under a court judgment, and for intentionally causing loss to the claimant by unlawful means by dissipating the assets of the two companies]

Per Lord Reed, JSC [Majority view]

(b) Company-

----Reflective loss, principle of---Scope of reflective loss principle provided by Lord Bingham in Johnson v. Gore Wood & Co [2002] 2 AC 1.

(i) Where a company suffered loss caused by a breach of duty owed to it, only the company may sue in respect of that loss. No action laid at the suit of a shareholder suing in that capacity and no other to make good a diminution in the value of the shareholder's shareholding where that merely reflected the loss suffered by the company. A claim would not lie by a shareholder to make good a loss which would be made good if the company's assets were replenished through action against the party responsible for the loss, even if the company, acting through its constitutional organs, had declined or failed to make good that loss.

Prudential Assurance Co. Ltd. v. Newman Industries Ltd. (No. 2) [1982] Ch 204; Heron International [Heron International Ltd. v. Lord Grade [1983] BCLC 244]; George Fischer [George Fischer (Great Britain) Ltd. v. Multi Construction Ltd [1995] 1 BCLC 260]; Gerber [Gerber Garment Technology Inc v. Lectra Systems Ltd [1997] RPC 443] and Stein v Blake [[1998] 1 All ER 724] ref.

(ii) Where a company suffered loss but had no cause of action to sue to recover that loss, the shareholder in the company may sue in respect of it (if the shareholder had a cause of action to do so), even though the loss was a diminution in the value of the shareholding.

George Fischer [George Fischer (Great Britain) Ltd. v. Multi Construction Ltd [1995] 1 BCLC 260]; Gerber [Gerber Garment Technology Inc v. Lectra Systems Ltd [1997] RPC 443]; Stein v Blake [[1998] 1 All ER 724] and Lee v. Sheard [1956] 1 QB 192, 195-196 ref.

(iii) Where a company suffered loss caused by a breach of duty to it, and a shareholder suffered a loss separate and distinct from that suffered by the company caused by breach of a duty independently owed to the shareholder, each may sue to recover the loss caused to it by breach of the duty owed to it but neither may recover loss caused to the other by breach of the duty owed to that other.

Heron International [Heron International Ltd. v. Lord Grade [1983] BCLC 244]; Gerber [Gerber Garment Technology Inc v. Lectra Systems Ltd [1997] RPC 443]; Stein v Blake [[1998] 1 All ER 724] and Lee v. Sheard [1956] 1 QB 192, 195-196 and R P Howard [RP Howard Ltd v Woodman Matthews & Co [1983] BCLC 117] ref.

Gerber and Stein v Blake, particularly at p 726; Barings [Barings plc v Coopers & Lybrand [1997] 1 BCLC 427] at p 435B and Christensen v Scott [1996] 1 NZLR 273 at p 280, lines 25-35 distinguished.

(iv) On the one hand the court must respect the principle of company autonomy, ensure that the company's creditors were not prejudiced by the action of individual shareholders and ensure that a party did not recover compensation for a loss which another party had suffered. On the other, the court must be astute to ensure that the party who had in fact suffered loss was not arbitrarily denied fair compensation.

George Bompas QC, Sophie Weber (instructed by Memery Crystal LLP) for Appellant.

David Lewis QC, Richard Greenberg (instructed by Mackrell Turner Garrett) for Respondent.

Peter Knox QC, Simon Reevell, Richard Samuel, Amit Karia, Chloe Shuffrey (instructed by Trowers and Hamlins LLP (London)) for Intervener (All Party Parliamentary Group on Fair Business Banking).