SCMR 2021 Judgments

2021 S C M R 1

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

INSPECTOR GENERAL OF PRISON, KHYBER PAKHTUNKHWA, PESHAWAR and others---Petitioners

Versus

HABIB ULLAH---Respondent

Civil Petition No. 4-P of 2020, decided on 30th September, 2020.

(On appeal against the judgment of the Peshawar High Court, Peshawar dated 01.11.2019 in Writ Petition No. 1788-P of 2019)

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

----Ss. 6(b) & 21-F--- Offence of Zina (Enforcement Of Hudood) Ordinance (VII of 1979), S. 10(3)---Constitution of Pakistan, Art. 45---Khyber Pakhtunkhwa Prison Rules, 2018, Rr. 204, 211 & 216---Convict convicted under the Anti-Terrorism Act, 1997 and Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Remissions, grant of---Section 21-F of the Anti-Terrorism Act, 1997 barred the award of any remission in the sentence of a person convicted under the said enactment---Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the other hand provided no such bar on the grant of remission in the sentence of a person convicted for any offence thereunder---However remission granted under Art. 45 of the Constitution would not be extended to convicts serving a sentence under S. 10 the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---In so for as the remissions permissible under the Khyber Pakhtunkhwa Prison Rules, 2018, the convict was entitled to be granted the same but after serving his sentence for the conviction under the Anti-Terrorism Act, 1997---Petition for leave to appeal was partly allowed accordingly.

Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa for Petitioners.

Asaf Fasih-ud-Din Vardag, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Sohail Mehmood, Additional Attorney-General for Pakistan on Court's Notice.

2021 S C M R 5

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Amin-ud-Din Khan and Sayyed Mazahar Ali Akbar Naqvi, JJ

ABU BAKAR SIDDIQUE---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1721-L of 2019, decided on 27th August, 2020.

(Against the order of Lahore High Court, Lahore dated 10.12.2019 passed in Crl. Misc. No. 69071-B of 2019)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Pre-arrest/anticipatory bail, refusal of---Occurrence had taken place in the broad day light---Parties were unknown to each other---Specific allegation was made against the accused of causing firearm injury to one of the injured prosecution witnesses---During the occurrence three persons sustained firearm injuries besides the deceased---Injured prosecution witness had specifically ascribed the role of causing firearm injury to the accused, therefore, finding of Investigating Officer, that accused was only involved to extent of aerial firing would be resolved by the Trial Court after recording of evidence---Prima facie there was sufficient material available on the record to connect the accused to the offence alleged which entailed capital punishment---Accused was not entitled to the extraordinary relief of anticipatory/pre-arrest bail---Petition for leave to appeal was dismissed and leave was refused.

Petitioner in person.

M. Amjad Rafique, Additional Prosecutor General along with Rashid Shahzad, Inspector for the State.

Danyal Aziz Chadhar, Advocate Supreme Court for the Complainant.

2021 S C M R 7

[Supreme Court of Pakistan]

Present: Mushir Alam, Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

Mst. SAMINA RIFFAT and others---Applicants

Versus

ROHAIL ASGHAR and others---Respondents

C.M.A. No. 4053/2018 in C.A. 637/2018 and C.A. 637/2018, decided on 4th May, 2020.

(On appeal from the judgment dated 13.2.2018 passed by the Islamabad High Court, Islamabad in R.F.A. No. 166 of 2013)

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

----S. 51---Transfer of Property Act (IV of 1882), S. 54---Specific Relief Act (I of 1877), S. 12---Agreement to sell immoveable property---Failure to pay balance consideration within the time stipulated in the agreement---Forfeiture of earnest money---Scope---To avoid making payment of balance sale consideration the vendee could not import or press any condition extraneous to the conscious bargain struck between the parties---In cases arising out of sale of immovable property, a vendee seeking specific performance had to demonstrate his readiness and willingness to perform his part of reciprocal obligation as to payment of balance sale consideration---In the first place, willingness to perform ones contract in respect of purchase of property implied the capacity to pay the requisite sale consideration within the reasonable time---In the second place, even if he had the capacity to pay the sale consideration, the question still remained whether he had the intention to purchase the property---In the present case the plaintiff-vendee on one hand failed to offer sale consideration within the agreed period; secondly he did not tender the said amount despite order of the Trial Court, and even after his suit for specific performance was dismissed, he made no effort to deposit the balance consideration---In such circumstances the plaintiff was not entitled to return of his earnest money, however out of sheer benevolence defendants-appellants each agreed to refund 50% of the earnest amount received by them to the plaintiff as a humane consideration---Supreme Court after recording its appreciation for the conduct of the defendants, displaying grace toward the plaintiff, directed each defendant to refund 50% of the earnest money received by them to the plaintiff through pay order within 45 days---Appeal was allowed with the said modification.

Abdul Hamid v. Abbas Bhai, Abdul Hussain PLD 1959 (W.P.) Kar. 629 and Space Telecommunication (Pvt.) Ltd. v. Pakistan Telecommunication Authority 2019 SCMR 101 ref.

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

----S. 55---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell immoveable property---Time essence of the contract---Scope---Generally, in respect of sale of immovable property, time was not considered as of the essence of the Contract---However, parties may consciously strike a deal to make time essence of the contract by providing certain consequences for breach of reciprocal obligation casted upon them, and in such cases, time was treated as essence of the contract.

Mst. Gulshan Hamid v. Kh. Abdul Rehman 2010 SCMR 334 ref.

Haroon Irshad Janjua, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Applicants.

Junaid Iftikhar Mirza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 1.

Ch. Riasat Ali Gondal, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No. 4.

2021 S C M R 16

[Supreme Court of Pakistan]

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

MUHAMMAD ADNAN and another---Appellant/Petitioner

Versus

The STATE and others---Respondents

Criminal Appeal No. 7-L of 2020 and Criminal Petition No. 92-L of 2014, decided on 24th November, 2020.

(On appeal from the judgment of the Lahore High Court, Lahore dated 16.12.2013 passed in Criminal Appeal No. 1220 and M.R. No. 269 of 2010)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Autopsy on the dead body of deceased was conducted with a delay of more than nine hours, for which there was no explanation on record---Complainant in his cross-examination admitted that the deceased and accused were fast friends and visited each other's houses, and that on the day of the incident accused had been helping deceased in his official duties---If such claim of complainant regarding friendship of deceased and appellant was correct, it was not understandable why the accused after some time went out of his house to search the deceased on the pretext of returning a loan which he had taken from the deceased---Another eye-witness of the case claimed to be standing in a market (bazaar) when the accused and deceased allegedly passed by him---Said witness did not give any reason for being in the market---Another prosecution witness who claimed to have heard the accused and co-accused planning the murder of deceased, did not inform the complainant immediately, and instead went away to another city on a business trip---Such conduct of the witness did not appeal to common sense----Recovery of pistol and positive report of Forensic Science Laboratory was of no legal consequence because the police constable who transmitted the empty allegedly secured from the spot was not produced by the prosecution---Motive behind the occurrence had not been believed by the High Court---Prosecution case against the accused was doubtful in nature---Appeal was allowed and accused was acquitted of the charge framed against him.

Mudassir Naveed Chattha, Advocate Supreme Court for Appellant.

Malik Mateeullah, Advocate Supreme Court for Petitioner.

Amjad Rafiq, Additional P.G. Punjab for the State.

2021 S C M R 19

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

GHULAM MUHAMMAD---Petitioner

Versus

ZOHRAN BIBI and others---Respondents

Civil Petition No. 3265-L of 2019, decided on 20th November, 2020.

(Against judgment dated 09.10.2018 of Lahore High Court, Lahore passed in Regular Second Appeal No. 53646 of 2019)

(a) Islamic law---

----Inheritance---Parda-nasheen and illiterate women---Beneficiary of any transaction involving parda-nasheen and illiterate women had to prove that it was executed with free consent and will of the lady; she was aware of the meaning, scope and implications of the document that she was executing; she was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her---Onus to prove such requirements was squarely upon the beneficiary.

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

----O. I, R. 10---Punjab Land Revenue Act (XVII of 1967), Ss. 41(3) & 42(3)---Fraudulent mutations managed through impersonation and misrepresentation---Revenue Officials, impleadment of---Scope---Impleading Revenue Officials in every case was not a rule of the thumb; it depended upon the peculiar facts and circumstances of each case and in the event the concerned Court came to the conclusion that Revenue functionaries needed to be impleaded to enable it to arrive at a just conclusion, appropriate orders could be passed giving the concerned party an opportunity to implead them---Revenue Officials could also be summoned by either side or if considered necessary even as Court witnesses---In the present case, irrefutable documentary evidence was placed on record in order to establish fraud and in the facts and circumstances of the case impleading of the Revenue officials was neither necessary nor essential for determination of the questions before the Court---Sufficient documentary as well as oral evidence was available to establish fraud and dislodge the mutations which had clearly been maneuvered on the basis of fraud, impersonation and misrepresentation---Petition for leave to appeal was dismissed and leave was refused.

Ghulam Rasool Chaudhry, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2021 S C M R 23

[Supreme Court of Pakistan]

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

GHULAM ABBAS and another---Appellant/Petitioner

Versus

The STATE and another---Respondents

Criminal Appeal No. 9-L of 2020, Criminal Petition No. 223-L of 2014 and Criminal M.A. No. 86-L of 2014 in Criminal Petition No. 223-L of 2014, decided on 24th November, 2020.

(On appeal from the judgment dated 04.02.2014 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1414 of 2010, Criminal Revision No. 737 of 2010 and Murder Reference No. 482 of 2010)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Benefit of doubt---Police station was situated at a distance of just six kilometers from the place of occurrence but the matter was reported with a delay of more than five hours, and no explanation was offered for such delay---Chances of deliberations and consultations before reporting the matter to the police could not be ruled out---Witnesses of ocular account claimed to have witnessed the occurrence in the light of bulb erected at the place of occurrence, however the investigation officer admitted during his cross examination that he had not recorded the availability of bulb in inspection note, and that in the scaled site plan the patwari had not shown the availability of bulb---Moreover, it was claimed by both the witnesses of ocular account that at the time of occurrence there were ten cots in the compound of the house, however Investigation Officer admitted during his cross-examination that there was only one cot available at the time of his visit---Medical evidence did not fully support the prosecution case regarding time of death of deceased---Alleged motive for the occurrence was a monetary dispute between the parties for which an alleged pronote was also executed by the accused, but complainant during cross examination admitted that complainant side were not present at the time of taking loan and execution of pronote---Investigation officer admitted that neither the complainant had produced any copy of pronote to prove motive nor he had obtained or asked for the pronote from the complainant in respect of motive---No crime empty was collected from the place of occurrence and no report of Forensic Science Laboratory was available on record to establish whether the weapon allegedly recovered from the accused at the time of his arrest was in working order or otherwise---Prosecution case against the accused was doubtful in nature, therefore, he was acquitted of the charge of murder---Petition for leave to appeal filed by complainant seeking enhancement of the sentence of accused and assailing acquittal of co-accused was dismissed and leave was refused.

Agha Intizar Ali Imran, Advocate Supreme Court for Appellant (in Criminal Appeal No. 9-L of 2020).

Azam Nazir Tarar, Advocate Supreme Court for Petitioner (in Criminal Petition No. 223-L of 2014).

M. Amjad Rafique, Additional P.G. for the State.

2021 S C M R 27

[Supreme Court of Pakistan]

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

Messrs SHAHID GUL AND PARTNERS---Appellants

Versus

DEPUTY COMMISSIONER OF INCOME TAX, AUDIT-V, RTO, PESHAWAR---Respondent

Civil Appeals Nos. 2444 to 2449 of 2016, decided on 14th February, 2019.

(On appeal against the judgment/order dated 18.06.2016 of the Peshawar High Court, Peshawar passed in ITRs Nos. 37-P, 38-P, 39-P, 48-P, 47-P and 45-P of 2014)

Per Yahya Afridi, J; Umar Ata Bandial, J agreeing; Munib Akhtar, J also agreeing but finding the discussion in the majority view on the legal meaning of "building" in relation to the land beneath any structure, as not necessary for purposes of present case.

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

----Ss. 20 & 24---Sale of immoveable property---Deductible expense---Scope---Income Tax Ordinance, 2001 did not expressly require registration of sales of immovable properties for its cost to be accepted as a deductible expense.

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

----Ss. 20 & 21---Income from business---Deductible expenses---Burden of proof---Scope---Right has been vested in the taxpayer to claim deductible expenses for the purposes of computing his income---Onus to dispute the said expense, so claimed by a taxpayer, had been cast upon the Revenue department, thus, it was for the Revenue department to show that the expenditure so claimed by the taxpayer was not permissible, or was excluded from deduction under the Income Tax Ordinance, 2001, and in particular, S. 21 thereof.

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

----Ss. 20, 21(n), 22(15) & Third Sched., Pt. I---Deductible expenses---Scope--- Depreciable assets--- Unsold improved land---Structural improvements---Deduction was allowed for depreciation of the taxpayer's depreciable assets used in furtherance of his business in the said tax year---Term "depreciable assets", as explained in subsection (15) of S. 22 of the Income Tax Ordinance, 2001 in essence, referred to any tangible moveable property, immovable property (other than unimproved land), and included "structural improvement" made on the immovable property---"Structural improvement", in relation to the immovable property, was to include the changes made on the unimproved or even the improved land, which transformed its existing shape and was used for any purpose in furtherance of taxpayer's business---Word "building", provided in Part I of the Third Schedule to the Income Tax Ordinance, 2001, would include structural improvements made on unsold land fulfilling the attributes of a depreciable asset, as provided in S. 22 of the Ordinance

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

----Ss. 20, 21(n), 22(13)(b), 22(15) & Third Sched., Pt. I---Deductible expenses--- Scope--- Depreciable assets--- Unsold improved land---Structural improvements---Cost of land beneath a building---Whether the cost of land beneath a "building" would be included in determining the value of the rate of depreciation specified in the Third Schedule to the Income Tax Ordinance, 2001---Land beneath the structural improvements in the shape of corridors, pavements, roads and other such improvements that were made would not qualify to be included as a cost of the land on which depreciation was sought---Value of the "building" for the purposes of determining the rate of depreciation had to be restricted only to the cost/expenses incurred on the "structural improvements" on the land, and not the costs of land on which it was built upon.

Corporation of the City of Victoria v. Bishop of Vancouver Island (1921) 2 A.C. 384; Thomas v. Long 166 N.W. 287, 288, 182 Iowa, 859; State ex rel. Holbert v. Robinsons (59 S.E.2d 884, 888, 134 W.Va. 524) and Wade v. Odle (54 S.W. 786, 788, 21 Tex. Civ. App. 656) ref.

Commissioner of Income-Tax, Punjab Jammu anal Kashmir and Himachal Pradesh v. Messrs Alps Theatre, Patiala (1967) 65 ITR 377 (SC); Commissioner of Income-Tax, Bombay City-IV, Bombay v. Teritex Knitting Industries Pvt. Ltd. (1978 114 ITR 634 Bom) and Commissioner of Income-tax, Bombay v. Messrs. Gwalior Rayon Silk Manufacturing Co. Ltd. AIR 1992 SC 1782 distinguished.

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

----Ss. 20(1), 21(n), 22(13)(b), 22(15) & Third Sched., Pt. I---Sale of constructed shops/offices on purchased land---Deductible expenses---Scope---Depreciable assets---Unsold improved land---Structural improvements---[Per Yahya Afridi, J (Majority view): While computing the income of the tax-payer from the sale of the shops so constructed on the purchased land, the cost so incurred from the purchase thereof could be deducted under subsection (1) of S. 20 of the Income Tax Ordinance, 2001 ('the Ordinance')---Tax-payer was also entitled to seek depreciation under S. 22 of the Ordinance on the expenditure incurred by him on structural improvements of unsold improved part of the land for the furtherance of his business, which factual determination was to be undertaken by the assessing officer --- Cost/expenses incurred on the structural improvements on the unsold improved land owned by the tax-payer being utilized for the furtherance of his business would be included in the value of a depreciable asset of the tax-payer within the contemplation of S. 22 of the Ordinance---Cost incurred by the tax-payer for purchasing the unsold land would not be included in the value of the depreciable asset for the purposes of depreciation, within the meaning of S.22 read with the Third Schedule of the Ordinance]---[Per Munib Akhtar, J (Minority view): His Lordship observed that present matter was clinched, insofar as the facts and circumstances of the present case were concerned, by S. 22(13) of the Ordinance, therefore, the discussion as regards the legal meaning of "building" in relation to the land beneath any structure contained in paragraphs 27 to 30 of the present judgment, was not necessary and the matter ought to be regarded as left open for future consideration in an appropriate case].

Muhammad Idris, Advocate Supreme Court for Appellants.

Rehmanullah, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record and Abdul Hameed Anjum, Chief Legal, FBR for Respondents Nos. 1 - 2.

2021 S C M R 46

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

SECRETARY ESTABLISHMENT DIVISION, ISLAMABAD---Appellant

Versus

TAHAWWAR AHMAD---Respondent

Civil Appeal No. 559 of 2020, decided on 16th September, 2020.

(Against Order dated 05.06.2018 of Federal Service Tribunal, Islamabad passed in R.P. No. 75 of 2018 in M.P. No. 3155 of 2017 on Appeal No. 1781(R)CS of 2011)

Fundamental Rules---

----F.R. 17---Civil servant granted pro forma promotion to BS-22 on orders of the Federal Service Tribunal---Allotment of additional plot, entitlement to---Civil servant who was granted proforma promotion was entitled only to arrears of pay and allowances of such higher post and nothing more---Question of allotment of an additional plot in terms of the Government's policy did not relate to or grant any benefit to the civil servants who had been granted proforma promotion as the same was limited to civil servants who were eligible and had been promoted/inducted as Federal Secretaries---Service Tribunal in its original judgment had granted respondent-civil servant ante-dated promotion only---Tribunal while exercising jurisdiction for implementation of its judgment lacked powers as well as jurisdiction to modify or amend its original judgment which was limited to grant of ante-dated promotion only---On a miscellaneous petition filed by the respondent the Tribunal acted illegally and without jurisdiction by expanding the scope of its original judgment in directing the competent authority to process the case for allotment of an additional plot in favour of the respondent---In passing such order, the Tribunal neither considered the meaning and scope of FR-17 nor the policy of the Government---Order passed by the Tribunal to process the case for allotment of an additional plot in favour of the respondent was set aside.

Service Tribunal while allowing the appeal of the respondent-civil servant granted ante-dated promotion only and did not grant the other reliefs that he had prayed for in his appeal which was evident from the perusal of the judgment. Only the prayer to the extent of grant of ante-dated promotion was allowed and the other prayers made in the service appeal were declined. The respondent thereafter filed a miscellaneous petition seeking implementation of the said judgment of the Tribunal. The said petition was allowed. However, in allowing the said petition the Tribunal effectively modified its original judgment by directing that the respondent may be granted proforma promotion with all consequential, financial and other benefits and all privileges attached with the grades/posts within two months. The Tribunal was exercising jurisdiction for implementation of the judgment and it lacked powers as well as jurisdiction to modify or amend its original judgment which was limited to grant of ante-dated promotion only. In compliance of order passed by the Tribunal, the matter was placed before a high level Committee under FR-17(I) for approval of the competent authority and the respondent was granted ante-dated promotion to BS-20 with effect from 31.05.2001 to 25.08.2006, BS-21 with effect from 18.12.2007 to 16.03.2009 and BS-22 with effect from 03.08.2011 for the purpose of payment of arrears of pay and allowances only. The meaning, tenor and scope of the notification in question was quite clear. The respondent never challenged the said notification before any competent forum.

Subsequently the respondent approached the Establishment Division vide applications requesting that his case be recommended to Ministry of Housing and Works for allotment of an additional Category-I plot. Such requests were declined by the Establishment Division vide a letter, which the respondent never challenged before any forum and instead filed yet another miscellaneous petition in his main appeal before the Service Tribunal. The Tribunal took cognizance of the matter and expanded the scope of its original judgment yet further by directing the competent authority to process the case for allotment of an additional plot in favour of the respondent within a period of one month. Such modification of the original judgment by the Tribunal while exercising powers in miscellaneous petition was wholly illegal and without jurisdiction. In passing such order, the Tribunal neither considered the meaning and scope of FR-17 nor the policy of the Government for allotment of an additional plot to the retired civil servants who were granted proforma promotion to BS-22.

Civil servant who was granted proforma promotion was entitled only to arrears of pay and allowances of such higher post and nothing more. The question of allotment of an additional plot in terms of the Government's policy did not relate to or grant any benefit to the civil servants who had been granted proforma promotion as the same was limited to civil servants who were eligible and had been promoted/inducted as Federal Secretaries. Order passed by the Tribunal to process the case for allotment of an additional plot in favour of the respondent was set aside. [pp. 55, 56] D & E

Sajid Ilyas Bhatti, Additional Attorney General for Pakistan and Syed Rifaqat H. Shah, Advocate-on-Record for Appellant.

Respondent in person.

2021 S C M R 56

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

Mian HAROON RIAZ LUCKY and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No.907 of 2020 and Civil Petition No.1965 of 2020, decided on 30th September, 2019.

(Against the order dated 08.06.2020 passed by the Lahore High Court Lahore in Crl. Misc. No.74081-B/2019 and W.P. No.51049 of 2019)

Gas (Theft, Control and Recovery) Act (XI of 2016)---

----Ss. 4, 5(2), 23 & 31---Penal Code (XLV of 1860), S. 462-C & Chapt. XVII-A---Theft of natural gas by commercial consumer---Registration of FIR under S. 462-C, P.P.C.---Plea of accused-petitioners that at time of alleged offence, the Gas (Theft, Control and Recovery) Act, 2016 ['the 2016 Act'] was in force, therefore, registration of FIR under S. 462-C, P.P.C. without following the provisions of 2016 Act was an abuse of process of law---Held, that analysis of changes brought about by the 2016 Act clearly illustrated that the new regime under exclusive jurisdiction solely dealt with the cases of gas with no change in the generic character of the offences earlier enlisted under the Chapter XVII-A of the Pakistan Penal Code, 1860 except that it provided a new mechanism for assumption of exclusive jurisdiction by the Gas Utility Court to try offences as a Court of Session under Cr.P.C., however, it required a complaint, in writing by a person authorized in such behalf by a Gas Utility Company---Offences listed in Chapt. XVII-A, P.P.C. remained cognizable as well as non-bailable with only immunity extended to a domestic consumer, otherwise liable to be dealt with in accordance with the provisions of Cr.P.C.---Only concession under the new regime i.e. the 2016 Act was available to a domestic consumer---However, the present case involved a commercial consumer---Restriction placed by S. 23 of the 2016 Act that search in suspected premises may be carried out by an officer or employee of a gas utility company not below BPS-17, was merely directory in nature, to be followed having regard to the exigencies of a particular situation, as far as practicable; non-compliance whereof, could not be interpreted to have vitiated the process of law---Furthermore there were a wide variety of offences both under the Pakistan Penal Code, 1860 as well as under various special laws that required prior sanction of an Authority/person for prosecution for the purposes of assumption of cognizance by the Trial Court, which for purposes of present case was S. 5(2) of the 2016 Act; such requirements did not stand as an impediment to the registration of First Information Report (FIR), arrest of an offender or commencement of investigation thereof as the clog of sanction transiently related to the steps preparatory thereto by the authority designated under the statute---Petition for leave to appeal seeking cancellation of FIR was dismissed and leave was refused.

Abid Saqi, Advocate Supreme Court along with Petitioners and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in both cases).

Rana Arif Kamal Noon, Prosecutor General Punjab, Rana Abdul Majeed, Addl. P.G. Punjab, Mirza Abid Majeed, Deputy Prosecutor General Punjab with Ihsan Ullah, DSP for the State.

Complainant in person (in both cases).

Ch. Hafeez Ullah Yaqub, Advocate Supreme Court and Ali Rukh Khattak, L.O. SNGPL for S.N.G.P.L.

Sajid Ilyas Bhatti, Addl. Attorney General for Pakistan on Court's Notice.

2021 S C M R 63

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

JAHANZEB and others---Petitioners

Versus

STATE through A.G. Khyber Pakhtunkhwa Peshawar and another---Respondents

Criminal Petition No. 1023 of 2020, decided on 25th November, 2020.

(Against the order of Peshawar High Court, Peshawar dated 17.08.2020 passed in Crl. M. B.A. No.2275-P/2020)

(a) 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---Allegation against the accused persons was that they resorted to indiscriminate firing, however, the deceased sustained only a single shot whereas none of the prosecution witnesses sustained even a scratch---Prosecution did not claim that witnesses escaped from the firing of the accused persons due to some hurdle or safety measure---Occurrence had taken place in open and if there would have been any intent on the part of the accused persons, there was nothing which could restrain them from committing the occurrence on a broader spectrum---During the course of investigation recovery of four empties was made from the spot but as no weapon was recovered from the accused persons during the course of investigation, mere recovery of empties would be a question best resolved by the Trial Court after recording of prosecution evidence---No overt act was ascribed to the accused persons except the allegation of ineffective firing, which too was not supported by recovery of any weapon---Case of the accused persons was one of further inquiry falling within the ambit of S. 497(2), Cr.P.C. entitling them for the concession of bail---Petition for leave to appeal was converted into appeal and allowed and accused persons were granted bail.

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

----S. 497(2)---Bail---Term 'further inquiry' as provided in S. 497(2), Cr.P.C.---Scope---Intent of the legislature in S. 497(2), Cr.P.C. disclosing pre-condition to establish "guilt" against whom accusation was levelled had to be established on the basis of reasonable grounds, however, if there existed any possibility to have a second view of the material available on the record then the accused was entitled for the relief of bail in the spirit of S. 497(2), Cr.P.C.

Asad Ullah Khan Chamkani, Advocate Supreme Court for Petitioners.

Ayesha Tasneem, Advocate Supreme Court for the State.

Complainant in person.

2021 S C M R 67

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

QAISAR KHAN---Appellant

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Home and Tribal Affairs and others---Respondents

Civil Appeal No. 59-P of 2011, decided on 5th October, 2020.

(On appeal against the judgment dated 12.01.2010 passed by Peshawar High Court, Peshawar in Writ Petition No. 3372 of 2009)

Khyber Pakhtunkhwa Public Service Commission Regulations, 2003---

----Reglns. 20(c) & 20(g)---Domicile certificate---Renunciation of domicile by implication---Scope---Respondent got employment as Lecturer on the domicile of "Tribal area" but subsequently, he applied for the post of Sub-Inspector Legal in the settled area claiming himself to be the holder of domicile of Mardan---Held, that respondent had obtained employment as Sub-Inspector Legal by producing domicile of Mardan and apparently, when such domicile was produced it stood final---Clause (g) of Regln. No. 20 of Khyber Pakhtunkhwa Public Service Commission Regulations, 2003 made provision for renouncement of domicile of settled District for obtaining of category 'B' domicile of Tribal area---No such requirement apparently was mentioned in the Regulations for obtaining of domicile of settled area like Mardan---In any case, once respondent had produced the domicile of Mardan, its implication was that he had renounced the domicile of Tribal area and no more remained the resident of the said Agency---Appellant had never argued that respondent had obtained domicile certificate from Mardan through malpractice or some mis-declaration, nor any material to such effect was available on the record---Appeal was dismissed.

Amjad Ali, Advocate Supreme Court and Muhammad Ajmal Khan, Advocate-on-Record for Appellant.

Shumail Ahmed Butt, A.G. Khyber Pakhtunkhwa for Respondents Nos. 1 - 4.

Khalid Rehman, Advocate Supreme Court for Respondent No. 5.

Qazi Babar Irshad, Additional Attorney General on Court's Notice.

2021 S C M R 69

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.85 of 2020, decided on 29th October, 2020.

(Against judgment dated 29.09.2015 passed by the Lahore High Court Lahore in Crl. Appeal No.122-J with M.R. No.131/2011)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Husband murdering his wife and daughters over strained marital relations---Prosecution case was structured upon ocular account furnished by the accused's father-in-law and a distantly related person---Said witnesses were not expected to swap the real culprit of gruesome murders with the accused, and their presence at the scene was not unnatural as they had come to the accused's place to restore congeniality between the spouses---Strained marital relations between the accused and his deceased wife were not seriously disputed, thus, the motive for the occurrence could not be considered as unconceivable---Disproportionately violent response by accused due to his wife's approach to her father for rescue and brutality inflicted by him on his two daughters, did not provide him any space to hide behind the shield of disproportionality of his appalling behavior---Both the witnesses furnished graphic details of the occurrence as well as the events collateral therewith in a comfortable and confidence inspiring unison---Recovery of toka stained with human blood on pointation of accused provided additional corroboration, and the injuries suffered by all the deceased were consistent with the nature of said weapon---Prosecution had successfully driven home the charge against accused beyond reasonable doubt---Appeal was dismissed and Supreme Court did not interfere with the sentence of death on three counts awarded to the accused.

M. Siddique Khan Baloch, Advocate Supreme Court for Appellant.

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

2021 S C M R 73

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Amin-ud-Din Khan, JJ

ATTA MUHAMMAD and others---Petitioners

Versus

Mst. MUNIR SULTAN (DECEASED) through her LRs and others---Respondents

Civil Petition No. 659 of 2019, decided on 10th December, 2020.

(Against the judgment dated 10.01.2019 of the Lahore High Court, Rawalpindi Bench passed in C.R. No.532-D of 2012)

(a) Gift---

----Gift mutations---Proof---Daughters disentitled from inheritance through gift mutations made illegally---Purported donor at the time of his death was over ninety years of age, in poor health with serious questions raised over his state of mind---Purported gifts were made a few months before the donor passed away---Gift mutations show that donor himself reported that he had gifted the lands but the mutations did not mention when and where he had made the said gifts nor as to when and where the same were accepted by the purported donees/petitioners---Not a single one of the documents referred to by the petitioners were signed or thumb impressed by purported donor---Particulars of the gift were also not mentioned in the written statement filed by the petitioners---One of the witnesses to the gifts did not testify---Burden to prove the gifts was on the petitioners who failed to discharge such burden---Two of the purported donees/petitioners did not testify and only one of them testified, but he did not testify as an attorney of the other two donees---Material particulars of the gifts, including when and where the lands were gifted, accepted and possession of the lands delivered was not mentioned in the gift mutations, in the roznamcha waqiati (daily diary register), in the written statement or any other document---In the present case an extremely old man allegedly gifted his property by excluding his five daughters---Such unusual circumstances should have alerted the Revenue staff to be more cautious and before sanctioning the gift mutations they should have ensured the identity of the donor, should have obtained a copy of his identity card, should have obtained his signature and/or thumb impression, should on account of his advanced age and frail state of mind ensured that the donor knew that he was making the said gifts---In the circumstances it would also have been prudent to have issued notices to the donor's daughters to bring it to their knowledge that their father was gifting away all his lands---Sufficient material was on record to suggest that the petitioners had acted dishonestly and gift mutations were illegally made in their favour---Petition for leave to appeal was dismissed and leave was refused with costs throughout imposed upon the petitioners.

Farhan Aslam v Mst. Nuzba Shaheen Civil Petition No. 4459 of 2018 ref.

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

----Ss. 42(1), 42(6) & 42(7)--- Gift--- Gift mutation--- Proof---Section 42(1) of the Punjab Land Revenue Act, 1967 ('the Act') required the person in whose favour the land had been transferred/alienated to report the same to the revenue authorities, which in the present case would have been the donees of the gifts but they did not do so---Furthermore subsections (6) & (7) of S. 42 of the Act required that before passing an order sanctioning change in the register of mutations in respect of any right which had been acquired, the person from whom it was acquired should be identified by 'two respectable persons, preferably the Lambardar or members of Zila Council, Tehsil Council or Town Council or Union Council' but the two said witnesses in the present case were not such persons---Sufficient material was on record to suggest that the petitioners had acted dishonestly and gift mutations were illegally made in their favour---Petition for leave to appeal was dismissed and leave was refused with costs throughout imposed upon the petitioners.

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

----Ss. 39 to 45---Records-of-rights and Periodical Records---Revenue department---Observations recorded by the Supreme Court regarding unsatisfactory performance of revenue department with respect to maintaining Revenue records.

Supreme Court observed that in many cases it could notice the deterioration and decline in the performance of the Revenue department, absence of proper record keeping and the erosion of a system of checks and balances. Suspect transactions were easily recorded and by disregarding the stipulated legal requirements. Even in cases where the Revenue staff had been complicit generally no consequences were visited upon them by the competent authority. The prevailing state of affairs was far from satisfactory. Bad, insufficient and/or easily manipulated records caused unnecessary litigation. Such litigation would be avoided if the Revenue department did its work properly. [p. 80] E

The Revenue department was a revenue generating department; it collected land revenue, taxes and charged fees, but had failed to provide to the public reliable and accurate record keeping. Entries in the Revenue records were difficult, if not impossible to read; were not clearly and legibly written; entries under different columns were squeezed or extended to other columns because insufficiently sized paper was used; and written on poor quality paper which easily fragments/ tears. The use of reinforced paper had been discontinued and property records got damaged or destroyed by heavy rains, fires, vermin and riots because they were not safely stored in reinforced (fire-resistant) cupboards and apparently there was no electronic backup in case of loss, damage or destruction. It may also be a step in the right direction if the name and designation of the concerned revenue official/officer making the entry was written and his stamp affixed under his signature. There also appeared to be abject refusal to use technology, such as finger/thumb verification of the person divesting ownership and photographing those present, such technology cost was now very affordable. The record-keeping by the Revenue department needed to be improved to safeguard the valuable property rights of the people. [p. 80] F

Supreme Court gave directions for sending copies of present judgment to the concerned government officials/departments with the expectation that they would rise to serve the people by enacting measures which would prevent fraudulent entries to be made in the Revenue records. [p. 81] G

Muhammad Siddique Awan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2021 S C M R 82

[Supreme Court of Pakistan]

Present: Mushir Alam, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

Sardar ABDUL REHMAN---Appellant

Versus

ABDUL KAREEM KHETRAN and others---Respondents

Civil Appeal No.1 of 2020, decided on 6th October, 2020.

(Against the judgment dated 31.12.2019 passed by the Election Tribunal Balochistan, Quetta in Election Petition No. No.36 of 2018)

(a) Elections Act (XXXIII of 2017)---

----Ss. 144(4) & 148(1)---Civil Procedure Code (V of 1908), O. VI, Rr. 14 & 15---Qanun-e-Shahadat (10 of 1984), Art. 133---Election petition---Maintainability---Legal defects in verification of petition and annexures and mode of presentation---Petitioner assigned the responsibility for institution as well as prosecution of the election petition to his designated attorney, who was the person who appeared to have not only presented the election petition but also verified contents as well as annexures thereof as required under section 144 (4) of the Elections Act, 2017 ('the 2017 Act')---While O. VI, Rr. 14 & 15, C.P.C., generously permitted the parties to sign pleadings or verification either personally or through their designated attorneys, S. 144(4) of the 2017 Act mandatorily restricted the petitioner to personally undertake the exercise, violation whereof, would inevitably result into summary rejection of the petition as was evident from the plain language of S. 148(1) of the 2017 Act---Petitioner had to follow the procedure expressly provided by the 2017 Act itself; admittedly he did not follow the same---Same anomaly was recurring in all the annexures of the petition without exception---Only at the end of the proceedings the petitioner personally appeared to face cross-examination on his detailed affidavit, which again was signed and submitted by the attorney---Case record did not suggest that attorney appeared before the Tribunal, however, it was manifestly clear that for the detailed affidavit of petitioner, oath was never administered upon him, as was evident from the description of deponent thereof being no other than the attorney---Examination-in-chief, cross-examination and re-examination were inseparable parts of a witness's deposition and it was not open for the petitioner, to adopt contents of an affidavit sworn by a different deponent---Election petition was held to be not maintainable---Appeal was allowed.

(b) Elections Act (XXXIII of 2017)---

----Ss. 144(4) & 148(1)---High Court (Lahore) Rules and Orders, Vol. IV, Chapt XII---Civil Procedure Code (V of 1908), O. VI, Rr. 14 & 15---Election petition---Maintainability---Verification of election petition and annexures---Procedure for verifications was provided in the [Lahore] High Court Rules and Orders, Vol. IV, Chapt. XII wherein form of oath and affirmation thereof, to be administered to the witnesses, were aptly illustrated---Non-compliance with the said procedure would be fatal to the election petition.

Sardar Muhammad Naseem Khan v. Returning Officer PP-12 and others 2015 SCMR 1698; Hina Manzoor v. Malik Ibrar Ahmed and others PLD 2015 SC 396; Zia-ur-Rehman v. Syed Ahmad Hussain and others 2014 SCMR 1015; Engineer Iqbal Zafar Jhagra and others v. Khalil-ur-Rehman and 4 others 2000 SCMR 250 and Lt. Col. (Retired) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585 ref.

Kamran Murtaza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Respondents.

2021 S C M R 87

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and

Sayyed Mazahar Ali Akbar Naqvi, JJ

SHARIF KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1228 of 2020, decided on 26th November, 2020.

(Against the order dated 01.10.2020 passed by Peshawar High Court, Bannu Bench in B.C.A. No. 45-B of 2020)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---In response to the accusation, the accused surrendered himself before the local police and pleaded his innocence while raising plea of alibi---Investigating Officer in order to verify the plea raised by the accused, investigated the matter at length and finally came to the conclusion that the accused was not present at the spot at the time of occurrence---As a consequence, he was declared innocent while placing his name in the column No.02 of the report under S. 173, Cr.P.C.---Deceased sustained two injuries whereas while lodging crime report, the complainant had assigned allegation against three persons who indulged into indiscriminate firing with their respective weapons---Contradiction regarding the number of assailant and injuries sustained by the deceased was also considered by the Investigating Officer---Allegation against all of the accused persons was generalized in nature and there was no specification of injury attributed to anyone of them---Case of the accused was one of further inquiry fully covered under S. 497(2), Cr.P.C. entitling him for concession of bail---Such aspects were rightly taken into consideration by the Trial Court while granting post arrest bail to the accused, which order was recalled by the High Court---Bail recalling order of High Court was set-aside and accused was granted bail---Petition for leave to appeal was converted into appeal and allowed accordingly.

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

----S. 497(5)---Bail, cancellation of---Scope---Ordinarily superior courts were hesitant and reluctant in interfering with an order extending concession of bail---Once concession of bail was granted by a court of competent jurisdiction then very strong and exceptional grounds would be required to hamper with the concession extended to an accused---Any (contrary) view taken by the court would be synonymous to curtailing the liberty of the accused prior to completion of trial, which otherwise was a precious right guaranteed under the Constitution.

Shahid Arshad v. Muhammad Naqi Butt and 2 others 1976 SCMR 360 ref.

Sher Afzal Khan Marwat, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

Raja Muhammad Rizwan Satti, State counsel for Khyber Pakhtunkhwa.

2021 S C M R 92

[Supreme Court of Pakistan]

Present: Mushir Alam, Chairman, Sardar Tariq Masood, Qazi Muhammad Amin Ahmed, JJ. Dr. Muhammad Al-Ghazali, Ad-hoc Member-I and

Dr. Muhammad Khalid Masud, Ad-hoc Member-II

MUHAMMAD HAYAT and another---Appellants

Versus

The STATE---Respondent

Criminal Shariat Appeal No.12 of 2017, decided on 1st December, 2020.

(On appeal against the judgment dated 22.11.2014 passed by the Federal Shariat Court, Islamabad, in Criminal Appeal No. 8-Q of 2013 and Criminal Murder Reference No.1/1 of 2013)

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

----Ss. 302(b) & 392---Qatl-i-amd, robbery---Shariat appeal---Reappraisal of evidence---Parties had no previous bad blood between them---Incident took place at 8:30 p.m., and the complainant with remarkable promptitude presented written application, converted into First Information Report at 8:45 p.m. at a police station located at a distance of 3/4 kilometers from the venue---One of the deceased, in injured condition, was medically examined under a police docket at 9:30 p.m., soon whereafter autopsies commenced---Such circumstances by them self conclusively established prosecution's bona fides in recourse to law--- Defence was unable to point out even obliquely any collusion, conspiracy or consideration impelling the witnesses to swap innocent persons as culprits---Three Kalashnikovs, recovered upon disclosure of accused persons, were forensically found wedded with the casings secured from the spot barring six with points of dissimilarity, a minor discrepancy insufficient to shake the structure of the case resting upon sound foundations of ocular account through sources unimpeachable and free from taints---On an overall analysis of prosecution evidence, the only possible hypothesis was that of guilt of accused persons---Death sentences awarded to accused persons were maintained--- Shariat appeal was dismissed.

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

----Ss. 302(b) & 392---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery--- Shariat appeal--- Reappraisal of evidence--- Test identification parade---Accused persons were put to test identification parade under magisterial supervision on the same day of the incident, shortly after their arrest, wherein the witnesses correctly identified them as the ones who targeted the deceased during the robbery --- During such process, each witness distinctly pointed each accused persons for having targeted the deceased---Identification of accused persons by the witnesses, without loss of time, ruled out possibility of manipulation---Argument that darkness may have possibly impeded identity of the assailants was not impressive as headlamps of three motorbikes, recovered during investigation, generated sufficient light to enable the witnesses to capture broad facial features of the assailants, encountered at a close distance---Death sentences awarded to accused persons were maintained---Shariat appeal was dismissed.

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

----Art. 22---Police Rules, 1934, R. 26.32---Test identification parade---Venue---Whether a police station was an appropriate place holding a test identification parade---Held, that the law did not designate any specific place to undertake the exercise of test identification parade---Combined reading of R. 26.32 of the Police Rules, 1934 with Art. 22 of the Qanun-e-Shahadat, 1984, did not restrict the prosecution to necessarily undertake the exercise of test identification parade within the jail precincts.

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

----Art. 22---High Court (Lahore) Rules and Orders, Vol. III, Part-C---Test identification parade---Scope---Omission of assailants' features in the crime report---Whether such omission was a ground to discard the test identification parade---Held, that Part C of the High Court (Lahore) Rules and Orders Volume-III did not stipulate any such condition---In the natural course of events, in an extreme crisis situation, encountered all of a sudden, even by a prudent onlooker with average nerves, it would be rather unrealistic to expect meticulously comprehensive recollection of minute details of the episode or photographic description of events or the assailants---Broad identification of the assailants, in the absence of any apparent malice or motive to substitute them with the actual offenders, was sufficient to qualify the requirement of Art. 22 of the Qanun-e-Shahadat, 1984.

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

----Ss. 302(b) & 392--- Qatl-i-amd, robbery--- Shariat appeal---Reappraisal of evidence---Plea of commuting death penalty into imprisonment for life on the ground that simultaneous multiple fire shots by the assailants left no space to possibly determine fatalities distinctly---Held, that the totality of circumstances of present case did not admit any space to divisibly draw any such benign distinction within the realm of human wisdom when all the three assailants in a petty criminal pursuit ruthlessly targeted the deceased in cold blood---Death sentences awarded to accused persons were maintained---Shariat appeal was dismissed.

Saghir Ahmed Qadri, Advocate Supreme Court for Appellants.

Nemo for the Complainant.

Syed Baqir Shah, Advocate Supreme Court/State counsel.

2021 S C M R 97

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Munib Akhtar, JJ

DIRECTOR GENERAL, NATIONAL SAVINGS CENTRAL DIRECTORATE OF NATIONAL SAVING 32-N SECTOR G-6, ISLAMABAD and others---Appellants

Versus

MUHAMMAD SULTAN and others---Respondents

Civil Appeals Nos. 323-325 of 2018, decided on 17th April, 2019.

(On appeal from the order dated 16.12.2016 passed by the PST, Ibd. in Appeals Nos.2299(R) CS/2013 to 2301(R)/CS/2013)

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

----S. 9--- Civil Servants (Seniority) Rules, 1993---Persons/respondents serving in a Ministry devolved after the 18th Constitutional Amendment transferred and subsequently absorbed into Central Directorate of National Savings (CDNS)---Promotion criteria---Scope---Three conditions for the absorption/induction of the respondents into service of CDNS were; firstly, that they shall be absorbed/inducted as 'Marketing Officer' (BS-17); secondly, that they shall not have a right of change of their cadre or for the conversion of their post to the post of National Savings Officer (BS-17); and finally, that their inter-se-seniority against the post of Marketing Officer shall be determined in the light of Civil Servants (Seniority) Rules, 1993---Federal Service Tribunal through the impugned judgment did not modify or invalidate any of the said terms but directed the CDNS to initiate the process of re-designation of the respondents' posts so that they were encadred properly or in the alternative to frame recruitment rules for providing a channel of promotion to them---Question as to whether the respondents were entitled to a channel of promotion in their service of the CDNS as was assured to other officers who were regularly inducted in such service---Held, that conditions/terms of the offer agreed to by the respondents secured for them only the post of Marketing Officers BS-17 until the date of their superannuation; they did not guarantee them a career leading to higher posts in service of the CDNS---Respondents were conferred the status of civil servants, and it was their legal right to be considered for promotion, provided they satisfied the requisites therefor---Such requisites included eligibility by way of educational qualifications and experience, and other prescribed criteria for the higher post---Impugned judgment of the Federal Service Tribunal rightly envisaged that rules be framed by CDNS thereby opening, inter-alia, the vista of promotion for the respondents---Said rules may, inter-alia, specify the criteria of qualifications, experience, seniority and fitness for the higher post and possibly the number of seats in the cadre for which the respondents may compete---In order to avail career progression through promotion under S. 9 of the Civil Servants Act, 1973, the respondents were obligated to qualify for such a benefit and privilege---For such purpose, CDNS must install an appropriate framework that catered for officers in the respondents' position to be considered for promotion in service by laying down criteria consistent with the law---Appeals were partly allowed accordingly.

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

----S. 11A--- Absorption of civil servants rendered surplus---Absorption/induction into service of a person who had not complied with the legal process for recruitment into government service could not confer on him all the rights and fruits guaranteed under the Civil Servants Act, 1973.

Sohail Mahmood, D.A.G., Ch. Akhtar Ali, Advocate-on-Record and Ch. M. Tariq Ali, Dir. National Savings for Appellants (in all cases).

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

2021 S C M R 104

[Supreme Court of Pakistan]

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

AKBAR ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 296-L, 297-L of 2020 and Criminal Petition No.373-L/2016, decided on 21st October, 2020.

(Against the judgment dated 23.02.2016 passed by the Lahore High Court Lahore in Crl. Appeals Nos.2055/2010, 2142/2010 and Crl. Rev. No.1348/2010 with M.R. No.135/2011)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Sentence, reduction in---Death sentence altered to imprisonment for life---Witnesses were unanimous on the point that solitary fire shot made by the accused caused the deceased his life---However a negative forensic report seriously diminished consequentiality of the weapon recovered---Furthermore the prosecution failed to establish motive---In such circumstances the High Court had rightly maintained conviction of accused but reduced his sentence of death to imprisonment for life---Appeal was dismissed.

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

----S. 324---Attempt to commit qatl-i-amd---Reappraisal of evidence---Accused persons were convicted and sentenced by the Trial Court under S. 324, P.P.C. for the murderous assault upon the injured witnesses and also ordered to pay compensation to them---On appeal the High Court let off the accused persons from the charge of murderous assault, viewing the lethality of injuries as being insufficient to attract the mischief of S. 324, P.P.C., particularly in view of recovery of blunt weapons, however, direction for monetary compensation to the injured witnesses was kept intact---Held, that accused persons were arrested about fifteen years back and appeared to have remained incarcerated for a considerable period of time---Much water had flown under the bridge since the incident and it would be thus inexpedient to reexamine and revisit the question of their culpability within the framework of their indictment, as prayed for by the prosecution---Period of incarceration and tribulation of lengthy trial and procedures of appeal had adequately remedied the wrong in circumstances, calling for no further action---Petition for leave to appeal challenging the acquittal of accused on charge of murderous assault was dismissed and leave was refused.

Azam Nazir Tarar, Advocate Supreme Court and Mudassir Chathha, Advocate Supreme Court for Appellants (in Cr. As.296-L and 297-L of 2020).

M. Qamar-uz-Zaman, Advocate Supreme Court for Petitioner (in Cr. P. 373-L of 2016).

Khurram Khan, Additional Prosecutor General Punjab for the State.

2021 S C M R 107

[Supreme Court of Pakistan]

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

MUHAMMAD ANWAR---Petitioner

Versus

MUHAMMAD ASLAM and others---Respondents

Civil Petition No. 1604-L of 2015, decided on 15th October, 2020.

(Against the order dated 27.04.2015 passed by the Lahore High Court, Multan Bench in C.R. No. 252-D of 2003)

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

----Ss. 6(2), 13 & 35---Suit for pre-emption---Talbs, performance of---Mutation of sale qua subject property was attested on 14-2-1990; this was the interregnum period i.e. from 1-8-1986, to 28-3-1990 when no law of pre-emption was there and all such cases pending/instituted were to be decided in accordance with general Islamic law of pre-emption and on promulgation of the Punjab Pre-emption Act, 1991 ('Act of 1991') legal protection was given to such cases under S. 35 of the Act of 1991---Sale of subject property was effected on basis of a decree passed by civil court in a suit---Pre-emptor (petitioner) remained a party to the said suit and was fully aware of the sale transaction in favour of vendee (respondent)---Story narrated in the plaint by the pre-emptor regarding his knowledge was nothing but a fictitious one for the purpose of justifying his story of Talabs---Pre-emptor alleged that he approached the vendee himself with a witness for purposes of Talb-i­-Ishhad but this was not established in accordance with law and in a similar attempt to prove Talb-i-Ishhad he allegedly sent a notice after about 3-1/2 months but that too had not been established according to law---Although some relaxations under Ss. 13 & 30 of the Act of 1991 were provided to such pre-emptors vide subsection (2) of S. 35 but there was no such relaxation in the provisions of subsection (2) of S. 6 of the Act of 1991---Courts below had rightly dismissed the suit for pre-emption---Petition for leave to appeal filed by pre-emptor was dismissed and leave was refused.

M. Iqbal Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2021 S C M R 109

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

Mst. SUGHRAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.125 of 2020, decided on 27th October, 2020.

(Against the judgment dated 8.11.2016 passed by the High Court of Sindh, Circuit Court, Larkana in Cr. Appeal No.D-3 of 2015)

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

----S. 9(c)--- Possession of cannabis--- Reappraisal of evidence---Sentence, reduction in--- Sentence reduced to period already undergone---Contraband attributed by the prosecution to the accused-lady, being not in excess of 10-kg, brought her case out of the barriers of statutory sealing of lowest mandated sentence and, thus, for reasons valid and just, her plea for reduction of sentence could be entertained---Status of the accused as a hapless carrier of the cannabis had not seriously been controverted by the prosecution---No material/circumstance was found on record to view the accused or co-accused (since deceased) as being privy at the helm of the consignment; they seemed to be abandoned by those who ensnared them into the trap---According to the report submitted by the jail authorities, the accused, as on 23-10-2020, had served out a period well exceeding six years and was scheduled to be released on 18-12-2022---Substantial period of sentence already served out, and death of identically placed co-accused in the prison, were factors that taken into consideration together, cumulatively made out a case to reduce the sentence of accused to the period already undergone---With such modification in sentence, appeal was partially allowed

(b) Administration of justice---

----Criminal justice system---Purpose---Primary purpose behind the criminal justice system was to enable an offender to reform and rehabilitate him/herself to rejoin mainstream life to once again become a useful member thereof; purpose was not to wreak vengeance.

M. Amjad Iqbal Qureshi, Advocate Supreme Court for Appellants.

Hussain Bux, Additional Prosecutor General Sindh for the State.

2021 S C M R 111

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

IMTIAZ---Petitioner

Versus

AZAM KHAN and others---Respondents

Criminal Petition No.77-P of 2020, decided on 8th October, 2020.

(Against the order of the Peshawar High Court, Peshawar dated 22.06.2020 passed in Cr. M.B. A No.1316-P of 2020)

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 324, 34 & 337-D---Bail, recalling of---­Judge of High Court hearing accused's first bail application sending the matter back to Trial Court for addition of relevant sections of P.P.C. in the police record---Second/subsequent bail application filed by the same accused in the same case heard or dealt with by a Judge of the High Court other than the one who heard the first/previous bail application---Counsel for accused also failing to disclose the filing of first bail application and its disposal by another Judge---Violation of the principle laid down in The State through AG NWFP v. Zubair and 4 others (PLD 1986 SC 173).

In the earlier (first) round of litigation, the post arrest bail of the accused persons was dismissed by an Additional District and Sessions Judge (ASJ). Such refusal was challenged before a single Judge of the High Court, who sent the matter back to the trial court not due to any reasons except that the appropriate sections of P.P.C. as per law were not incorporated, which might have ensued gross injustice to the complainant and as such, the matter was sent back for addition of the relevant provision of law in the police record. After the insertion of the relevant provision of law in the second round of litigation, the matter was assigned to a different Additional District and Sessions Judge (ASJ), which was a violation of the principle that the bail application if earlier decided by a court, the same could not be entrusted to any other court except on the ground that the other court was not available. After the ASJ dismissed the bail petition of accused persons, they again challenged such refusal before the High Court, but without intentionally disclosing the filing of earlier bail petition before the High Court and the adjudication of the same by a different bench. The second bail petition before the High Court was as a result assigned to a different single Judge, than the one who heard the first bail petition. This was a clear violation of the principle laid down in the case of The State through AG NWFP v. Zubair and 4 others (PLD 1986 SC 173).

Bail granted to accused persons by the High Court was recalled in circumstances.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 324, 34 & 337-D---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, jaifah---Bail, recalling of---High Court while granting bail to accused persons had not taken into consideration the allegation against them and the injuries ascribed to them---Admittedly one of the injured prosecution witnesses had undergone surgical intervention and as such, the provision of S. 337-D, P.P.C. was added-- Finding given by the High Court qua the applicability of S. 324, P.P.C. and S. 34, P.P.C. qua the common intention of the accused persons was based upon artificial reasoning which was not required at bail stage---­Furthermore the accused persons remained absconder for more than 2 years and 3 months which aspect had altogether been ignored by the High Court---Bail granted to accused persons by the High Court was recalled in circumstances.

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

----S. 497---Bail---Assessment of evidence---Scope---While adjudicating a bail matter only tentative assessment (of the evidence) had to be made.

Ghulam Qammber Shah v. Mukhtiar Hussain and others PLD 2015 SC 66 and Bilal Khan v. The State through PG Punjab 2020 SCMR 937 ref.

Muhammad Jamal Afridi, Advocate Supreme Court for Petitioner.

Hussain Ali, Advocate Supreme Court for Respondents and Respondents in person.

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa and Hidayat Khan, SI Police Station Mathra District Peshawar for the State.

2021 S C M R 116

[Supreme Court of Pakistan]

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

Syed MUDDASAR SHAH TERMIZI and others---Appellants

Versus

PESHAWAR HIGH COURT, PESHAWAR through Registrar, Peshawar and others ---Respondents

Civil Appeals Nos. 731 to 733 of 2016 and C.M.As. Nos.723 and 3199 of 2018, decided on 4th November, 2020.

(Against the order dated 19.12.2015 passed by K.P.K. Sub­ordinate Judiciary Service Tribunal, Peshawar, in S.As. Nos.10, 12 and 16 of 2014)

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

----Ss. 8 & 19(4), proviso [as substituted through the Khyber Pakhtunkhwa Civil Servants (Amendment) Act (III of 2013)]---Khyber Pakhtunkhwa Judicial Service Rules, 2001, R. 5(e)---West Pakistan Civil Services Pension Rules, 1963, Rr. 1.5 & 2.2---Seniority---Civil Judges-cum-Magistrates appointed on contract basis regularized in service after appearing in competitive examination---Inter-se seniority of such judges was to be reckoned from the date of their regularization in service and not from their initial appointment on contract basis---Regularization of service through deeming provision of S. 19(4) of the Khyber Pakhtunkhwa Civil Servants Act, 1973 was confined to pensionary benefits alone and could not be stretched to affect the seniority inter-se of persons who were already members of the judicial service.

In the present case, all the appellants/judicial officers were initially appointed on contract basis, which, on expiry, was renewed. However, the appellants, after qualifying their exams, and on the recommendation of the Provincial Public Service Commission, were appointed on a regular basis. The substituted proviso to sub­section (4) to section 19 of Khyber Pakhtunkhwa Civil Servants Act, 1973, by the Khyber Pakhtunkhwa Civil Servants (Amendment) Act, 2013 merely construed and treated the appellants' appointment from the date of initial appointment on contract as regularized and removed the disparity between two sets of employees, namely who were initially appointed through the Provincial Public Service Commission and those who, though appointed initially on contract, were later regularized through the conduit of Commission for the purposes of calculating pension and gratuity.

Section 19 of Khyber Pakhtunkhwa Civil Servants Act, 1973 dealt exclusively with the matter of Pension and Gratuity and did not affect seniority. Under the proviso to subsection (4) of section 19, 'those who are appointed in the prescribed manner to a service or post on or after the 1st of July, 2001 till 23rd July, 2005 on contract basis shall be deemed to have been appointed on a regular basis". The legislature clearly intended for the deeming provision to be applicable in the eventuality of calculating the pension and gratuity for civil servants. The intention was clear to remove the disparity in calculating such pension between employees who were initially appointed on a contractual basis, and later regularized, in comparison to the civil servants who had been employed directly through the Provincial Public Service Commission.

Deeming clause provided under sub­section (4) to section 19 of Khyber Pakhtunkhwa Civil Servants Act, 1973 could not be allowed to spill over to other provisions of the said Act to reckon seniority in length of service and or for any other collateral purpose. The legislature intended for seniority to be governed under section 8 of the Khyber Pakhtunkhwa Civil Servants Act, 1973, and other enabling provisions, for which a separate mechanism was clearly provided.

(b) Interpretation of statutes---

----Deeming provision in a section of the statute---Interpretation and effect.

While interpreting a deeming provision in a statute, the court was bound to ascertain for what purpose, object, and between what persons the statutory fiction was to be resorted to.

Begum B.H. Syed v. Mst. Afzal Jehan PLD 1970 SC 29 and Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 ref.

Deeming provision was restricted to the section it was attached to and it could not be interpreted to spill over to other provisions of the statute. Such provision was to be strictly construed within the framework of the provisions of the statute it was attached to, unless otherwise provided.

Commissioner of Income Tax and Wealth Tax Sialkot Zone v. Messrs Thapur (Pvt.) Sialkot 2002 PTD 2112; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 and All Pakistan Newspaper Society and others v. Federation of Pakistan and others PLD 2012 SC 1 ref.

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

----S. 8---Contract employees subsequently regularized in service---Seniority---Scope---Seniority could not be calculated for contract employees form the date of their initial contractual appointment---Seniority could only be determined when civil servants were commissioned into regular service

Muhammad Afzal Sohail and 11 others v. Government of Punjab and others 1983 SCMR 859 and M.N. Rizvi P.C.S. v. Province of West Pakistan 1977 SCMR 365 ref.

Amjad Ali, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants

Aftab Alam Yasir, Advocate Supreme Court along with Syed Mudassar Shah Termzi for Appellants (in C.M.As. 723 and 3199 of 2018).

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa, Khalid Rehman L.A PHC and Samil Jan, AR for Respondents.

2021 S C M R 128

[Supreme Court of Pakistan]

Present: Manzoor Ahmed Malik, Mazhar Alam Khan Miankhel and

Qazi Muhammad Amin Ahmed, JJ

IBRAR ULLAH---Petitioner

Versus

The STATE---Respondent

Jail Petition No.348 of 2019, decided on 27th October, 2020.

(Against the judgment dated 18.04.2019 of the Lahore High Court, Lahore passed in Criminal Appeal No.866 of 2017)

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

----S. 9(c)---Possession of 3500 grams of cannibas---Reappraisal of evidence---Admittedly, the accused was a resident of city 'P'; he had apparently no business to be present in city 'R', wherefrom he was unanticipatedly apprehended by a police picket---Similarly, it was difficult to contemplate his substitution to swap the real offender as the volume of cache being substantial could not be conceivably planted in the absence of a strong motive that did not appear in the present case---Official witnesses were found in a comfortable unison on all the relevant details relating to the arrest, search and recovery---Presence of a police picket at the spot had not been disputed by the defence itself---Forensic report contained relevant details of the procedure followed by the analyst to confirm the narcotic character of the contraband---Conviction and sentence recorded against the accused by courts below were well within the remit of law---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 9 & 25---Possession of narcotic---Public witnesses---Official witnesses---Absence of a witness from the public to support the prosecution case despite availability, was symptomatic of public apathy towards civic responsibilities---Such absence did not by itself shadow upon the credibility of official witnesses, who were second to none in status.

S.M. Mehmood Khan Sadozai, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

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

2021 S C M R 130

[Supreme Court of Pakistan]

Present: Mushir Alam and Sayyed Mazahar Ali Akbar Naqvi, JJ

KHAIR MUHAMMAD and another---Petitioners

Versus

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

Criminal Petition No.1067 of 2020, decided on 23rd October, 2020.

(Against the order of the Lahore High Court (Multan Bench) dated 07.09.2020 passed in Crl. M. No.4698-B of 2020)

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Ad-interim pre-arrest bail, confirmation of---Further inquiry---According to the contents of the crime report, occurrence took place in (early) morning whereas the matter was reported to police at 10:50 a.m.---Admittedly, the inter-se distance between the place of occurrence and police station was 08-kms---Inordinate delay qua time of occurrence and registration clearly revealed that possibility of deliberation and consultation could not be ruled out---Injury ascribed to one of the injured persons was contradicted by medical evidence---Investigating officer opined that co-accused was not present at the spot at the time of occurrence---Such opinion was shared by senior police officers who also investigated the case---No recovery of any incriminating material was to be effected from the accused and co-accused---Both of them were of advance age, feeble and found not connected with the crime as alleged---Case of the accused and co-accused squarely fell within the ambit of S. 497(2), Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed, and ad-interim bail already granted to the accused and co-accused was confirmed.

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

----S. 498---Pre-arrest bail---Purpose and scope---Concept of pre-arrest bail was exceptional, it had to be exercised sparingly---Purpose behind pre-arrest bail was to save innocent persons from false allegations, trumped up charges and malicious prosecution at the hands of the complainant party.

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

----S. 498--- Pre-arrest bail--- Merits of the case---While granting pre-arrest bail even the merits of the case could be touched upon.

Meeran Bux v. The State and another PLD 1989 SC 347 ref.

Saif Ullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Mirza Muhammad Usman, DPG Punjab, Omer Saeed, DPO DG Khan, Saadat Ali, DSP City Circle, DG Khan and Ghulam Akbar, SI, PS Gadai, DG Khan for the State.

2021 S C M R 134

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Amin-ud-Din Khan, JJ

BASHIR AHMED---Petitioner

Versus

MUHAMMAD ZAMAN---Respondent

Civil Petition No. 2633 of 2018, decided on 4th November, 2020.

(Against the judgment dated 12.03.2018 of the Peshawar High Court, Abbottabad Bench passed in Civil Revision No.128-A/2014)

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

----S. 13(1), Explanation---Suit for pre-emption---Talb-i-Muwathibat, making of---Two hour delay in making the demand of Talb-i-Muwathibat---Such delay was fatal to a pre-emption suit.

The Explanation to subsection (1) of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 stated that, Talb-i-Muwathibat 'means immediate demand by the preemptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption.' The use of the word immediate was significant and could not be undermined; a delay of two hours in making the demand of Talb-i-Muwathibat was not an immediate demand and such delay was fatal to a successful claim of pre-emption.

Abdul Latif v. Dil Mir 2010 SCMR 1087 distinguished.

In the present case the pre-emptor stated that he had made the demand at 5 pm but his two witnesses stated that they had informed him about the sale at 3 pm, which was when the demand for Talb-i-Muwathibat should have been made. The two hours delay in making the Talb-i-Muwathibat demand was fatal to the pre-emption suit because it was not made in terms of the said law, that is, immediately. Petition for leave to appeal was dismissed and leave was refused.

Syed Javed Akbar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2021 S C M R 136

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

JAHANGIR KHAN---Petitioner

Versus

KHALID LATIF---Respondent

Civil Petition No.1285 of 2020, decided on 3rd August, 2020.

(Against the judgment dated 12.03.2020 passed by the Lahore High Court at Rawalpindi Bench in W.P. No.3673 of 2019)

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

----Ss. 6(2)(e) & 23---Penal Code (XLV of 1860), S. 365-A---Kidnapping or abduction for ransom---Transfer of case from court of ordinary jurisdiction to Anti-Terrorism Court on the orders of the High Court---Legality---Allegation against accused and co-accused persons was that they disguised in police uniforms ostensibly arrested and handcuffed the respondent, where after they attempted to transfer the respondent and his wife to another city by kidnapping them; they also snatched valuables including cash and gold ornaments from the respondent and his wife, and when a contingent of Highway Patrolling Police was attracted to the scene and rescued the family, the accused managed to escape with the loot---High Court by transferring the case to an Anti-Terrorism Court had discreetly attended the controversy leaving the fate of the case to be finally decided after recording statements of the prosecution witnesses, which course was correct in the face of accusations leveled by the respondent and his wife who allegedly endured the ordeal, with an option to the accused to re-agitate the issue afresh on the basis thereof before the Anti-Terrorism Court, if need be---View taken by the High Court did not suffer from any jurisdictional error or flaw and, thus, called for no interference---Petition for leave to appeal was dismissed and leave was refused.

Ch. Abdul Khaliq Thind, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2021 S C M R 138

[Supreme Court of Pakistan]

Present: Mushir Alam and Sayyed Mazahar Ali Akbar Naqvi, JJ

SAJID---Petitioner

Versus

SAMIN UR REHMAN (DECEASED) through his Father and others---Respondents

Criminal Petition No. 1029 of 2020, decided on 21st October, 2020.

(Against the judgment of the Peshawar High Court (Bannu Bench) dated 06.08.2020 passed in Cr. M. B.A. No.381-B of 2020)

(a) 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---Although the accused was nominated in the crime report which was lodged with promptitude, but the mode and manner of commission of offence mentioned therein was generalized in nature; it did not specify any of the accused persons of causing any injury either to any deceased or injured witnesses---Even the weapons used by the accused was not described in the crime report---Statements of prosecution witnesses were recorded in the same pattern as the crime report---Post-mortem report to the extent of one of the deceased showed that he had no visible injury on his person, and the same observation was recorded against the column of "cause of death"---Other deceased had sustained only one stab wound at the epigastric region, while the injured witnesses sustained minor injuries that too without any specification---Accused had also lodged a counter version for the incident as he too claimed to have sustained injuries at the hands of the complainant side---Two of the co-accused persons nominated by the accused were granted pre-arrest bail---Such aspect made present case one of two versions attracting provision of S. 497(2), Cr.P.C.---Even during course of investigation, nothing incriminatory was recovered to strengthen the prosecution version---Petition for leave to appeal was converted into appeal and allowed and accused was granted bail.

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

----S. 497---Bail---Scope---Co-accused fugitive from law---Criminal liability could not be shifted from the co-accused to the accused merely on the ground that the co-accused was a fugitive from law.

Pir Liaqat Ali Shah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Respondent No.04 in person.

Ms. Tehmina Mohibullah, Advocate Supreme Court/State counsel and Muhammad Nauroz SI for the State.

Complainant in person.

2021 S C M R 142

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

ZEESHAN alias SHANI and another---Petitioners

Versus

MUHAMMAD AYUB and others---Respondents

Criminal Petitions Nos. 851-L and 827-L of 2016, decided on 6th August, 2020.

(Against the judgment dated 26.05.2020 passed by the Lahore High Court Lahore in Cr. Appeal No.1003/2012 with M.R. No.196/2012)

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

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Leave to appeal, grant of---Plea on behalf of accused-petitioner that deceased was done to death in an un-witnessed occurrence as was evident from the tenor of FIR lodged by deceased's father who had admittedly not seen the occurrence; that deceased's brother, who was an alleged witness, would have reported the matter to the police in the normal course and his induction as a witness heavily reflected upon the veracity of the prosecution case; that according to the police investigation, the murder was in fact committed by some other person and it was so confirmed by two witnesses, who had actually seen the occurrence; that the alleged motive was vague and there was no occasion for the accused to take on the deceased; and that no casing from the spot was recovered---Supreme Court granted leave to appeal to re-appraise the evidence qua the accused to ensure safe administration of criminal justice with a view to examine the investigative conclusions, which were diametrically incompatible with the case set up in the crime report---Leave granted.

(b) Constitution of Pakistan---

----Art. 185(3)---Appeal against acquittal---Scope---Reversal of acquittal required strong grounds and could not be interfered with merely on the possibility of a contra view.

Azam Nazeer Tarar, Advocate Supreme Court for Petitioners (in Cr. P.851-L of 2016).

Sardar Abdul Majeed Dogar, Advocate Supreme Court for Petitioners (in Cr. P.827-L of 2016).

Nemo for the State.

2021 S C M R 144

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

NATIONAL BANK OF PAKISTAN and another---Appellants

Versus

ZAHOOR AHMED MENGAL---Respondent

Civil Appeal No. 681 of 2020, decided on 26th November, 2020.

(Against the judgment dated 30.12.2019, passed by the High Court of Balochistan, Quetta in C.P. No. 869 of 2016)

(a) Civil service---

----Employee of National Bank of Pakistan ('the bank')---Absence from duty---Termination of employment---Employee had remained absent from 31-10-2014 to 7-4-2016 except for one day i.e. 2-2-2016, when he stated to have reported for duty---Employee was issued three absence notices by the Bank at various times to join duty but he failed to do so, rather took a plea that on account of a tribal feud and threats to his life he was unable to work in the Bank---Employee did not provide any material or evidence showing that in fact there was any tribal feud or there was a threat to his life and even no instance in such regard whatsoever was pointed out by him---Not even an FIR of any incident showing threat to the life of the employee was provided to the Bank---In the face of admitted absence from duty, there was no need to hold a regular enquiry in the present case---Service of employee had rightfully been terminated---Appeal was allowed.

Federation of Pakistan through Secretary Ministry of Law and Justice Division, Islamabad v. Mamoon Ahmed Malik 2020 SCMR 1154 ref.

(b) Civil service---

----Employee admittedly absent from duty---Disciplinary proceedings---Regular inquiry---Scope---Where the fact of absence from duty was admitted, there was no need for holding of a regular enquiry for that there was no disputed fact involved to be enquired into.

Federation of Pakistan through Secretary Ministry of Law and Justice Division, Islamabad v. Mamoon Ahmed Malik 2020 SCMR 1154 ref.

(c) Revised Leave Rules, 1980---

----R. 9(3)---Extraordinary leave without pay ('EOL')---Scope---Unauthorised absence from duty---While imposing penalty on the employee in the case of unauthorized absence, the absence period treated as an EOL was not a punishment, rather it was a treatment given to the absence period, which the employer was entitled to do.

National Accountability Bureau through 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.

Kaleemullah Qureshi, Advocate Supreme Court for Appellant (via video link from Quetta).

Kamran Murtaza, Senior Advocate Supreme Court for Respondent (via video link from Quetta).

2021 S C M R 149

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and

Qazi Muhammad Amin Ahmed, JJ

GHULAM MURTAZA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 255 of 2020, decided on 27th October, 2020.

(On appeal from the judgment dated 28.1.2016 passed by the Peshawar High Court, Abbottabad Bench in Crl. A. 160-A/2010 and Crl. R. No. 07-A/2012)

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

----Ss. 302(b) & 459---Qatl-i-amd, hurt caused, whilst committing lurking house-trespass or house-breaking---Reappraisal of evidence---Accused was the only person nominated in the FIR by the complainant, and he had been attributed the role of effective firing at the deceased---Eye-witness of the case was an inmate of the house, where the occurrence took place, therefore her presence at the spot was natural and could not be doubted---Evidence of said eye-witness found corroboration from the contents of the FIR and the site plan, which was prepared on her pointation, wherefrom the crime empties and blood-stained clothes were recovered by the investigating officer---Said eye-witness was subjected to lengthy cross-examination but nothing detrimental to the case of the prosecution was found in her statement---Medical evidence also supported the prosecution version---Besides the crime empties, the weapon of offence was recovered from the possession of the accused, and the forensic report in regard to the weapon was positive---Appeal was dismissed and conviction and sentences passed against the accused were maintained.

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

----S. 302(b)---Qatl-i-amd---Related witness, evidence of---Scope---Mere relationship of a witness with the victim would not discard his/her evidence if it was otherwise confidence inspiring and trustworthy.

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

----Ss. 302(b) & 459---Qatl-i-amd, hurt caused, whilst committing lurking house-trespass or house-breaking---Reappraisal of evidence---Sentence, quantum of---Mitigating circumstances---Motive for the occurrence was not established from the record---Question as to what happened prior to the scene of occurrence or what prompted the accused to take away the life of the deceased were circumstances which had rightly been considered by the Courts below as mitigating circumstances and thus, the accused was rightly sentenced to imprisonment for life instead of death---Appeal was dismissed.

Mrs. Kausar Iqbal Bhatti, Advocate Supreme Court for Appellant.

Complainant in person along with Bedar (father of deceased).

Arshad Hussain Yousafzai, Advocate Supreme Court for the State.

2021 S C M R 153

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Sardar Tariq Masood and Ijaz ul Ahsan, JJ

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad---Appellant

Versus

SHAFQAT-UR-REHMAN RANJHA and others---Respondents

Civil Appeal No. 497 of 2020, decided on 28th October, 2020.

(Against the order dated 02.10.2018 passed by the Islamabad High Court, Islamabad in I.C.A. No. 66 of 2018)

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

----Rr. 2(2), 5(iv) & 6A(2)---Disciplinary proceedings---Inquiry officer recommending exoneration of civil servant---Prime Minister ('the Authority') ordering a de novo inquiry against the civil servant---Legality---As per R. 5(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973 ['the E&D Rules'], the Authorized Officer upon receipt of the report of the inquiry Officer or Inquiry Committee was required to determine whether the charge against the accused was proved---If it was proposed that a major penalty be imposed, the Authorized Officer was required to forward the case of the accused to the Authority ( i.e. the Prime Minister) along with all the requisite material forming basis for the proposed penalty---Once the same was done it was then upon the Authority to decide and pass the final order---Authority was fully empowered to examine the record and recommendation which it had received from the Authorized Officer and pass an appropriate order---Authority had the power to agree with the recommendation, disagree with the recommendation and either pass a final order on the basis of the record before it after providing an opportunity of hearing, or if dissatisfied with the inquiry, order a de novo inquiry for valid and recorded reasons---Appeal was allowed.

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

----R. 5(iv)---Civil Servants(Appeal) Rules, 1977, R. 2(a)(iii)---Constitution of Pakistan, Arts. 199 & 212---Civil service---Disciplinary proceedings---After completion of inquiry proceedings the Inquiry officer recommended exoneration of civil servant---Prime Minister ('the Authority') not agreeing with the recommendation of the Inquiry officer ordered a de novo inquiry against the civil servant---Civil servant filed a Constitutional petition before the High Court challenging the order of de novo inquiry---Maintainability---Rule 2(a)(iii) of the Civil Servants (Appeal) Rules, 1977 provided that an order by the Prime Minister was appealable to the President---In the present petition, no such appeal was filed---Instead the civil servant choose to file a Constitutional petition before the High Court---Right of appeal being available under the rules, which was admittedly not availed, the High Court should have refrained from exercising its extraordinary constitutional jurisdiction which was equitable and discretionary in nature---Furthermore the issue raised clearly fell within the ambit of Federal Service Tribunal in terms of Art. 212 of the Constitution---Appeal was allowed with the consequence that Constitutional petition filed before the High Court was dismissed.

Sohail Mahmood, Additional Attorney General of Pakistan with Sajid-ul-Hassan, S.O. for Appellant.

Raja Saif-ur-Rehman for Respondent No. 1.

2021 S C M R 159

[Supreme Court of Pakistan]

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

ISHTIAQ HUSSAIN and another---Appellant/Petitioner

Versus

The STATE and others---Respondents

Criminal Appeal No.110 of 2020 and Criminal Petition No.865-L of 2014, decided on 23rd October, 2020.

(Against the judgment dated 27.06.2014 passed by the Lahore High Court Lahore in Criminal Appeal No.230-J/2010, Criminal Appeal No.1467/2010 along with M.R. No.343 of 2010)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Discrepancy in the ocular account unanimously furnished by all the witnesses including the injured himself was most intriguing; with one voice they blamed an acquitted co-accused, for a dagger blow on the left thigh whereas according to the medical examination, the witness sustained a firearm injury on the stated locale---Accused was shown to have led to the recovery of a dagger, a circumstance further compounding the confusion---Witness discredited and disbelieved qua his own tormentor was of little relevance to sustain the remaining structure of the case---En bloc nomination of the accused with his entire clan, each armed lethally, but, settling the score with only a solitary fire shot accompanied by a trivial incised wound on the forehead, unlikely to be outcome of a butt blow, clearly indicated a reckless desire of the complainant side to rope in innocent persons---Accusation that acquitted co-accused held the deceased in his arms in order to expose him to a fire shot made by the accused, risking his own life, was a story that may not find a buyer particularly in view of an exit wound on frontal side of the chest of the deceased---Inherently flawed ocular account, reflecting a desire to unconscionably nominate adversaries would cast away the entire case---Appeal was allowed and accused was acquitted of the charge.

Ms. Bushra Qamar, Advocate Supreme Court for Appellant.

Imtiaz Khan Baloch, Advocate Supreme Court for the Complainant/Petitioner.

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

2021 S C M R 162

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Amin-ud-Din Khan, JJ

FAWAD KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Petitions Nos. 95 and 99 of 2017, decided on 9th November, 2020.

(On appeal against the judgment dated 19.1.2017 passed by the Peshawar High Court, Peshawar, in Crl. Appeal No. 283-P of 2016)

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

----S. 365-A---Kidnapping or abduction for ransom---Reappraisal of evidence---Abductee remained in captivity for about 43 days and he was recovered from the basement of a house/cattle shade belonging to the accused---Accused was guarding the abductee armed with a pistol at the time of the raid---All the witnesses who participated in the raid categorically stated that it was the house of the accused where he was guarding the abductee---Abductee while making his statement categorically stated that it was the accused who remained at guard upon him in the said house---Accused was apprehended red-handed and the abductee was recovered from his exclusive possession---Question as to whether ransom was paid or not was immaterial because the Court had to see the purpose behind the abduction which was obvious in the present case---During cross-examination not a single word regarding any enmity with the complainant or the abductee was suggested by the defence side---Both the Courts below rightly concurred with each other regarding the guilt of the accused---Petition for leave to appeal was dismissed and leave refused.

(b) Khyber Pakhtunkhwa Arms Act (XXIII of 2013)---

----S. 15---Anti-Terrorism Act (XXVII of 1997), S. 7---Possession of unlicensed weapon, kidnapping for ransom---Reappraisal of evidence---During the raid for recovery of abductee, the accused was apprehended on the spot while guarding the abductee who was tied in chains in the basement of a house belonging to the accused---Raiding party on searching of the accused also got recovered from his exclusive possession a pistol with twelve (12) live rounds---Pistol was without number and the accused was unable to show licence of the same---Expert opinion in relation to the weapon showed that the same was in working order---Prosecution had proved its case through reliable and truthful witnesses of the recovery of pistol, corroborated by the documentary evidence in the shape of recovery memo, and the statement of arms expert regarding working condition of the pistol---Both the Courts below rightly concurred with each other regarding the guilt of the accused---Petition for leave to appeal was dismissed and leave refused.

Asadullah Chamkani, Advocate Supreme Court for Petitioner (in both cases).

Arshad Hussain Yousafzai, State counsel for Khyber Pakhtunkhwa (in both cases).

2021 S C M R 166

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

SECRETARY ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD---Appellant

Versus

IMTIAZ AHMAD MALIK, DIRECTOR ANTI-CORRUPTION, ESTABLISHMENT SAHIWAL and others---Respondents

Civil Appeal No. 485 of 2020, decided on 27th November, 2020.

(Against the judgment dated 08.10.2018, passed by the Federal Service Tribunal, Lahore Bench, Lahore in Appeal No. 464(L)/2017)

Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985---

----Rr. 7 & 11(2)(c)---Encadred police officer from a Province, appointment of---Inter se seniority amongst encadred officers---Scope---Appointment of an encadred police officer from the Province was to be made with prospective effect---Only after encadrement as PSP Officer had been made of a police official from a Province, his inter se seniority among the encadred officers shall be determined under R. 11(2)(c) of the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985, but the very encadrement had to be from the date when the encadrement as PSP Officer had actually been effected and counted as such.

Muhammad Zafar Ali and others v. Asim Gulzar and others 2015 SCMR 365 ref.

Ayaz Shaukat, Deputy Attorney General for Pakistan and Sajid-ul-Hassan, Section Officer Establishment Division for Appellant.

Muhammad Yasin Bhatti, Advocate Supreme Court and Mian Liaqat Ali, Advocate-on-Record (Absent) for Respondents.

2021 S C M R 172

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

CHAIRMAN PAKISTAN ORDNANACE FACTORIES BOARD, WAH CANTT.---Appellant

Versus

Dr. NAVEEDA RAUF and others---Respondents

Civil Appeals Nos. 357 and 358 of 2020, decided on 9th December, 2020.

(Against the order dated 05.12.2018 passed by the Federal Service Tribunal Islamabad in Review Petition No. 126 of 2018 and order dated 28.08.2018 passed by the Federal Service Tribunal, Islamabad in Service Appeal No. 1778(R)CS of 2016)

Fundamental Rules---

----F.R. 84, Appendix No. 9 ['the Study Leave Rules']---Study Leave---Pay and allowances, entitlement to---Medical officer (respondent) working in Pakistan Ordnance Factories Hospital went on Study leave---Competent authority treated period of study leave as Extraordinary Leave without pay and allowances---Whether the respondent was entitled to full pay whilst on Study leave---Held, that Rules governing Study Leave were contained in Appendix No. 9 to Fundamental Rule 84 ('the Study Leave Rules')---Rule 20 of the Study Leave Rules clearly mentioned that Study Leave would be on half pay---Rule 19 also provided that the Government servant would draw half average pay during Study Leave---Appeals were allowed.

Haseeb Shakoor Paracha, Advocate Supreme Court, Syed Rafaqat Hussain Shah, Advocate-on-Record, Abid Masood, GM(L) POF and Assad Durrani, AM(HRM) POF for Appellant.

Hafiz S.A. Rehman for Respondent No. 1.

Rizwan Ahmed, AAG, CMA POF for Respondent No. 4.

2021 S C M R 176

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

NOOR SULTAN and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No. 928-L of 2020, decided on 25th November, 2020.

(Against the order of Lahore High Court, Lahore dated 31.08.2020 passed in Crl. Misc. No. 24303-B of 2020)

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 147 & 149---Qatl-i-amd, house trespass, causing injuries to inmates of house---Bail, refusal of---Matter was reported to the police within 2.15 hours whereas inter se distance between the place of occurrence and police station was 16 kilometers---Promptness in reporting the matter to the police reflected that there was no chance of any consultation or deliberation on part of the prosecution---Accused persons nominated in the crime report had a definite motive to commit the crime alleged against them, while joining hands with each other, hence, any finding qua role of each accused at bail stage would certainly prejudice the case, when the trial had commenced and two prosecution witnesses had already been recorded by the Trial Court---Petition for leave to appeal was dismissed, leave was refused and accused persons were refused bail.

Muhammad Sadik and others v. The State 1980 SCMR 203; Allah Ditta and others v. The State 1990 SCMR 307 and Gul Akbar v. The State 2007 SCMR 1798 ref.

Malik Mateeullah, Advocate Supreme Court for Petitioners.

Mirza Abid Majeed, DPG and Shahid Nawaz, SI for the State.

2021 S C M R 179

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Amin-ud-Din Khan, JJ

FARHAN ASLAM and others---Petitioners

Versus

Mst. NUZBA SHAHEEN and another---Respondents

Civil Petition No. 4459 of 2018, decided on 27th November, 2020.

(Against the order dated 10.10.2018 of the Lahore High Court, Multan Bench passed in C.R. No.423-D/2011)

(a) Gift---

----Gift mutation---Proof---Wife and daughter of deceased deprived of inheritance through fictitious gift mutation---Purported donees (petitioners) of the gift, who were nephews of the deceased-purported donor failed to establish the gift of land in their favour---Beneficiaries of a gift had to establish the same---Two of the purported donees were stated to be minors, however, the third was an adult but he did not come forward to testify that the gift was made in his favor, that he accepted it and received possession of the land---Instead, his father testified but did not provide particulars of the gift, including when and where the gift was made; he also did not testify as an attorney---Furthermore there was no reason for a father and a husband to disregard his own flesh and blood and wife and gift away all his land to his nephews---In the present case the respondents (widow and daughter of deceased) were deprived because of the acquisitive greed of the purported donees who were facilitated and enabled by the revenue authorities in recording the making of a fictitious gift mutation---Violating the law of inheritance, which in the case of Muslims was the shariah, and exploiting the most vulnerable members of society was wholly unacceptable---Petition for leave to appeal was dismissed with costs throughout payable to the respondents (widow and daughter of deceased) by the petitioners-purported donees through the Trial/ Executing Court

Verses 9 and 10 of Surah An-Nisa (4), translated by Abdullah Yusuf Ali and Verse 152 of Surah (6) Al-Anam of the Holy Qur'an, Translation by Abdullah Yusuf Ali ref.

(b) Islamic law---

----Inheritance, opening of---Legal heir inherited property to the extent of his/her share the very moment his/her predecessor passed away.

(c) Constitution of Pakistan---

----Arts. 24(1), 25(3), 29(1), 35 & 37---Islamic law---Inheritance rights of women, widows, children and orphans---Protection provided under the Constitution.

Constitution safeguarded property (including inherited property) under Article 24(1) of the Constitution and protection of women and children was guaranteed by Article 25(3) of the Constitution. The Constitution set out the goals which the people of Pakistan had set out for themselves in the 'Principles of Policy', which included the protection of 'mother and the child' (Article 35) and required the 'promotion of social justice and eradication of social evils' (Article 37). Depriving a mother and her child from their inheritance did not protect them but preyed on them. Such conduct was a prevalent social evil and inherently unjust. Supreme Court observed that it was expected that the organ and authority of the State would act in accordance with the Principles of Policy as provided by Article 29(1) of the Constitution. Therefore, claims by orphans and widows alleging that they had been deprived of their inheritance must be expeditiously decided by the concerned organ and authority of the State, including the courts.

(d) Gift---

----Gift mutation---Proof---Purported gift mutations depriving widows and daughters from their share of inheritance---Revenue authorities, duty of---Revenue authorities must be extra vigilant when purported gifts were made to deprive daughters and widows from what would have constituted their shares in the inheritance of an estate---Concerned officers must fully satisfy themselves as to the identity of the purported donor/transferee and strict compliance must be ensured with the applicable laws--- Purported gifts and other tools used to deprive female family members, including daughters and widows, were contrary to law (shariah in such cases), the Constitution and public policy.

Islam-ud-Din v. Noor Jahan 2016 SCMR 986; Khalida Azhar v. Viqar Rustan Bakhshi 2018 SCMR 30; Abid Baig v. Zahid Sabir 2020 SCMR 601 and Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Raja Imtiaz Ahmed Kiyani, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners along with Petitioner No.1.

Nemo for Respondents.

2021 S C M R 185

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Health, Peshawar and others---Appellants

Versus

JAWAD ALI and others---Respondents

Civil Appeals Nos. 248, 252, 253, 254, 265, 269, 270, 271, 277, 280, 284 and 302 of 2020, decided on 21st October, 2020.

(Against the judgment dated 26.09.2017, 23.11.2017, 14.03.2018, 10.04.2018, 04.09.2018, 11.10.2018, 05.12.2018, 14.03.2019 of the Peshawar High Court, Peshawar, passed in Writ Petitions Nos. 3958-P/2014, 37-P/2017, 38-P/2017, 4733-P/2016, 1008-P/2017, 786-A/2016, 787-A/2016, 678-P/2017, 866-A/2018, 2361-P/2014, 1015-A/2018 and 4272-P of 2017)

(a) Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----Ss. 2(b) & 3---Project employees---Regularization in service---Scope---Contractual employees of a private company (Sarhad Rural Support Programme) working on temporary project posts in an outsourced project of the Provincial Government---Provincial Government did not have any concern with the terms and conditions of the services of such employees as they were employed by the private company who paid and supervised them and was responsible for all matters regarding their contractual employment---Such employees could not claim regularization in service under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009.

Perusal of the Memorandum of Understanding signed between the Provincial Government and private company (Sarhad Rural Support Programme) showed that the company retained sole discretion over the employment, posting, removal, remuneration and customary managerial prerogative over the staff it recruited for the Provincial Government projects. It was clear all along to all concerned parties including the employees of the company that they shall have no claim against the Provincial Health Department upon conclusion of the agreement. Moreover, the company policy made it clear from the outset that the employees were hired against project posts for a definite period of time and that upon the termination of the project they were to be relieved from their services. The employees were never appointed on contract basis by the Provincial health department. The agreement also envisaged that the Provincial Government did not have any concern with the terms and conditions of the services of the employees as they were employed by the private company who paid and supervised them and was responsible for all matters regarding their contractual employment.

Present case was a clear case of bona fide outsourcing, an arm's length transaction where a private company entered into an agreement with the Provincial government to provide certain services, for a certain period of time. Such services were to be provided by the private company by employing its own staff which was neither supervised nor paid by the Provincial Government. More importantly, the Provincial Government could neither hire nor fire them and they were to be supervised and were answerable to their own employer i.e. the private company.

In such arm's length transactions, any staff member recruited by the company and appointed to the project did not under any circumstances either directly or by implication become an employee of the government. Therefore, the employees being project-based employees, recruited and supervised at the sole discretion of the private company, could not be deemed to be employees of the Provincial Government and therefore did not fall within the purview of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009. For the said Act to apply, it was the Government that must employ the individual as a contractual employee.

State Oil Company Limited v. Bakht Siddique 2018 SCMR 1181 distinguished.

Furthermore the definition of employee provided under section 2(b) of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 clearly indicated that the term 'employee' explicitly excluded any persons appointed for project posts. Appeal were allowed.

(b) Employer-employee---

----Project employees--- Meaning--- Word 'project' indicated any endeavor which was for a definite period of time and upon the completion of the said project, employees who were hired for that definite period had to be relieved from their duties.

Pakistan Railways through Chairman, Islamabad and another v. Sajid Hussain and others 2020 SCMR 1664 ref.

Barrister Qasim Wadood, Additional A.G. Khyber Pakhtunkhwa and Atif Ali Khan, Additional A.G. Khyber Pakhtunkhwa for Appellants (in all cases).

Muhammad Shoaib Shaheen, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 1-3, 5, 6, 8-25 (in C.A. No. 248 of 2020).

Nemo for Respondents Nos. 4, 7, 26 (in C.A. No. 248 of 2020).

Mukhtar Ahmed Muneri, Advocate Supreme Court for Respondents Nos. 1, 3, 7, 8, 11, 13, 14, 16, 19-21 (in C.A. No. 252 of 2020).

Mukhtar Ahmed Muneri, Advocate Supreme Court for Respondents Nos. 3, 6, 7, 18 and 19 (in C.A. No. 2265 of 2020).

Mukhtar Ahmed Muneri, Advocate Supreme Court for Respondent No. 2 (in C.A. No. 284 of 2020).

Rehman Ullah, Advocate Supreme Court for Respondents Nos. 4, 5, 15 and 18 (in C.A. No. 252 of 2020).

Rehman Ullah, Advocate Supreme Court for Respondent No. 2 (in C.A. No. 253 of 2020).

Rehman Ullah, Advocate Supreme Court for Respondent No. 1 (in C.A. No. 254 of 2020).

Nemo for Respondent No. 1 in C.As. Nos. 253 and 284 of 2020, for Respondents in C.As. Nos. 277, 302 of 2020 and for remaining Respondents in C.As. Nos. 252, 265, 269, 271 and 270 of 2020.

Altaf Ahmed, Advocate Supreme Court for Respondents Nos.5, 8, 25, 27 and 31 (in C.A. No. 265 of 2020).

Muhammad Siddique, Advocate Supreme Court for Respondents Nos.1, 2, 8-13 (in C.A. No. 269 of 2020).

Muhammad Siddique, Advocate Supreme Court for Respondents Nos.1, 3-7 and 9 (in C.A. No. 271 of 2020).

Nasir Mehmood, Advocate Supreme Court for Respondents Nos.1 to 12 (in C.A. No. 280 of 2020).

2021 S C M R 194

[Supreme Court of Pakistan]

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

Dr. ZOHARA JABEEN and others---Appellants

Versus

MUHAMMAD ASLAM PERVAIZ and others---Respondents

C.As. 762-L to 766-L of 2012, decided on 2nd December, 2020.

(On appeals from the judgments of Punjab Service Tribunal, Lahore dated 26.03.2012, passed in Appeals Nos.3776 to 3780/2010)

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

----S. 7(2), proviso---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 8(2), Explanation---Batch of 'promotees'---Seniority---Scope---Where civil servants were selected for promotion in a "batch'" or as a "group of persons" then the date of promotion of all the persons in the batch or the group shall be the date when anyone of them was first promoted to the post and they shall retain their inter se seniority---Word "batch" used in S. 7 of Punjab Civil Servants Act, 1974 ('the Act') had been interchangeably used as "group of persons" in R. 8 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Promotees in the same grade, when considered and recommended for promotion for the next grade in the same Departmental Promotion Committee (DPC) passed for a "batch" or "group of persons" and therefore as would be considered to have been promoted from the date when the first amongst the batch was promoted and would also retain their inter se seniority of the lower post.

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

----S. 7---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 8---District Population Welfare Officers---'Promotees' and 'direct appointees'---Seniority---Scope---Direct appointees/respondents were appointed through initial appointment on 3-12-2003, a day after the promotion of the first promotees out of the batch of promotees; hence the direct appointees would fall under the promotees in the seniority list---Appeals were allowed.

Malik Muhammad Awais Khalid, Advocate Supreme Court for Appellants (in all cases).

Amir Sana Ullah, Advocate Supreme Court for Respondent No. 1.

Ch. Zafar Hussain Ahmed, Additional A.G., Ali Bahadur, Secretary, Population Welfare Department, Khalid Pervaiz, Additional Secretary along with Tania Malik, D.S. and Arooj Naseem, S.O. for Respondents Nos. 2 to 4.

2021 S C M R 198

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

SHABBIR HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal Petition No.1806-L of 2017, decided on 9th September, 2020.

(Against the judgment dated 8-11-2017 passed by the Lahore High Court Lahore in Criminal Appeal No.338-J of 2014)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Absence of any apparent reason to falsely implicate the accused for possession of 15.6 kg of narcotic, negated the hypothesis of fake imposition---Methodology adopted by accused of transporting drugs while travelling with wife and children was not unusual in drug trafficking cases---Presence of a lady constable who frisked and arrested the wife/co-accused went a long way to support the prosecution case---Inspector and lady constable (official witnesses) furnished details of the arrest and recovery; their statements were in a comfortable and confident unison on all the salient aspects of the raid as well as details collateral therewith---Prosecution had proved its case against the accused beyond reasonable doubt---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 9(c) & 25---Possession of narcotic---Reappraisal of evidence---Non-association of witnesses from the public---Supreme Court observed that absence of a witness from the public, despite possible availability was not a new phenomenon; it was reminiscent of a long drawn apathy depicting public reluctance to come forward in assistance of law, due to exasperating legal procedures and lack of witness protection---In such circumstances, evidence of official witnesses was the only available option to combat the menace of drug trafficking with the assistance of functionaries of the State; their evidence, if found confidence inspiring, may implicitly be relied upon without hesitation, as their status as witnesses was second to none.

Mazhar Iqbal Sidhu, Advocate Supreme Court for Petitioner.

Raja Inam Ameen Minhas, Special Prosecutor, ANF for the State.

2021 S C M R 201

[Supreme Court of Pakistan]

Present: Mushir Alam, Umar Ata Bandial, Qazi Faez Isa and Ijaz ul Ahsan, JJ

FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION (FGEHF), ISLAMABAD and others---Appellants

Versus

Malik GHULAM MUSTAFA and others---Respondents

Civil Appeals Nos.1476 to 1485 of 2018, C.M.A. No. 10393 of 2018, 7403 of 2019 in C.A. No. 1476 of 2018, C.M.A. No. 10950 of 2018 in C.A. No. 1477 of 2018, C.M.A. No. 10398 of 2018 in C.A. No. 1480 of 2018, C.M.A. No. 10951 of 2018 in C.A. No. 1483 of 2018, C.M.A. No. 10952 of 2018 in C.A. No. 1484 of 2018, C.M.A. No. 10953 of 2018 in C.A. No. 1485 of 2018, Crl.O.P. No. 166 of 2018 in Crl.O.P. No. 7 of 2016, Crl.M.A. No. 2083 of 2018 in Crl.O.P. No. 166 of 2018, Writ Petitions Nos.4270, 4723 of 2016 and Writ Petition No.3594 of 2018, decided on 8th October, 2020.

(On appeal from the judgments/orders 25.09.2018 of the Islamabad High Court, Islamabad, passed in I.C.A. No. 365 of 2017 in W.P. No. 308 of 2016, I.C.A. No. 366 of 2017 in W.P. No. 309 of 2016, I.C.A.367/2017 in W.P.310/2016, I.C.A. 368 of 2017 in W.P. No. 2128 of 2015, C.M.A. No. 3053 of 2018 in I.C.A. No. 365 of 2017, C.M.A. No. 3055 of 2018 in I.C.A. No. 365 of 2017, I.C.A. No. 22 of 2018 in W.P. No. 308 of 2016, I.C.A. No. 23 of 2018 in W.P. No. 308 of 2016 and I.C.A. No. 24 of 2018 in W.P. No. 308 of 2016).

Per Mushir Alam, J; Umar Ata Bandial and Ijaz ul Ahsan, JJ agreeing; Qazi Faez Isa, J concurring:

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

----S. 6 & Preamble---Capital Development Authority Ordinance (XXIII of 1960), Chapt. VI & Preamble---Federal Laws (Revision and Declaration) Ordinance (XXVII of 1981), S. 5---Islamabad Capital Territory (ICT)---Land Acquisition Act, 1894, with necessary substitutions and amendments was applicable to Islamabad Capital Territory.

In order to remove any doubts, as to applicability of Land Acquisition Act, 1894 ('LAA 1894') in Islamabad Capital Territory (ICT), and in exercise of legislative competence conferred under the enabling provisions and Constitutional mandate, the Federal Laws (Revision and Declaration) Ordinance, 1981, was enacted on 8th July 1981 which enlisted laws in the IVth Schedule vide item 9 thereof; sections 3, 9, 14, 43, 45, 47, and 54 of the LAA 1894 were substituted and amended to make it compatible in its application to ICT. Only certain provisions of the LAA, 1894, and not the entire Act, were amended in order to clarify its application to the ICT. Such action manifested that the LAA, 1894 was applicable to ICT at all times and, any doubts as to its applicability were legislatively removed by virtue of enactment of the Federal Laws (Revision and Declaration) Ordinance, 1981.

The reinforcement of the LAA, 1894, with necessary substitution and amendment, was made during currency of Capital Development Authority Ordinance, 1960, which was a clear manifestation of the intention of the Federal Legislature that LAA, 1894 applied with full force in ICT and was not eclipsed by the provisions of Capital Development Authority Ordinance, 1960.

PLD 1982 Q 63 ref.

Perusal of Capital Development Authority Ordinance, 1960, revealed that the legislature did not completely exclude the application of LAA, 1894 in Islamabad Capital Territory, for public purpose and for acquisition by companies. The conspicuous absence of a 'non-obstante' or overriding or superseding clause in Capital Development Authority Ordinance, 1960, manifested the intention of the legislature that each of two contemporaneous statutes were to exist side by side and operate in their respective domain. The two legislations were merely overlapping and there appeared to be no conflict between both the statutes. There was no apparent reason as to why these statutes could not exist coextensively as each of them catered to a different object and purpose. However, planning and development was still the domain of the Capital Development Authority and it maintained the authority to conduct such planning and development of any land that was acquired under the LAA, 1894 for public purpose.

(b) Interpretation of statutes---

----Doctrines and tools of interpretation applied by the superior courts to adjudge the legitimacy, vires, ultra vires, repeal, overriding, or supremacy of one statute over the other stated.

To determine the repeal, overriding effect, repugnancy, vires, intra-vires or otherwise of any competing or comparable statutes, or analogous provisions contained therein, several litmus tests, tools of interpretations, and legal doctrines were applied. These accessories of interpretation were harvests of long drawn jurisprudential expositions and judicial interpretational wisdom culled by the superior courts. The tests to determine the validity of legislation were applied, inter-alia, on the touchstone of Constitution, legislative competency, limitation and distribution of legislative authority between Federal and Provincial legislature, doctrine of occupied field, pith and substance, special and general law, earlier and later law, delegated and subordinate legislation, directory or mandatory enactment or provisions, effect of obstante or non-obstante provisions in any enactment or otherwise. These were some of the illustrative and non-exhaustive tools of interpretation and doctrines applied by the superior courts to adjudge the legitimacy, vires, ultra vires, repeal, overriding, or supremacy of one statute over the other.

Foremost tool of interpretation of any statute was the Constitution which set the 'gold standard' to adjudge constitutionality, repugnancy, and validity and, vires of any legislative instruments or, provisions contained therein.

In addition to the Constitutional filter, other tools such as legislative history, statement of object, and the preamble of a statute were important tools in deciphering intention, legitimacy, repugnancy, validity, and overriding or dominance of competing statutes, or provisions contained therein.

(c) Vires of statute---

----Presumption that 'Legislature was presumed to know the law'---Scope---Legislature was presumed to know the 'existing laws', judicial pronouncements, and general principles of law---Legislature must be presumed to know the facts and conditions rendering a statute expedient and beneficial---Ignorance of existing laws, judicial pronouncement, and judicial interpretation of law by the highest judicature of the State could not be attributed to the legislature.

NS Bindra's Interpretation of Statutes Tenth Edition by Lexis Nexis, Page 235; Raval & Co. v. Ramachandran AIR 1967 Mad 57, at page 69; Andrus v. Glover Const. Co., 446 U.S. 608, 616-17 (1980) (citing Continental Casualty Co. v. United States, 314 U.S. 527, 533 (1942) and (2003) 7 SCC 389 ref.

(d) Interpretation of statutes---

----Implied repeal, doctrine of---Presumption---Scope.

There was a presumption against repeal by implication and the reason of said rule was based on the theory that the legislature, while enacting a law, had the complete knowledge of existing laws on the same subject matter. Therefore, when the legislature did not provide a repealing provision, the intention was clear not to repeal the existing legislation. However, the presumption of implied repeal could be rebutted. Repeal was inferred by necessary implication when the provisions of the later law were so inconsistent with, or repugnant, to the provisions of the earlier law that the two could not stand together. Although, if the two could be read together and some application could be made of the words in the earlier Act, repeal would not be inferred. The necessary questions to be asked were; (i) whether there was direct conflict between the two provisions; (ii) whether the legislature intended to lay down an exhaustive Code in respect of the subject matter replacing the earlier law, and (iii) whether the two laws occupied the same field.

(2003) 7 SCC 389 ref.

The doctrine of implied repeal, based upon the theory that the legislature, which was presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applied the doctrine, it did no more than give effect to the intention of the legislature by examining the scope and the object of the two enactments and by a comparison of their provisions.

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

----Ss. 23 & 24---Land acquisition---Compensation, quantum of---Parameters---Divergent Federal and Provincial regimes/laws for determining compensation---Observations recorded by the Supreme Court for adopting a single uniform compensation mechanism.

After the 18th Constitutional amendment, land acquisition had become a provincial subject which had led to the creation of diverging legislative regimes. Each legislation provided for different parameters for compensation which created disparity. In order to alleviate such disparity, other jurisdictions, such as India, had enacted the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, whereby, a uniform compensation mechanism existed for the entire State and the compensation afforded to the land owners, whose land was acquired under the exercise of Eminent Domain for public purpose, was significantly greater. It was desirable that one uniform compensation mechanism should also be adopted by the parliament of Pakistan by conducting a similar exercise to bring forth an identical, or more beneficial, legal regime to recompense land owners for the compulsory acquisition of their land. Scheme of compensation provided under the Land Acquisition Act, 1894 remained a remnant of colonial times that should have been timely amended to cater to our evolving socio-economic circumstances. Therefore, such overhaul became necessary in light of the shortcomings of the current scheme of land acquisition with respect to compensation and matters incidental thereto.

(f) Interpretation of statutes---

----Two competing or overlapping statutes/provisions---Doctrine of 'pith and substance', 'incidental encroachment', and 'occupied field'---Scope.

When two or more competing laws or provisions contained therein, were seemingly similar or overlapping, then legislative intent of the parliament may be discernible from examining the Preamble, legislative history, doctrine of pith and substance, incidental encroachment, and occupied field to adjudge their co-existence in their respective domain or for one to nudge out and claim dominance over the other. Superior courts had expounded such doctrines, amongst others, as interpretive techniques, which were used to adjudge the predominance and constitutionality of a statute or of any provision contained therein.

1999 SCMR 1477 at page 1495 ref.

Doctrine of occupied field, which was auxiliary to the larger doctrine of pith and substance, and incidental encroachment, may be invoked by the courts to determine the extent of legitimacy only in cases where the competing statutes or any of the provisions contained therein are by different tiers of legislature. Therefore, it would be an exercise in futility to invoke the doctrine of 'pith and substance', 'incidental encroachment', or 'occupied field' where there was no legislative competition between the federal and provincial tier of statutes.

(g) Constitution of Pakistan---

----Arts. 141, 142 & 143---Competing Federal and Provincial laws---Legislative supremacy---Scope.

Where legislative instruments in competition, one promulgated by the Federal and the other by the Provincial legislature, or any provisions contained therein, were pitched against each other, the test to determine the legislative supremacy or dominance was comparatively simple and provided by Article 141 and Article 142 of the Constitution, which clearly demarcated the legislative edges, competency and supremacy test. In case of conflict between Federal and Provincial enactments, privilege of overriding supremacy was conceded to the Parliament/Federal legislature under Article 143 of the Constitution. Where one or more Provincial Assemblies, through resolution, authorized the Parliament to pass law in respect of a residuary subject, in such event, power to repeal and amend such law was exclusively retained by such Provincial legislature(s).

Government of Sindh v. Dr. Nadeem Rizvi 2020 SCMR 1 (para 16 ( v), para 20) ref.

(h) Constitution of Pakistan---

----Arts. 1(2), 142(c) & 142(d)---Islamabad Capital Territory (ICT)---Legislative competence---Exclusive domain of Federal Government---Only the Federation itself had the exclusive domain to legislate on all matters that were, in their nature, 'residuary subjects', with respect to ICT.

The Constitution not only made specific provision for the exclusive legislative domain in respect of "residuary subjects" (i.e. subjects/entries left out of Federal Legislative List) over the respective provincial territories of the provincial assembly by virtue of Article 142(c), but it also recognized the exclusive domain of the Federal legislature over "residuary subjects" in respect of territories or areas 'not included in any province' by the operation of Article 142(d) which includes Islamabad Capital Territory. Given the nature of Islamabad Capital Territory under Article 1(2), only the Federal Legislature was empowered with the exclusive domain to legislate in areas not forming part of a territory of any province as enumerated in Article 142(d). It becomes evident that only the Federation itself had the exclusive domain to legislate on all matters that were, in their nature, 'residuary subjects', with respect to ICT.

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

----Preamble---Constitution of Pakistan, Art. 24(2)---Land Acquisition Act, 1894, vires of---For the purpose of acquisition of any property or depriving any person of a property, such exercise of authority needed to be backed by law---Land Acquisition Act, 1894 had constitutional blessing as it was covered under the exception contained in Article 24(2) of the Constitution.

(j) Constitution of Pakistan---

----Arts. 9, 24 & 152---Eminent domain, power of---Scope---Power of the State to take private property and convert it into public use---Power of 'Eminent Domain' was a proprietary aspect of sovereignty (of State) and was inseparable from it; it was an inherent attribute of a sovereign State and the manifestation of the sovereign authority of 'Eminent Domain' could be traced to Art. 24 of the Constitution---Such power vests within the State, or its delegated instrumentality, to expropriate private property for public use, and/or for company against adequate, or reasonable, compensation payable to the owner of property---Historical origin and recognition of the concept of 'Eminent domain' in the United States and the sub-continent stated.

Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; American Jurisprudence, 2d Vol. 26, pp. 638-39 para1, and Sooraram Pratap Reddy and others v. Deputy Collector, Ranga Reddy and others (2008 (9) SCC 552), Para 47; 109 U.S. 513 (1883); Chicago, B & Q Railroad Co v. Chicago 166 U.S 226 (1897); 1 SCR 869; AIR 1952 SC 252 = (1952)1 SCR 899 and PLD 1981 FSC 23 at page 41 ref.

(k) Rules of Business, 1973---

----Sched. I, Entry No. 11 & Sched. II, Serial No. 14, Entry No. 2---[Erstwhile] Federal Government Employees Housing Foundation, nature of---Scope---Purpose that was being carried out by the [erstwhile] Federal Government Employees Housing Foundation ('the Foundation') was one that fell within the powers of the Division of the Ministry of Housing and Works---Fact that the Chairman of the Board of Governors for the Foundation was the Minister of Housing and Works lent support to the fact that the Foundation exercised functions allocated to the Ministry of Housing and Works under the Rules of Business, 1973---Control of the former Foundation vested solely in the hands of the government as the Board and its Executive Committee were the decision makers in the Foundation---Control of the Foundation, in its entirety, vested within the hands of the government---Given that the Foundation was conducting the affairs of the government, it was the State itself that allocated funds for financing the operation, salary of all its Board members, who were civil servants, and for the staff and activities of the Foundation.

2002 PLC (C.S.) 1655 = PLD 2002 SC 1079 ref.

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

----S. 6---Acquisition of land for housing society---Public purpose---Scope---Acquisition of land for residence of Government servants/ housing society was a "public purpose".

PLD 1960 SC 60 and 2018 SCMR 705 ref.

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

----S. 6--- Acquisition of land for the benefit of a segment of the society---Public purpose---Scope---"Public purpose" included any purpose wherein even a fraction of the community may be interested or by which it may be benefited.

(2008) 9 SCC 552 ref.

(n) Capital Development Authority Ordinance (XXIII of 1960)---

----Ss. 11 to 21 & Preamble---Capital Development Authority ('CDA') and [erstwhile] Federal Government Employees Housing Foundation ('the Foundation')---'Regulatory capture', doctrine of---Applicability---Both the CDA and the Foundation were not regulators but service providers---Doctrine of 'regulatory capture' as laid down in the case of Imrana Tiwana v Province of Punjab PLD 2015 Lah. 522 did not apply to both of them.

The Capital Development Authority (CDA) was established as a public service provider and not as a regulatory Authority. The Authority was essentially responsible for making all arrangement for the planning and development of Islamabad, within the framework of regional development plan. In addition, the municipal services earlier entrusted to the Authority in the year 1966 were withdrawn and entrusted to Islamabad Local Government. The [erstwhile] Federal Government Employees Housing Foundation ('the Foundation') was merely a non-trading, not for profit entity that was created for the betterment or service to the society generally or any segment of society particularly. It functioned was under the Ministry of Housing and Works and performed one of its functions assigned to Housing and Works Division. Neither, the CDA nor, the Foundation were the regulatory authority, none regulated any sector of business or, commercial activities of commercial bodies rather both were service providers.

As a state functionary, the CDA, was executing its statutory function, which did not include regulating any group of trade or business, let alone, being manned by a person from any of such commercial group or entity it was regulating. The Foundation and/or CDA failed the test of regulatory capture laid down in the case of Imrana Tiwana v. Province of Punjab PLD 2015 Lah. 522.

PLD 2015 Lah. 522 ref.

(o) Interpretation of statutes---

----Where the Parliament intended for the law to have overriding effect, the words of the statute, in their natural, ordinary, or popular sense, would clearly declare so---Courts were not under a duty to either enlarge or curtail the scope of the legislation or the intention of the legislators.

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

----Ss. 6 & 16 & Preamble---Capital Development Authority Ordinance (XXIII of 1960), Chapt. VI & Preamble---Federal Government Employees Housing Authority Act (IV of 2020), Ss. 3(2) & 12---Constitution of Pakistan, Art. 173---Acquisition of land by [erstwhile] Federal Government Employees Housing Foundation ('Foundation) in terms of Land Acquisition Act, 1894 for a housing scheme---Plots in the said housing scheme allotted to government/civil servants and advocates of the Supreme Court---Questions as to whether such acquisition of land was for a valid public purpose; and whether subject land acquired under the Land Acquisition Act, 1894, could only have been acquired by the Capital Development Authority ('Development Authority') under the Capital Development Authority Ordinance, 1960---[Per Mushir Alam, J: Capital Development Authority (CDA) under the Capital Development Authority Ordinance, 1960 ('the Ordinance') did not have exclusive jurisdiction to acquire land and it did not exclude acquisition under the Land Acquisition Act, 1894 ('the Act')---Provisions of the Ordinance did not exclude those of the Act with respect to acquisition of land for a public purpose---Furthermore acquisition for a housing scheme for Federal Government employees and allied group constituted a valid public purpose---Acquisition under the Act did not become State largesse under Art. 173 of Constitution read with S. 16 of the Act]---[Per Qazi Faez Isa, J, concurring: Applicable law in the present case for the compulsory acquisition of the land was the Land Acquisition Act, 1894---Subject land was legally acquired by the Foundation and its distribution amongst the allottees did not violate the Land Acquisition Act, 1894 nor the Constitution]--- Appeals were allowed accordingly.

(q) Constitution of Pakistan---

----Art. 175(2)--- Jurisdiction of courts--- Scope--- Jurisdiction on court could not be conferred even by consent; unless it was so conferred by or under the Constitution and or law.

Per Qazi Faez Isa, J; concurring with Mushir Alam, J

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

----S. 6---Federal Government Employees Housing Authority Act (IV of 2020), Ss. 3(2) & 12---Constitution of Pakistan, Arts. 24(3)(e)(ii), 38(a) & 38(d)---Acquisition of land by [erstwhile] Federal Government Employees Housing Foundation ('Foundation) in terms of Land Acquisition Act, 1894 for a housing scheme---Plots in the said housing scheme were allotted to government/civil servants and advocates of the Supreme Court---Question as to whether such acquisition of land was for a valid public purpose---Held, that providing housing was specifically mentioned in Art. 24(3)(e)(ii) of the Constitution, therefore, land which was compulsorily acquired for providing housing was for a public purpose and government/civil servants and lawyers, were a specified class of citizens as mentioned in Art. 24(3)(e)(ii)---To provide housing was a basic 'necessity of life', it also 'secured the well being of the people' and 'raised their standard of living'---Said Principles of Policy (mentioned in Arts. 38(a) & 38(d) of the Constitution) reiterated that providing housing was a public purpose---To acquire land in order to provide it to those in need of housing, after compensating the owners, did not detract from the objective of social justice as enunciated in Islam, and it constituted social justice as understood in common parlance--- Appeals were allowed.

PLD 1960 SC 60; 2018 SCMR 705; 2001 CLC 1853; R. L. Arora v. State of Uttar Pradesh AIR 1962 SC 764; Anand Kumar v. State of Madhya Pradesh AIR 1963 Madhya Pradesh 256; Veeraraghavachariar v. Secretary of State for India AIR 1925 Mad. 837; 2007 CLC 107; PLD 2011 SC 619 and PLD 2011 SC 619, 646 ref.

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

----S. 6 & Preamble---Capital Development Authority Ordinance (XXIII of 1960), Chap. VI & Preamble---Federal Laws (Revision and Declaration) Ordinance (XXVII of 1981), S. 5---Islamabad Capital Territory (ICT)---Applicability of Land Acquisition Act, 1894---Capital Development Authority Ordinance, 1960 ('the Ordinance') did not contain an overriding or non-obstante clause nor vested exclusive jurisdiction in Capital Development Authority (CDA) with regard to land acquisition in ICT---When land was required for the use and/or purpose of CDA it could be compulsorily acquired under the Ordinance, but where land was not required for the use and/or purpose of the CDA it could not be acquired under the Ordinance, but only under the Land Acquisition Act, 1894.

PLD 1972 SC 279 ref.

(t) Constitution of Pakistan---

----Art. 205 & Fifth Sched.---Land Acquisition Act (I of 1894), S. 6---Federal Government Employees Housing Authority Act (IV of 2020), Ss. 3(2) & 12---Judges of the High Courts and Supreme Court---Entitlement to State land/plots---Neither the Constitution nor any law entitled judges of superior courts to receive land or plots from the [erstwhile] Federal Government Employees Housing Foundation or out of any compulsorily acquired land---Practice of giving away the ummah's land to judges was also contrary to the Injunctions of Islam.

Remuneration and other terms and conditions of service of a Judge of the Supreme Court or of a High Court provided in the Fifth Schedule to the Constitution did not contain any clause entitling judges to (State) land/plots. The Constitution and the law (Presidential Orders) did not entitle chief justices and judges of the superior courts to plots of land. The 'Supreme Court of Pakistan: Judicial Estacode' ('the Judicial Estacode') also did not contain anything therein entitling chief justices and judges to plots of land. Likewise, the Manual of 'Pay, Pension and other Privileges' ('the Manual'), compiled the presidential orders, rules, and notifications regarding the pay, pension and privileges of judges, but the manual also did not contain anything entitling chief justices and judges of the superior courts to plots of land.

The executive giving plots to judges constituted a favour. The independence of the judiciary was a necessary concomitant to ensure its respect and credibility in the eyes of the people.

Without specific legal sanction, no one, including the Prime Minister, had the discretion to grant land, a house or an apartment to anyone.

Those who served in the judiciary received a salary for their services and received a pension on their retirement; they did not serve in the expectation of receiving land from the State.

The practice of giving away the ummah's land to judges is also contrary to the Injunctions of Islam. Islam jealously guards the properties and assets of the ummah (community/State). Islam is a religion of balance, and its followers are directed not to 'transgress the balance'; the balance is/are ruptured when lands were bestowed on the elite. When the ummah's land are bestowed upon the privileged elite, those blessed with good salaries, secure jobs and pensions may attract the Qur'anic rebuke, 'Competing to piling up (worldly things) distracts you, until you visit your graves' [Al-Qur'an, Surah At-Takathur verses 1 and 2].

Al-Qur'an, Surah Ar-Rahman (55) verse 7 and Al-Qur'an, Surah At-Takathur verses 1 and 2 ref.

(u) Pakistan Army Act (XXXIX of 1952)---

----Preamble---Pakistan Air Force Act (VI of 1953), Preamble---Pakistan Navy Ordinance (XXXV of 1961), Preamble---Pakistan Rangers Ordinance (XIV of 1959), Preamble---Frontier Constabulary Act (XIII of 1915), Preamble---Frontier Corps Ordinance (XXVI of 1959), Preamble---National Guards Act (LXI of 1973), Preamble---Pakistan Coast Guards Act (XVIII of 1973), Preamble---Airports Security Force Act (LXXVII of 1975), Preamble---Constitution of Pakistan, Arts. 24, 25, 205 & 227--- State land, entitlement to---Different laws governing those employed in the Army, Air Force, Navy, Rangers, Frontier Constabulary, Frontier Corps, National Guards, Coast Guards and Airports Security Force, did not provide that they be given residential plots, commercial plots or agricultural land (belonging to State/public) nor permitted them to receive the same---Practice of giving away the ummah's land to members of the armed forces was also contrary to the Injunctions of Islam.

The prevailing practice of granting State/public plots and land to members of the Armed Forces was contrary to the Constitution and the law. Laws could also not be enacted to enable such allotments/grants because if enacted these would violate the Constitution (Articles 24, 25, 205 and 227) and be void. The Constitution did not permit self-enrichment and personal aggrandizement.

Ghulshan Hussain v. Commissioner (Revenue), Islamabad, 2000 YLR 1711, 1727 and Federal Government Employees Housing Foundation v. Muhammad Akram Alizai PLD 2002 SC 1079, 1095 ref.

However, a government or an organization controlled by a government may launch a housing scheme for the members of the Armed Forces, and when this happened they may apply for the allotment of a single plot for housing. But, they like every other applicant of such schemes, they would have to pay the requisite amount (not subsidized by the State), stand in queue and await their turn for allotment in terms of the applicable methodology. And, the plot which was allotted/granted must not be large because available land was finite and the list of beneficiaries was long, and kept growing longer.

Those who served in the Armed Forces of Pakistan received a salary for their services and received a pension on their retirement; they did not serve in the expectation of receiving land from the State.

When free or heavily subsidized State/public land was distributed amongst the elite, people lost faith in the system of governance, despondency set in and society then came to be held together by sheer force.

The practice of giving away the ummah's land to members of the armed forces was also contrary to the Injunctions of Islam. Islam jealously guarded the properties and assets of the ummah (community/State). Islam was a religion of balance, and its followers were directed not to 'transgress the balance'; the balance was ruptured when lands were bestowed on the elite. When the ummah's land was bestowed upon the privileged elite, those blessed with good salaries, secure jobs and pensions may attract the Qur'anic rebuke, 'Competing to piling up (worldly things) distracts you, until you visit your graves' [Al-Qur'an, Surah At-Takathur verses 1 and 2].

Al-Qur'an, Surah Ar-Rahman (55) verse 7 and Al-Qur'an, Surah At-Takathur verses 1 and 2 ref.

(v) Constitution of Pakistan---

----Arts. 19A, 205 & 260(1) & Fifth Sched.---Pakistan Army Act (XXXIX of 1952), Preamble---Pakistan Air Force Act (VI of 1953), Preamble---Pakistan Navy Ordinance (XXXV of 1961), Preamble---Right to information---Scope---Distribution of State land amongst those in service of Pakistan (including judges of superior judiciary and members of the Armed Forces)---Neither the Constitution nor any law provided for such distribution---Affront to the people was confounded when information with regard to distribution of State/ummah's land was kept under wraps---People had every right to know what was given to those in the service of Pakistan and holding constitutional positions---To withhold such information from the people was unconstitutional---Constitutional goal of 'creating an egalitarian society was undermined when public land furtively found its way into private hands---His Lordship observed that since the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 was enacted to ensure accountability, transparency and good governance by optimizing the free flow of information', therefore, a copy of present judgment should be sent to the Pakistan Electronic Media Regulatory Authority ('PEMRA') which should send copies onwards to its licencees, who may want to broadcast it; and that PEMRA should ensure that such broadcasts were unimpeded.

Holy Qur'an, Surah An-Nisa (4) verse 114; Holy Qur'an, Surah At-Tawbah (9) verse 78, Surah Al-Isra (17) verse 47, Surah Ta Ha (20) verse 62, Surah Al-Anbiya (21) verse 3, Surah Az-Zukhruf (43) verse 80 and Surah Al-Mujadilah (58) verse 10; Holy Qur'an, Surah Al-Anfal (8) verse 8 and Holy Qur'an, Surah Al-Baqarah (2) verse 42 ref.

For the Appellant(s):

Mansoor Ahmed, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.As. Nos. 1476 to 1479 of 2018).

Sardar Muhammad Aslam, Advocate Supreme Court (in C.As. Nos. 1477 and 1480 of 2018).

In person (in C.A. No. 1481 of 2018).

In person (in C.A. No. 1482 of 2018).

Shah Khawar, Advocate Supreme Court (in C.As. Nos. 1483-1485 of 2018).

Khushdil Khan Malik, in-person (in C.M.A. No. 10950 of 2018).

Nemo (in C.M.As. Nos. 10951-10953 of 2018).

Syed Rafaqat Hussain Shah, Advocate-on-Record (in C.M.As. Nos. 10393 and 10398 of 2018).

Syed Iqbal Hashmi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record (in C.M.A. No. 7403 of 2019).

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court (in C.M.A. No. 9756 of 2019).

Sajeel Sheryar Swati, Advocate Supreme Court (in C.M.As. Nos. 9210-9213 and C.M.A. No. 9835 of 2019).

Rasheed A. Rizvi, Senior Advocate Supreme Court, Hamid Khan, Senior Advocate Supreme Court, Amanullah Khan Kanrani, Advocate Supreme Court, Syed Qalb-i-Hassan, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record, Syed Rafaqat Hussain Shah, Advocate-on-Record, Ms. Shireen Imran, Advocate Supreme Court, Liaqat Ali Tareen, Advocate Supreme Court, Aurangzeb Asad Khan, Advocate Supreme Court, Shamim-ur-Rehman, Advocate Supreme Court and Ehsan Qadir Sial, Advocate Supreme Court for Petitioners (in Crl. O.P. No. 166 of 2018).

Naeem Bokhari, Advocate Supreme Court (in Cr. O.P. No. 166 of 2018) (Ch. Akhtar Ali, Advocate-on-Record for Private Respondents and for Petitioners (in W.Ps. Nos. 4270, 4723 of 2016 and 3594 of 2018).

Niaz Ullah Niazi, A.G. Islamabad on Court's Notice.

Ch. Riasat Ali Gondal, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for CDA.

Sajid Ilyas Bhatti, Additional AGP for Federation.

Syed Feisal Hussain Naqvi, Advocate Supreme Court for Private Respondents.

Ch. Hassan Murtaza Mann, Advocate (in C.As. Nos. 1476-1480 of 2018).

2021 S C M R 289

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD AFZAL---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 385 of 2017, decided on 8th October, 2020.

(Against the judgment of the Lahore High Court, Lahore dated 12.04.2017 passed in Murder Reference No.117/2015, Criminal Appeal No.1630/2013 and Criminal Appeal No. 1631/2013)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence had taken place at 3.30 p.m. whereas the matter was reported to the police at 4.45 p.m. on the same day whereas the inter se distance between the place of occurrence and police station was 28/29 kilometers---Perusal of the crime report clearly reflected that there was a definite overt act ascribed to the accused who fired twice with his gun on the vital part of the body of deceased---Ocular account was furnished by complainant and another witness---Statements of both said witnesses qua the time, date, mode and manner of occurrence were identical, and despite lengthy cross examination nothing detrimental to the prosecution case could be extracted from them---Occurrence took place in an open field in broad daylight and the parties were known to each other since long, thus there was no chance of any misidentification---All said factors when evaluated conjointly made it abundantly clear that the prosecution had succeeded to establish its case without any reasonable doubt---Benefit of non-recovery of crime weapon and absence of report of Forensic Science Agency, had already been extended to the accused by the High Court as his sentence of death was converted into imprisonment for life---Petition for leave to appeal was dismissed and leave was refused.

Ms. Aisha Tasneem, Advocate Supreme Court (at State expenses) for Petitioner.

Mirza Muhammad Usman, DPG, Punjab for the State.

2021 S C M R 292

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

MANZOOR AHMED AKHTAR---Petitioner

Versus

The STATE---Respondent

Criminal Petition No.69-Q of 2019, decided on 9th September, 2020.

(Against the judgment dated 09-8-2019 passed by the High Court of Balochistan, Quetta in Criminal Appeal No.330 of 2017)

Penal Code (XLV of 1860)---

----Ss. 466, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Producing a fake acquittal decision of High Court to re-join government service---Reappraisal of evidence---Prosecution and conviction of accused on a criminal charge was admitted---Judgment of acquittal on the basis whereof the accused managed his re-posting was found fake; it was on the basis thereof that the accused not only manipulated his service but also derived benefit therefrom---Accused could not disown the fake acquittal judgment relating to the case wherein he was tried and convicted and, thus, being the sole and obvious beneficiary he could not escape consequences of ill-gotten gains---Treachery of accused came into the knowledge of the Anti-Corruption Department when the co-villagers laid information of the mischief, paving way for his prosecution---Acquittal of co-accused (office Superintendent), seemingly out of abundant caution, did not affect the charge, distinctly and inexorably pointed upon accused's culpability---Accused had been rightly convicted and sentenced under Ss. 466, 468 & 471, P.P.C. and S. 5(2) of the Prevention of Corruption Act, 1947---Petition for leave to appeal was dismissed and leave was refused.

Manzoor Ahmed Rehmani, Advocate Supreme Court for Petitioner.

Syed Abdul Baqar Shah, Advocate Supreme Court at Islamabad along with Wallayat Hussain Additional P.G. Balochistan at Quetta for the State.

2021 S C M R 294

[Supreme Court of Pakistan]

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

SHAHEEN AIRPORT SERVICES and another---Petitioners

Versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION through Chairman and others---Respondents

Civil Review Petitions Nos. 310, 311 and 217 of 2018, decided on 7th December, 2020.

(Against the judgment dated 28.3.2018 passed by this Court in C.As. Nos. 970 and 971 of 2013 - C.M.A. for permission to argue the case)

Industrial Relations Act (X of 2012)---

----S. 2(xvii)---Sindh Industrial Relations Act (XXIX of 2013), S. 2(xvi)---Shaheen Airport Services ('the petitioner')---Not a charitable organization---Claim of the petitioner as being a charitable institution was declined throughout by the High Court and by the Supreme Court, by way of judgment under review---High Court found that 'Shaheen Foundation' appeared to be a charitable institution but that could not be said about Shaheen Airport Services ('the petitioner'); that petitioner organization only existed for making profit, and fact that it yielded its profit to Shaheen Foundation which in turn used it for charitable purposes could not make the petitioner a charitable organization---Supreme Court upheld said findings of the High Court in the judgment under review---Once such finding had come to record, the petitioner could not claim the benefit of S. 2(xvii) of Industrial Relations Act, 2012 or of S. 2(xvi) of Sindh Industrial Relations Act, 2013 in order to claim immunity---Review petitions were dismissed.

Khalid Anwar, Senior Advocate Supreme Court (via video link) and Rashid Anwar, Advocate Supreme Court for Petitioners (in Civil Review Petitions Nos. 310 and 311 of 2018).

Shahid Anwar Bajwa, Advocate Supreme Court for Petitioner (in Civil Review Petition No. 217 of 2018).

Sohail Mahmood, Additional AGP, Ayyaz Shaukat, DAG and Ibrar Saleem, Dy. Reg. NIRC for Respondents.

Ch. Faisal Farid, Additional AG Punjab, Rab Nawaz Zahid, Director IRI and Fazal Hussain, Director Labour for the Government of Punjab.

2021 S C M R 298

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUNIR AKHTAR alias MUNIR AHMAD---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 382 of 2017, decided on 8th October, 2020.

(Against the judgment of the Lahore High Court Lahore dated 02.02.2017 passed in Murder Reference No.208/2013 and Criminal Appeal No.310-J of 2013).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence had taken place in broad daylight in which two persons were done to death in a brutal manner---Occurrence had taken place at 12.50 p.m. whereas the matter was reported to the police at 03.15 p.m. on the same day whereas the inter-se distance between the place of occurrence and police station was one kilometer---Such facts and figures ruled out any possibility of deliberation and consultation---Accused was saddled with the responsibility of causing firearm injury with a Kalashnikov on the person of deceased---Ocular account was supported by complainant and another eye-witness, and statement of both said witnesses coincided with each other on salient features of the prosecution version---Ocular account was also corroborated by the medical evidence---Accused remained an absconder for more than five years and four months---During course of investigation, the accused was found involved and his name was placed in column No.03 of the report under S. 173, Cr.P.C.--- All said factors when evaluated conjointly made it abundantly clear that the prosecution had succeeded to establish its case without any reasonable doubt---High Court had already converted the sentence of death awarded to the accused into imprisonment for life, which reduction seemed appropriate and in accordance with law---Petition for leave to appeal was dismissed and leave was refused.

Miss Tehmina Mohibullah Kakakhel, Advocate Supreme Court, at State expenses for Petitioner.

Mirza Muhammad Usman, DPG Punjab for the State.

2021 S C M R 301

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

LAL MARJAN and another---Petitioners

Versus

ISLAM GUL and others---Respondents

Criminal Petition No. 1210 of 2020, decided on 9th December, 2020.

(Against the order dated 25.09.2020 passed by the Peshawar High Court in Cr. Misc. (B.A.) No.2881-P of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Bail, grant of---Further inquiry---Accused persons were arrayed as culprits in the case on basis of supplementary statement of complainant made more than a week after the incident---Prosecution's own case was that the assailants emerged at the spot all of a sudden and had concealed their faces with masks---Nineteen (19) casings of 7.66 calibre secured from the spot suggested use of an automatic weapon, indicating suddenness of the incident---Failure of investigating officer to recover the weapon or motorbike used during the occurrence left the fate of the prosecution case to be essentially decided on the basis of supplementary statement of complainant, evidentiary value whereof, was to be best assessed after recording of evidence---Case of accused persons' release on bail within the contemplation of S. 497(2), Cr.P.C. was made out---Petition for leave to appeal was converted into appeal and allowed and accused persons were released on bail..

Asad Ullah Khan Chamkani, Advocate Supreme Court for Petitioners.

Zahid Yousaf Qureshi, Additional Advocate General, Khyber Pakhtunkhwa with M. Aslam, SI for Respondents.

2021 S C M R 302

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

Mst. ASIA QASEEM and others---Petitioners

Versus

ALAMZEB and another---Respondents

Criminal Petition No. 96-P of 2020, decided on 19th November, 2020.

(On appeal against the judgment dated 20-07-2020 passed by the Peshawar High Court, Peshawar, in Criminal Misc. (B.A.) No. 1849-P of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, possessing unlicensed weapon---Bail, cancellation of---Mainly three grounds prevailed with the High Court while granting bail to accused: Firstly, High Court observed that six persons were charged for commission of offence but the deceased had only two entry wounds, which was factually incorrect as deceased persons received more than two injuries which commensurated with the number of the accused, secondly the High court observed that although arms and ammunitions were recovered from the accused but the same were not sent to the Forensic Science Laboratory (FSL) hence the recovery lost its relevance, said observation was also against the record as empties were sent to the FSL whereas the recovered weapons from the accused and other co-accused persons were also sent there and report of FSL revealed that some of the empties recovered from the spot were found to have been fired from the weapons recovered from the accused and other co-accused persons and thirdly the complainant in her statement under S. 164, Cr.P.C. had also involved some other co-accused persons but she had not exonerated the accused and others who were apprehended at the spot red-handed--- Consequently the grounds on which bail was granted to the accused by the High Court were not borne out from the record---Bail granting order was against the record and perverse hence liable to be set aside---Petition for leave to appeal was converted into appeal and allowed, and the bail granted to accused was cancelled.

Ghulam Mohy-ud-Din Malik, Advocate Supreme Court for Petitioners.

Zakir Hayat, Advocate Supreme Court along with Respondent No. 1 for Respondents.

Arshad Hussain Yousafzai, Advocate Supreme Court and Akram, Inspector for the State.

2021 S C M R 305

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Yahya Afridi, JJ

PROVINCE OF PUNJAB through Secretary Excise and Taxation Department, Lahore and others---Petitioners

Versus

MURREE BREWERY COMPANY LIMITED (MBCL) and another---Respondents

Civil Petitions Nos. 1369-L and 1370-L of 2019, decided on 24th November, 2020.

(Against the judgment dated 19.2.2019 passed by Lahore High Court, Lahore in I.C.As. Nos. 1206 and 1207 of 2016)

(a) Interpretation of statutes---

----'Mandatory' and 'directory' provisions---Test for distinction---Test to determine whether a provision was directory or mandatory was by ascertaining the legislative intent behind the same---Integral factor that was to be considered was the legislative intent and the purpose that was to be achieved by the application of the provision---General rule was that the usage of the word `shall' generally carried the connotation that a provision was mandatory in nature---However, other factors such as the object and purpose of the statute and inclusion of penal consequences in cases of non-compliance also served as an instructive guide in deducing of the provision.

(1995) 1 SCC 133; 2017 SCMR 1427; The State through Regional Director ANF v. Imam Baksh and others 2018 SCMR 2039; Lachmi Narain v. Union of India (1976) 2 SCC 953; New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757 and May George v. Special Tehsildar and others (2010) 13 SCC 98; (2011) 9 SCC 354 ref.

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

----Ss. 79, 153, O. I, R. 10 & O. XXVII-A---Constitution of Pakistan, Art. 174---Suits by or against the Government---Section 79 of Civil Procedure Code, 1908---Whether a mandatory provision---Effect of non-compliance---Held, that as a matter of general principle, the provision of S. 79 of C.P.C. was a mandatory provision which was applicable where the correct and appropriate department was not made party to the suit and/or the Government was wrongly impleaded---Such non-­compliance would render the suit invalid for the want of necessary party---However, S. 79 of C.P.C. was not to be used as a ground for a technical knockout---Where the Government itself filed the appeal, albeit with the wrong description, the provisions of S. 79 of C.P.C. amounted to mere nomenclature, which, if not followed, did not render the suit non-maintainable.

Legislative intent and the purpose of the operation of section 79, C.P.C was for the State, or the Province, to be adequately represented and defended through the impleadment of the proper department. This purpose could not be achieved if the concerned and proper department was not made a party to the suit, nor could it be achieved if the State, or Province, were not named in the suit.

Gul Ahmed Textile Mills Ltd. v. Collector of Customs (Appraisement) and 2 others 2019 MLD 144 ref.

Section 79 of C.P.C. was a mandatory provision. where the State, or the Province, was either not impleaded in compliance with section 79 of C.P.C., and Article 174 of the Constitution, or the concerned department was not made party to the suit. Such actions would render the suit invalid. However, it did not close the right of the person filing the proceeding to file the case afresh, subject to limitation, by impleading the correct respondents in accordance with the provisions of section 79 of C.P.C.

Province of the Punjab through Member Board of Revenue (Residual Properties) v. Muhammad Hussain PLD 1993 SC 147; Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar 1999 SCMR 16; Government of Balochistan CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi 2010 SCMR 115 and Chief Conservator of Forests, Government of A.P. v. The Collector AIR 2003 SC 1805 ref.

However, where the Government itself filed the appeal, albeit with the wrong description, the provisions of section 79 of C.P.C. amounted to mere nomenclature, which, if not followed, did not render the suit non-maintainable. While such mis-description was a contravention of section 79 of C.P.C., it was not fatal to the case when it was indeed the Government itself filing the appeal. [

Secretary Ministry of Works and Housing Government of India and others v. Mohinder Singh Jagdev and others (1996) 6 SCC 229 ref.

Section 79 of C.P.C. could not be made the ground for a technical knockout. Courts were encouraged to take a proactive approach to matters involving the mis-description of parties by exercising authority under section 153, C.P.C. and O. I, R. 10 and O. XXVII-A of C.P.C. Such mis-description, unless shown to be mala fide, and not remedied when directed, was not fatal to the suit and the Courts should actively remedy the mistake so made and add Federal or Provincial government as a party at any stage of the proceedings.

Chief Conservator of Forests Government of A.P. v. The Collector (1996) 6 SCC 229; Government of Balochistan CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi 2010 SCMR 115; WAPDA v. Alam Khan PLD 1991 SC 374; Uday Shanker Triyar v. Ram Kalewar Prasad Singh 2006 (1) SCC 75 and Cropper v. Smith (1884) 26 Ch. D. 700 (CA) ref.

Ch. Faisal Fareed, Additional A.G. Punjab, Rizwan Akram Sherwani, Dir. Excise and Taxation, Lahore and Nadeem Salah-ud-Din, Senior Law Officer, Excise Taxation and Narcotics Control Department for Petitioners.

Ms. Ayesha Hamid, Advocate Supreme Court for Respondent No.1 (in both cases).

2021 S C M R 319

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

NAKHUDA MUSTAFA and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 1143 of 2019, decided on 16th October, 2020.

(Against the order dated 28.02.2019 passed by the Lahore High Court Lahore in Criminal Revision P. No. (T)2/2019).

Balochistan Sea Fisheries Ordinance (IX of 1971)---

----S. 9, proviso---Fishing in banned area with prohibited net---Reappraisal of evidence---Accused persons were convicted and sentenced by Trial Court under S. 9 of Balochistan Sea Fisheries Ordinance, 1971 and it was also ordered that their fishing craft be auctioned---On appeal the sentences of accused persons were reduced; the fines imposed were set-aside, however the direction for auction of fishing craft was maintained---Held, that accused persons were intercepted while using a banned net within the internal waters---Location of the incident was unambiguously established with a map---Prohibited net being used for fishing was secured by the raiding party and all those on board were arrested, leaving no space to entertain any hypothesis other than their guilt---All courts below meticulously appraised the evidence to discard bald denial pleaded by the accused persons in the face of positive evidence, supported by scientific proof---In the matter of their sentences, the accused persons had already been dealt leniently by the appellate Courts---In the event of contravention, proviso to S. 9 of the Balochistan Sea Fisheries Ordinance, 1971, mandatorily provided for auction of fishing craft, thus, the impugned direction by the Trial Court, upheld in appeal by the first appellate Court and the High Court was within the remit of law---Petition for leave to appeal was dismissed and leave was refused.

Kamran Murtaza, Senior Advocate Supreme Court and Tahir Ali Baloch, Advocate Supreme Court for Petitioners.

Baqir Shah, State Counsel.

2021 S C M R 321

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, CJ, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

OXFORD UNIVERSITY PRESS, PESHAWAR---Appellant

Versus

INAYAT-UR-REHMAN and others---Respondents

Criminal Appeal No. 233 of 2019, decided on 10th October, 2019.

(Against the judgment dated 18.01.2019 passed by the Peshawar High Court, Peshawar in Criminal Miscellaneous (QP) No. 07-P of 2018)

(a) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----S. 3 & Sched. Entry No. 26---Copyright Ordinance (XXXIV of 1962), Ss. 66, 66-A & 67---Infringement of copyrights of a book publisher--- Federal Investigation Agency (FIA), jurisdiction of---Scope---According to S. 3 of the Federal Investigation Agency Act, 1974 ('the 1974 Act') the Federal Investigation Agency (FIA) had the competence and jurisdiction to inquire into and investigate all the offences specified in the Schedule to the Federal Investigation Agency Act, 1974 and according to Entry No. 26 of the Sched. to the said Act the Copyright Ordinance, 1962 was one such law---Offences under the Copyright Ordinance, 1962 could, therefore, be inquired into and investigated by the FIA ---Entry No. 26 in the Sched. to the Federal Investigation Agency Act, 1974 was inserted through S.R.O. No. 321(I)/2005 on 16-04-2005---Said Schedule and the S.R.O. were still a valid part of the law---Appeal was allowed.

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

----S. 561-A---Federal Investigation Agency Act, 1974 (VIII of 1975), S. 3 & Sched.---Inherent powers of the High Court under S. 561-A, Cr.P.C.---Scope---Schedule to the Federal Investigation Agency Act, 1974 ('the 1974 Act') or the S.R.O. through which an Entry was inserted in the Schedule to the 1974 Act could not be struck down by the High Court while exercising jurisdiction under S. 561-A, Cr.P.C. which jurisdiction was restricted only to matters of a court below in the hierarchy---High Court could not interfere with the legislation pertaining to the Federal Investigation Agency through exercise of its criminal jurisdiction--- If an aggrieved party (respondent) wanted to challenge the 1974 Act and the Schedule appended thereto, it could do so by way of a constitutional petition before the High Court on any constitutional and legal grounds---Appeal was allowed.

Mrs. Sarkar Abbas, Advocate Supreme Court for Appellant.

Muhammad Usman Khan, Turlandi, Advocate Supreme Court for Respondents with the Respondents in person.

Ch. Aamir-ur-Rehman, Additional Attorney General for Pakistan, Malik Tariq Mehmood, Acting Director FIA, Umer Ashraf and Aamir Riaz, (IPO) for the State.

2021 S C M R 324

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Amin-ud-Din Khan, JJ

ATIF-UR-REHMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1182 of 2020, decided on 12th November, 2020.

(On appeal against the judgment dated 23.9.2020 passed by the Peshawar High Court, D.I. Khan, in Criminal M. B.A. No. 330-D of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 15---Possession and trafficking of narcotics---Bail, grant of---Further inquiry---Nothing was recovered from the vehicle duly driven by the accused---According to the prosecution the accused pointed out another truck from where certain narcotics were recovered and three persons were arrested---In the FIR it was indicated that the ANF officials were already in the knowledge of the narcotics in the said truck, therefore, any new fact was not discovered on the pointation of the accused---As far as applicability of S. 15 of the Control of Narcotic Substances Act, 1997 was concerned, the trial Court, after recording of evidence, would determine as to whether the said offence was attracted or not---Case of the accused called for further inquiry falling under subsection (2) of S. 497, Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed and accused was released on bail.

Noor Alam Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate Supreme Court for Petitioner.

Raja Inaam Amin Minhas and Ch. Ehtisham-ul-Haq, Special Prosecutors ANF for the State.

2021 S C M R 325

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

ABDUL KHALIQ---Petitioner

Versus

The STATE---Respondent

Jail Petition No.210 of 2018, decided on 4th September, 2020.

(Against the judgment dated 19.12.2017 passed by the Peshawar High Court, Abbottabad Bench in Crl. Appeal No.67-A of 2014)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Dying declaration made in presence of doctor corroborated by recovery of weapon and medical evidence---Shortly after the incident, the deceased was rushed to a hospital, where a doctor (prosecution witness) attended to him---According to the doctor's deposition, he endorsed/attested statement given by the deceased, which was subsequently treated as a dying declaration---Doctor was subjected to extensive cross-examination but remained unambiguously categorical about deceased's capacity to communicate at the time when he examined him in an injured condition---Doctor further confirmed that the statement of deceased was recorded in his presence, and he denied connivance with the police---Evidence given by the doctor was found to be straightforward and confidence inspiring throughout without any taint---Mere presence of relatives who brought the deceased in injured condition to the hospital would not by itself impair the evidentiary value of statement made by the deceased, while in critical condition---In his last moments, the deceased confined his case to the accused only instead of attributing second shot to the co-accused---Dying declaration was further corroborated by the weapon recovered from the accused at the time of his arrest, found wedded with the casings secured from the spot and consistent with the injuries that cost the deceased his life---Statement of a witness, who was a resident of the same locality, was in line with the details of events given in the dying declaration---Prosecution's failure on motive and acquittal of co-accused, assigned an inconsequential and vastly distinguishable role, did not have any bearing on the case of accused, which was firmly structured on more than one piece of evidence---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---Related witness, testimony of---Scope---Mere relationship of a witness with the deceased did not undermine the value of his testimony, if otherwise it was found with a ring of truth.

Qazi Adil Aziz, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court for the State.

2021 S C M R 328

[Supreme Court of Pakistan]

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

PROVINCE OF PUNJAB through Conservator of Forest, Faisalabad and others---Petitioners

Versus

JAVED IQBAL---Respondent

C.Ps. Nos. 1554-L to 1573-L of 2020, decided on 26th November, 2020.

(On appeals from the judgments of Punjab Service Tribunal, Lahore dated 18.06.2020, passed in Appeals Nos.532, 534, 535, 546, 537, 538, 539, 540, 541, 542, 543, 544, 545, 547, 548, 549, 550, 551, 552 and 553 of 2017)

(a) Interpretation of statutes---

----'Directory' and 'mandatory' provisions---Principles and tests to determine whether a provision in a statute was directory or mandatory in nature.

In order to determine whether a provision was directory or mandatory, the duty of the court was to try to unravel the real intention of the legislature. The ultimate test was the intent of the legislature and not the language in which the intent was clothed. The object and purpose of enacting the provision provided a strong and clear indicator for ascertaining such intent of the legislature. The intention of the legislature must govern and this was to be ascertained not only from the phraseology of the provision but also by considering its nature, its object, and the consequences which would follow from construing it one way or the other. This exercise entailed careful examination of the scheme of the Act in order to discover the real purpose and object of the Act. A provision in a statute was mandatory if the omission to follow it rendered the proceedings to which it related illegal and void, while a provision was directory if its observance was not necessary to the validity of the proceeding.

Collector of Sales Tax v. Super Asia 2017 SCMR 1427; State v. Imam Baksh 2018 SCMR 2039 and Crawford, Statutory Construction, pp. 515-516 ref.

One of the important test that must always be employed in order to determine whether provision was mandatory or directory in character was to consider whether the noncompliance of a particular provision caused inconvenience or injustice and, if it did, the court would say that that provision must be complied with and that it was obligatory in its character. There were three fundamental tests, which were often applied with remarkable success in the determination of this question. They were based on considerations of the scope and object, sometimes called the scheme and purpose, of the enactment in question, on considerations of justice and balance of convenience and on a consideration of the nature of the particular provision, namely, whether it affected the performance of a public duty or related to a right, privilege or power - in the former case the enactment was generally directory, in the latter mandatory.

N S Bindra's - Interpretation of Statutes. 12th edition. p. 435 ref.

Negative words used in a provision that prescribed some statutory requirement made, as a general rule, that requirement mandatory even if no penalty was prescribed for non-compliance of that requirement.

N S Bindra's, Interpretation of Statutes, pp. 996-998, (10th edition); Shujat Hussain v. State 1995 SCMR 1249 and Atta Muhammad v. Settlement Commissioner PLD 1971 SC 61 ref.

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

----S. 21, proviso---Retired employee---Departmental proceedings, finalization of---Time frame---Scope---In terms of proviso to S. 21 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 departmental proceedings initiated against a retired employee shall be finalized not later than two years of his retirement---Said proviso was mandatory in nature, therefore, insertion of the same had a specific purpose; to conclude the proceedings against a retired employee not later than two years of his retirement---Any proceedings after the said statutory period shall stand abated and any orders passed after the efflux of the said time period were void and had no legal effect.

The focus of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ('the Act') was on the employees that were managing the affairs of the Government or the Corporation rather than those who had retired. Further, any long drawn departmental proceedings against a retired employee would be an unnecessary drain on the resources of the Government and would also distract the Government from its prime objective of regulating its employees. The scheme of the Act seemed to support the public policy that an employee who had served the Government all his life must enjoy his retirement in peace and must be spared from undergoing long drawn departmental proceedings during his retired life.

The importance of the proviso to section 21 of the Act could be gauged by supposing that there was no such proviso. As a consequence, there would be no statutory timeline for the conclusion of the departmental proceedings against a retired employee, as was the case with an (in service) employee under the Act. Therefore, the insertion of the proviso had a specific purpose; to conclude the proceedings against a retired employee not later than two years of his retirement.

Where a public official could impose liability on a retired employee if the power was exercised within a certain statutory timeframe and there was a delay in the exercise of such power on the part of a public official, no such liability could be imposed after the lapse of the statutory period..

The phrase 'not later than two years' used in the proviso to section 21 of the Act passed for a negative phrase and gave an imperative effect. Such negative phrases or words were prohibitive in essence, and were ordinarily used as a legislative device to make a provision in a statute mandatory.

Finalization of the departmental proceedings not later than two years of the retirement of the employee under the proviso to section 21 of the Act was a mandatory provision and any proceedings after the said statutory period shall stand abated and any orders passed after the efflux of the said time period were void and had no legal effect. The Government must ensure that cases of retired employees were fast tracked so that they were concluded within the prescribed statutory timeframe allowing the retired employees to enjoy their retired life and the Government to save unnecessary expense and time in pursing matters against retired employees.

(c) Interpretation of statutes---

----Mandatory and directory provisions---Statutes regulating exercise of power by public officials---Principles to determine whether a provision in such a statute was directory or mandatory in nature.

As a general principle, a statute which regulated the manner in which public officials exercised the power vested in them was construed to be directory rather than mandatory, especially when neither private or public rights were injured or impaired thereby. But if the public interest or private rights called for the exercise of the power vested in a public official, the language used, though permissive and directory in form, was in fact peremptory or mandatory as a general rule. Where a public officer was directed by a statute to perform a duty within a specified time, the provision as to time were only directory. This general principle, however, did not apply where the phraseology of the provision, or the nature of the act to be performed, or the consequence of performing or failing to perform it within the prescribed timeframe was such that the prescription of timeframe was actually a limitation on the power of the public functionary. Or where a public functionary was empowered to create liability against a citizen only within the prescribed time, the performance of such a duty within the specified timeframe was mandatory.

Crawford in Maxwell's, Interpretation of Statutes, 11th edition, pp. 369, 380; Sutherland, Statutory Construction, p. 107, Vol.-III (3rd Edition); Nagina Silk Mill v. Income-Tax Officer PLD 1963 SC 322; CBR/Sales Tax Department v. Pace International PTCL 2005 CL. 841; Pace International v. CBR/Sales Tax Department 2005 PTD 340; Dandot Cement Company v. Secretary, Revenue Division 2008 PTD 609; Super Asia v. Collector of Sales Tax 2008 PTD 60 and Sales Tax v. Super Asia 2017 SCMR 1427 ref.

(d) Interpretation of statutes---

----Proviso to a provision---Effect of a qualifying proviso, according to the ordinary rules of construction, was to qualify something enacted in the preceding portion of the enactmen.

Craies on Statute Law, p.218, (7th edition) ref.

Raja M. Arif, Additional A.G. for Petitioners (in all cases).

Respondent in person.

2021 S C M R 343

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN---Appellant

Versus

NADEEM H. SHAIKH and others---Respondents

Criminal Appeal No. 518 of 2010, decided on 27th October, 2020.

(Against the order dated 26.01.2009 passed by the Islamabad High Court Islamabad in Criminal Original No. 73 of 2008)

Constitution of Pakistan---

----Art. 185---Companies Ordinance (XLVII of 1984), S. 282-K [since repealed]---Appeal pending before the Supreme Court---Appellant (Securities and Exchange Commission of Pakistan) failing to provide addresses of respondents for service purposes despite repeated directions and opportunities generously granted by the Supreme Court from time to time---Held, that law assisted the vigilant even in causes most valid and justiciable---Similarly, fixation of cases before Benches entailed public expense and time, that must not be incurred more than once in the absence of a reason most genuine and compelling---Supreme Court observed that delay caused by the appellant in doing the needful was exasperating, and the Court did not feel persuaded to allow such long drawn inaptitude to further encumber pendency of the Court--Appeal was dismissed, in circumstances.

Syed Hamid Ali Shah, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellant.

Tanvir-ul-Islam, Advocate Supreme Court for Respondents Nos. 5, 6, 9, 14 and 16.

Naeem Bukhari, Advocate Supreme Court for Respondents Nos.18 and 19.

Nayab Gardezi, Advocate Supreme Court for Respondent No.3.

2021 S C M R 345

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

DIRECTOR GENERAL FEDERAL DIRECTORATE and another---Petitioners

Versus

TANVEER MUHAMMAD and another---Respondents

Civil Petition No. 692 of 2020, decided on 18th December, 2020.

(Against the Order dated 16.12.2019 passed by the Federal Service Tribunal, Islamabad in Appeal No. 52(R)CS of 2018)

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

----R. 4(1)(b)(iv)---Allegation of physical assault, using verbal abuse and threatening a colleague---Penalty of 'Dismissal from service' converted into 'withholding of increment for a period of five years' by the Federal Service Tribunal---Legality---Respondent had physically assaulted and tortured a female worker, which fact was substantiated not only by the eye-witness account but also corroborated by the Medico Legal Report of the victim---Such violence was perpetrated within the school premises which violated the sanctity of an educational institution, and constituted an act of gross misconduct---Internal inquiry Committee, consisting of three independent senior officers, found the respondent guilty of all charges---No bias, partiality or mala fides was alleged against the Inquiry Committee---Respondent was given fair opportunity to defend himself which he failed to do---Tribunal had itself recorded findings to the effect that the respondent had committed misconduct but that the penalty imposed upon him was too harsh and did not commensurate with the charge---In the face of proof of charges against the respondent, it was not understandable how the penalty of dismissal from service imposed by the department was too harsh or did not commensurate with the offence alleged---Further, the judgment of the Tribunal was devoid of any reason let alone cogent---Petition for leave to appeal was converted into appeal and allowed, judgment of Service Tribunal was set-aside and the penalty of dismissal from service imposed by the department was restored and affirmed.

(b) Service Tribunals Act (LXX of 1973)---

----S. 5(1)---Service Tribunal, powers of---Structured exercise of jurisdiction---Scope---Where the Tribunal exercised jurisdiction under S. 5 of the Service Tribunals Act, 1973, legally sustainable reasons must be recorded---Merely and casually making an observation that the penalty imposed (by the department/forum below) was not commensurate with the gravity of the offence was not enough and constituted arbitrary capricious and unstructured exercise of jurisdiction---Order must show that the Tribunal had applied its mind to the facts and circumstances of the case and exercised its discretion in a structured, lawful and regulated manner keeping in view the dicta of the superior Courts in the matter.

Moulvi Ejaz ul Haq, DAG, M. Ahmed, A.D. (L) FDE and Syyeda B.H. Shah, Advocate-on-Record for Petitioners.

Respondent No. 1 in person.

2021 S C M R 349

[Supreme Court of Pakistan]

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

ABBAS ALI and another---Petitioners

Versus

The STATE---Respondent

Jail Petition No. 960 of 2017, decided on 22nd October, 2020.

(Against the judgment dated 10.11.2017 passed by the High Court of Sindh Circuit Court at Hyderabad in Criminal Appeal No.S-314 of 2006)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Prosecution case was primarily structured upon ocular account furnished by three witnesses, one of whom was injured during the occurrence --- All three witnesses furnished graphic details of the occurrence without any serious narrative conflict between them---Both sides were part of the same household, therefore, questions of mistaken identity or substitution were possibilities beyond comprehension---Case was registered with remarkable promptitude by the witnesses that included an injured, who was medically examined under a police docket---Though the investigating officer failed to recover the weapons used during the occurrence, nonetheless, such failure did not adversely affect the prosecution case, which was otherwise firmly founded on ocular account furnished by the witnesses, who plausibly explained their presence at the crime scene---Acquittal of a co-accused with a role vastly distinguishable as well as inconsequential appeared to be inspired by judicial caution and as such did not adversely impact upon the integrity of the charge against the accused persons---Convictions and sentences awarded to accused persons were maintained, however the amount of Daman imposed upon the accused persons, in the peculiar facts and circumstances of the case and having regard to the extreme advance age of the accused persons, was reduced to Rs.1000---Petitions for leave to appeal were dismissed and leave was refused.

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

Ms. Rahat Ahsan, Additional Prosecutor General Sindh for the State.

2021 S C M R 352

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Sayyed Mazahar Ali Akbar Naqvi, JJ

MOZAMMAL ABBAS---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 766-L of 2020, decided on 1st January, 2021.

(On appeal against the order dated 15.07.2020 passed by the Lahore High Court, Lahore in Criminal Misc. No. 31963 of 2020)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention--- Pre-arrest bail petition, dismissal of---Accused, who was denied pre-arrest bail by the High Court, did not appear before the Supreme Court for present hearing---Supreme Court dismissed the present bail petition for non-prosecution with observations and directions with respect to duty of police to protect the community and arrest those fugitives who had not been arrested by police despite rejection of their pre-arrest bails by the High Court and Sessions Courts.

Report submitted by the Additional Inspector General (Investigation) before the Supreme Court showed that out of the total 669 accused whose pre-arrest bail applications had been dismissed by the High Court and by the Sessions Courts, 604 had been arrested whereas 65 were still at large.

According to the report submitted by the concerned District Police Officer (DPO), numerous raids were conducted to arrest the accused of the present case. The DPO informed the Court that according to credible information there was likelihood that within couple of hours, the accused would be taken into custody. Supreme Court observed that the progress sought by it had duly been addressed by the Senior Police Officer, which seemed to be reasonable; that however, the data presented to Court showed that before the Supreme Court took cognizance of the matter, the police did not take any serious action to complete the process of law by apprehending the accused, whose bail applications had been rejected by the courts of law; that it seemed there was some unseen pressure on the police or prima facie it was the laxity on the part of the police to perform its duty in accordance with law; that the job of the police was to protect the community by fighting and preventing crime, as well as maintaining law and order; that it was the police which strived to keep the community safe by reducing the fear of crime and improving the overall quality of life of the citizens; that the police was supposed to perform its duty independently without taking any external pressure.

Supreme Court directed that so far as the arrest of proclaimed offenders, who had not been arrested despite rejection of their pre-arrest bails, the Additional Inspector General shall complete the process of law and submit a report for the Court within one week, and that the concerned DPO shall also complete the process of law regarding the accused and submit a report within one week. Petition seeking post-arrest bail was dismissed for non-prosecution.

Imtiaz A. Shaukat, Advocate-on-Record for Petitioner.

Khurram Khan, Additional P.G., Fayyaz Ahmed, Additional I.G. (Inv.), Zulfiqar Ali, DPO Sargodha and Mushtaq Ahmed, S.I/I.O. for the State.

Zaheer Zulfiqar, Advocate Supreme Court for the Complainant.

2021 S C M R 354

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Yahya Afridi, JJ

GHAFFAR ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1-P of 2012, decided on 26th November, 2020.

(On appeal against the judgment dated 16.11.2011 passed by Peshawar High Court, Peshawar, in Criminal Appeal No. 775 of 2010 and M.R. No. 30 of 2010)

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Reappraisal of evidence---Occurrence took place in broad day light during a marriage ceremony---According to the prosecution, occurrence took place at 4 p.m., whereas the injured and deceased were shifted to the hospital where injured was medically examined at 5.10 p.m.---Report was lodged to the police in the hospital at 5.10 p.m. and formal FIR was chalked out at 5.40 p.m.---So within one hour and ten minutes of the occurrence the injured and the deceased were shifted to the hospital and police arrived there and matter was reported by the complainant to the police---Hardly any time was left in between for consultation and deliberation---Prosecution relied upon two eye-witnesses, one of whom was the groom and the other his uncle, therefore their presence at the spot was established-- Both said witnesses were related to the deceased persons and also the accused; both had no reason to falsely implicate the accused, and both remained consistent on each and every material point in their testimony---Postmortem of all three deceased was conducted on the same day---Medical evidence fully supported the ocular account qua the weapon used, seat of injury, duration etc.---According to the report of Forensic Science Laboratory all the fifteen crime empties were fired from one and the same weapon in view of the similarity of major points, striker pin marks, breach face marks, ejector marks, magazine marks etc.---Conduct of the petitioner was also an important circumstance as he escaped from jail during a terrorist attack on the jail, and remained an outlaw for seven years---Such noticeable and unexplained abscondence gave strong corroboration to the ocular account---Prosecution had proved the case against the accused beyond any doubt---Convictions of accused under Ss. 302(b) & 324, P.P.C. were maintained.

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

----Ss.302(b) & 324---Criminal Procedure Code (V of 1898), S.382-B---Qatl-i-amd, attempt to commit qatl-i-amd---Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---Mitigating circumstances---Spur of the moment quarrel---Benefit of S. 382-B, Cr.P.C.---Occurrence took place suddenly at the spur of the moment after a quarrel between the accused, the complainant and a deceased person broke out, where after the accused fired indiscriminately---Such ground could be mitigating factor and the High Court rightly extended such benefit to the accused by altering the sentence of death on three counts to imprisonment for life on three counts---However the High Court had withheld the benefit of S. 382-B, Cr.P.C. which was against the mandate of the said provision, hence the benefit of S. 382-B, Cr.P.C. was to be extended to the accused---With the said modification, petition for leave to appeal was dismissed and leave was refused.

Ghulam Mohy-ud-Din Malik, Advocate Supreme Court for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court, Bilal Ahmed, Dy. Superintendent, Jail, Bannu and Abdur Raziq, Assistant Superintendent, Central Prison, Mardan for the State.

2021 S C M R 359

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

AFZUL-UR-REHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 154 of 2020, decided on 26th October, 2020.

(Against the judgment dated 26.01.2015 passed by the Peshawar High Court Peshawar in Cr. A. No. 174-P of 2014)

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

----S. 7---Explosive Substances Act (VI of 1908), Ss. 5 & 5-A---Act of terrorism, possession of explosives, detonators and hand grenade---Reappraisal of evidence--- Sentence, reduction in--- Mitigating circumstances---Refusal to carry out suicide attack---Prosecution with various pieces of evidence had successfully established interception of a truck driven by the accused that carried huge cache of explosive with devastating potential---Arrest of accused was a factum above suspicion---Investigative details accompanied by forensic report clinched the charge against the accused---Accused confessed his guilt before a Magistrate after he was already remitted into judicial custody---Contents of the confessional statement, purposely mentioned in detail, unmistakably suggested a change of mind whereunder the accused appeared to have deviated from carrying out the suicide attack---Accused's abstinence, seemingly actuated by a variety of possible factors, did not cast away culpability of his undertaking so as to make out a case for an unqualified reprieve without any punishment, however, it certainly extenuated, enormity of the charge and in retrospect entitled him to the benefit of lenient treatment, permissible by law---While maintaining his conviction under S. 5 of the Explosive Substances Act, 1908, sentence of accused was reduced to the lowest mandated period of seven years' R.I, pre-trial period inclusive; the directions regarding forfeiture of accused's property as well as case property, including the impounded truck, were kept intact, however, his conviction under S. 7 of the Anti-Terrorism Act, 1997 and sentence thereunder, were set aside--- Appeal was partly allowed accordingly.

Mrs. Kausar Iqbal Bhatti, Advocate Supreme Court for Appellant.

Rizwan Ibrahim Satti, State counsel.

2021 S C M R 363

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ

QAISER KHAN---Petitioner

Versus

The STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar---Respondent

Criminal Petition No. 1034 of 2016, decided on 7th December, 2020.

(Against the judgment dated 15.09.2016 passed by the Peshawar High Court, Peshawar in Crl. A. No. 529-P of 2013)

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4, 5 & 6---Possession of narcotics---Report of Government analyst---Safe custody and transmission of samples of the narcotic from the police to the chemical examiner---Scope---If safe custody of narcotics and its transmission through safe hands was not established on the record, same could not be used against the accused---In the present case, evidence regarding safe transmission of alleged recovered narcotics to the police station and then onto the laboratory for chemical analysis was missing---Accused was acquitted of the charge in such circumstances.

Recovered narcotics were shifted from the spot to the police station through a police constable but the record showed that neither the statement of the said official was recorded nor was he produced as a witness to support the safe transmission of the alleged recovered narcotics to police station. Investigating officer of the case admitted in his cross-examination, that he even did not know as to who took the samples to the Forensic Science Laboratory. There was nothing on the record to establish that to whom the alleged recovered narcotics were handed over in the police station for safe custody. The Forensic Report reflected that the alleged narcotics were received in the laboratory on 11.12.2012 but evidence on the record was silent as to where the same remained for two days i.e. from 9th December to 11th December, 2012. Similarly, evidence regarding safe transmission of alleged recovered narcotics to the laboratory for chemical analysis was also missing.

If safe custody of narcotics and its transmission through safe hands was not established on the record, same could not be used against the accused.

Mst. Razia Sultana v. The State and another 2019 SCMR 1300 and The State through Regional Director, ANF v.. Imam Bakhsh and others 2018 SCMR 2039 ref.

Petition for leave to appeal was converted into appeal and allowed, and the accused was acquitted of the charge against him.

Aftab Khan, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court for the State.

2021 S C M R 366

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD MEHBOOB---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 128 of 2020, decided on 26th October, 2020.

(Against the judgment dated 3.6.2015 passed by the Lahore High Court Bahawalpur Bench Bahawalpur in Criminal Appeal No.515-J of 2011 and M.R. No.65 of 2011)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Default in payment of the money, appeared to have ignited a situation on the fateful day with no previous hostility---During the brawl, comprising of two episodes, both sides confronted each other---Two shotguns, one produced by the complainant and the second, recovered pursuant to a disclosure, spelled out a confrontation in close blank proximity; on the contrary, in scaled site plan inter se distance between the accused and the deceased was shown as 9-1/2 karam, a scenario that did not accommodate autopsy findings of burning surrounding each wound---Locale of fatal shot on the back of the deceased in a configuration where both sides were confronting each other face to face was yet another circumstance intriguing upon the prosecution story---Argument that the situation was acted out to write off the aftermaths of an obvious accidental shot did not appear to be unrealistic---Police official who investigated the case throughout painted a picture altogether different by projecting the accused being alone at the crime scene---Such investigation findings clearly suggested that occurrence did not take place in the manner as alleged in the crime report---In the totality of circumstances, prosecution had failed to bring forth "proof beyond doubt"---Appeal was allowed and accused was acquitted of the charge.

Zulfiqar Ahmad Bhutta, Advocate Supreme Court for Appellant.

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

2021 S C M R 369

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others---Petitioners

Versus

MUHAMMAD KHURSHID---Respondent

Civil Petition No. 279-P of 2015, decided on 14th December, 2020.

(On appeal against the judgment dated 31.03.2015 passed by the Peshawar High Court, Peshawar in Writ Petition No. 615-P of 2015)

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

----S. 4 & Preamble---Land acquisition for construction of a police station---Acquiring authority, powers of---Scope---Property owned by respondents was acquired vide a notification but only two days later for unknown reasons the same was de-notified---Subsequently acquiring authority issued another notification to acquire land belonging to the petitioner---Petitioner filed a constitutional petition before the High Court, which was allowed with the finding that due to influence of an ex-Parliamentarian the acquiring authority de-notified the land belong to respondents and with mala fides issued the notification with respect to petitioner's land---Held, that record did not reflect any element of alleged mala fide on part of the acquiring authority---Joint reading of S. 4 and Preamble to the Land Acquisition Act, 1894 showed that the acquiring authority was fully competent to issue the notification if the land was being acquired for public purpose---However, it was true that if mere selection of land was based on extraneous considerations or undue influence then it may be objected to by the affected owner---In such respect, the impugned judgment of High Court was inadequate in providing/disclosing aspect of alleged mala fide against the acquiring department---Petition for leave to appeal was converted into appeal and allowed, impugned judgment of High Court was set aside and case was remanded to the High Court for a decision afresh after affording opportunity of hearing to all concerned in accordance with law.

(b) Administration of justice---

----'Audi alteram partem' and 'due process'---Scope---Any proceeding arising out of equity could not be decided without providing opportunity of hearing---Court ought to follow the principle of 'audi alteram partem' and 'due process' which were basis of administration of justice, especially when any order, if passed, might affect the rights of the entity not party to the proceedings.

Qasim Wadood, Additional A.G. and Khial Roze, Inspector for Petitioners.

Imtiaz Ahmed, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondent No. 1.

Nemo for Respondents Nos. 2 - 4.

2021 S C M R 373

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

SHAH NAWAZ KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 231 of 2020, decided on 2nd November, 2020.

(Against the judgment dated 24.04.2017 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in Criminal Appeal No.199-M of 2014)

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

----S. 9(c)--- Possession and transportation of 12070 grams of cannabis---Reappraisal of evidence---Even if accused's confession purportedly recorded by his own choice when he was already remitted into judicial custody, was excluded from consideration, the prosecution still possessed overwhelming evidence to establish his exclusive culpability, beyond doubt; he was not only on the driving seat but also owned the vehicle that carried huge cache of contraband, concealed in a secret cavity thereof; seizure of cash of Rs.152,000/- vide inventory added to the credibility of operation carried out by the functionaries seemingly with no axe to grind---Testimony furnished by police officials did not suffer from any flaw or infirmity; both of them comfortably faced cross-examination---Safe custody of the contraband and transmission of samples to the office of Chemical Examiner was established from the record---Acquittal of co-accused, indicted on the basis of accused's confession as an unsuspecting carrier, did not bring him any benefit in retrospect---Conviction and sentence recorded against the accused by courts below, being well within the remit of law, did not call for interference. Appeal against conviction was dismissed.

Rana Abdul Latif Khan, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellant.

Anees M. Shahzad, State Counsel, Khyber Pakhtunkhwa.

2021 S C M R 375

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

Messrs LIBERTY CAR PARKING (PVT.) LTD. through Director---Petitioner

Versus

COMMISSIONER INLAND REVENUE (EX-COMMISSIONER OF INCOME TAX/WEALTH TAX), LAHORE and others ---Respondents

Civil Petitions Nos. 2021-L to 2025-L of 2015, decided on 15th December, 2020.

(On appeal against the judgment dated 17.06.2015 passed by the Lahore High Court, Lahore in WTA Nos. 189 to 193 of 2003)

Civil Procedure Code (V of 1908)---

----O. VI, R.14 & O. XXIX, R. 1---Wealth Tax Act (XV of 1963), S. 2(18)---Wealth Tax Appeals filed by a company without a resolution from the Board of Directors, but duly signed by the Chief Executive Officer (CEO)---Sufficient compliance---Ratification of appeals---Scope---Company was a juristic entity and it could duly authorize any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Code of Civil Procedure, 1908---Person may be expressly authorized either by the Board of Directors or by a power of attorney---However, in absence thereof and in cases where pleadings had been signed by one of its officers, the same could be accredited by the company by express or implied action---In the present case, the appeals filed before the High Court were not authorized by Board of Directors by proper resolution but they were duly signed by the Chief Executive Officer of the petitioner-company---Definition of 'principal officer' provided in S. 2(18) of the Wealth Tax Act, 1963 clearly showed that the Chief Executive Officer was the principal officer and if he had signed the appeals before the High Court, the same would be accorded as express ratification by the company---In such circumstances the High Court ought to have decided the appeals on merits and not on technical grounds---Petitions for leave to appeal were converted into appeals and allowed, and the case was remanded back to the High Court to decide the appeals filed by the petitioner-company afresh in accordance with law.

Rahat and Co. v. Trading Corporation of Pakistan PLD 2020 SC 366 ref.

Mian Ashiq Hussain, Advocate Supreme Court for Petitioners (Through video link from Lahore).

Amir Malik, Advocate Supreme Court for Respondents.

2021 S C M R 380

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

GULZAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 630 of 2019, decided on 28th October, 2020.

(Against the judgment dated 11.09.2018 passed by the High Court of Sindh, Bench at Sukkur in Criminal Jail Appeal No.D-175 of 2017)

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

----S. 9(c)---Possession of cannabis---Reappraisal of evidence---Failure to establish safe transmission of samples to the office of the Chemical Examiner---Recovery of narcotic substance was denied by the accused throughout---Prosecution's failure to establish safe transmission (of samples) to the office of Chemical Examiner had its consequences since the narcotic character of the contraband was not established as the relevant police official, examined while standing with the Public Prosecutor, did not utter a single word to prove transmission of the entire cache, purportedly transmitted by him to the office of Chemical Examiner---In absence of safe transmission of the samples, the accused could not be saddled with the culpability of possession of narcotic without being conjectural---Appeal was allowed and accused was acquitted of the charge.

M. Sharif Janjua, Advocate Supreme Court for Appellant.

Hussain Bux, Addl. Prosecutor General Sindh for the State.

2021 S C M R 381

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

GUL MUHAMMAD and another---Petitioners

Versus

The STATE through Prosecutor-General Balochistan---Respondent

Criminal Petition No. 27-Q of 2018, decided on 25th November, 2020.

(Against the order dated 20.03.2018 passed by High Court of Balochistan, Sibi Bench at Quetta in Criminal Jail Appeal No. 18 of 2015)

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Benefit of doubt---Case based on circumstantial evidence only---No direct evidence was available on the record which connected the involvement of the accused persons in the occurrence---As far as the recovery of certain articles belonging to the deceased from the accused persons was concerned, recovery of all such articles were the result of conjecture and surmises and without any legal backing hence, they did not advance the case of the prosecution especially when all such pieces of evidence were denied by the accused persons while making their statements under S. 342, Cr.P.C.---Prosecution had failed to establish its case against the accused persons---Petition for leave to appeal was converted into appeal and allowed and accused persons were acquitted of the charge against them.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Extra-judicial confession before police---Admissibility---Trial Court had relied upon the extra judicial confession of accused persons which was recorded by the Investigating officer in the presence of police officials, when the accused persons were under arrest and in handcuffs---Such practice of recording extra judicial confession by the police officials in presence of police officers was nullity in the eye of law and no credence could be extended to such piece of evidence---Prosecution had failed to establish its case against the accused persons---Petition for leave to appeal was converted into appeal and allowed and accused persons were acquitted of the charge against them.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Provisional external examination report of dead body prepared without any final post mortem report---Effect---Finding of the Medical Officer qua the cause of death only from external observation of the dead body had no legal sanctity---Requirement of law was that the finding qua the cause of death, time of death and manner of death could not be substantiated without post-mortem examination---In the present case only provisional external examination of the dead body of the deceased was conducted without any postmortem report available on the record and it was not even claimed by the prosecution that the autopsy was conducted over the dead body of the deceased---Even otherwise the occurrence had taken place in the month of May whereas the finding given by the doctor qua time and cause of death did not commensurate keeping in view the condition of the dead body as disclosed by the doctor observed during external examination---Possibility could not be ruled out that the deceased was done to death earlier than the date disclosed in the crime report---Prosecution had failed to establish its case against the accused persons---Petition for leave to appeal was converted into appeal and allowed and accused persons were acquitted of the charge against them.

Ahsan Rafiq Rana, Advocate Supreme Court for Petitioners.

Walayat, Additional P.G. Balochistan for the State.

2021 S C M R 387

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD EJAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 540 of 2020, decided on 7th July, 2020.

(Against the order dated 20.05.2020 passed by the Lahore High Court Rawalpindi Bench Rawalpindi in Criminal Miscellaneous No.719-B of 2020)

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

----S. 497--- Penal Code (XLV of 1860), S. 337(2)(d)--- Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Constitution of Pakistan, Art. 150---Shajjah-i-munaqqilah---Bail, refusal of---Re-examination of injured on orders of Magistrate---Findings of Medical Board---Whether such findings constituted a fresh ground for release of accused on bail---Held, that injured person was examined on the same day of the incident, and the medical officer noted as many as four injuries on his person and categorically ruled out possibility of their fabrication---Subsequently the accused moved the Area Magistrate for re-examination of the injured---Magistrate without affording opportunity of hearing to the injured or hearing the Law Officer present directed medical re-examination of injured by the Standing Medical Board---Magistrate hurriedly exercised ex-parte jurisdiction to the detriment of prosecution/injured in the face of vague and non-specific allegation---First medical examination was protected by statutory presumption of being genuine under Art. 129(e) of the Qanun-e-Shahadat, 1984 as well as under Art. 150 of the Constitution---Magistrate did not insist for tangible and sufficient grounds to plausibly justify exposure of a person already wronged to the inconvenience and embarrassment of a re-examination---Performance of the (second) medical board was no less dismal either; it miserably failed to take stock of findings recorded by the Chief Medical Officer---Members of the (second) medical board not only ignored the said findings, but they went a step further in their inconsequential opinion to add the possibility of a fall as well, a case never agitated even by the accused---Even otherwise, observation recorded during re-examination that possibility of fabrication/fall could not be ruled out was a judgment resting upon the brink of hypothetical possibility that by itself could not override positive findings earlier unanimously recorded by the medical officers who attended the injured---In such circumstances the hypothesis of fabrication/fall recorded in the re-examination did not constitute a fresh ground for releasing accused on bail---Petition for leave to appeal was dismissed and leave was refused.

(b) Constitution of Pakistan---

----Art. 10-A---Criminal trial---Due process---Scope---Accused was certainly entitled to "due process of law" and a meaningful opportunity to contest the indictment with a view to vindicate his position; the prosecution and its witnesses also deserved protection of law so as to prosecute the case with least inconvenience and without unnecessary hardship.

Ghulam Farooq Awan, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2021 S C M R 391

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

SARDAR MUHAMMAD and others---Appellants

Versus

IMAM BAKHSH (DECEASED) through LRs and others---Respondents

Civil Appeal No. 346 of 2020, decided on 15th December, 2020.

(Against the judgment dated 14.1.2020 passed by the Lahore High Court, Multan Bench in C.R. No. 903-D of 2009)

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

----S. 172(2)(xvi)--- Proceedings before Revenue Officers/Revenue Courts---Nature---Deputy District Officer (Revenue) cancelling a sale mutation carried out in jalsa-e-aam in the presence of witnesses on the ground of fraud and misrepresentation---Legality---Proceedings before the Revenue Officer or before the Revenue Courts were summary in nature and, therefore, complicated questions of law and disputed question of fact were not to be adjudicated in the hierarchy---Determination of complicated questions of law and disputed questions of fact fell within the sole domain of the civil Court---Plea that a mutation entry was procured through fraud, could not have been decided in proceedings which were summary in nature as such controversy required adjudication by allowing the parties to adduce evidence in support of their respective claims---Section 172 of the Punjab Land Revenue Act, 1967 only empowered the Revenue authorities to exercise administrative powers; the raison d'etre for the same was that the proceedings conducted by a Revenue Officer or a Revenue Court were summary in nature; they possessed a limited scope of enquiry and did not possess the characteristics of a civil suit that necessitated framing of the issues or recording evidence of the parties, as such matters fell within the sole domain of the civil courts---Besides, S. 172(2)(xvi) of the 1967 Act left the adjudication of plea of fraud to the competence of the civil courts---Deputy District Officer (Revenue) ['DDO(R)'] transgressed his limits in the present case by declaring the subject mutation as having been obtained through fraud and misrepresentation---Appeal was allowed.

Ghulam Nabi, Advocate Supreme Court for Appellants.

Malik Javed Akhtar Wains, Advocate Supreme Court for Respondents Nos. 3-9.

LRs of Respondents Nos. 1 and 2 ex parte.

2021 S C M R 395

[Supreme Court of Pakistan]

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

SHABAN AKHTAR and another---Appellants

Versus

The STATE through Prosecutor General Punjab---Respondent

Criminal Appeal No. 67-L of 2020 and Criminal Petition No.1133-L of 2014, decided on 20th October, 2020.

(Against the judgment dated 17.10.2014 passed by the Lahore High Court Lahore in Crl Appeal No.280 of 2011 along with CST No.10-T of 2011)

Penal Code (XLV of 1860)---

----Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom, qatl-i-amd---Reappraisal of evidence---One of the witnesses who had allegedly last seen the deceased-child in the company of accused and co-accused opted to stay away from the witness box, whereas the other witness was reticent on the relevant details in terms of point of time and place they noticed the deceased with the accused persons---Intriguingly the two witnesses who last saw the deceased-child were the only individuals in the village who had seen the child obligingly accompanying his assassins without being alarmed or surprised by their unusual movement---One of the said witnesses admitted to having a cell phone with him during his stay away from the village; it was rather strange that he did not communicate with his family throughout his absence from the village and if at all he had any conversation, he was not informed about the occurrence that must have alarmed a small village---In such circumstances argument that the solitary witness was inducted on the basis of a mistaken/misplaced suspicion could not be viewed as entirely unrealistic---Investigating Officer had not been able to collect any digital/ forensic data to establish communication between the accused and the complainant despite seizure of cell phone handsets and SIMs (subscriber identity module) from the accused---Complainant's claim that he had identified the co-accused by his voice on 28-11-2010 when he demanded ransom did not synchronize with his claim to have heard only "hello" over the phone on 23-11-2010, when he had already named both the accused and co-accused on the basis of information shared with him by the witnesses on 25-11-2010---Furthermore there was no earthly reason for the caller to expose his number to the family already suspecting him (i.e. the co-accused) as a culprit in the crime---Chronology of events relied upon by the prosecution did not tally with the findings regarding the duration wherein the child was done to death; it also militated against the timeframe of the demand of ransom---Another predicament bracing the prosecution was acquittal of accused's brother on the same set of evidence---Appeal was allowed and the accused was acquitted of the charge.

Mobin Ahmed Siddiui, Advocate Supreme Court for Appellants.

Akhtar Hussain Bhatti, Advocate Supreme Court for the Complainant.

Khurram Khan, Additional Prosecutor General Punjab for the State.

2021 S C M R 400

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

DIVISIONAL SUPERINTENDENT, POSTAL SERVICES, FAISALABAD and others---Appellants

Versus

MUHAMMAD ZAFARULLAH---Respondent

Civil Appeal No. 420 of 2020, decided on 10th November, 2020.

(Against the judgment dated 23.10.2018 passed by the Federal Service Tribunal, Lahore in Appeal No. 679(L) of 2016)

(a) Punjab Service Tribunals Act (IX of 1974)---

----S. 5--- Federal Service Tribunal ('the Tribunal'), powers of---Scope---Penalty of dismissal from service imposed upon civil servant (respondent) by the departmental authorities converted into compulsory retirement with all due benefits by the Tribunal---Legality---After having recorded findings against the respondent and holding that all legal, procedural and codal formalities had been followed, and the respondent had been given ample opportunity to defend himself and the charges against him had been proved, the Tribunal arrogated to itself the jurisdiction to modify the penalty of dismissal from service to compulsory retirement---In exercising such jurisdiction for reasons best known to it the Tribunal did not record any reason whatsoever---Tribunal enjoyed powers to modify any order passed by the departmental authorities, however, such power was required to be exercised carefully, judiciously and after recording cogent reasons for the same in appropriate cases keeping in view and considering the specific facts and circumstances of each case---In the present case, the penalty in question had been imposed upon by the respondent by the departmental authorities on the basis of established charges, in accordance with law and the relevant rules---In such 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 an arbitrary, unstructured and whimsical manner without recording any reasons---Appeal was allowed, impugned judgment of Tribunal was set-aside and penalty of dismissal from service imposed by departmental authorities was restored.

Chief Postmaster, Faisalabad v. Muhammad Afzal 2020 SCMR 1029 ref.

(b) Administration of justice---

----Relief by courts/tribunals, grant of---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 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.

Moulvi Ejaz-ul-Haq, DAG and Raja Abdul Ghafoor, Advocate-on-Record for Appellants.

Ch. Munir Sadiq, Advocate Supreme Court and Syed Rifaqat H. Shah, Advocate-on-Record for Respondent.

2021 S C M R 404

[Supreme Court of Pakistan]

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

MUHAMMAD YASEEN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 635 of 2019, decided on 22nd October, 2020.

(Against the judgment dated 18.09.2017 passed by the Balochistan High Court, Quetta in Criminal (ATA) Appeal No.281 of 2007)

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

----S. 7(a)--- Penal Code (XLV of 1860), Ss. 302(b) & 148---Kidnapping, qatl-i-amd, rioting armed with deadly weapons---Reappraisal of evidence---Condition of corpse casting doubts over its identification---Recovered dead body of deceased was burnt from neck to head, missing limbs and skin and muscles from head to face---Overall condition of the corpse seriously hampered the possibility of its identification beyond doubt and, according to the witness, it was identified on the basis of clothes, a mobile phone handset and some papers found in the pocket---Presence of a mobile phone handset and papers left with the corpse to provide space to the possibility of identification by the witnesses was in itself is a circumstance far from being plausible---Condition of the corpse, particularly massive burns, belied the possibility of its presence at an openly accessible place underneath a boulder, a circumstance that in retrospect seriously cast doubts over the alleged disclosure of location of dead body by the accused---Statement of prosecution witness who identified the accused was limited to the extent of the accused handing over of a chaddar and chappal purportedly last worn by the deceased---Question was as to why the accused would undertake such a foolish exercise when he had allegedly taken pains to conceal the dead body with the additional steps of setting ablaze its face to blur the identity---Seizure of casing from the spot did not help the prosecution case much as it was secured after lapse of a period exceeding three weeks---Argument that the accused was roped in after deliberation and consultation spanning over a pretty long period of time exactly on the day the dead body was recovered could not be dismissed out of hand---Furthermore acquittal of one of the co-accused, though assigned a somewhat different role, nonetheless, was yet another setback to the prosecution case, more so, since the acquittal went unchallenged---Prosecution evidence was fraught with doubts, substantially failing to constitute chain of circumstances to conclusively establish accused's culpability beyond doubt---Appeal was allowed and accused was acquitted of the charge.

Shabbir Rajput, Advocate Supreme Court for Appellant.

Baqir Shah, State counsel.

2021 S C M R 408

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

UTILITY STORE CORPORATION OF PAKISTAN through Managing Director Islamabad and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Misc. Application No. 1659 of 2019 and Criminal Petitions Nos.509 and 510 of 2020, decided on 24th November, 2020.

(Against the order dated 07.08.2019 passed by High Court of Sindh at Karachi in Criminal Accountability Appeal No. 56 of 2018 and No.57 of 2018)

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

----Ss. 9 & 10---Embezzlement by public servants---Petitions for leave to appeal against acquittal---Reappraisal of evidence---Accused was alleged to have misused his authority by illegally making payment into the account of co-accused (accounts clerk), who was deputed as in charge for lifting of sugar from godown of Trading Corporation of Pakistan on account of labour charges, which had already been paid by Trading Corporation to the handling agent---Trial Court convicted and sentenced both the accused and co-accused under Ss. 9 & 10 of the National Accountability Ordinance, 1999---High Court by extending benefit of doubt to the accused and co-accused acquitted them of all charges---Held, that High Court while acquitting the accused and co-accused had mainly observed that none of the prosecution witnesses had implicated the accused and co-accused with the allegation of misappropriation or embezzlement of amount; that the payments were made through cheques to the handling agents towards labour charges for loading and unloading and such position has been admitted in evidence by the prosecution witnesses; that the Investigating Officer had recorded statements of handling agents/transporters during investigation but none of them were examined during trial except one---Said handling agents/transporters had admitted in cross-examination that they did not make any demand of labour charges from Trading Corporation of Pakistan; that no money trail had been sorted out and no evidence of whatsoever nature had been brought on record to show that the accused and co-accused were the beneficiaries or that the Trading Corporation had also made payment to the handling agents---Fact that no payment was made by Trading Corporation to the handling agents was also admitted by the National Accountability Bureau (NAB) in the High Court---High Court also mentioned about a letter written by the Trading Corporation of Pakistan to the employer-Corporation of accused and co-accused regarding arrangement of labour for loading of sugar bags into trucks and its transportation by the employer-Corporation---Question of payment of labour charges to handling agents did not constitute an offence by means of corruption and corrupt practices but merely a procedural irregularity---Judgment of acquittal passed by the High Court did not call for any interference---Petitions for leave to appeal were dismissed and leave was refused.

(b) Criminal trial---

----'Burden of proof' and 'standard of proof'---Scope---Prosecution was never absolved from proving the charge beyond reasonable doubt and the burden shifted to the accused only when the prosecution succeeded in establishing the presumption of guilt.

The State v. Anwar Saif Ullah Khan PLD 2015 SC 276; Mansoorul Haq v. Government of Pakistan PLD 2008 SC 166 and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.

Aftab Alam Yasir, Advocate Supreme Court for Petitioners (in Criminal M.A. No. 1659 of 2019).

Nasir Mehmood Mughal, Special Prosecutor NAB for the State (in Criminal Petitions Nos. 509-510 of 2020).

Muhammad Munir Paracha, Advocate Supreme Court on behalf of Respondent No. 3 (in Criminal M.A. No. 1659 of 2019).

Muhammad Akram Gondal, Advocate Supreme Court on behalf of Respondent No. 4 (in Criminal M.A. No. 1659 of 2019).

Muhammad Munir Paracha, Advocate Supreme Court on behalf of Respondent No. 1 (in Criminal Petition No. 509 of 2020).

Muhammad Akram Gondal, Advocate Supreme Court on behalf of Respondent No. 1 (in Criminal Petition No. 510 of 2020).

2021 S C M R 415

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Minakhel and Munib Akhtar, JJ

SAJJAD AHMAD KHAN---Petitioner

Versus

MUHAMMAD SALEEM ALVI and others---Respondents

Civil Petition No. 84 of 2016, decided on 20th October, 2020.

(On appeal from the judgment dated 26.10.2015 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in C.R. No.902-M of 2012)

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

----S. 54---Sale/agreement to sell --- Such agreement could be oral and offer and acceptance of sale could also be inferred from the acts of the parties to the sale agreement.

Muhammad Sattar v. Tariq Javaid 2017 SCMR 98 ref.

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

----S. 54---Agreement to sell immoveable property---Allegation of agreement and signatures on them being fake---Proof---Defendant-vendor had alleged that the agreement and his signatures over the same were fake and fictitious but had not specifically challenged the agreement in question either by way of criminal proceedings or through a civil suit---Simple denial of a document being fake and fictitious was not legally sufficient unless the same facts were proved and established on the record---Petition for leave to appeal was allowed.

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

----Art. 79---Proof of execution of document required by law to be attested---Requirement of two attesting witnesses---Scope---Provisions of Art. 79 of the Qanun-e-Shahadat, 1984 were applicable only in those cases where execution of a document was disputed between maker of document and the person in whose favour purportedly the same was executed.

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

----Art. 79---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell immoveable property---Non-production of second attesting witness of the agreement---Article 79 of the Qanun-e-Shahadat, 1984, applicability of---Prime and foremost requirement of Art. 79 Qanun-e-Shahadat, 1984 was to prove execution of a document by producing two marginal witnesses in case of denial of its execution---In the presence case when the vendor himself was the author/scribe of the document; when it was an unrebutted fact that the second witness being abroad was not capable of giving evidence; when the stance of Notary Public regarding attestation of agreement went un-shattered, when the first attesting witness not only confirmed the execution rather gave each and every detail of the transaction between the vendee and the vendor and was also the witness of execution and the entire evidence supported by the vendee himself, then in the given circumstances mere non-production of second attesting witness would be nothing but a hyper technicality and not the violation of Art. 79 of the Qanun-e-Shahadat, 1984---Petition for leave to appeal was allowed.

Naveed Akhtar, Advocate Supreme Court for Petitioner.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Respondents Nos. 2-3.

2021 S C M R 420

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

The DISTRICT POLICE OFFICER, MIANWALI and 2 others---Petitioners

Versus

AMIR ABDUL MAJID---Respondent

Civil Petition No. 1567-L of 2019, decided on 19th November, 2020.

(Against the judgment dated 26.02.2019 of the Punjab Service Tribunal, Lahore passed in Service Appeal No.3866/2016)

(a) Civil service---

----Concurrent disciplinary and criminal proceedings against a civil servant---Acquittal in criminal proceedings---Whether such acquittal could be a ground for reinstatement in service---Civil servant facing expulsive proceedings on departmental side on account of his indictment on criminal charge may not save his job in the event of acquittal as the department still may have reasons/material, to conscionably consider his stay in the service as inexpedient---Additional reasons may exist to disregard such acquittal inasmuch as criminal dispensation of justice involving corporeal consequences, comparatively, required a higher standard of proof so as to drive home the charge beyond doubt---Procedural loopholes or absence of evidence at times resulted in failure to sustain the charge essentially to maintain safe administration of criminal justice out of abundant caution---Departmental jurisdiction, on the other hand, could assess the suitability of a civil servant, confronted with a charge through a fact finding method, somewhat inquisitorial in nature without heavier procedural riders, otherwise required in criminal jurisdiction to eliminate any potential risk of error.

Dr. Sohail Hassan Khan and others v. Director General (Research), Livestock and Dairy Development Department, Punjab, Lahore and others 2020 SCMR 1708; Liaqat Ali v. Government of N.W.F.P. through Secretary Health, Peshawar and others 2011 PLC (C.S.) 990; Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan PLD 2010 SC 695; Government of Pakistan through Secretary Ministry of Finance and others v. Asif Ali and others 2007 PLC (C.S.) 271; Superintendent of Police, D.I. Khan and others v. Ihsanullah 2007 SCMR 562; Sami Ullah v. Inspector-General of Police and others 2006 SCMR 554; Ractor Comsats v. Ghulam Umar Kazi 2006 SCMR 1894; Executive Engineer and others v. Zahid Sharif 2005 SCMR 824; Khaliq Dad v. Inspector-General of Police and 2 others 2004 SCMR 192; Arif Ghafoor v. Managing Director, H.M.C., Texila and others PLD 2002 SC 13; Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315; Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177; Mud Izharul Ahsan Qureshi v. Messrs P.I.A.C. 1994 SCMR 1608; Muhammad Nazir v. The Superintendent of Police, Toba Tek Singh and others 1990 SCMR 1556; Muhammad Tufail v. Assistant Commissioner/Collector 1989 SCMR 316; Muhammad Saleem v. Superintendent of Police, Sialkot and another PLD 1992 SC 369; Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar and another PLD 1987 SC 195; The Deputy Inspector-General of Police, Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134 and Begum Shams-un-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413 ref.

(b) Civil service---

----Police Constable--- Concurrent disciplinary and criminal proceedings---Reinstatement in service after acquittal in criminal proceedings---Legality---Service Tribunal had undoubtedly misdirected itself in reinstating the respondent, considering his acquittal in the criminal case as the sole criterion---However the respondent could not be non-suited merely on the account of flawed handling of his case by the Tribunal---Perusal of the record of the criminal case showed that the respondent's name was conspicuously missing in the array of the persons nominated in the crime report and he was subsequently nominated through a supplementary statement purportedly recorded the same day, a position that was belied by the site plans including one drafted as late as four days after the occurrence, irresistibly suggesting that the accused was taken on board much late in the day---Even otherwise the prosecution witnesses had contradicted each other on dubious nomination of accused---Trial Court took stock of inherent discrepancies qua the accused and held the charge against him as preposterous---In such backdrop, acquittal of accused from the charge, not only vindicated his claim of being subsequently hounded on a trump up charge but also left nothing in the field to conscionably view his presence as detrimental or non-conducive to good order in the police department wherein he otherwise boosted an unblemished career---Notwithstanding the error of approach by the Tribunal, Supreme Court declined to interfere with the impugned judgment---Petition for leave to appeal was dismissed and leave was refused.

Zaman Khan Vardag, Additional Advocate General, Punjab for Petitioners.

Kashif Ali Chaudhry, Advocate Supreme Court for Respondent along with Respondent.

2021 S C M R 425

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

Syed IQBAL HUSSAIN SHAH GILLANI---Petitioner

Versus

PAKISTAN BAR COUNCIL through Secretary, Supreme Court Bar Building, Islamabad

and others---Respondents

C.M.A. No. 6786 of 2020 and CPLA No. 3171 of 2020, decided on 28th October, 2020.

(Against judgment dated 27.10.2020 passed by the Lahore High Court, Lahore in Writ Petition No. 53310 of 2020)

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

----S. 11---Constitution of Pakistan, Art. 199---Constitutional petition before the High Court challenging an order passed by the Executive Committee, Pakistan Bar Council ('the Bar Council')---Maintainability---Neither the Pakistan Bar Council nor any of its Committees were amenable to constitutional jurisdiction of the High Court.

Bare reading of the Legal Practitioners and Bar Councils Act, 1973 ('the 1973 Act') revealed that other than the Attorney General for Pakistan being the ex-officio Chairman Pakistan Bar Council, nothing in the 1973 Act suggested any administrative control being exercised by the Federal or Provincial Government over the affairs of the Pakistan Bar Council ('the Bar Council'). The Bar Council was an entirely autonomous body which had independent elections and generated its own funding without any Government control. Thus, the State did not have any financial or other interests in the affairs of the Bar Council, nor did it perform any function in connection with the affairs of the Federation, a Province or a local authority.

Neither the Bar Council nor any of its committees could be regarded as persons performing functions in connection with the affairs of the Federation, Provinces or Local Authority within the contemplation of Article 199 of the Constitution of Pakistan. Accordingly, the Pakistan Bar Council and its Committees were not amenable to constitutional jurisdiction of the High Court.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition before the High Court against an association/body---Maintainability---Constitutional petition was only maintainable if the association/body performed public functions in connection with the affairs of the Federation, Provinces or Local Authority, as envisaged under Art. 199 of the Constitution. [p. 428] B

Pakistan Olympic Association v. Nadeem Aftab Sindhu 2019 SCMR 221 ref.

(c) Supreme Court Bar Association of Pakistan Rules, 1989---

----R. 1--- Constitution of Pakistan, Art. 199--- Constitutional petition before the High Court---Maintainability---Supreme Court Bar Association Pakistan (SCBAP)---Supreme Court Bar Association Pakistan was a non-statutory body, therefore, conditions or rules framed by this body would also be non-statutory rules and having no statutory backing---Accordingly, any violation of the Supreme Court Bar Association of Pakistan Rules, 1989 was not amenable to constitutional jurisdiction of the High Court under Art. 199 of the Constitution.

Mirza Muhammad Nazakat Baig v. Federation of Pakistan through Secretary Ministry of Law and Justice, Islamabad and another 2020 SCMR 631 ref.

(d) Constitution of Pakistan---

----Art. 199--- Constitutional petition before the High Court---Maintainability---Matter involving a factual dispute requiring a factual inquiry and an evidential probe---Such matter could not be resolved in constitutional jurisdiction of the High Court under Art. 199 of the Constitution.

(e) Constitution of Pakistan---

----Art. 199 & Pt. II, Chapt. 1---Constitutional jurisdiction of the High Court---Enforcement of Fundamental Rights under the Constitution---Scope---Fundamental Rights were by and large (very exceptional circumstances apart) enforceable against the State and not against private individuals.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Exercise of jurisdiction under Art. 199 of the Constitution by the High Court was equitable and discretionary in nature. [p. 430] G

M. Latif Khan Khosa, Advocate Supreme Court, Shahbaz Ali Khosa, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2021 S C M R 431

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Munib Akhtar, JJ

MUHAMMAD RIAZ HUSSAIN---Appellant

Versus

ZAHOOR UL HASSAN---Respondent

Civil Appeal No. 1263 of 2017, decided on 14th September, 2020.

(On appeal from the judgment/order dated 16.03.2017 passed by Lahore High Court, Lahore in RSA No. 17 of 2017)

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

----Ss. 12 & 22--- Discretion of court as to decreeing specific performance--- Scope--- Remedy of specific performance was discretionary and could not be claimed as of right by a party---Grant of specific performance was not mandatory and could be refused by a Court where the circumstances so required---Instead of mechanically granting the relief of specific performance to every party, Courts should examine the circumstances of each case to ascertain whether such relief was equitable on the facts.

Mrs. Zaika Hussain v. Syed Farooq Hussain PLD 2020 SC 401 and Liaqat Khan v. Falak Sher PLD 2014 SC 506 ref.

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

----S. 12---Civil Procedure Code (V of 1908), S. 96(3)---Specific performance of agreement to sell immoveable property---Time period for payment of balance consideration---Vendee challenging consent decree of Trial Court on merits to gain further time for payment of balance consideration---Legality---Plaintiff-vendee was not interested in performing his obligations under the sale agreement as he failed to pay the balance consideration amount of Rs. 15.2 Million to the defendant-vendor by 12-5-2008 as recorded in the sale agreement---Plaintiff only filed a suit for specific performance on 9-3-2011 in response to the suit of rescission of contract filed by the defendant---Subsequently Trial Court issued a consent decree explicitly stating that the suit for specific performance filed by the plaintiff would stand dismissed if the balance consideration amount was not paid within 30 days from the date of judgment---Plaintiff challenged such consent decree on merits before the Appellate Court, with the intention to gain further time for the balance payment, which indicated that when he consented to the Trial Court's consent decree he was not ready and willing to perform his obligations thereunder---Besides the plaintiff had filed an appeal against a consent decree on its merits which was not permissible under S. 96(3) of the C.P.C.---Plaintiff's appeal was dismissed on 23.12.2016 by the Appellate Court which granted the plaintiff 15 days' time to make the requisite deposit of balance payment, which constituted a wrongful exercise of discretion by the Appellate Court as the appeal was not maintainable and also granted undue advantage upon the plaintiff---Rather than challenging the said judgment and decree of Appellate Court before the High Court the plaintiff abandoned his pleas and complied with the appellate judgment by making the requisite balance deposit within 15 days on 6.1.2017---Trial Court and the Appellate Court ought not to have exercised their discretion to grant the plaintiff the remedy of specific performance which was inequitable in the circumstances of the case---Accordingly the suit for specific performance filed by plaintiff was dismissed, and Supreme Court directed that the balance amount of Rs. 15.2 Million deposited by the plaintiff in Court shall be refunded to him; that since issue of refund of earnest money was disputed between the parties, thus, the plaintiff was at liberty to avail the remedies available under the law for claiming and recovering the said amount in accordance with law---Appeal was allowed.

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

----S. 96(3) & O.XLIII, R. (1)(m)-- Decree passed by court with consent of parties---Such decree was not appealable on merits, however, where a party either disputed the very fact that an order was passed by consent or contested the validity of a consent order, R. (1)(m) of O. XLIII, C.P.C. allowed a challenge to such an order.

Fazal Mehdi v. Allah Ditta PLD 2007 SC 343 ref.

Barrister Umer Aslam, Advocate Supreme Court for Appellant.

Azmatullah Ch. Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

2021 S C M R 437

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

COMMISSIONER INLAND REVENUE MULTAN---Petitioner

Versus

Sh. MUHAMMAD AMIN ARSHAD---Respondent

Civil Petition No. 2732-L of 2016, decided on 7th January, 2021.

(Against the judgment dated 9.6.2016 passed by the Lahore High Court Multan Bench Multan in T.R. No.26/2013)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 39, 122(5) & 182(2)---Income on account of supplies made to a company---Amendment of assessment by Commissioner---"Definite information"---Scope---Respondent-tax payer, who was a commission agent/broker, declared an income of Rs.34,42,374/- on account of supplies to a company; he assessed his income tax as Rs.3,42,437---Deputy Commissioner (Inland Revenue), however, detected receipt of payments through bank cheques far beyond the declared amount, running to the tune of Rs.56,12,36,365---Deputy Commissioner initiated proceedings against the respondent-tax payer under Ss. 122(5)(9) & 111(1) of the Income Tax Ordinance, 2001 ("the 2001 Ordinance"), considering the detection as "definite information" and determined tax liability---Legality---Respondent-tax payer did not deny the payments, the modes thereof and productwise quantum of the purchases---Respondent failed to substantiate his contention qua business activities with the company, to which it had made supplies, in the light of banking transactions---Department had rightly determined the income of the respondent under S. 39 of the 2001 Ordinance along with income tax chargeable and penalty consequent thereupon under S. 182(2) thereof---Orders passed by the Commissioner Inland Revenue (Appeals) and the Deputy Commissioner (Inland Revenue) being well within the remit of law were restored---Petition for leave to appeal was converted into appeal and allowed.

Ch. Muhammad Shakil, Advocate Supreme Court for Petitioner.

Sheikh Zafar-ul-Islam, Advocate Supreme Court for Respondent.

2021 S C M R 440

[Supreme Court of Pakistan]

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

Civil Appeals Nos. 26 to 29 of 2015

(On appeal from the judgment/order dated 26.04.2014 of the Peshawar High Court, Peshawar passed in TR No. 5-P-8-P/2013)

Civil Appeal No. 16 of 2016

(On appeal from the judgment/order dated 17.09.2015 of the Peshawar High Court, Peshawar passed in TR No. 25-P/2015)

Civil Appeals Nos. 1550 to 1554 of 2016

(On appeal from the judgment/order dated 28.01.2016 of the Peshawar High Court, Peshawar passed in TR Nos. 01-P to 04-P/2015,85-P/2014)

Civil Appeal No. 1931 of 2019

(On appeal from the judgment/order dated 21.05.2019 of the Peshawar High Court, Peshawar passed in TR No. 20-P/2015)

The COMMISSIONER INLAND REVENUE, PESHAWAR---Appellant

Versus

TARIQ MEHMOOD and others---Respondents

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

----Ss. 121, 122C [since omitted] & 127 [as amended by the Finance Act (XXVII of 2017), the Finance Act (XVII of 2012), Finance Act (XVI of 2011) and Finance Act (XVI of 2010)]---Best judgment assessment/provisional assessment order/final assessment order made by the Commissioner---Right of appeal to the Commissioner (Appeals) under S. 127 of the Income Tax Ordinance, 2001---Scope---Prior to Finance Act, 2010, when S. 121 of the Income Tax Ordinance, 2001 ('the 2001 Ordinance') alone was in the field, there was a right of appeal against a best judgment assessment---Between the Finance Act, 2010 and Finance Act, 2011, when S. 122C of the 2001 Ordinance was brought in but S. 127 remained untouched, the right of appeal remained unaffected---Right of appeal existed against either the provisional assessment order or the (deemed) final assessment---Effect of Finance Act, 2011 was to take away the right of appeal against the provisional assessment order, but the right against the (deemed) final assessment remained unaffected---Purported effect of Finance Act, 2012 was to take away altogether the right of appeal against any order/assessment made under S. 122C---Finally, Finance Act, 2017 restored the position (with respect to right of appeal) to what it had been prior to Finance Act, 2010.

(b) Appeal---

----Right of appeal---Scope---Such right was a substantive right, which had to be conferred by statute.

(c) Constitution of Pakistan---

----Art. 25---Discrimination---Reasonable classification---Scope---Article 25 of the Constitution allowed for reasonable classification, which was one that was based on intelligible differentia, which must have a rational nexus with the object sought to be achieved. [p. 447] C

I. A. Sharwani and others v. Government of Pakistan and others 1991 SCMR 1041 ref.

(d) Constitution of Pakistan---

----Art.25---Fiscal statute---Discrimination---Reasonable classification--Scope---In the context of Article 25 of the Constitution, the courts gave a relatively greater latitude to the State in fiscal legislation in terms of selecting the persons liable to tax (or exemption), the objects of taxation, the methods employed and as to the rates of taxation---However, the latitude so granted was not infinitely elastic and it was not as though the courts regarded taxation to be wholly beyond the purview of Art. 25.

Amin Soap Factory's case PLD 1976 SC 277 and Elahi Cotton Mills and others v. Federation of Pakistan and others PLD 1997 SC 582 ref.

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

----Ss. 122C [since omitted] & 127(1) [as amended by the Finance Act (XVII of 2012) and before its amendment by the Finance Act (XXVII of 2017)]---Finance Act (XVII of 2012), S. 15(25)---Constitution of Pakistan, Art. 25---Section 15(25) of the Finance Act, 2012, vires of---Provisional assessment order made by the Commissioner---No right of appeal against such order to the Commissioner (Appeals) under S. 127 of the Income Tax Ordinance, 2001 for the time period falling between the Finance Act, 2012 and the Finance Act, 2017---Constitutionality---Held, that no intelligible differentiae existed that distinguished, insofar as the right of appeal under S. 127 of the Income Tax Ordinance, 2001 ('the 2001 Ordinance') was concerned, taxpayers who fell in the period between the Finance Act, 2012 and the Finance Act, 2017 from the taxpayers who came in the other periods---Furthermore, the differentiation created as a result of Finance Act, 2012 did not have any rational nexus with the object sought to be achieved by S. 122C of the 2001 Ordinance---Change made to S. 127(1) of the 2001 Ordinance by the Finance Act, 2012 was discriminatory within the meaning of Art. 25 of the Constitution and being in violation of the fundamental right so conferred was liable to be struck down---Subsection (25) of S. 15 of Finance Act, 2012 was declared to be ultra vires the Constitution---Resultantly the Supreme Court declared that at all times material for present purposes the right of appeal under S. 127(1) of the 2001 Ordinance had the form that it took as a result of Finance Act, 2011, and that tax-payers falling in the time period between the Finance Act, 2012 and the Finance Act, 2017, also had a right of appeal to the Commissioner (Appeals) under S. 127 of the 2001 Ordinance---Appeals were dismissed.

Ghulam Shoaib Jally, Advocate Supreme Court for Appellant (in C.As. 26-29/15, 16/16, 1931/19).

Rehmanullah, Advocate Supreme Court for Appellant (in C.As. 1550-1554/16).

Naeem Hassan, Sec. Lit. FBR for Appellant.

Isaac Ali Qazi, Advocate Supreme Court for Respondents (in C.As. 26-29/15)

Respondent in-person (in C.A. 1931/19).

Ex parte for Respondents (in C.As. 16/16, 1553-1554/16)

Ayaz Shaukat, DAG on Court's Notice.

2021 S C M R 449

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

KAMRAN ATTAULLAH and another---Petitioners

Versus

The STATE---Respondent

Criminal Petition No. 149-K of 2020, decided on 29th September, 2020.

(Against the judgment dated 26.08.2020 passed by the High Court of Sindh, Karachi in Criminal Bail Application No.S-100/2020)

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

----S. 498---Prevention of Corruption Act (II of 1947), S. 5(2)---Anticipatory bail, refusal of---Financial scam---During the inquiry, incriminatory statements of various witnesses were forensically confirmed from the computer Call Details Record (CDR) and ledgers secured from the custody of a co-accused, who was a front man in the transaction---On the basis of such comprehensive probe the accused persons were being prosecuted for the present offence---Accused persons were admittedly at the helm of affairs and thus took the (important) decisions---Various pieces of evidence including forensic data, beyond susceptibility of human interference, unmistakably suggested a conduct by accused persons which was perfidious to the call of their duty---Petition for leave to appeal was dismissed and anticipatory bail was refused.

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

----S. 498---Anticipatory bail, grant of---Scope and grounds---Accused in a criminal case could not be granted anticipatory bail to subvert or undermine investigative procedure/process that essentially included arrest in order to bring the statutory exercise to its logical end for effective and meaningful prosecution of the offence through collection of information/evidence consequent upon arrest---Mala fide, manifestly intriguing upon the intended arrest, was the only justification to suspend or divert the usual course of law, a step which was most extraordinary by all means.

Aamir Mansoob Qureshi, Advocate Supreme Court for Petitioners with Petitioners in person.

Sajid Ilyas Bhatti, Additional Attorney General for Pakistan, Qaiser Masood, Additional Director (Law) FIA, Khalid Naseem, Inspector, FIA Karachi and Shabbir Chandio, Inspector FIA Karachi for the State.

Barrister Afzal Hussain, Advocate Supreme Court for the Complainant along with Complainant in person assisted by Arslan Binyamin, Advocate.

2021 S C M R 451

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ

Mst. SAKINA RAMZAN---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 184 of 2020, decided on 6th January, 2021.

(On appeal from the judgment of High Court of Sindh, Karachi, dated 01.6.2018, passed in Crl. A. No. D-98/2016)

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

----S. 9(c)---Possession and transportation of 45 kilograms of charas---Reappraisal of evidence---Safe custody and transmission of samples of the narcotic from the warehouse to the chemical examiner not established---Held, that the letter of the Superintendent Preventive Service written to the Chemical Examiner stated that 43 sealed samples were being forwarded to the chemical examiner---Author of said letter was not produced as a witness---In the absence of the statement of the warehouse in-charge and the statement on behalf of the complainant (the official who recovered the narcotics),regarding the delivery of the samples of the narcotic drugs to the office of the chemical examiner, it could not be ascertained whether the narcotic drugs and the representative samples were deposited in the warehouse by the complainant; when and who collected the representative samples from the warehouse; and who delivered them by hand to the office of the Chemical Examiner---Such facts revealed that the chain of custody had been compromised and was no more safe and secure, therefore, reliance could not be placed on the Report of the Chemical Examiner to support conviction of the accused---Conviction and sentence recorded against the accused-lady were set aside in circumstances and she was acquitted of the charge---Appeal was allowed.

Imam Bakhsh's case 2018 SCMR 2039 and Ikramullah's case 2015 SCMR 1002 ref.

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

----Rr. 4, 5 & 6---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Report of Chemical Examiner---Safe custody and transmission of samples of the narcotic from the police to the chemical examiner---Scope---Chain of custody or safe custody and safe transmission of narcotic drug began with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with the law enforcement agency and then dispatch of the representative samples of the narcotic drugs to the office of the chemical examiner for examination and testing---Such chain of custody must be safe and secure, because, the Report of the Chemical Examiner enjoyed critical importance under the Control of Narcotic Substances Act, 1997 and the chain of custody ensured that correct representative samples reached the office of the Chemical Examiner---Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samples made the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused---Prosecution, therefore, had to establish that the chain of custody had been unbroken and was safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner.

Syed Rifaqat Hussain Shah, Advocate-on-Record and Hassan Mahmood Mandviwala, Advocate High Court for Petitioner.

Moulvi Ijaz-ul-Haq, DAG for the State.

2021 S C M R 455

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, C.J., Sardar Tariq Masood and Yahya Afridi, JJ

LIAQAT ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 92-L, 93-L, 94-L and 95-L of 2015, decided on 26th June, 2019.\

(Against the judgment dated 09.03.2011 passed by the Lahore High court, Lahore in Criminal Appeals Nos. 329 and 519 of 2007 and Capital Sentence Reference No. 24-T of 2007)

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

----Ss. 7(a), 7(c) & 21-I---Act of terrorism---Reappraisal of evidence---Benefit of doubt---Same set of evidence/witness statements forming basis of acquittal of co-accused persons used to convict accused persons without any independent corroboration---Held, that in the FIR generalized and collective allegations had been levelled against all the culprits and no specific injury to any victim had been attributed or ascribed to any particular culprit---Ocular account of the incident had been furnished before the Trial Court by five eye-witnesses, which lead to conviction of the present three accused persons---On the basis of the same statements three co-accused persons were acquitted by the Trial Court whereas two co-accused were acquitted by the High Court---When three co-accused attributed effective firing at the deceased and the injured victims had been acquitted it was incumbent upon the courts below to look for independent corroboration to the ocular account before convicting and sentencing the present accused persons---Although some firearms had allegedly been recovered from the custody of the accused persons yet in the absence of any report of the Forensic Science Laboratory such recoveries were legally inconsequential---Medical evidence was of no avail to the extent of the accused persons because admittedly no specific injury had been attributed to them and, thus, no independent confirmation was available vis-a-vis the allegation levelled against them regarding effectively firing at the deceased and the injured victims---Furthermore the motive set up by the prosecution was based upon previous enmity and a blood feud between the parties for the last about four decades and, thus, the said motive could cut both ways---In the absence of any independent corroboration or confirmation of the allegations levelled against the accused persons, particularly when some co-accused attributed the same roles had already been acquitted by the courts below, the complainant party had no regard for the truth and the eye-witnesses produced by it had been established to be untruthful regarding many innocent persons who had been implicated by them and they had subsequently been acquitted---Convictions and sentences of the three accused persons were set aside and they were acquitted of the charge by extending the benefit of doubt to them---Appeals were allowed.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Statements of prosecution witnesses, reliance upon---Scope---Witnesses found to be false in some material aspect were not to be relied upon to the extent of the other aspects deposed about by them.

Khizar Hayat's case PLD 2019 SC 527 ref.

Nemo for Appellants (in Cr. As. 92-L and 95-L of 2015).

Barrister Umer Aslam Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in Cr. A. 93-L of 2015).

Muhammad Jaffar, Deputy Prosecutor General, Punjab for Appellants (in Cr. A. 94-L of 2015).

Respondents Nos. 1 and 4 in person (in Cr. A. 94-L of 2015).

Nemo for Respondents Nos. 2 and 3 (in Cr. A. 94-L of 2015).

Nemo for the Complainant (in all cases).

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

2021 S C M R 460

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

BILAL KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 1515 of 2020, decided on 25th January, 2021.

(Against the order dated 04.12.2020 passed by the Peshawar High Court Peshawar in Crl. M. B.A. No. 3532-P/2020)

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

----Ss. 9(c) & 51---Possession and transportation of 1200 grams of amphetamine---Bail, refusal of---Accused was arrested red-handed with a considerable quantity of lethal contraband, which was confirmed by a positive forensic report---Case of accused fell within the remit of 'prohibition', contemplated by S. 51 of the Control of Narcotic Substances Act, 1997---Claim of false implication raised by the accused was an issue that could not be attended without going beyond the scope of tentative assessment, which was not allowed by law (at bail stage)---Petition for leave to appeal was dismissed and accused was refused bail.

Aftab Khan, Advocate Supreme Court for Petitioner.

Arshad Hussain, Advocate Supreme Court with Nasir Mehmood, Inspector for the State.

2021 S C M R 461

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MANZOOR ELAHI---Appellant

Versus

PRESIDENT UBL and others---Respondents

Civil Appeal No. 176-L of 2011, decided on 18th January, 2021.

(Against judgment dated 08.06.2010 of Federal Service Tribunal, Lahore passed in M.P. No. 43 of 2008)

Service Tribunals Act (LXX of 1973)---

----S. 5(1)---Service Tribunal, judgment of---Non-implementation of judgment by the employer---Abatement of judgments of the Tribunal in view of the case reported as Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602)---Scope---Service Tribunal vide its judgment dated 07-09-1998 ordered reinstatement in service of appellant-employee---Said judgment was not complied with by the respondent-bank---Subsequently appellant was again dismissed from service after de novo inquiry proceedings without reinstating him into service---Such dismissal order was again challenged by the appellant before the Tribunal---Dismissal order was (again) set aside by the Tribunal vide judgment dated 01-06-2006 and the respondent-Bank was again directed to reinstate the appellant in service in pursuance of earlier judgment of the Tribunal dated 07-09-1998 and proceed further in accordance with the directions issued in the said judgment---Second judgment of the Tribunal was also not implemented by the respondent-Bank on the ground that the judgment of the Tribunal dated 01.06.2006 stood abated in view of the case reported as Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602) [Mubeen-us-Salam's case]---Held, that perusal of 'Mubeen-us-Salam's case' as clarified in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681) led to the conclusion that the Service Appeal filed by the appellant did not abate because the judgment of the Tribunal was never challenged by the respondent-bank and attained finality and was executable---In allowing the Service Appeal of the appellant, the Tribunal had directed the respondent-Bank to reinstate him in service pursuant to the judgment of the Tribunal dated 07-09-1998 and proceed in accordance with the directions given in the judgment---Conduct of the respondent-Bank had all along been obstructive and showed lack of respect for the judicial system and verdicts of Courts---However at present much water had flown under the bridge since the year 1998 and the appellant had also crossed the age of superannuation since long, therefore, it would be impracticable to seek implementation of the judgment of the Tribunal owing to efflux of time without any fault on the part of the appellant---Delay in delivery of justice to the appellant had occurred on account of changes in law for reasons not attributable to him and on account of no fault on his part---Appellant stated before the Court that he would be satisfied if he was given his dues in accordance with Golden Handshake Scheme/Voluntary Separation Scheme ("GHS/VSS") given by the respondent-Bank to its other employees considering that on the date of his dismissal i.e. 15-07-1997 the appellant had more than 20 years of service to his credit---Supreme Court observed that such stance of the appellant was fair and reasonable and would advance the ends of justice, and consequently directed that the respondent-Bank shall calculate and release the dues of the appellant in accordance with the formula of GHS/VSS offered by it to its employees keeping in view the length of service of the appellant from the date of his employment till the date of his first dismissal on 15-07-1997, and that his case will be considered as if he was never dismissed, and was in service of the Bank and had opted for the GHS/VSS---Appeal was allowed.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 and Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681 ref.

Mian Mehmood Hussain, Advocate Supreme Court for Appellant.

Mian M. Zulqarnain, Advocate Supreme Court for Respondents.

2021 S C M R 468

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

JAMAL KHAN---Petitioner

Versus

SECRETARY HOME DEPARTMENT---Respondent

Civil Petition No. 69-Q of 2015, decided on 9th September, 2020.

(Against the judgment dated 04.02.2015 passed by the High Court of Balochistan in C.P. No.631/2014)

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Thumb impression on an arbitration agreement---Petitioner claiming that the said thumb marks were not his; the arbitration instrument was fake and forged, therefore, directions should have been given by the Justice of Peace for registration of FIR against the respondents---High Court declined to issue a direction for registration of a criminal case on the ground that prima facie the dispute inter se the parties was of civil nature as both sides were asserting their divergent claims on a common land, and that inordinate delay and availability of alternate remedies were other considerations that didn't warrant a direction for registration of FIR---Held, that report submitted by the police did not support petitioner's claim and there was consensus that both sides were locked in a dispute of civil nature---Against such peculiar backdrop, refusal by the Justice of Peace to issue direction to the Station House Officer and non-interference by the High Court therewith did not suffer from any jurisdictional error or flaw---Petition for leave to appeal was dismissed and leave was refused.

Abdus Saleem Ansari, Advocate Supreme Court and Manzoor Ahmed Rehmani, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2021 S C M R 470

[Supreme Court of Pakistan]

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

AHMAD ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1198 of 2020, decided on 16th November, 2020.

(Against the order dated 12.10.2020 passed by the Lahore High Court, Lahore in Criminal Misc. No. 31391-B of 2020 and Criminal Misc. No. 42701-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 148, 149 & 201---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, causing disappearance of evidence of offence, or giving false information to screen offender---Bail, grant of---Further inquiry---Admittedly accused was not named in the FIR and he was implicated in the case through a supplementary statement of complainant with the role of catching hold of one of the deceased, who was fired at by a co-accused---No allegation was made against the accused of causing any injury on the person of either of the deceased---In the circumstances, case against him called for further enquiry within the ambit of S. 497(2), Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed and accused was granted bail.

Shamim ur Rehman Malik, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Baleegh uz Zaman, Advocate Supreme Court for the Complainant along with Complainant in person.

Mirza Abid Majeed, DPG and Imtiaz Ahmad, SI for the State.

2021 S C M R 471

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

TARIQ MEHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 180 of 2020, decided on 2nd November, 2020.

(Against the judgment dated 05.11.2015 passed by the Lahore High Court Lahore in Criminal Appeal No.1033 of 2011 along with M.R. No.268 of 2011)

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Reappraisal of evidence---Prosecution's failure on motive, given the number and diverse background of the assailants, could not be viewed as entirely without implications for the prosecution---Miraculous escape by the two eye witnesses, each directly targeted with handguns by the assailants from a close blank range was a story that may not find a buyer---Absence of casings at the spot and investigating officer's failure to effect recovery of the weapons were additional blows to the witnesses' credibility, undermining status of the entire case---Furthermore the Trial Court and High Court relied on statements of witnesses to maintain conviction of accused, whereas the same statements were disbelieved with respect to the co-accused persons---Appeal was allowed and accused was acquitted of the charge.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Reappraisal of evidence---Witness statements/evidence disbelieved with respect to majority of the co-accused persons, relied upon by the High Court and Trial Court to convict the accused without any independent corroboration---Held, that fractional reliance to maintain solitary conviction of accused on the statements of witnesses disbelieved qua their own assailants was an option fraught with potential risk of error and as such inconsistent with the principle of safe administration of criminal justice--- Appeal was allowed and accused was acquitted of the charge.

Tariq Mehmood Butt, Advocate Supreme Court for Appellant.

Muhammad Jaffar, Additional Prosecutor General Punjab for the State.

2021 S C M R 474

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

SHAKEEL AHMAD ZAIDI and others---Appellants

Versus

SECRETARY, HIGHER EDUCATION, GOVERNMENT OF PUNJAB, LAHORE and others---Respondent

Civil Appeals Nos. 754 and 755 of 2020, decided on 13th January, 2021.

(Against the order dated 27.11.2018 passed by the Lahore High Court, Lahore in Writ Petitions Nos. 206815 and 180175 of 2018)

(a) Civil service---

----Locus poenitentiae, principle of---Applicability and exception---Special Allowance paid to employees through an unlawful order, when they were not entitled for the same---Whether such allowance could be recovered from the salaries of the employees---Held, that that by its very terms, the notification on the basis of which Special Allowance was paid to 'Lecturers' was not applicable to the appellants, who were 'Instructors'---Language of the notification in question was clear and unambiguous, therefore the argument of the appellants that they were unaware that they were being paid an allowance to which they were not lawfully entitled was not convincing---Claim of the appellants that they had bona fidely received the Special Allowance did not ring true---Apparently the appellants started receiving the amount, knowing that it was not payable to them but they kept silent---Any man of ordinary prudence who was aware of the notification should have known that the amount being paid to him was in excess of what was lawfully due to him---Furthermore the order to pay Special Allowance to the appellants was not a lawful order nor was it passed by a competent authority---Therefore, whether or not the appellants had received the same bona fidely was not of much consequence in view of the fact that the order in question had not lawfully been passed by a competent authority, which was necessary to seek the benefit of the exception to the rule of locus poenitentiae---High Court had valid reasons and lawful justification to direct that further payment of the allowance to the appellants had to stop, and also to recover the same in easy instalments from them so as not to overly burden them financially---Appeals were dismissed.

Engineer in Chief Branch through Ministry of Defence, Rawalpindi and others v. Jallal ud Din PLD 1992 SC 207 distinguished.

Muhammad Feroz v. Deputy Director Officer (Education) and others 2005 SCMR 1490 and Pensionary Benefits of the Judges of Superior Courts PLD 2013 SC 829 ref.

(b) Locus poenitentiae, principle of---

----Applicability and exception---Benefit/allowance paid under a mistake, recovery of---Only where lawful orders had been passed by an authority having the power to do so under the relevant law and a person bona fide received a benefit under the said law without any positive action on his part, such beneficiary could claim a right under the exception to the principle of locus poenitentiae and claim that the benefit bona fide received by him by virtue of a lawful order passed by the competent authority (which at the relevant time and for its duration till its withdrawal was lawfully passed by an authority competent to pass such order) could not subsequently be recovered by virtue of the protection available under the exception to the said rule.

Malik Saleem Iqbal Awan, Advocate Supreme Court (via video link from Lahore) and Syed Rifaqat H. Shah, Advocate-on-Record for Appellants (in both cases).

Syed Wajid Ali Shah Gillani, Additional A.G. Punjab, M. Sajid Bashir, Deputy Secretary, Finance Department, Punjab, Nasir Mehmood Bhatti, Law Officer, Finance Department, Punjab and Qamar Javaid, Assistant Professor (on behalf of Respondent No. 4) for Respondents (in both cases).

2021 S C M R 479

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD KAMRAN---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 475 of 2019, decided on 30th September, 2019.

(Against the judgment dated 27.05.2015 passed by the Lahore High Court Lahore in Crl. A. No.158/2009)

Penal Code (XLV of 1860)---

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Kidnapping or abduction for ransom---Reappraisal of evidence---Accused was nominated for the offence after more than two years of the incident through a supplementary statement of the complainant---Witnesses were discrepant on fundamental issues of demand of ransom and the manner whereby it was paid to the accused---According to the complainant, the captor asked for a sum of Rs. 4 crore whereas according to one of the abductee the demanded amount was Rs. 20 lac; the latter was supported by the other abductee, who was also the complainant's son---Even if such discrepancy was viewed as too trivial to cast bearing on the inherent fate of the case, still absence of the family of one of the abductees from the scene was not explained as they neither approached the police nor joined the complainant in his pursuit for recovery of the abducted children---Absence of call data, otherwise technically available, to confirm alleged conversation from accused's cell phone to the complainant's landline number, a valuable piece of evidence to establish the alleged communication, was a missing link with obvious consequences for the prosecution case---According to the complainant, in his belated disclosure, he had nominated the accused being the principal culprit, however, when confronted with his supplementary statement, the name of the accused was conspicuously missing therein---Same was the case with the supplementary statement of one of the abductees, wherein the name of the accused was missing---Complainant's choice to let off three co-accused, initially nominated by him in his supplementary statement, also adversely reflected on the prosecution case---Accused was acquitted of the charge in circumstances---Appeal was allowed.

Ch. Muhammad Rafique Jathol, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, Additional Prosecutor General Punjab for the State.

2021 S C M R 483

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

CAPITAL DEVELOPMENT AUTHORITY through Chairman---Appellant

Versus

Rana MUNAWAR KHAN---Respondent

Civil Appeal No. 1120 of 2009, decided on 7th December, 2020.

(On appeal against the judgment dated 05.06.2008 passed by the Islamabad High Court, Islamabad in R.F.A. No. 72 of 1998)

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Allotment letter, interpretation of---Allotment of plot on installments---Installments delayed by purchaser due to non-removal of high-tension wires from the plot by Capital Development Authority (CDA)---Installments were re-scheduled on orders of the Federal Ombudsperson---Delayed payment charges were imposed on purchaser by CDA once all installments were paid---Plea of purchaser/respondent that he did not pay the installments within time as according to clause 6 of the lease agreement the possession of the plot free from all encumbrances and ready for construction was to be delivered to him within a period of one month i.e. on or before 14-01-1988 but the same was delivered on 27-02-1988 without removing high tension wires and electric poles, which were passing through all the plots of that area---Validity---Clause 6 of the lease agreement/allotment letter did not state that the CDA was bound to deliver the possession after removing of high tension wires etc.---However, it appears from the noting portion of the CDA that Town Planner-1 vide a memo had informed that an overhead electric line was encroaching the plots in the area but the same was removed and the possession was handed over to the respondent without any further encroachment---Such claim found force from the possession letter, wherein the respondent had himself admitted that there was no encroachment on his plot---Respondent has himself signed the possession letter and certified that he had seen his plot and all its corners, there was no encroachment on his plot, and no service line was passing within his plot---Although possession was delivered to him late but the delay was only of 40 to 45 days---Respondent had to pay the first installment by 01-03-1988 but despite the fact that possession was handed over to him on 27-02-1988, he did not pay the same---Appellant/CDA issued him a letter dated 08-04-1989 to make the payment but instead of complying, he filed a suit for permanent injunction, which prima facie shows that he wanted to avoid payment accrued towards him---Purpose of the respondent was to evade payment while buying time---Proceedings before the civil court continued for a period of five years and when the respondent saw that he would not be able to get a favourable order, he withdrew the suit and approached the Federal Ombudsman---Respondent was bound to pay the delayed payment charges---Appeal was allowed.

Malik Javed Iqbal Wains, Advocate Supreme Court for Appellant.

Abdur Rashid Awan, Advocate Supreme Court for Respondent.

2021 S C M R 488

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD FARHAN alias IRFAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 291 of 2020, decided on 27th October, 2020.

(Against the judgment dated 24.02.2016 passed by the Lahore High Court Lahore in Criminal Appeal No.613 of 2011 along with CSR No.16-T of 2011)

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 392, 411 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Reappraisal of evidence---Two persons, a father and a son, were done to death during the occurrence which took place during broad daylight---One of the deceased was the complainant's brother while the other his nephew, therefore, there was no space to admit any hypothesis of substitution by the witnesses---Death of two of the co-accused, nominated in the crime report alongside the accused on the first day one, while resisting a police encounter, went a long way to implicate the accused as being part of the gang which committed the offence---Prosecution's failure to bring on record medico legal certificates of the injured witness did not adversely impact upon the totality of circumstances, as the injured witness was examined by the Investigating Officer while he was admitted in a hospital---Nomination of the accused in the crime report without any loss of time, soon after the incident, lent credence to the claim of complainant side that masks worn by the assailants dropped during the occurrence---Convictions and sentences recorded against the accused under Ss. 302(b), 324, 392, 411 & 34, P.P.C. including amounts of compensation and fine were maintained, however his conviction to the extent of S. 7(a) of the Anti-Terrorism Act, 1997, was set-aside as being not sustainable in view of the law declared by the Supreme Court in the case of Ghulam Hussain and others v. The State (PLD 2020 SC 61)--- Appeal was partly allowed.

Ghulam Hussain and others v. The State PLD 2020 SC 61 ref.

Ms. Aisha Tasnim, Advocate Supreme Court for Appellant.

Mirza Abid Majeed, Additional Prosecutor General Punjab for the State.

2021 S C M R 492

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

ZUBAIR KHAN---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 508 of 2016, decided on 21st January, 2021.

(Against the judgment dated 30.08.2016 passed by the High Court of Sindh in Crl. Jail Appeal No.S-160 of 2011)

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

----S. 9(c)---Possession and transportation of 80 kilograms of charas---Reappraisal of evidence---Safe custody and transmission of samples of the narcotic from the police to the chemical examiner not established---Duplicate forensic report presented---Held, that the prosecution failed to establish the essential link of safe transmission of samples to the office of Chemical Examiner as despite opportunity the relevant official, who had delivered the samples, failed to enter the witness box---Furthermore the prosecution relied on a duplicate forensic report, which was inadmissible in evidence, to confirm narcotic character of the contraband---Supreme Court observed that such appalling inaptitude of the functionaries tasked to prosecute the crime, left no juridical possibility to maintain accused's conviction---Petition for leave to appeal was converted into appeal and allowed and the accused was acquitted of the charge.

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

----R. 6---Possession of narcotics---Duplicate forensic report/Report of Government analyst---Such duplicate forensic report was inadmissible in evidence.

Qari Abdul Rasheed, Advocate Supreme Court for Petitioner.

Zafar A. Khan, Additional Prosecutor General for the State.

2021 S C M R 494

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Appellants

Versus

SHER ALI and others---Respondents

Civil Appeals Nos. 228 and 234 of 2020, decided on 25th November, 2020.

(Against order dated 18.02.2014 and 07.10.2015 passed by Peshawar High Court, Peshawar in Writ Petitions Nos. 1924-P of 2013 and 196-P of 2015)

Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----S. 3---Contract employees---Reinstatement and regularization in service---Respondents were contract employees of a Shrine ("the Shrine") and a Library ("the Library")---Both the Shrine and the Library were subsequently handed over to the Provincial Archives and Libraries Department---As a result of this conversion, posts occupied by the respondents were sanctioned by the Provincial Finance Department with the direction to fill the same by fresh recruitment---Respondents were not regularized in the said sanctioned posts---Held, that the Shrine and the Library were subsequently handed over to the administrative control of the Provincial Archives and Libraries Department and thus posts in the Shrine and the Library stood converted to the regular side and the requisite notification was issued by the concerned department which still held the field---Respondents were given assurances that they would be adjusted against the said posts---Respondents had already been declared as civil servants vide an office order---Vide an office memo it was stated that the employees of the Shrine had been appointed as per the prescribed rules and procedure, therefore, they should be adjusted against the posts that were sanctioned---Respondents had been unlawfully relieved because plausible reasons were not given for doing the same --- In the absence of such reasons, and by omitting to follow the correct procedure to relieve a civil servant, the Provincial authorities had committed an illegality---Section 3 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act') provided that all contractual or ad hoc employees who had been appointed before the promulgation of the 2009 Act would be deemed to have been validly appointed against regular posts---As such, the Provincial authorities could not circumvent the law and take a different position which was neither supported by the law, nor by the record of its own actions---High Court had rightly re-instated and regularized the services of the respondents---Appeals were dismissed.

Shumail Ahmad Butt, Advocate-General, Khyber Pakhtunkhwa, Atif Ali Khan, Additional Advocate-General, Khyber Pakhtunkhwa, Barrister Qasim Wadood, Additional Advocate-General, Khyber Pakhtunkhwa, Irum Shaheen, DD, HED and Arif Khan, Litigation Officer, HED for Appellants.

Khalid Rahman, Advocate Supreme Court for Respondents.

2021 S C M R 500

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

SHAHEEN IJAZ alias BABU---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 296 of 2016, decided on 10th September, 2020.

(Against the judgment dated 29.03.2016 passed by the Lahore High Court Lahore in Crl. Appeal No.849 of 2014, Cr. PSLA No.126/2020 with M.R. No. 230 of 2010)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Incident allegedly took place in the backdrop of complaints by the deceased over discharge of filthy water from the accused's shop---Such motive appeared to have ignited the situation, as the past relationship between the parties was peaceful and smooth---Nomination of accused in a broad daylight incident by resident witnesses hardly admitted any space to entertain any hypothesis of mistaken identity or substitution---Prompt recourse to law straight at the police station excluded every possibility of deliberation or consultation---Accused's sole nomination as being the one to have targeted the deceased with five entrance wounds was a circumstance that reflected positively on complainant's conduct---Three co-accused persons, who were sons of the accused, were assigned inconsequential roles during the incident, thus, they were acquitted seemingly out of abundant caution---Presence of accused's sons in an incident, that took place in the same neighborhood, would not by itself bring them into the community of intention and as such their acquittal could not be viewed as a circumstance casting away the entire case---Acquittal of co-accused persons did not adversely impact the prosecution's mainstay qua the role of repeated fire shots assigned to the accused--- Forensic report of the weapon confirmed the nature of the injuries sustained by the deceased---Conviction and sentence of accused as modified by the High Court was maintained---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---Plea that an accidental fire shot by the deceased himself during the brawl took his life---Validity---Accused had admitted his presence at the place of incident---Straight forward and consistent ocular account furnished by the witnesses out weighed accused's plea of an accidental fire by the deceased---Such plea also merited outright rejection in view of repeated fire shots widely covering different parts of deceased's body---Conviction and sentence of accused as modified by the High Court was maintained---Petition for leave to appeal was dismissed and leave was refused.

Sahibzada Ahmed Raza Qasuri, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for the State.

2021 S C M R 503

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Sayyed Mazahar Ali Akbar Naqvi, JJ

The STATE through Director General FIA, Islamabad---Petitioner

Versus

ALIF REHMAN---Respondent

Criminal Petition No. 994 of 2020, decided on 15th January, 2021.

(On appeal against judgment dated 29.11.2019 passed by the Peshawar High Court, Peshawar in Criminal Revision No. 244-P of 2019)

(a) Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 3A, 3AA, 4 & 23---Dealing in foreign exchange without permission of concerned authorities---Reappraisal of evidence---Confiscation of local and foreign currency by the Federal Investigation Agency (FIA)/petitioner-department during raid proceedings---During trial the respondent-accused moved an application before the Trial Court for superdari of his confiscated currency, which was allowed to the extent of local currency only---However, the High Court ordered the petitioner-department to return both local and foreign currency to the accused---Legality---Any person who was citizen of Pakistan was authorized to establish business of foreign currency notes subject to moving an application to the State Bank of Pakistan on a prescribed form after payment of a prescribed fee seeking permission/ authorization---Method for the same was duly mentioned in S. 3A of the Foreign Exchange Regulation Act, 1947 ('the 1947 Act')---Similarly exchange companies could be formed by following the procedure provided in S. 3AA of the 1947 Act---However, in the present case the respondent neither sought any permission nor produced any document during raid or during investigation---Report in terms of S. 173, Cr.P.C. had already been submitted before the Court of competent jurisdiction and trial of the case was likely to be commenced in near future---High Court had extended artificial reasoning while passing the impugned judgment and the same was not supported by the law---Prima facie the local currency was being used by the accused as an exchange currency for the foreign currency, otherwise, there seemed no reason for him to keep a huge amount of local currency in the shop---Impugned judgment of the High Court and order of the Trial Court were set-aside, and the Supreme Court directed that the application of the respondent for superdari to the extent of local currency, already handed over to the respondent, shall be deemed to be pending before the Trial Court and shall be decided afresh by a judicious order after affording an opportunity of hearing to both the parties strictly in the spirit of the law---Petition for leave to appeal was converted into appeal and allowed accordingly.

(b) Constitution of Pakistan---

----Art. 187(1)---Power of the Supreme Court to issue such directions, orders or decrees as may be necessary for doing complete justice---Scope---Framers of the Constitution while inserting Art. 187 of the Constitution had assigned unfettered powers (to the Supreme Court) for a purpose which squarely came within the ambit of complete justice stricto sensu---Supreme Court in exercise of its inherent jurisdiction under Art. 187(1) of the Constitution was required to do complete justice, without being handicapped by any technicality or a rule of practice---Power of the Supreme Court to exercise its jurisdiction under Art. 187 of the Constitution was not dependent upon an application of a party.

Khalid Iqbal v. Mirza Khan PLD 2015 SC 50; Muhammad Zahid v. Muhammad Ali PLD 2014 SC 488 and Martin Dow Marker Ltd, Quetta v. Asadullah Khan 2020 SCMR 2147 ref.

Sajid Ilyas Bhatti, Additional Attorney General, Ch. Akhtar Ali, Advocate-on-Record and Syed Kashif Ali, Inspector FIA, Peshawar for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court for Respondent.

Awais in person on Court's Notice.

2021 S C M R 510

[Supreme Court of Pakistan]

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

MEHMOOD QAISAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 551 of 2020, decided on 17th September, 2020.

(Against the order dated 28.04.2020 passed by the Islamabad High Court Islamabad in Crl. Rev. No.24/2020)

Penal Code (XLV of 1860)---

----S. 489-F---Dishonestly issuing a cheque---Reappraisal of evidence---Besides the witnesses, prosecution adduced documentary evidence comprising of photocopies of the impugned cheque and Bank slip, duly verified by the Bank manager, who appeared before the Court to confirm the transaction---Sale agreement was also part of the record to establish purchase of complainant's vehicle by the accused---Registration of five other cases of identical nature against the accused was also a fact beyond dispute---In such circumstances it would be unconscionable to reduce the sentence of three years rigorous imprisonment awarded to the accused by the Magistrate, and maintained by both the courts below---Petition for leave to appeal was dismissed and leave was refused.

Maulvi Anwar ul Haq, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate Supreme Court for Petitioner.

Niaz Ullah Khan Niazi, Advocate General Islamabad with Zulfiqar Ali, ASI, PS. I-9, Islamabad for the State.

Jam Khurshid Ahmed, Advocate Supreme Court for Respondents.

2021 S C M R 512

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Umar Ata Bandial, Ijaz ul Ahsan, Mazhar Alam Khan Miankhel and Munib Akhtar, JJ

HUMAN RIGHTS CASE NO. 318 OF 1993: In the matter of

Human Rights Case No. 318 of 1993, C.M.As. Nos. 7645, 5895, 5896, 5897, 5898 of 2018, C.M.As. Nos. 2370, 2416, 2417, 2606 of 2020 in C.R.P. Nil of 2020, C.M.As. Nos. 3267, 3275, 3908, 3943, 3957 and 3958 of 2020 in H.R.C. No. 318 of 1993, decided on 14th December, 2020.

(a) Constitution of Pakistan---

----Arts. 18 & 184(3)---Pakistan Environmental Protection Act (XXXIV of 1997), Preamble---Human rights case---Limestone excavation and stone crushing--- Environmental pollution and destruction of landscape---Limestone crushers (applicants), who held valid mining leases, were aggrieved of the orders passed by the Supreme Court by virtue of which crushing operations in the entirety of Margalla Hills had been stopped---Applicants contended that pursuant to the orders passed by the Supreme Court, the Government had taken steps to prevent them from conducting their lawful business despite the fact that they were in possession of valid mining leases; that the prohibition against stone crushing and Iimestone mining was limited to the areas of Margalla Hills National Park and buffer zones/prohibited area around it, whereas the applicants were operating their business beyond said areas; that the applicants had invested heavily at the site and employed a large number of workers with the legitimate expectation that they would continue with their activities till expiry of the term of their leases, and that preventing the applicants from conducting their business was violative of their legal rights---Validity---Impugned order of the Supreme Court was in line with a chain of orders passed by the Court in the interest of environmental protection and to protect Margalla Hills ('the Hills') from indiscriminate misuse by breaking the Hills and converting them into (stone) crush which not only created environmental pollution but also destroyed the landscape and natural beauty of the Hills irreparably and on permanent basis---After due consideration of all the said factors and to preserve and protect a gift of nature that had been bestowed upon the residents of the city, further operation of crushing and mining activities in Margalla Hills were directed to be stopped---No reason was found to recall, alter or modify the said order---Application was dismissed with the directions that unless there was any other legal impediment, the concerned authorities shall under their direct supervision and ensuring that no further damage was done to the area and the Margalla Hills allow removal of the machinery and equipment from the area owned by the applicants.

(b) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Preamble---Constitution of Pakistan, Art. 184(3)---Human rights case---Preservation of mountain ecosystems---Applicants sought issuance of directions to the Federal Government to promulgate appropriate legislation at the national level to provide for all affairs relating to mountain delimitation, mountain development, mountain protection, preservation of mountain ecosystem of the country including but not limited to Margalla Hills in the interest of public at large---Held, that as far as the legislation was concerned, the applicants could take up the matter with the concerned authorities directly who may take appropriate steps in such regard in accordance with law, keeping in view the protection and preservation of mountain areas---Supreme Court observed that the applicants may also brief the office of Attorney General who shall use his office for the purpose of providing the requisite information, know how and data to the concerned agencies with the assistance of the applicants---Application was accordingly disposed of.

Sajid Ilyas Bhatti, Additional A.G.P. and M. Ramzan, A.D. Legal, EPA for the Federation.

Niaz Ullah Niazi, A.G., Islamabad, Azam Khan, Acting Mayor, Syeda Shafaq Hashmi, Chief Officer MCI and M. Tariq Latif, Dir. Revenue CDA/MCI for ICT.

Aamir Ali Ahmed, Acting Chairman, CDA and Ch. Riasat Ali Gondal, Advocate Supreme Court for CDA.

Ch. Faisal Fareed, Additional A.G. Punjab, Shahzad Mehboob, A.C. Texila and Ijaz Hadayat, Dy. Dir. Mines, RWP for the Government of Punjab.

Barrister Qasim Wadood, Additional A.G. Khyber Pakhtunkhwa for the Government of Khyber Pakhtunkhwa.

Nasir Mehmood Mughal, Special Prosecutor for NAB.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court for Applicant (in C.M.As. Nos. 7258 and 3908 for 2020).

Ahmed Hassam Rana, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Applicant (in C.M.As. Nos. 2370 and 4699 of 2020).

Ms. Shireen Imran, Advocate Supreme Court for Applicant (in C.M.A. No. 2416 of 2020).

Syed Qalb-e-Hassan, Advocate Supreme Court for Applicant (in C.M.A. No. 2417 of 2020).

Tanveer Iqbal, Advocate Supreme Court for Applicant (in C.M.A. No. 2606 of 2020).

Barrister Umer Aslam, Advocate Supreme Court for Applicant (in C.M.A. No. 3943 of 2020).

Malik Qamar Afzal, Advocate Supreme Court for Applicant (in C.M.As. Nos. 3957 and 3958 of 2020).

Applicant in person (in C.M.As. Nos. 5895 and 5897 of 2018).

2021 S C M R 518

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

ABID HUSSAIN---Petitioner

Versus

TASSAWAR HUSSAIN and another---Respondents

Criminal Petition No. 996 of 2020, decided on 2nd February, 2021.

(Against the order dated 11.08.2020 of the Lahore High Court Rawalpindi Bench passed in Cr. Misc. No.1339-B/2020)

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

----Ss. 498 & 497---Constitution of Pakistan, Arts. 4 & 9---"Pre-arrest" and "post-arrest" bail--- Distinction--- Right to liberty---Scope---Constitution pledged freedom to law abiding citizens; an offender, alleged to have committed some crime, was subject to a different legal regime; he was certainly entitled to due process of law and a fair and speedy trial, however, once taken in custody, his release was regulated by the provisions of the Code of Criminal Procedure, 1898 and he must make out a case within the statutory framework provided thereunder, therefore, a pre-arrest bail could not be granted as a substitute for post arrest bail.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302(b) & 337-D---Qatl-i-amd, jaifah---Pre-arrest bail, cancellation of---Accused had been avoiding process of law ever since registration of the case as was evident from the record---Accused twice secured ad-interim bail, each dismissed on account of his failure to appear before the Court on the date fixed---Such conduct by itself disentitled the accused from judicial protection---Accused had made oblique reference to mala fide on part of complainant side, but with no substance therein---Four injured persons unanimously implicated the accused for participation in the occurrence, therefore mala fide cannot be readily inferred---Though accused was declared innocent during first round of investigation, however the same was subsequently recalled by the police itself---Petition for leave to appeal was converted into appeal and allowed and pre-arrest bail granted to accused was cancelled/recalled in circumstances.

Mukhtar Ahmad v. The State and others 2016 SCMR 2064 ref.

Syed Hamid Ali Bokhari, Advocate Supreme Court for Petitioner.

Haider Mehmood Mirza, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Respondents.

Ch. Sarwar Sindhu, Additional Prosecutor General Punjab with Majid, I.O. for the State.

2021 S C M R 522

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

Mian KHALID PERVIZ---Appellant

Versus

The STATE through Special Prosecutor ANF and another---Respondents

Criminal Appeal No. 239 of 2020, decided on 26th October, 2020.

(On appeal from the judgment dated 11.12.2019 passed by the Islamabad High Court Islamabad in Crl. No. A-255 of 2019)

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Arts. 46-A, 78-A & 164---Electronic Transactions Ordinance (LI of 2002), Preamble---Possession and transportation of narcotics--- Reappraisal of evidence---Documentary evidence in defence recorded by automated information system---Admissibility---Such evidence was admissible under Art. 164 of the Qanun-e-Shahadat, 1984 but in case of denial, law required that such evidence generated through the automated system must be proved in accordance with law---Courts had been empowered to receive and make use of such evidence collected through modern technologies---Articles 46-A & 78-A of the Qanun-e-Shahadat, 1984 as well as the provisions of Electronic Transactions Ordinance, 2002 provided procedure to receive and prove such evidence---Appeal was dismissed and convictions and sentence recorded against accused were maintained. [p. 525] A

Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675 and Ali Raza v. State 2019 SCMR 1982 ref.

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 164---Possession and transportation of narcotics---Reappraisal of evidence---Call Detail Record (CDR) data---Evidentiary value and admissibility---Mere production of CDR data without transcripts of the calls or end to end audio recording could not be considered/used as evidence worth reliance---Besides the call transcripts, it should also be established on the record that callers on both the ends were the same persons whose calls data was being used in evidence---While considering such type of evidence extra care was required to be taken by the Courts as advancement of science and technology had also made it very convenient and easy to edit and make changes of one's choice---Appeal was dismissed and conviction and sentence recorded against accused were maintained.

Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675 and Azeem Khan v. Mujahid Khan 2016 SCMR 274 ref.

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

----S. 9(c)---Possession and transportation of 12 kilograms of charas---Reappraisal of evidence---Accused in his defence contended that a day before the FIR was lodged against him, Anti-Narcotics Force (ANF) officials abducted him and an Inspector demanded illegal gratification of Rs.05 million; that on the same day there was dacoity/robbery of different articles including prize bonds from his house, whereafter he was allegedly taken/shifted to police station along with his vehicle, which contained narcotics hidden in secret cavities---Held, that after perusal of record it was not understandable as to why the accused was chosen for alleged abduction at daytime, followed by the alleged raid, dacoity/robbery and demand of illegal gratification and that too in the month of Holy Ramadan---Besides no separate report was lodged in the police station for such wrongdoings of the ANF---Brother of the accused claimed to be present at the time of alleged abduction of the accused, but he moved an application to the concerned SHO/Police Station to trace the location of mobile phones and the vehicle of the accused, about twelve days after his alleged abduction; this appeared to be an attempt of maneuvering evidence in defence as it was hard to believe that for about twelve days the accused's family or his brother were unaware of the recovery of narcotics from the accused---Accused also alleged that at the time of his abduction his son and driver were also with him, however both of them were not produced in defence---Investigating Officer of the case during personal search of the accused had also recovered fake service cards and stamps---Officer of the vehicle tracking company, who appeared as a defence witness in court, produced map of movement history of the vehicle of the accused comprising three sheets (to establish his alleged abduction) but the map available on the paper book consisted of five sheets without exhibit mark---Court could not rely on or consider such documents which were not part of the record---Defence evidence led by the accused was not of such credence and trustworthiness that it could shatter the confidence inspiring evidence of prosecution---Appeal was dismissed and conviction and sentence recorded against accused were maintained.

Raja Rizwan Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Inaam Amin Minhas, Special Prosecutor ANF, Ch. Ihteshamul Haq, Special Prosecutor ANF along with Raja Shoaib, Inspector, ANF and Naseer, S.I. ANF for the State.

2021 S C M R 529

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Maqbool Baqar, JJ

GUL NAWAZ and others---Petitioners

Versus

RASHID AHMED and others---Respondents

Civil Petition No. 1975 of 2019, decided on 2nd February, 2021.

(Against the judgment dated 25.02.2019 of the Peshawar High Court, Bannu Bench passed in C.R. No. 104-B of 2015)

Contract Act (IX of 1872)---

----S. 23---Specific Relief Act (I of 1877), S. 12---Constitution of Pakistan, Art. 5 & Preamble---Suit for specific performance---Agreement to sell immoveable property---Proof---Decision issued by the 'Taliban' (a fundamentalist political and religious faction) relied upon by a party to prove existence of an agreement to sell---Held, that said decision was 'forbidden', 'unlawful' and opposed to 'public policy' in terms of S. 23 of Contract Act, 1872---Such a decision could neither be made the basis of a suit nor relied upon as it had no legal effect.

In the present case the purported decision issued by the Taliban (a fundamentalist political and religious faction) had no legal authority. The Taliban infiltrated into Pakistan and had illegally occupied and assumed control over a part of the territory of the country. Pakistan was a sovereign country and the applicable law of Pakistan applied over every inch of its territory.

The physical possession of any part of the territory of Pakistan taken over by the Taliban contravened the Constitution and any decision given by the Taliban would be unconstitutional, unlawful and of no legal effect. Subverting the Constitution and subjugating the people did not confer legitimacy on an aggressor nor rendered an aggressor's decisions constitutionally legitimate.

Petitioner's attempt to alternatively categorise the purported 'decision' as an agreement (to sell) was also not permissible because it undermined the sovereignty of Pakistan. The purported 'decision' / 'agreement', could neither be made the basis of a suit nor relied upon. The purported agreement was 'forbidden', 'unlawful' and opposed to 'public policy' in terms of section 23 of Contract Act, 1872, therefore, it was of no legal effect.

Salahuddin Malik, Advocate Supreme Court and Mehmood Ahmed Sheikh, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2021 S C M R 531

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

ZULFIQAR alias ZULFA---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 657 of 2016, decided on 16th December, 2020.

(On appeal against judgment dated 29.09.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1628 of 2009)

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

----S. 9(c)---Possession of narcotics---Police witnesses---Scope---Police officials were also competent witnesses and their testimony could not be discarded merely for the reasons that they are employees of police force.

Salah-ud-Din v. State 2010 SCMR 1962 ref.

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

----Ss. 2(t) & 9(c)---Possession of 15 kilograms of poast/opium---Reappraisal of evidence--- Sentence, reduction in--- Mitigating circumstances---Opium as a narcotic---Definition and nature---As per definition of opium in S. 2(t) of the Control of Narcotic Substances Act, 1997 ('the 1997 Act') after mowing, all parts of the poppy plant except seeds were considered to be poppy straw---Only the basket, sack or pouch also known as 'Doda', excluding the seeds, contained narcotic substance---All poppy straw may not necessarily be `poast/doda because poppy straw could be any other part of the mowed poppy plant as well, excluding the seeds---Poppy straw was derived from the plant 'papaver somniferum', which had been cultivated in many countries for centuries; it had medicinal impact as well, which was largely used as a tonic for wellness of nervous system---Purpose of its cultivation was actually the production of poppy seeds, which were used as a food stuff and as a raw material for manufacturing poppy-seed oil, which was used for making various varnishes, paints and soaps etc.---Question was as to what actually was recovered from the accused in the present case; was it only the doda/basket/pouch or was it the whole plant with stems and flowers---Nothing in evidence was available on record in regard to such aspect, which absence was to be considered as a mitigating circumstance (in relation to sentence of accused)---Accused was behind bars for the last more than 13 years and his remaining sentence was less than two years---Conviction of accused under S. 9(c) of the 1997 Act was maintained, however his sentence was reduced from imprisonment for life into what he had already undergone---Jail petition was converted into appeal and partly allowed accordingly.

Taimoor Khan v. State 2016 SCMR 621 and Muhammad Imran v. The State 2011 SCMR 1954 ref.

Nemo for Petitioner.

Ch. Muhammad Sarwar Sidhu, Additional P.G. for the State.

2021 S C M R 536

[Supreme Court of Pakistan]

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

CIVIL PETITION NO. 1591-L OF 2017

(On appeal from the judgment dated 11.04.2017 of the Lahore High Court, Lahore passed in P.T.R. No.457 of 2010.)

AND

CIVIL PETITION NO.2281-L OF 2017

(On appeal from the judgment dated 29.05.2017 of the Lahore High Court, Lahore passed in P.T.R. No.459 of 2006.)

The COMMISSIONER INLAND REVENUE, ZONE-II, LARGER TAXPAYERS UNIT, LAHORE---Petitioner

Versus

KOHINOOR SUGAR MILLS LIMITED and another---Respondents

Civil Petitions Nos. 1591-L and 2281-L of 2017, decided on 22nd January, 2021.

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

----S. 12(18)---Deemed income of assessee---Scope---Payment received in 'advance' by assessee for the sale and supply of goods---Whether such advance payment was deemed to be income of assessee and thus taxable---Held, that the words 'loan' and 'advance' were used synonymously---Though it was possible to also consider the "immediate" payment of price for the sale of goods (for deferred delivery of the same) to be an 'advance', however, the word 'advance' as used in S. 12(18) of the Income Tax Ordinance, 1979 ('the 1979 Ordinance'), did not include such payment of price---Furthermore amounts in question were in any case the gross receipts of each assessee for the supply/sale of goods (i.e., were brought to revenue account in the ordinary course of business) and were taxed accordingly---To bring such amounts also within the ambit of the S. 12(18) of the 1979 Ordinance and hold the assesses liable to tax for that reason as well would, in the facts and circumstances of the present cases, be tantamount to an impermissible double taxation---Section 12(18) of the 1979 Ordinance had no application to the present cases---Petitions for leave to appeal were dismissed and leave was refused.

(b) Interpretation of statutes---

----Fiscal/taxing statute---Charging provision, interpretation of---Scope---Charing provisions of a fiscal/taxing statute were to be construed strictly, and if two reasonable interpretations were possible the one in favour of the assessee was to be adopted.

Ibrar Ahmed, Advocate Supreme Court for Petitioner (in C.P. No. 1591-L of 2017)

Ch. M. Zafar Iqbal, Advocate Supreme Court for Petitioner (in C.P. No. 2281-L of 2017) (Video-Link, Lahore).

Shahbaz Butt, Advocate Supreme Court for Respondent No. 1 (in C.P. No. 1591-L of 2017).

2021 S C M R 540

[Supreme Court of Pakistan]

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

ABU BAKAR SIDDIQUE alias MUHAMMAD ABU BAKR---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1506-L of 2020, decided on 22nd January, 2021.

(Against the order of the Lahore High Court, Lahore dated 24.11.2020 passed in Criminal Miscellaneous No. 52742-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148, 149, 337-F(i), 337-F(iii) & 337-F(iv)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly, ghayr-jaifah-damiyah, ghayr-jaifah-mutalahimah, ghayr-jaifah-mudihah---Bail, grant of---Further inquiry---Case record showed that there was no allegation against the accused of causing injury on the person of deceased and he was alleged to have caused a firearm injury on the left thigh of injured---During the course of investigation, it was concluded by the police that though accused was present at the spot but he only made aerial firing---Co-accused who was attributed firearm injury on the right thigh of injured was allowed bail by the Trial Court---In such circumstances, case against the accused called for further enquiry 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 granted bail.

Rai Bashir Ahmad, Advocate Supreme Court for Petitioner.

Danyal Ijaz Chadhar, Advocate Supreme Court for Respondent No.2.

Rana Abdul Majeed, Additional P.G. and Rashid Shahzad, Inspector for the State.

2021 S C M R 542

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

GHULAM MUSTAFA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 40 of 2020, decided on 29th September, 2020.

(Against the judgment dated 13.06.2014 passed by the Lahore High Court Lahore in Crl. A. No.693 of 2007 along with M.R. No.206 of 2007)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Incident occurred in a residential neighbourhood, located at a distance of 2-1/2 k.m. from the police station, witnessed amongst others, by a witness who claimed to have himself sustained multiple club blows on different parts of his body---Medico legal certificate of said witness was not on the record---Complainant had made no reference in the crime report to the injuries suffered by the said witness---Report to the police at a place other than police station confirmed a delay (in reporting the matter) for which no convincing explanation was offered---Autopsy of dead body of deceased was performed after a delay of 18-1/2 hours, despite availability of the medical officer---Said report revealed a solitary stab wound on the abdomen of deceased with no injuries on the head as attributed in the crime report to two co-accused persons, who had since been acquitted---Some of the co-accused persons despite being armed with pistols preferred to target the deceased with a non-conventional weapon---With a manifestly flawed ocular account, prosecution's failure on motive and recovery of weapon as well as co-accused persons grievously undermined its case vis-à-vis the accused as well---Plea of accused that the occurrence did not take place in the manner as alleged in the crime report and that incident was subsequently reported by managed witnesses, could not be dismissed out of hand---Appeal was allowed and the accused was acquitted of the charge.

Muhammad Siddique Khan Baloch, Advocate Supreme Court for Appellant.

Mirza Abid Majeed, Addl. Prosecutor General Punjab for the State.

2021 S C M R 545

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

ASIF ALI and another---Appellants

Versus

The INSPECTOR GENERAL, PAKISTAN RAILWAY POLICE, LAHORE and others---Respondents

Civil Appeals Nos. 508 and 509 of 2019, decided on 14th January, 2021.

(Against the judgment dated 15.11.2016, passed by the Federal Service Tribunal, Islamabad in Appeals Nos. 1970 and 1971(R)CS/2015)

Civil service---

----Dismissal from service---Accused persons were found guilty of commission of rape and were resultantly dismissed from service after departmental inquiry---Plea of accused persons that the complainant (victim's husband) had subsequently given a statement that the complaint was false, and the penalty imposed on accused persons was unjustified---Held, that the complainant in his examination-in-chief stated that he pardoned the accused persons after they took oath on the Holy Quran, but he maintained that his previous complaint of accused persons having committed rape of his wife was correct---Contention of accused persons that the charge was not proved, was not established by any record, rather was based upon the statement of the complainant by which he had pardoned the accused persons---Service Tribunal in the impugned judgment had dealt with the whole scenario very elaborately and had (rightly) noted that despite submission of complaint with the police of the incident of rape, no FIR was lodged against the accused persons, rather the police officials had tried to save the accused persons; that in the regular enquiry conducted against the accused persons, the charge of rape was proved against them and accordingly penalty of dismissal was imposed upon them---Inquiry Officer had found the accused persons to be fully implicated in the commission of offence---Appeals were dismissed and penalty of dismissal from service was maintained.

Sanaullah Noor Ghouri, Advocate Supreme Court for Appellants (in both cases).

Muhammad Siddique, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record and Khaliq ul Zaman, Public Prosecutor, Pakistan Railways, Sukkur for Respondents (in both cases).

2021 S C M R 548

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Sayyed Mazahar Ali Akbar Naqvi, JJ

Messrs JAMES CONSTRUCTION COMPANY (PVT.) LTD., LAHORE---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Communication and Works, Government of Punjab, Lahore and others---Respondents

Civil Petition No. 3380-L of 2017, decided on 1st January, 2021.

(Against the judgment dated 09.10.2017 of the Lahore High Court, Lahore passed in R.S.A. No. 62 of 2016)

Civil Procedure Code (V of 1908)---

----Ss. 20(a) & 20(c)---Territorial jurisdiction of civil courts---Scope---Place of accrual of cause of action---Scope---Suit for recovery against Provincial Government and Provincial Highways Authority in City "F" filed at Civil Court, City "L"---Whether Civil Court at "L" had territorial jurisdiction---Held, that contract in the present case was executed in "F" but it was approved by the Provincial Government at "L" vide a memorandum issued by the Chief Engineer, Provincial Highway Department at "L" addressed to the Superintending Engineer Highway Circle at "F"---Furthermore by engaging in activities which did not form part of its sovereign functions i.e. which could be performed by private entities if the Government was not in charge of them, the Government was in effect carrying on a business---In such situations the Government would be subject to S. 20 of the C.P.C. in its entirety---In the present case, keeping in view the nature of the activity in which the Government was involved in, namely, the construction of roads, the specific-issue raised in present proceedings was governed by S. 20 of the C.P.C. in toto---Accordingly, the Civil Court at "L" did have the territorial jurisdiction to entertain the suit filed by the petitioner [both in terms of clause (a) and clause (c) of S. 20 of the C.P.C.]---Petition for leave to appeal was converted into appeal and allowed.

Province of Punjab through Secretary to. Government of Punjab, Communication and Works Department, Lahore and another v. Messrs Muhammad Tufail and Company PLD 2017 SC 53 ref.

Zahoor Nasir Tagga, Advocate Supreme Court for Petitioner.

Ms. Aaliya Ejaz, Assistant A.G. for Respondents.

2021 S C M R 552

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ

MUHAMMAD EJAZ---Petitioner

Versus

ABID HUSSAIN and another---Respondents

Criminal Petition No. 1400 of 2020, decided on 7th January, 2021.

(Against the order dated 22.10.2020 passed by the Lahore High Court, Multan Bench, Multan in Criminal Miscellaneous No. 6182-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S. 462-B---Theft of oil by tampering with main petroleum pipeline---Pre-arrest bail, recalling of---Allegation against the accused was that of theft of huge quantity of diesel oil by tampering with the main petroleum pipeline of an oil refinery---Punishment of the offence alleged against the accused may extend to fourteen years---During the course of investigation, the accused was found fully involved---Accused was not able to point out any mala fide for his false implication in the case---In the circumstances, the accused was not entitled to the extraordinary concession of pre-arrest bail---Petition for leave to appeal was converted into an appeal and allowed and pre-arrest bail granted to the accused was recalled.

Hasnat Ahmed Khan, Advocate Supreme Court for Petitioner along with Petitioner in person.

Respondent No. 1 in person.

Mirza Abid Majeed, DPG along with Farooq, DSP and Muhammad Ozair, SHO for the State.

2021 S C M R 554

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ZAHID ASLAM and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 1245 of 2020, decided on 10th February, 2021.

(Against the order dated 03.11.2020 passed by the Lahore High Court Multan Bench Multan in Crl. Misc. No.6529-B/2020)

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

----S. 498---Pre-arrest bail, grant of---Scope and purpose---Grant of pre-arrest bail in a cognizable criminal case was an extraordinary remedy, cautiously granted to protect dignity and honour of a citizen, manifestly found being harassed or hounded through process of law actuated by motives, oblique and sinister, while taking into account the possible set back, likely to be endured by the prosecution during investigative process.

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

----S. 498---Penal Code (XLV of 1860), S. 420---Cheating and dishonestly inducing delivery of property---Ad-interim bail, confirmation of---Agreement to sell, executed between the complainant and a minor son of accused dated 25-09-2018 was on the record, however, the same was not mentioned in the crime report, which was lodged as late as in January 2020---Numerous receipts reflecting multiple transactions between the parties required attention by the Investigating Officer---Similarly a suit by the complainant against the accused with a claim of Rs. 97,26,000/- instituted in the year 2019 also required explanation---Through four different banking transactions in the years 2018 and 2019, the accused channeled different amounts in complainant's bank account, which unmistakably suggested a lot more than what met the eye---Plea of accused and co-accused that a civil dispute, admittedly settled earlier, was being converted into criminal prosecution to cast its rigors on them and as such mala fide was lurking behind the intended arrest was not beside the mark---Petitions for leave to appeal were converted into appeal and allowed, and ad-interim bail already granted to the accused and co-accused was confirmed.

James Joseph, Advocate Supreme Court for Petitioners.

Mirza Abid Majeed, DPG Punjab with Muhammad Akram, SP Investigation, Pervaiz Ahmed, DSP/I.O and Tahir Inspector, Rajanpur for the State.

Shah Khawar, Advocate Supreme Court for the Complainant.

2021 S C M R 557

[Supreme Court of Pakistan]

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

MUHAMMAD DANIYAL FARRUKH ANSARI---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 1414 of 2020, decided on 18th January, 2021.

(Against the order dated 24.11.2020 passed by the Islamabad High Court, Islamabad in Criminal Miscellaneous No. 1154-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 11, 20, 21 & 22---Penal Code (XLV of 1860), Ss. 34 & 109---Hate speech, offences against dignity and modesty of a natural person and minor, child pornography, common intention, abetment---Bail, grant of---Offences alleged falling outside the prohibitory clause of S. 497, Cr.P.C.---Grant of bail was a rule and refusal thereof an exception---Admittedly, in the present case all offences alleged against accused fell outside the prohibitory clause of S. 497, Cr.P.C.---No exceptional circumstances had been pointed out to refuse concession of bail to the accused---Petition for leave to appeal was converted into an appeal and allowed, and accused was allowed bail.

Arshad Hussain Yousafzai, Advocate Supreme Court for Petitioner.

Moulvi Ijaz-ul-Haq, DAG along with Imran Haider, I.O./FIA for the State.

2021 S C M R 558

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Yahya Afridi, JJ

Messrs SAZCO (PVT.) LTD.---Appellant

Versus

ASKARI COMMERCIAL BANK LIMITED---Respondent

Civil Appeals Nos. 870 and 871 of 2012, decided on 19th October, 2020.

(On appeal against the judgment dated 17.01.2011 of the Peshawar High Court, Peshawar in F.A.B. Nos. 50 and 51 of 2009)

(a) Uniform Customs and Practice for Documentary Credits 500 (1993 Revision)---

----Art. 2---Letter of credit---Meaning and scope.

Modern documentary credits, in particular Letters of credit, were essentially a mode of prompt payment to a contracting supplier of goods in another country. The payment under the said facility was assured to the party selling the goods, even before the consignment reached the agreed destination under the underlying contract. The opening of a letter of credit constituted a contract, inter alia, between the Bank and the seller of the goods and imposed upon the Bank an absolute obligation to pay the seller.

Hamzeh Malas and Sons v. British Imex Industries Ltd. 1958 (2) Q.B. 127; Abdul Kadir Jangda v. My Bank Ltd. 2007 CLD 349; Bank Solvency and Guaranty Letters of Credit, Stanford Law Review V. 25 (1972 at p. 719); R D Harbottle Limited v. National Westminster Bank (1977) 2 All ER 862 and Halsbury's Laws of England Vol. 34, Paragraph 319 at page 185 ref.

(b) Uniform Customs and Practice for Documentary Credits 500 (1993 Revision)---

----Arts. 2, 3, 4, 13 & 14(b)---"Letter of credit"---Salient features---"Independence-autonomy principle" and "strict performance principle"---Meaning and scope.

Documentary credit was separate and independent from the underlying sales contract or other transaction between the commercially contracting parties. This "autonomy" of the credit had been expressly addressed in various provisions of Uniform Customs and Practice for Documentary Credits 500 (1993 Revision) ["UCP 500"], and in particular in Articles 3 and 4 of the UCP 500.

Hamzeh Malas v. British Imex Industries Limited 1958 (2) QB 127; Ward Petroleum Corp. v. Federal Deposit Ins. Corp. 903 F.2d 1297 and OGDCL v. Excel Techno Solutions FZE, U.A.E. 2017 CLD 1274 ref.

Reading of Articles 3 and 4 of UCP 500 highlighted the intent of its drafters; to insulate the compliance of the terms of credit by the paying Bank from any provision of the underlying contract between the applicant/buyer and beneficiary/seller. The paying Bank was only to deal with the documents 'alone'. More importantly, the paying Bank was to ensure that as long as the documents tendered by or on behalf of the seller were, on the face of it, in accordance with the terms of credit, it was under an obligation to make the payment regardless of any dispute between the seller and the buyer, may it be the quality of the goods or otherwise. One must appreciate that while reviewing documents under credits, the Banks were to deal with documents and not goods.

Hamzeh Malas and Sons v. British Imex Industries Ltd. 1958 (2) Q.B. 127; United City Merchants (Investments) Ltd. v. Royal Bank of Canda [1983] 1 AC 168; S. A. Hameed v. Allied Bank of Pakistan Limited 2004 CLD 1620; Haral Textiles Limited v. Banque Indosuez Belgium, S.A. 1999 SCMR 591; Power Curber International Ltd. v. National Bank of Kuwait (1981) 3 All ELR 607; Haroon Rashid Chaudhri v. Muslim Commercial Bank 2006 CLD 1140; Blonder & Co. v. Citibank N.A. 28 A.D.3d 180 and Allied Plastic Industries (Pvt.) Limited v. ICC Chemical Corporation 2020 CLD 720 ref.

Above mentioned principle of 'autonomy' was however not absolute. It had an exception, i.e. when fraud was alleged and established.

Ulster Bank v. Synnott (1871), I.R. 5 Eq. 595; Woods v. Thiedemann (1862), I.H. & C.478; Basse and Selve v. Bank of Australasia (1904), 90 L.T. 618; Guaranty Trust Co. of New York v. Hannay & Co., (1918) 2 K.B. 623, C.A.; Re Salomon & Co. and Naudszus (1899), 81 L.T. 325; Robinson v. Reynolds (1841), 2 Q.B. 196; Thiedemann v. Goldschmidt (1859), 1 De G. F. & J. 4; Halsbury's Law of England Third Edition, Volume 2, Pages 220-221; Sztejn v. J Henry Schroder Banking Copn. 1941 31 NYS 2d 631; Blonder & Co. v. Citibank, N.A. 28 A.D.3d 180; Hamzeh Malas and Sons v. British Imex Industries Ltd. 1958 (2) QBD 127; R.D. Harbottle (Mercantile) Ltd. and another v. National Westminister Bank Ltd. 1977 (2) All ER 862; Edward Owen Engineering Ltd. v. Barclays Bank International Ltd. 1978 (1) All ER 976; UCM (Investment) v. Royal Bank of India 1982 (2) All ER 720; Gian Singh & Co Ltd. v. Banque de I'Indochine [1974] 2 All ER 754; Bolivinter Oil SA v. Chase Manhattan Bank (1984) 1 All ER 351; United Trading Corpn. SA v Allied Arab Bank Ltd [1985] 2 Lloyd's Rep 554; Turkiye Is Bankasi AS v. Bank of China [1998] 1 Lloyd's Rep 250; Himadri Chemicals Industries Ltd. v. Coal Tar Refining Company AIR 2007 SC 2798; U.P. State Sugar Corporation v. Sumac International Ltd. AIR 1997 SC 1644; Svenska Handelsbanken v. Indian Charge Chrome AIR 1994 SC 626 and U.P. Coop. Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. [1988] 1 SCR 1124 ref.

The other principle governing documentary credit - doctrine of strict compliance, posited the Bank to stringently follow the terms of credit, while examining the documents tendered by the seller thereunder. The paying Bank, while examining the documents under the credit, was only obliged to examine, whether the same appeared to conform to the language of the terms of the credit. The Bank was not under a duty to carry out an enquiry during the said scrutiny. More so, the actions or inaction of the Bank during the examination of documents under the credit should not be seen to suggest an attempt to either accept discrepant or reject conforming documents. However, over time, there has been a judicial realisation that in certain cases, the principle of strict performance should not be followed in a literal and robotic manner.

Equitable Trust Co of New York v. Dawson Partners Ltd (1926) 27 L1 L Rep 49 at 52; English, Scottish and Australian Bank Ltd v. Bank of South Africa (1922) 13 L1 L Rep 21 at 24; Equitable Trust Co of New York v Dawson Partners Ltd (1927) 27 LI L Rep 49, at 52; J H. Rayner & Co Ltd v Hambro's Bank Ltd. [1943] KB 37; Gian Singh & Co Ltd v Banque de I'Indochine [1974] 2 All ER 754; Bankers Trust Co v. State Bank of India [1991] 2 Lloyd's Rep 443; Seaconsar Far East Ltd v. Bank Markazi Jomhouri Islami Iran [1993] 1 Lloyd's Rep 236; Beyene v Irving Trust Co. 762 Fed 4 (US Ct of Apps (2nd Cir) (1985) and International Standard Banking Practice for the examination of documents under documentary credit (2003) ref.

Joint reading of Articles 13 and 14(b) of the UCP 500 highlighted that that the strict obligation of the Bank to make the payment under the credit was made conditional upon the supplier or any person on its behalf tendering to the paying Bank all the documents stated in the credit, which were to conform to the terms of the credit. In case, the documents so tendered by the seller/beneficiary failed to conform with the terms of the credit, the payment by the Bank to the beneficiary/seller was to be refused.

OGDCL v. Excel Techno Solutions FZE, U.A.E. 2017 CLD 1274 ref.

(c) Uniform Customs and Practice for Documentary Credits 500 (1993 Revision)---

----Arts. 2, 3, 4, 13 & 14(b)---"Letter of credit"---Principles---Scope of 'independence-autonomy principle', 'strict performance principle' and other general principles in relation to documentary credits, stated.

(i) All documents stipulated in the credit were to be tendered by or on behalf of the seller/beneficiary to the Bank for seeking payment under the credit;

(ii) When the requisite documents were presented by or on behalf of the seller, the same were to be examined by the Bank "with reasonable care", to ascertain whether or not, the documents so tendered, on the face of it, complied with the terms and conditions of credit;

(iii) The doctrine of strict performance of the terms of the credit was to be observed and construed with such rigidity, so as to preserve the legitimacy of documentary credits subject to the facts and circumstances of each case;

(iv) The rule of autonomy mandated Bank to make the payment on the tender of conforming documents, irrespective of any dispute between the parties in respect of the underlying contract.

(v) The rule of autonomy was, however, not absolute. It had an exception, when there was a clear fraud, of which the paying Bank had notice before the payment was made to the seller/beneficiary, and the evidence of the fraud was clear and convincing.

(d) Uniform Customs and Practice for Documentary Credits 500 (1993 Revision)---

----Arts. 2, 3, 4, 13 & 14(b)---Contract Act (IX of 1872), S. 182---International sale transaction---"Letter of credit"---Principal-agent relationship between Bank issuing credit (issuing Bank) and nominated Bank---Claim against issuing Bank on grounds of fraud---Jurisdictional maintainability---Contractual relationship existed between the applicant of a credit with the Bank issuing the credit (issuing Bank), and also with the nominated Bank, which was to make the payment under the credit on presentation of the documents---Nominated Bank, which was to make the payment under the credit, acted as an agent of the issuing Bank---Issuing Bank would be bound and responsible for the actions or inactions of its agent carried out under the said agency---Thus, an applicant of credit registered in Pakistan would have a valid cause of action against an issuing Bank in Pakistan on two counts; first as a principal, for the actions or inactions of its agent/nominated-Bank in a foreign country; and secondly, as an issuing Bank, on receipt of (fraudulent) documents transmitted by the nominated Bank---Rationale behind the recognition of these legal relationships, which were established with the opening of documentary credit, was to bring certainty in the performance of obligations and payment of consideration of international sales transactions across the globe.

(e) Words and phrases---

----"Bill of lading"---Meaning.

Black's Law Dictionary, 8th Edn. and Carver on Bills of Lading, (Fourth Edition 2017), Sir Guenter Treitel and F.M.B Reynolds ref.

(f) Uniform Customs and Practice for Documentary Credits 500 (1993 Revision)---

----Arts. 2, 3, 4, 13 & 14(b)---"Letter of credit"---Bills of Lading---Allegation of forgery---Dispute between appellant-company and respondent-Bank over irrevocable Letters of Credit ("L.Cs.") availed by the former from the latter to finance a transaction with an international supplier---Both appellant-company and respondent-Bank filed recovery suits against each other---Banking Court decreed suit of respondent-Bank and dismissed that of the appellant-company---Plea of appellant-company that courts below had not appreciated the fraud committed by the supplier which tendered forged Bills of Lading to the nominated Bank in the foreign country; that the Bills of Lading presented by the supplier were discrepant to the terms of the L.Cs. and thus violated the Uniform Customs and Practice for Documentary Credits 500 (1993 Revision) ("UCP 500"); and thus the respondent-Bank was not entitled to any payment from the appellant-company under the L.Cs. and the amount so received from the appellant-company was to be reimbursed to it---Held, that perusal of the Bills of Lading showed that the goods described therein were in accord with the terms of the L.Cs.---Also, there were express markings thereon, stating: "Third-Party Bills of Lading"; the freight of the consignments had been "Prepaid"; and that the goods "shipped"---Bills of Lading provided complete particulars relating to the transportation of the goods: name of the shipper, the assignee (the respondent-Bank) and the applicant (appellant-company), the date on which the goods were shipped, the period of loading and its destination---Thus, the Bills of Lading were "clean", as all the terms of the transportation were stated therein, and it did not refer to the same by reference to another document---Bills of Lading mentioned the shipping and forwarding services company, which was marked as the agent of the carrier---Such fact was also brought to the notice of the issuing Bank (respondent-Bank) by the nominated Bank---Respondent Bank had to set up a prima facie case based on what appeared on the face of the documents tendered to be in accord with the underlying credit before making payment to the seller, which it had before the Banking Court---Appellant-company had to establish fraud by the seller relating to the documents so presented, and that too, before the payment was made to the seller, which it failed to do before the Banking Court---Mere bald unsubstantiated allegation would not legally suffice for the paying Bank to deny the payment to the seller under the credit---Essential legal requirements required to assert fraud had not been met by the appellant-company, as in the plaint of the appellant-company, neither had the fraudster been named in the memo, nor had he been impleaded as a party to the suit---Appellant-company failed to discharge its onus under the law to prove its claim regarding the tendered Bills of Lading being forged, or that the documents so produced were discrepant to the terms of the L.Cs., and thus violated the provisions of UCP 500---Appeals were dismissed, in circumstances.

(g) Fraud---

----Proof and scope---Fraud vitiated the most solemn of transactions, but proving fraud required strict proof---Onus to prove fraud remained on the asserter---Moreover, not only was the fraudster to be named and impleaded as a party to the suit, but the particulars of the fraud were also to be pleaded with clarity and certainty.

Ghulam Rasul v. Muhammad Akram 1988 SCMR 1080; Muhammad Ishfaq v. Chouhdri Muhammad Nawaz 2008 SCMR 1095; Haji Abdul Ghafoor through legal heirs v. Ghulam Sadiq through legal heirs PLD 2007 SC 43 and Muhammad Saleem v. Muhammad Tariq 2009 CLC 1295 ref.

Sahzib Masud, Advocate Supreme Court for Appellant (in both cases).

Iqbal Javed, Advocate Supreme Court for Respondent (in both cases).

2021 S C M R 584

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

DEPUTY POSTMASTER GENERAL, CENTRAL PUNJAB, LAHORE and another---Appellants

Versus

HABIB AHMED---Respondent

Civil Appeal No. 498 of 2020, decided on 27th January, 2021.

(Against judgment dated 30.08.2018 of Federal Service Tribunal, Lahore, passed in Appeal No. 77(L) of 2016).

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

----R. 4(1)(b)(iv)---Service Tribunals Act (LXX of 1973), S. 5 (1)---Misappropriation of public money, breach of trust, inefficiency and misconduct--- Dismissal from service--- Leniency in award of punishment by the Service Tribunal when charge stood proved/ admitted---Propriety---Respondent-employee had confessed/ admitted the commission of offence of misappropriation, misconduct and breach of trust which attracted the major penalty of dismissal from service which was rightly awarded by the department considering that the respondent being in a position of trust had blatantly, repeatedly and intentionally committed breach of trust and misappropriated public funds that had been entrusted to him---However, having not found any erroror defect in the proceedings conducted by the department including the inquiry as well as the admission/confession of the respondent and having concluded that the charge of misappropriation stood established, the Service Tribunal opted to interfere with the penalty by taking a lenient view and converting the same into compulsory retirement---In doing so, the Tribunal lost sight of principles laid down by the Supreme Court in various judgments spelling out the parameters for exercise of jurisdiction under section 5 of the Service Tribunals Act, 1973 --- Tribunal had not only exceeded its jurisdiction but exercised the same in a manner which was in violation of the settled principles of law on the subject---Further, in converting the major penalty of dismissal from service into compulsory retirement, the Tribunal had failed to assign any cogent, legally sustainable and valid reasons to support its finding---Appeal was allowed, impugned judgment of Tribunal was set-aside and penalty of dismissal from service imposed by the departmental authorities was restored.

Government of Pakistan v. Nawaz Ali Sheikh 2020 SCMR 656; Chief Postmaster Faisalabad v. Muhammad Afzal 2020 SCMR 1029; Government of the Punjab v. Muhammad Arshad 2020 SCMR 1962 and District Police Officer v. Muhammad Hanif 2020 SCMR 1610 ref.

(b) Service Tribunals Act (LXX of 1973)---

----S. 5(1)---Federal Service Tribunal, powers of---Structured exercise of jurisdiction---Scope---Although the Tribunal had the discretion to interfere in questions of quantum of punishment, such discretion could neither be arbitrarily exercised nor were powers of the Tribunal unqualified or unlimited---Where the Tribunal exercised its discretion to interfere in the penalty awarded by the competent authorities, such discretion had to be exercised in a circumscribed, restricted and structured manner duly supported by legally sustainable reasoning.

Sajid Ilyas Bhatti, Additional AGP and Shehzad Saleem, ASPO for Appellants.

M. Ramzan Khan, Advocate Supreme Court for Respondent.

2021 S C M R 590

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

PROVINCE OF PUNJAB through Secretary Primary and Secondary Healthcare, Punjab, Lahore and others---Petitioners

Versus

Messrs BLOOM PHARMACEUTICALS (PVT.) LIMITED and others---Respondents

C. P. 1692-L/2020, C. P. 1792-L/2020 and C.P. 5-L of 2021, decided on 28th January, 2021.

(Against the orders of Lahore High Court, Lahore dated 08.09.2020, passed in W.P. No.40067/2020, dated 15.09.2020 passed in W.P. No.415/2020, dated 17.11.2020 passed in W.P. No.32377/2020)

Drugs Act (XXXI of 1976)---

----Ss. 22(4) & 22(5)---Reports of Government Analysts---Provincial Quality Control Board --- Discretion to allow or reject a request for re-testing---Scope---Question as to whether the Provincial Quality Control Board ("Board"), etc. enjoyed the "discretion" under S. 22(5) of the Drugs Act, 1976 ('the 1976 Act') to either allow or reject the request of the accused or the complainant for re-testing of the drug---Held, that other than the suo motu power enjoyed by the Board, etc. to send the drug for retesting, the Board, etc. also enjoyed the discretion to allow or disallow the request for re-testing by the accused or the complainant---Board, etc. enjoyed independent discretion to allow or disallow the request of the accused or the complainant for re-testing after considering the grounds against the Report and by passing a speaking order in such regard.

Perusal of sections 22(4) and 22(5) of the Drugs Act, 1976 ('the 1976 Act') showed that once the Report was received by the person, from whom the sample was taken (referred to as an accused in subsection (5), he could within ten days file, in writing, before the Inspector, or the Board, etc. where his case was pending, his intention to adduce evidence in contravention of the Report. This intention of adducing evidence in contravention of the Report actually was in the nature of a complaint against the Report specifying the grounds of contravention of the Report, on the basis of which, the person proposed to adduce evidence later on. Unless, subsection (5) was invoked, the complaint against the Report took its lawful course and the matter was finally concluded by the Board, etc. which had received such a complaint.

However, before the matter regarding the Report was concluded under subsection (4), subsection (5) of section 22 of the 1976 Act provided yet another avenue to the accused, as well as, the complainant. Once the complaint was filed against the Report by the accused within ten days as required by section 22(4), the Board or any other authority, before whom such a complaint against the Report was pending, could on its own motion or in its discretion on the request of the accused or the complainant may allow re-testing of the drug from the Federal Drug Laboratory, etc. Other than the suo motu power enjoyed by the Board, etc. to send the drug for retesting, the Board, etc. also enjoyed the discretion to allow or disallow the request for re-testing by the accused or the complainant. The request would be examined on the basis of the grounds already raised by the accused against the Report filed within ten days under section 22(4) of the 1976 Act. The said request, did not stand alone and must be preceded with a complaint under section 22(4) of the 1976 Act. There was no timeframe under the law for filing such a request but according to the scheme of the law such a request was to be made prior to the decision of the complaint filed by the accused against the Report under section 22(4). On the whole, the Board, etc. enjoyed independent discretion to allow or disallow the request of the accused or the complainant for re-testing after considering the grounds against the Report and by passing a speaking order in such regard.

Rana Shamshad Khan, Additional A.G. along with Shaheen Iqbal, Secretary, Aleem Akhtar Cheema, Law Officer and M. Farooq Bashir Butt, Director for Petitioners (in all cases).

Rana Maqsood Afzal, Advocate Supreme Court for Respondents (in C.P. 1692-L of 2020).

Haroon Dugal, Advocate Supreme Court for Respondents (in C.P. 5-L of 2021)

Nemo for Respondents (in C.P. 1792-L of 2020).

2021 S C M R 595

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD KHALIQ MANDOKHAIL---Petitioner

Versus

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

Civil Petition No. 4428 of 2019, decided on 16th February, 2021.

(Against the judgment dated 31.10.2019 of the Balochistan Service Tribunal, Quetta passed in Appeal No.490/2018)

(a) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 11---Alteration of date of birth in service record---Disallowed---Malafide of Education Board in changing date of birth---Academic credentials of the petitioner-civil servant clearly reflected that the date of birth was recorded as 1-3-1959 on every document including NADRA record---Petitioner moved for correction of his date of birth after a lapse of 22 years of continuous service in the year 2014, and approached the Board of Intermediate and Secondary Education ('the Board'), to get his date of birth changed from 01-03-1959 to 20.12.1963---Board without any hesitation proceeded according to the whims of the petitioner and made the alteration, when it had no authority to entertain such a request---In the absence of any declaration from a Civil Court of competent jurisdiction, the Board was not empowered to change the date of birth---Whole proceedings carried out by the Board smacked of mala fide---Consequently the proceedings carried out regarding the change of date of birth were prima facie based upon an act of Board which was mala fide, based upon extraneous consideration, therefore, any superstructure raised over it would fall to the ground---Since the whole proceedings for alteration of date of birth were carried out by the petitioner after a lapse of 22 years of active service, therefore, it could safely be held that such proceedings were based upon an afterthought just to prolong the service tenure on the basis of frivolous and tainted documents---Petition for leave to appeal was dismissed and leave was refused with the observation that the Supreme Court in a number of cases had discouraged change in the date of birth of a civil servant, which could be for the purpose of unduly enhancing the tenure of service in employment.

Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

(b) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 11---Alteration/correction of date of birth in service record---Pre-requisites--- While seeking such an alteration/correction, a declaration was sine qua non which could only be issued by the Civil Court of competent jurisdiction on the basis of evidence produced during the proceedings regarding the authenticity of the subject matter.

(c) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 11---Alteration/correction of date of birth in service record---Scope---Civil servant could not seek alteration in his date of birth at the verge of his retirement.

Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 ref.

(d) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 11---Alteration/correction of date of birth in service record---Rule 11 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, interpretation of---Date of birth of the petitioner mentioned in his Secondary School Certificate was 01-03-1959, while in his service book, it was registered as 20-12-1963---Plea of petitioner that according to R. 11 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, (the 2009 Rules) the date of birth of a civil servant once recorded at the time of joining the government service shall be final and no alteration therein shall be permissible---Held, that service book was only a piecemeal and for all intents and purposes it would not be considered as a complete service record---Other documents relating to his service record including the academic record, the CNIC, the seniority lists prepared on different occasions, the ACRs and the retirement notification, all conjointly reflect that the date of birth of the petitioner was incorporated as 01.03.1959---Petitioner agitated his grievance in the year 2014 after a lapse of 22 years of joining service---Proceedings initiated by the petitioner seeking alteration in the date of birth while pressing in R. 11 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 were intended on the basis of extraneous considerations just to prolong his service period---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2021 S C M R 600

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Umar Ata Bandial, Ijaz ul Ahsan, Mazhar Alam Khan Miankhel and Munib Akhtar, JJ

PAK GULF CONSTRUCTION (PVT.) LIMITED, THE CENTAURUS MALL, ISLAMABAD---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and others---Respondents

Civil Petition No. 4500 of 2017 and Civil Misc. Applications Nos. 4948, 4962, 5517, 6917, 6949, 6916 and 8718 of 2019 in Civil Petition No.4500 of 2017 and C.M.A. No.11072 of 2019 in S.M.C. No.25 of 2018, decided on 14th December, 2020.

(Regarding non-implementation of the order dated 04.12.2018)

Capital Development Authority Ordinance (XXIII of 1960)---

----S. 15 & Preamble---Matter regarding different issues plaguing city of Islamabad---Service roads and parking lot adjoining Centaurus Tower---Overflow of parking on service lanes causing inconvenience to residents of adjoining areas---Restoration and construction of underground parking facilities---Clean up operation through out the city including clearing sewage streams---Garbage collection---Repair and maintenance of roads---Utilization of Sewage Treatment Plant---Wide scale plantation of trees--- Installation of portable public toilets---Construction of pedestrian bridges and Interchanges for traffic management---Prevention of encroachment of green areas---Chairman, Capital Development Authority ('CDA') apprised and briefed the Supreme Court of all the measures that were being taken by the Authority for resolving all the said issues---Supreme Court after hearing the Chairman, CDA directed Office to re-list the matter after the winter vacations.

Nemo for Petitioner.

Amir Ali Ahmed, Chairman CDA and M. Munir Paracha, Advocate Supreme Court for CDA.

Niaz Ullah Niazi, A.G. Islamabad and Azam Khan, Acting Mayor for ICT.

Barrister Umer Aslam, Advocate Supreme Court and Cap.(R) Sikandar Qayum, Chairman, NHA for NHA.

Applicants in person (in C.M.A. 4948 of 2019).

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Applicants (in C.M.A..6917 of 2019).

Malik Qamar Afzal, Advocate Supreme Court for Applicants (in C.M.A. 6949 of 2019).

M. Ali Raza, Advocate Supreme Court for Appellants (in C.M.A. 11072 of 2019).

2021 S C M R 605

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

MUHAMMAD RIAZ and others---Petitioners

Versus

Mst. BADSHAH BEGUM and others---Respondents

Civil Petition No. 1630 of 2018 and C.M.A. No.4061 of 2018, decided on 24th February, 2021.

(Against the order dated 23.01.2018 of the Lahore High Court, Rawalpindi Bench passed in C.R.No.352/08)

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

----S. 54---Civil Procedure Code (V of 1908), O. VI, Rr. 2, 3 & Appendix A---Contract Act (IX of 1872), S. 29---Specific Relief Act (I of 1877), Ss. 12 & 21(c)---Oral sale agreement for immoveable property---Agreement void for uncertainty---Pleadings---Scope---Petitioner-purchaser had alleged that an oral agreement for sale of the subject land was made between the parties but the particulars of the land and of the oral agreement were not detailed in the plaint---Land sought to be purchased was not particularized in the plaint, and the witnesses of the said oral agreement (if any) were also not mentioned---Furthermore plaintiffs did not set out the particulars of such oral agreement as per the two prescribed forms for a plaint seeking specific performance provided in Appendix A of C.P.C. or as nearly as may be thereto, and also did not describe the land which was the subject matter of the agreement---Subject agreement would, therefore, be void for uncertainty in terms of section 29 of the Contract Act, 1872 and consequently, it could not be specifically enforced as stipulated by S. 21(c) of the Specific Relief Act, 1877---Petition for leave to appeal was dismissed and leave was refused.

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

----O. XVIII, R. 3---Evidence where several issues-- Evidence in rebuttal---Scope---Primary evidence in support of a claim could not be categorized as evidence in rebuttal.

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

Tanveer Iqbal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 1 - 5.

Nemo for Respondents Nos. 6 - 15.

2021 S C M R 609

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

Messrs SUI SOUTHERN GAS COMPANY LTD.---Appellant

Versus

ZEESHAN USMANI and others---Respondents

Civil Appeals Nos. 936 and 937 of 2020, decided on 18th February, 2021.

(On appeal against the judgment dated 07.04.2020 passed by the High Court of Sindh, Karachi in Constitutional Petitions Nos.D-5850 and D-5851 of 2018)

(a) Master-servant---

----Contract employees of Sui Southern Gas Company Ltd.---Plea for regularization in service, dismissal of---Admittedly, the respondents were contract employees and their relationship was governed by the principle of 'master and servant'---Regularization of the respondents was not part of the terms and conditions of their service because for that purpose statutory rules were required and admittedly there were no statutory rules for Sui Southern Gas Company Ltd.---Appeals were allowed.

(b) Master-servant---

----Contract employees---Such employees had no vested right to claim regularization.

Government of Khyber Pakhtunkhwa Workers Welfare Board v. Raheel Ali Gohar 2020 SCMR 2068 ref.

Asim Iqbal, Advocate Supreme Court for Appellant (in both cases).

Malik Naeem Iqbal, Advocate Supreme Court (Islamabad) and Mrs. Abida Parveen Channar, Advocate-on-Record (through video link from Karachi) for Respondent No. 1.

2021 S C M R 612

[Supreme Court of Pakistan]

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

MUHAMMAD IDREES and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition 742-L of 2019 and Criminal Petition 629-L of 2019, decided on 21st January, 2021.

(Against the judgment of Lahore High Court, Multan Bench, dated 13.03.2019, passed in Crl. A. No.908/2017)

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

----Ss. 172(1) & 172(2)---Police diary, contents of---Purpose and admissibility.

Section 172(1), Cr.P.C. mandates every Police Officer making investigation of a case to maintain a diary (commonly known as 'police dairy' or 'case dairy') of proceedings conducted by him in the course of that investigation, by requiring him to enter in that dairy: (i) the time at which any information relating to the offence under investigation reaches him on a particular day; (ii) the time at which he begins and closes his investigation on a particular day; (iii) the place or places visited by him on a particular day, concerning the investigation of the case; and (iv) a statement of the circumstances ascertained on a particular day through his investigation. The object to require recording of the said details in the police dairy appears to be to enable the courts to check the method and manner of investigation undertaken by the investigating officer. Until the honesty, the capacity, the discretion and the judgment of the Police can be thoroughly trusted, it is necessary for the protection of the public against criminals, for the vindication of the law, and for the protection of those who are charged with having committed a criminal offence that the Magistrate or Judge before whom the case is for inquiry or for trial should have the means of ascertaining what was the information (true, false, or misleading) which was obtained from day to day by the Police Officer who was investigating the case, and what were the lines of investigation upon which such Police Officer acted. A properly kept police diary would afford such information, and such information would enable the Magistrate or Judge to determine whether persons referred to in the police diary, but not sent up as witnesses by the Police, should be summoned to give evidence in the interests of the prosecution or of the accused. It is the duty of the Magistrate or of the Judge before whom a criminal case is, to ascertain the truth and to decide accordingly. It is axiomatic that a Police Officer who is investigating a criminal case, receives all sorts of information: true, false or misleading. The formulation of opinion on the basis of investigation by the Police Officer can also range from correct and fair opinion to a premature, biased, influenced or incorrect opinion. It is to check these infirmities that may creep into police investigation that it is essential that the Magistrate or the Judge, who is to hold the scales of justice evenly between the State and the accused, should have some means of ascertaining the quality of information obtained by the Police Officer during the course of investigation every day.

Queen v. Mannu, (1897) ILR 19 All 390 ref.

Section 172(2), Cr.P.C. empowers a Criminal Court to send for the police diaries of a case under inquiry or trial in that Court and permits use of such diaries to aid it in such inquiry or trial, but the provisions thereof expressly prohibit the use of such dairies as evidence in the case. The expression "to aid it in such inquiry or trial" indicates that it can be used by the Court for the purpose of enabling itself to have a better understanding of the evidence brought on the record of the case by the prosecution. Inspection of the police diaries can reveal sources of further inquiry, viz, the pointation of some important witnesses that the court can summon, or how the evidence produced was collected to better understand the links between the evidence on the record. The Court can thus use the police dairies in the course of inquiry or trial for resolving obscurities in evidence through questioning the relevant witnesses or for bringing relevant facts on record to secure the ends of justice through legally admissible evidence, e.g., by summoning as witness those persons who are though referred to in the police diary but not sent up as witnesses by the investigating officer and whose testimony appears to be relevant in the inquiry or trial, or by calling production of some document that appears to be relevant to the matter under inquiry or trial. The Court, however, cannot take the facts and statements recorded in police dairies as material or evidence for reaching a finding of fact: these diaries by themselves cannot be used either as substantive or corroborative evidence. The police diary is itself not the evidence and therefore inadmissible for having no evidentiary value; it is, however, just a source to help understand the undiscovered or misunderstood aspects of the evidence existing on the record, if any, and introduce new dimensions to the case, leading to discovery and production of new evidence, if required to meet the ends of justice. Whatever the court infers from a police diary must translate into admissible evidence in accordance with law, and the court cannot simply rely on, and adjudicate upon the charge on the basis of, statements made in the police dairy.

Queen v. Mannu, (1897) ILR 19 All 390; Dal Singh v. Emperor, AIR 1917 PC 25; Mohammad v. Emperor, AIR 1926 Lah. 54; Emperor v. Dharam Vir, AIR 1933 Lah 498; Habeeb Mohammad v. State of Hyderabad, AIR 1954 SC 51; Imam Bux v. Crown PLD 1956 Sind 262; Subhanuddin v. State 1976 SCMR 506; Allah Yar v. State 1984 PCr.LJ 2934; Tordi Khan v. State, 2005 PCr.LJ 1970 and Fazal-Ur-Rehman v. Federation PLD 2014 FSC 15 ref.

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

----Ss. 4(1)(l), 169, 170, 173(3), 204(1) & Chapt. XIV---Qanun-e-Shahadat (10 of 1984), Art. 59---Investigating Officer, opinion of---Admissibility in evidence.

The opinion of a Police Officer who has investigated the case as to the guilt or innocence of an accused person is not a relevant fact, and is therefore not admissible, under the Qanun-e-Shahadat, 1984; as he is not an "expert" within the meaning of that term as used in Article 59 of the Qanun-e-Shahadat, 1984. Even the Criminal Procedure Code (Cr.P.C.) does not authorize him to form such an opinion. To determine guilt or innocence of an accused person alleged to be involved in the commission of an offence is a judicial function that can only be performed by a court of law. This judicial function cannot be delegated to the Police Officer investigating the case. The Police Officers are empowered under the provisions of Chapter XIV of the Cr.P.C., only to investigate the non-cognizable offence with the order of a Magistrate and the cognizable offence without such order. This power of investigation, in no way, includes the power to determine guilt or innocence of the accused persons. An investigation, as defined in section 4(1)(l) of the Cr.P.C., includes all proceedings under the Cr.P.C. for the collection of evidence conducted by a Police Officer or by any other person authorized by a Magistrate. This definition makes it clear that the assignment of a Police Officer conducting an investigation is limited to the collection of evidence, and the evidence when collected has to be placed by him before the competent court of law. Only the court has the power and duty to form an opinion about the guilt or innocence of an accused person and to adjudicate accordingly on the basis of evidence produced before it. An opinion formed by the investigating officer as to the non-existence or existence of sufficient evidence or reasonable ground of suspicion to justify the forwarding of an accused person to a Magistrate under sections 169 and 170 of the Cr.P.C. does not tantamount to opinion as to the guilt or innocence of the accused person. And despite such opinion of the investigating officer, the final determination even as to the existence or non-existence of sufficient ground for further proceeding against the accused person is to be made by the Magistrate under sections 173(3) and 204(1) of the Cr.P.C. on examining the material available on record, and not on the basis of that opinion of the investigating officer.

Muhammad Ahmed v. State PLD 2006 SC 316; Muhammad Ahmad v. State 2010 SCMR 660 and Muhammad Arshad v. State PLD 2011 SC 350 ref.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Statement of doctor, who was an independent witness, regarding shifting of deceased from one hospital to another, which was also confirmed by the post-mortem report, was in contradiction to the statements given by the two purported eye-witnesses---Such contradiction shook credibility of the two eyewitnesses leading to the conclusion that they were not present at the scene of the crime---Ocular account of the two eye-witnesses had been rightly disbelieved by the High Court, against the acquitted co-accused, who was alleged to have played a similar role in the occurrence---In such circumstances the same evidence could not be relied upon to convict the accused, unless there was an independent corroboration of it to the extent of his involvement in commission of the offence---Recovery being inconsequential there was no corroborative evidence to distinguish the case of the accused from that of the acquitted co-accused---Ocular account and the contents of the crime report were also inconsistent with the medical evidence on the record with respect to number of fire shots received on the thighs of the deceased---Prosecution had failed to establish its case against the accused beyond reasonable doubt---Petition for leave to appeal was converted into appeal and allowed, the conviction and sentence of the accused was set aside and he was acquitted of the charge.

Mazhar Iqbal Sidhu, Advocate Supreme Court for Petitioners (in Criminal Petition No. 742-L of 2019).

Umar Hayat Bhatti, Advocate Supreme Court for Petitioners (in Criminal Petition No. 629-L of 2019).

Umar Hayat Bhatti, Advocate Supreme Court for the Complainant (in Criminal Petition No. 742-L of 2019).

M. Amjad Rafiq, Additional P.G. for the State.

2021 S C M R 621

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

FAREED and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 335 of 2020 and 678 of 2020, decided on 29th September, 2020.

(Against the judgment dated 18.02.2020 passed by the Peshawar High Court Peshawar in Criminal Appeal No.1323.P/2019 and Crl. Rev. No.260-P of 2019)

Penal Code (XLV of 1860)---

----Ss. 316 & 302(b)---Qatl Shibh-i-amd---Reappraisal of evidence---Novus actus interveniens, doctrine of---Not applicable---Though the injuries suffered by the deceased were apparently trivial, but because of fragility of old age he could not endure the injuries---Autopsy report noted multiple red colour bruises of various sizes on various parts of the body accompanied by laparotomy and surgical wound---According to the medical officer, the deceased died due to injuries in small intestine and abdominal blood vessels, seemingly insufficient to cause death in the ordinary course of nature, nonetheless, unmistakably suggesting infliction of violence that was proportionate to the number of assailants, additionally confirmed by the investigative conclusions---Though the medical officer had blamed the injuries as the cause behind the death, however, it could not be held with any degree of certainty that the said injuries were essentially caused by blunt weapons to invoke the doctrine of novus actus interveniens so as to saddle the accused persons with the mischief of S. 302(b), P.P.C. as argued by the complainant---Prosecution's failure to effect recovery reflected adversely upon the allegation of infliction of butt blows, and the violence inflicted upon deceased appears to be result of modes other than conventional---­High Court had rightly maintained the conviction of accused persons under S. 316, P.P.C. and reduced their sentence from 10 years to 5 years rigorous imprisonment---Petitions for leave to appeal were dismissed and leave was refused.

Asadullah Khan Chamkani, Advocate Supreme Court for Petitioners (in Cr. P. 335/2020).

Hussain Ali, Advocate Supreme Court for Petitioners (in Cr. P.678/2020).

Arshad Hussain Yousafzqai, Advocate Supreme Court/State Counsel for the State (in both cases).

Hussain Ali, Advocate Supreme Court for Respondents (in Cr. P.335/2020).

Asadullah Khan Chamkani, Advocate Supreme Court for Respondents (in Cr. P.678 /2020).

2021 S C M R 624

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Sayyed Mazahar Ali Akbar Naqvi, JJ

PROVINCE OF PUNJAB through Secretary Communication and Works Department, Lahore through Chief Engineer (North/Central) Punjab Highway Department, Lahore---Petitioner

Versus

YASIR MAJEED SHEIKH and others---Respondents

Civil Petition No. 1134-L of 2018, decided on 15th January, 2021.

(On appeal against judgment dated 01.03.2018 passed by the Lahore High Court, Lahore in Intra Court Appeal No. 1392/2017)

(a) Constitution of Pakistan---

----Arts. 25 & 199---Right of easement---Question of discrimination---Respondent installed a petrol pump and was given access from the main road---Subsequently the access from the main road was denied by the Provincial Highway Department (petitioner-department)---Respondent filed Constitutional petition, which was allowed with the observation that only the respondent's petrol pump had been denied access from the main road, thus, the petitioner-department was directed to provide access points to the petrol pump from the main road in the shape of entry and exit---Held, that that according to the reports of local commissions, although some of the petrol pumps had been given access from the main road but at the same time there were petrol pumps, which had no direct approach (but access from service road), therefore, the question of discrimination did not arise---Petition for leave to appeal was converted into appeal and allowed, impugned judgment of High Court was set-aside with the observation that the respondent could approach the Court of competent jurisdiction for redressal of his grievance in accordance with law.

(b) Constitution of Pakistan---

----Arts. 18 & 199---Right of easement---Freedom of trade and business---Scope---Questions of fact raised in a Constitutional petition before the High Court---Respondent installed a petrol pump and was given access from the main road---Subsequently the access from the main road was denied by the Provincial Highway Department (petitioner-department)---Respondent filed a Constitutional petition, which was allowed with the observation that only the respondent's petrol pump had been denied access from the main road, which was violation of Art. 18 of the Constitution, thus, the petitioner-department was directed to provide access points to the petrol pump from the main road in the shape of entry and exit---Held, that though Art. 18 of the Constitution guaranteed every citizen the right of freedom of trade, business or profession but said right of the respondent had not been infringed in the present case, because although he had been denied access from the main road but he had access from alternate route i.e. service road, which was 360 feet away from the main road---In these circumstances, existence of right of easement in respect of the respondent was a question of fact, which needed to be decided after recording of evidence and the same could not have been done in the Constitutional jurisdiction of the High Court---Petition for leave to appeal was converted into appeal and allowed, impugned judgment of High Court was set-aside with the observation that the respondent could approach the Court of competent jurisdiction for redressal of his grievance in accordance with law.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---In cases based upon factual propositions, extraordinary writ jurisdiction of the High Court should not be exercised on the mere apprehension of the party---Jurisdiction conferred on the High Courts under Art. 199 of the Constitution was an extraordinary relief and the same had to be exercised in aid of justice and not to interfere in jurisdictions of other statutory forums unless it was shown that the impugned order, action or inaction was in violation of any provision of law or without lawful authority or jurisdiction.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Alternate remedy, availability of---Where the law had provided an adequate remedy, constitutional jurisdiction under Art. 199 of the Constitution could not be exercised as the same was to be exercised in exceptional circumstances, which could justify invoking the said jurisdiction---Propensity to bypass remedy provided under the relevant statute by resorting to constitutional jurisdiction was to be discouraged so that legislative intent was not defeated.

Barrister Qasim Ali Chohan, Additional A.G. and Asif Bashir, Deputy Director Legal for Petitioner.

Barrister Umer Riaz, Advocate Supreme Court for Respondent No.1

2021 S C M R 629

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Yahya Afridi, JJ

HAIDER ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1323-L of 2020, decided on 10th February, 2021.

(On appeal against the judgment dated 12.10;2020 passed by the Lahore High Court, in Criminal Miscellaneous No. 31391/B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 148, 149 & 201---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Divergent stance of complainant---Although the FIR was chalked out on a written application of the complainant but name of the accused was not mentioned in the said FIR, rather it was mentioned that an unknown person fired four shots at the deceased, who could be identified by the complainant if brought before him---Subsequently, supplementary statement of complainant was recorded, wherein he categorically stated that he identified the accused at the spot, then and there when he made fire shots upon the deceased---Such divergent stance of the complainant made the case of the accused one of further inquiry falling under subsection (2) of S. 497, Cr.P.C.---Petition for leave to appeal was converted into an appeal and allowed, and the accused was released on bail.

Shamim-ur-Rehman Malik, Advocate Supreme Court for Petitioner.

Ch. M. Sarwar Sidhu, Additional P.G. (Punjab) and Imtiaz, SI for the State.

Ch. Asghar Ali Gill, Advocate Supreme Court for the Complainant.

2021 S C M R 630

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Administration Department and others---Appellants

Versus

LIAQUAT ALI---Respondent

Civil Appeal No. 268 of 2020, decided on 18th January, 2021.

(Against the order dated 04.04.2018 passed by the Peshawar High Court, Peshawar in Constitutional Petition No. 3139-P of 2017).

(a) Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----Ss. 2(b) & 3---Contract employee---Regularization in service---Respondent was employed on contract basis as an Electrician in the Benevolent Fund Cell of Provincial Administration Department, and his contract was extended from time to time---Other contract employees, except the respondent, were regularized in service under S. 3 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act')---Respondent assailed the issue through a constitutional petition in the High Court, which was allowed and directions were given to regularize the services of the respondent---Held, that perusal of the appointment order of respondent showed that it was signed by the Secretary to the Provincial Government, Administration Department, Benevolent Fund Cell---Said Secretary was a member of the Board of Management constituted by the Provincial Chief Secretary---Respondent was appointed by the Provincial Government on contract and was an employee for the purposes of S. 2(b) of the 2009 Act---Respondent also fulfilled all the pre-conditions for regularization provided under S. 3 of the 2009 Act---Direction of the High Court to regularize the respondent was based on the correct legal and factual position---Appeal was dismissed.

(b) Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----Ss. 2(b) & 3---Contract employee---Regularization in service---Appointment contract containing the term that contract employee could not seek regularization in service---Held, that language of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act') overrode such contractual disclaimers and if it was shown that a person fell within the purview of the 2009 Act and fulfilled the pre-conditions (for regularization provided under S. 3 of the 2009 Act), he could seek regularization.

(c) Administration of justice---

----Nobody should be allowed to benefit from their own default.

Shumail Ahmad Butt, Advocate General, Khyber Pakhtunkhwa, Atif Ali Khan, Additional A.G., KPK, Barrister Qasim Wadood, Additional A.G., KPK with Irum Shaheen, DD, HED, Asif Khan, Litigation Officer, HED, Amin Jan, AD, Fisheries, Gulzar Mahmood, AD Fisheries KPK, Engr. Falak Niaz, AD (Dost), Rajbar Khan, SDO, PHE, KPK, Saadullah, Asstt. Secretary, BOR, KPK, Faheem Ullah Khan, Senior Law Officer, KPPSC, Assad Ullah Khan, SO, P&D Department and Amanatullah Qureshi, Dy. Secy., Finance Deptt. KPK for Appellants.

Khaled Rahman, Advocate Supreme Court for Respondent.

2021 S C M R 637

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

PESCO, WAPDA HOUSE through Chief Executive---Appellant

Versus

ISHFAQ KHAN and others---Respondents

Civil Appeal No. 900 of 2020, decided on 1st February, 2021.

(On appeal against the judgment dated 23.10.2019 passed by the Peshawar High Court, Peshawar in Writ Petition No. 618-P of 2019)

(a) Khyber Pakhtunkhwa Industrial Relations Act (XVI of 2010)---

----S. 48(4)---Constitution of Pakistan, Art. 199---Labour Court, jurisdiction of---Scope---Policy, notification or an executive order---Power to strike down a policy, notification or an executive order if it infringed the rights of an individual or group of individuals or if it was found to be arbitrary, unreasonable or violative of law or Constitution, rested exclusively with the High Court under Art. 199 of the Constitution, and a challenge could be thrown to such a policy, notification or the executive order by way of filing a Constitutional petition---Labour Court was not seized with such jurisdiction---In the present case, jurisdiction exercised by the Labour Court while directing an electric supply company to constitute a committee to grant promotion to the respondents against a quota while drawing analogy with other similar electric companies was beyond its scope---Appeal was allowed.

(b) Khyber Pakhtunkhwa Industrial Relations Act (XVI of 2010)---

----S. 37(1)---Grievance petition---Competency---Promotion policy of an organization/authority---Grievance petition would only be competent if the grievance was with regard to a 'right guaranteed under law, settlement, or award'---Word law used in S. 37(1) of the Khyber Pakhtunkhwa Industrial Relations Act, 2010 meant that it had to be a legal right guaranteed by the statute and not a policy of the organization.

(c) Khyber Pakhtunkhwa Industrial Relations Act (XVI of 2010)---

----S. 48(4)---Labour Court, jurisdiction of---Scope--- Promotion policy of Peshawar Electric Supply Company (PESCO)---Respondents, who were working as regular Upper Technical Subordinate (UTS) in PESCO/appellant department, sought their promotion to the post of Junior Engineers/Assistant Managers (BPS-17) against 5% quota reserved for UTS graduate engineers---Appellant department/PESCO declined said request of respondents with the clarification that the said quota was meant for induction/direct recruitment and not promotion---Labour Court allowed grievance petition of respondents by holding that since there was 5% quota for promotion according to the policy issued by the Pakistan Water and Power Development Authority (WAPDA) and since all other similar electric companies were following the policy of WAPDA, the PESCO was also bound to follow instructions and policies of WAPDA---Legality---Admittedly, PESCO was a distinct entity, which had its own statutory rules---Law did not permit that a statutory body, which had its own rules, be compelled to adopt the rules of another separate entity---Labour Court only had the authority to interpret and deal with the respondents under the policy of PESCO, which clearly said that the 5% quota was for induction/direct recruitment and not for promotion---Clarification had been issued by PESCO that the posts in question were to be filled in by way of induction and not promotion, which meant that there would be fresh appointment and not the continuation of the earlier job---Labour Court had no power to direct PESCO to adopt the rules of WAPDA or similar constituent companies and had wrongly assumed jurisdiction---Appeal was allowed.

(d) Void order---

----If an order was void, without jurisdiction, ultra vires and passed in disregard of the law, any superstructure raised over it would automatically fall to the ground and it could not be sustained in the eyes of law.

Asad Jan, Advocate Supreme Court for Appellant.

Abdul Hafeez Amjad, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondents Nos. 1 - 10.

2021 S C M R 642

[Supreme Court of Pakistan]

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

SADDARUDDIN (since deceased) through LRs.---Appellant

Versus

SULTAN KHAN (since deceased) through LRs and others---Respondents

Civil Appeal No. 960 of 2017, decided on 13th January, 2021.

(Against the judgment dated 19.5.2017 passed by the Lahore High Court Rawalpindi Bench in C.R. No. 75 of 2010)

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

----S. 42---Suit for declaration---Oral sale agreement for immoveable property---Proof---Plaintiff-appellant had neither detailed the material contents of the sale agreement in the plaint nor the fact that the said oral agreement was witnessed by any one or that the witnesses of the oral sale had died---Plaint did not even describe the event of jirga (arbitration) which the plaintiff has disclosed in his evidence---Furthermore the evidence adduced on behalf of the plaintiff was against the pleadings as in the plaint the plaintiff in order to justify filing of suit for specific performance after almost 33 years of alleged oral sale agreement had asserted that just a week before filing of suit, the cause of action had accrued whereas one of the alleged witnesses to the arbitration whose evidence was recorded on 19-11-2005, asserted that the arbitration took place in his shop in March, 2004 whereas the suit was filed by the appellant on 19-5-2004 by stating that the cause of action had arisen a week before filing of suit i.e. May 2004---Claim of the plaintiff suffered from major legal flaws.

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

----O. VI, R. 1---Pleadings---Scope---Parties were required to lead evidence in consonance with their pleadings---No evidence could be laid or looked into in support of a plea which had not been taken in the pleadings---Party, therefore, was required to plead facts necessary to seek relief claimed and to prove it through evidence of an unimpeachable character.

Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others 2015 SCMR 1698 and Binyameen and others v. Chaudhry Hakim and another 1996 SCMR 336 ref.

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

----S. 54---Civil Procedure Code (V of 1908), O. VI, R. 1---Oral sale agreement for immoveable property---Pleadings---Scope---In cases where the sale was pleaded through oral agreement, the terms and conditions which were orally agreed were to be stated in detail in the pleadings and were to be established through evidence---In such like cases, the plaintiff besides detailing subject matter of the sale, (had to mention) the consideration, detail of striking of the bargain, name of the witnesses in whose presence the said oral agreement to sale was arrived at between the parties and other necessary details for proving the sale agreement as if it would have been executed in writing.

Muhammad Nawaz through LRs v. Haji Muhammad Baran Khan through LRs 2013 SCMR 1300 ref.

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

----S. 54---Sale of immoveable property---Proof---Mere prolonged possession even coupled with title documents by itself did not establish the claim of ownership unless the sale was established.

Syed Qalb-e-Hassan, Senior Advocate Supreme Court for Appellants.

Tanveer Iqbal, Advocate Supreme Court (in C.M.A. No.2817 of 2020).

Ex parte for Respondents Nos. 1 - 5.

2021 S C M R 645

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

ABID HUSSAIN---Petitioner

Versus

SECRETARY, MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN through Chief of Air Staff, Islamabad---Respondent

Civil Review Petition No. 526 of 2020 in Civil Petition No. 923 of 2020, decided on 16th February, 2021.

(To review this Court's order dated 21.10.2020 passed in Civil Petition No. 923 of 2020)

(a) Interpretation of statutes---

----Ordinary meaning of a provision---Scope---Any provision of law had to be given its ordinary meanings in ordinary circumstances unless and until it interpreted a different connotation.

Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhry PLD 2016 SC 637 ref.

(b) Pakistan Air Force Act (VI of 1953)---

----Ss. 4(viii), 4(xi) & 71---Civil offence committed by an 'airman'---Dismissal from service with rigorous imprisonment---Field General Court Martial, jurisdiction of---Expression "civil offence" [used in S. 4(xi) of the Pakistan Air force Act, 1953] was exclusively brainchild of the statute relating to the offences committed by members of the armed forces, hence, any person who was subject to law of the armed forces, and committed a civil offence, would be dealt with under the procedure laid down in the respective enactment---Any offence, which was punishable under ordinary law of the country, if committed by a person who was subject to the law of armed forces including Pakistan Air Force, would be dealt with under the respective law of the armed forces---In the present case the Field General Court Martial had full jurisdiction to try the petitioner, who was Corporal Technician i.e. a junior officer, therefore, an "airman" in terms of S. 4(viii) of the Pakistan Air Force Act, 1953--- Review petition was dismissed.

Said Zaman Khan v.. Federation of Pakistan 2017 SCMR 1249 and Cox v. Army Council [1963] AC 48 ref.

(c) Supreme Court Rules, 1980---

----O. XXVI, R. 1---Constitution of Pakistan, Art. 188---Review jurisdiction of the Supreme Court---Scope---Review jurisdiction vested in the Supreme Court under Art. 188 of the Constitution, read with O. XXVI of the Supreme Court Rules, 1980, could be invoked only when there was an error apparent on the face of the record, or for ends of justice or to prevent abuse of the process of the court---Such jurisdiction was not open to allowing re-hearing or re-arguing the merits of a case.

(d) Limitation---

----Order which was vague, without jurisdiction or illegal---To challenge such an order litigant must approach the competent court of law within the time prescribed by law---Where a right was required to be asserted, it had to be done vigilantly and no indulgence could be shown to indolent and negligent litigant.

Manzoor Ahmed Rehmani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Sajid Ilyas Bhatti, Additional Attorney General on Court's Call.

2021 S C M R 655

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 282 of 2017, decided on 12th October, 2020.

(Against the judgment dated 26.01.2017 passed by the Lahore High Court Lahore Multan Bench Multan in Crl. Appeals Nos.689-J and 840 of 2012 with M.R. No.77 of 2011)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Perusal of record showed that the deceased, when still alive, was brought to the hospital by individuals other than those mentioned in the crime report---Entire family comprising of four brothers had been aligned in the crime report, each armed with a club and alleged to have taken on the deceased, therefore, the solitary wound on the deceased did not correspond with such an array and, thus, argument that the prosecution had cast a wider net merited serious consideration---One of the acquitted co-accused received a head injury during the brawl for which the prosecution had not taken the investigating agency or the Court into confidence---Such circumstances adversely affected the prosecution story, which was calculated to withhold relevant details of the events that occurred on the fateful day---Petition for leave to appeal was converted into appeal and allowed, and the accused was acquitted of the charge.

M. Sharif Janjua, Advocate Supreme Court for Petitioner.

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

2021 S C M R 658

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Sayyed Mazahar Ali Akbar Naqvi, JJ

SALMAN ABRO and another---Petitioner/Appellant

Versus

GOVERNMENT OF SINDH and others---Respondents

Civil Petition No. 47 of 2016 and C.M.A. No. 5424 of 2016, decided on 9th February, 2021.

(On appeal against the judgment dated 04.11.2015 passed by the High Court of Sindh, Karachi in C.P. No. D-3065 of 2015)

Criminal Procedure Code (V of 1898)---

----Ss. 200 & 203---Penal Code (XLV of 1860), Ss. 302, 324, 427, 201 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Private complaint, dismissal of---In the first round of litigation, a stranger to the incident had tried to lodge counter version of the occurrence, which was declined up to the High Court---Even the petition before the Supreme Court filed by the said stranger was dismissed as withdrawn---Such circumstances clearly reflected that the attempt made by the said stranger on behalf of the petitioner had already attained finality---Said stranger was neither a witness of the occurrence nor he had any nexus with the incident, therefore, there was no compelling reason for him to file the counter version on behalf of the petitioner---In the second round of litigation, the petitioner himself opted to file private complaint which had been dismissed by the courts below---High Court in the impugned judgment had rightly observed that the petitioner had not approached the court with clean hands, but with nefarious intent as the counter version of the petitioner had already been investigated by the police while following all legal requirements; that the only purpose to launch counter version was to create a strong defence that too with a delay of one year and the same could be termed as an afterthought and as such it did not create a sound foundation in the given circumstances---In the trial faced by the petitioner evidence had already been recorded and the trial was at the verge of final arguments---In such circumstances there was no reason to interfere with the impugned judgment of the High Court, whereby the dismissal of private complaint by the Trial Court under S. 230, Cr.P.C. was upheld---Petition for leave to appeal was dismissed and leave was refused.

Ghulam Sarwar Abro, father of the petitioner.

Zafar Ahmed Khan, Additional P.G. Sindh for the State.

Faisal Siddiqui, Advocate Supreme Court for Respondent No. 2 (Also for applicant in C.M.A. No. 5424/2016)

2021 S C M R 662

[Supreme Court of Pakistan]

Present: Mushir Alam, Chairman, Sardar Tariq Masood, Qazi Muhammad Amin Ahmed, JJ, Dr. Muhammad Al-Ghazali, Ad-hoc Member-I and Dr. Muhammad Khalid Masud, Ad-hoc Member-II

QAISAR MEHMOOD and another---Appellants

Versus

The STATE---Respondent

Criminal Shariat Appeal No.23 of 2017, decided on 2nd December, 2020.

(On appeal against the judgment dated 20.09.2011 passed by the Federal Shariat Court, Lahore, in Jail Criminal Appeal No.282/I of 2004, Criminal Appeal No.342/L of 2004 and Criminal Murder Reference No.17/1 of 2004)

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

----Ss. 364-A & 302(b)---Offence of Zina (Enforcement Of Hudood) Ordinance (VII of 1979), S. 10(4)---Kidnapping, rape and qatl-i-amd of a minor---Reappraisal of evidence---Prosecution has relied upon a chain of circumstances comprising of the complainant and witnesses identifying the victim departing in the company of accused and co-accused, heading towards a factory, and again while disposing of the corpse concealed in a gunny bag; and the confession of accused and co-accused shortly before their arrest and subsequent recoveries of incriminatory bloodstained articles from their residential room in the factory---Said uninterrupted continuing links, synchronized in a chain of circumstances, were tallied by findings, recorded in the autopsy report that unambiguously confirmed a carnal assault with the victim within the durations compatible with the incidence of events related by the witnesses---Witnesses had no apparent motive either to falsely implicate the accused and co-accused or swap them with someone else---Incident was immediately brought to attention of senior police officers, who were on board, and, thus, it was rather difficult to assume, as suggested by the defence, that a sub-inspector of the police diverted the course of investigation so as to let off the actual offenders---Seizure of blood, string, chaddar and shoe, each with stains of blood, from inside the room occupied by the accused and co-accused, duly depicted in site plan, establish beyond an iota of doubt that the victim was molested to death in the room located in the factory where admittedly both the accused and co-accused worked---Both accused and co-accused were not strangers to the complainant or to the child and, thus, were in a position to lure the latter without raising any suspicion---Duration of violence endured by the victim was compatible with the noted timeframe of assault, death and autopsy---Victim's cavities, both rectal as well as vaginal, with a freshly torn hymen, were noticed by the medical officer as profusely bleeding---In such backdrop, the evidence of last seen against the accused and co-accused, in itself, admitted no space to entertain any hypothesis other than their guilt---Death sentence on two counts and imprisonment for life awarded to accused was maintained, whereas death penalty on two counts awarded to co-accused was converted to imprisonment for life as he was a minor at the time of commission of the crime---Appeal was disposed of.

(b) Criminal trial---

----Evidence---'Adequacy', 'reliability' and 'standard of proof'---No empirical parameters existed to characterize reliability of a particular piece of evidence, either as strong or weak, for the purpose of prosecution of offenders, as the victims seldom fell prey to their tormentors under ideal conditions---Thus, it would be rather naïve to expect choice evidence to meet standard of proof---In a given situation the Court was required to assess integrity of available evidence so as to consider its adequacy in a given situation having regard to the universal principles of safe administration of criminal justice---For the said purpose, direct evidence furnished even by the injured witnesses, apparently with no axe to grind, could be dismissed, if otherwise found lacking the ring of truth; likewise, applying the same principle, the Court may rely upon the evidence of last seen, without a demur, if found free from any taint, constituting a reliable link between the offender and the victim within the proximity of time and space.

Anis Muhammad Shahzad, Advocate Supreme Court for Appellants.

Ch. M. Sarwar Sidhu, Addl. Prosecutor General Punjab for the State.

2021 S C M R 667

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SABOOR KHAN and another---Petitioners

Versus

CHAIRMAN WAPDA, WAPDA HOUSE. LAHORE and another---Respondents

Civil Petitions Nos.3604 and 3605 of 2018, decided on 27th January, 2021.

(On appeal against the judgment dated 27.07.2018 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.2198(R)CS/2015 and 2199(R)CS/2015)

(a) Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978---

----Rr. 4(1)(b)(iii), 4(1)(b)(iv) & 6---Security guards (petitioners) deliberately causing injuries to their senior---'Removal from service'---During the departmental proceedings, both the petitioners had submitted an affidavit wherein they admitted the incident---However, they took the stance that it was their senior, who hurled abuses at them and pointed a rifle towards them, upon which they punched him---Such story of the petitioners appeared to be an afterthought, because, if this was the position, why they did not make a complaint against their senior and kept mum for four days until the explanation was sought from them---Inquiry was conducted by the Deputy Director Security wherein two Junior Engineers were also members---All the legal requirements for appointment of Inquiry Officer or an Inquiry Committee provided under R. 6 of the Pakistan Wapda Employees (Efficiency and Discipline) Rules, 1978 were fulfilled---Inquiry report categorically showed that four witnesses appeared against the petitioners and while recording the statement of each witness, ample opportunity was given to the petitioners to cross-examine them but they declined to cross-examine the witnesses---In the present case disciplinary proceedings were being carried out against the petitioners, therefore, there was no need to join the injured during the inquiry proceedings---Petitioners being security guards were supposed to perform their duties in a disciplined manner---Due to their conduct, the trust and faith showed by their employer was shattered resulting in loss of confidence---Manner in which the petitioners, on whom confidence was reposed to give protection and to perform their duty in a disciplined manner, attacked their supervisor repelled any consideration of treating them leniently---Petitions for leave to appeal were dismissed and leave was refused.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4(1)(a)---Service Appeal filed before the Federal Service Tribunal without waiting for the prescribed 90 days period to expire after filing of departmental appeals---Competency---Such Service Appeal would be incompetent in view of the specific bar contained in S. 4(1)(a) of the Service Tribunal Act, 1973.

Civil Petitions Nos. 3311 to 3313 of 2016 ref.

Muhammad Aftab Alam Rana, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in both cases).

Nemo for Respondents (in both cases).

2021 S C M R 673

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Industries, Commerce and Technical Education, Manpower Training Department, Peshawar and others---Appellants

Versus

SHAHZAD IQBAL and others---Respondents

Civil Appeals Nos. 240 and 272 of 2020, decided on 25th November, 2020.

(Against the judgments dated 06.09.2016 and 15.05.2018 passed in Writ Petition No. 382-A/2014 and Writ. Petition No. 1109-A/2016 of the Peshawar High Court)

Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----Ss. 2(b) & 3---Project employees seeking regularization in service---Respondents were appointed on contractual basis in Provincial Skill Development Centers by the Technology Up Gradation and Skill Development Company (TUSDEC), a fully owned subsidiary company of the Pakistan Industrial Development Cooperation (PIDC)---Subsequently, the project was handed over to the Provincial Government, which upon taking charge of the said project advertised various posts for making ad hoc appointments---Respondents did not apply for the said advertised appointments and instead filed constitutional petitions before the High Court seeking regularization in service---Held, that where a project employee was recruited by a Company for a definite period of time, such an employee did not under any circumstances either directly or by implication become an employee of the provincial government---Cases of the respondents clearly fell outside the ambit of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act') as they were all hired against project posts by TUSDEC and the project itself was to be executed by the Company under the control of the Federal Government for a requisite period of time before it was handed over to the Provincial Government---For the 2009 Act to apply, it was the Provincial Government that must employ the individual---Qualitative and conceptual difference existed between contract employees covered by the provisions of the 2009 Act and the temporary employees hired by TUSDEC during the time they operated the project before handing it over to the provincial government---Such employees could not by any stretch of the language be termed or treated as employees hired by the Provincial Government---In such circumstances, the benefit of the 2009 Act was not available to the respondents---Even otherwise, being project employees, the respondents were excluded from the benefits of the 2009 Act by virtue of S. 2(b)---High Court erred in law by concluding that the benefit of regularization was available to the respondents---Appeals were allowed and impugned judgment of High Court was set-aside.

Shumail Ahmad Butt, A.G. Khyber Pakhtunkhwa, Atif Ali Khan, Ad AG, Khyber Pakhtunkhwa, Barrister Qasim Wadood, Ad A.G., Khyber Pakhtunkhwa, Irum Shaheen, DD, HED, Asif Khan, Litigation Officer, HED, Amin Jan, AD, Fisheries, Gulzar Mahmood, AD Fisheries Khyber Pakhtunkhwa, Engr. Falak Niaz, AD (Dost), Rajbar Khan, SDO, PHE, Khyber Pakhtunkhwa, Saadullah, Assistant Secretary, BOR, Khyber Pakhtunkhwa, Faheem Ullah Khan, Senior LO, KPPSC, Assad Ullah Khan, SO, P&D Deptt. and Amanatullah Qureshi, Dy. Secy, Finance Deptt. Khyber Pakhtunkhwa for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Respondents (in C.A. No. 240 of 2020).

Respondents in person (in C.A. No. 272 of 2020).

2021 S C M R 678

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

UNIVERSITY OF MALAKAND through Registrar and others---Appellants

Versus

Dr. ALAM ZEB and others---Respondents

Civil Appeals Nos. 902 and 903 of 2020, decided on 3rd February, 2021.

(Against the judgment dated 10.3.2020 of the Peshawar High Court, Mingora Bench, (Dar-ul-Qaza), Swat passed in Writ Petitions Nos.71-M/2019 and 108-M/2019)

(a) University of Malakand Regulation (II of 2001)---

----Regln. 27---Service Rules of University of Malakand, R. 89---Contract basis lecturers subsequently regularized in service---Study leave abroad---Entitlement to payment of salary during the period abroad---In the impugned judgment the High Court had rightly observed that in R. 89 of the Service Rules of University of Malakand, the word 'employee' was mentioned who was eligible to study leave with pay with the additional qualification that he must have three years of service in the University, and no distinction had been drawn in the said rule, as to whether the said employee was a regular employee of the University or his employment was on contract basis; that there was no reason to infer from the plain reading of R. 89 that the word employee occurring in the said rule meant a regular employee and the period of his employment should be on regular side and not on contract basis---Although the respondents/lecturers were appointed on contract basis on different dates in the years 2001 to 2005 but their services were regularized in the year 2007---Regular appointment orders of respondents clearly mentioned that their previous service shall be considered for the purpose of seniority, therefore, it could be concluded that the total length of service rendered by the respondents at the time of availing the leave was more than three years, which entitled them to study leave with full pay---When the statute clearly provided that study leave on full pay may be granted to an employee who had put in at least three years' service, the concerned authority ought not to have refused the respondents their right guaranteed under the statute---Appeals were dismissed.

(b) Estoppel---

----Statutory obligation/right---Scope---No estoppel existed against a law---Inherent power and doctrine of estoppel could not be applied to defeat the provisions of statute---As a rule of evidence estoppel could be invoked by a party, however, the same could not be accepted against the statutory obligation of a person even though one party might not have expressly claimed his right which was available to him under the law---Doctrine of estoppel did not apply against a statute and it had no application when statutory rights and liabilities were involved---If a person had been bestowed some legal right by law/statute and he omitted to claim such legal right for a certain period of time, it did not mean that he had waived his legal right and subsequently he could not claim such right.

Zarai Taraqiati Bank Limited v. Said Rehman and others 2013 SCMR 642; Union Territory, Chandigarh Admn v. Managing Society, Goswami, GDSDC AIR 1996 SC 1759 and P.R. Deshpande v. Maruti Balaram Haibatti AIR 1998 SC 2979 ref.

Khaled Rehman, Advocate Supreme Court and Muhammad Hamayun, Asst. Registrar Legal for Appellants (in both cases).

Muhammad Asif Yousafzai, Advocate Supreme Court for Respondent No. 1 (in C.A. 902/2020).

Muhammad Asif Yousafzai, Advocate Supreme Court for Respondents Nos. 1-7 (in C.A. 903/2020).

Muhammad Sharif Janjua, Advocate-on-Record for Respondents.

2021 S C M R 684

[Supreme Court of Pakistan]

Present: Mushir Alam, Chairman, Sardar Tariq Masood, Qazi Muhammad Amin Ahmed, JJ., Dr. Muhammad Al-Ghazali, Ad-hoc Member-I and Dr. Muhammad Khalid Masud, Ad-hoc Member-II

MUHAMMAD HANIF---Appellant

Versus

The STATE---Respondent

Criminal Shariat Appeal No. 16 of 2017, decided on 1st December, 2020.

(On appeal against the judgment dated 03.05.2013 passed by the Federal Shariat Court, Islamabad, in Jail Criminal Appeal No.28/I of 2012)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Shariat appeal---Reappraisal of evidence---Benefit of doubt---Deceased-lady was survived by five married sons, who admittedly resided in the same household, therefore, it was surprising that no one, except the deceased, from such a sizable clan was present on the day of the incident---Absence of the sons clamours for explanation and in retrospect spelt out a scenario diametrically incompatible with the story set up in the crime report---Allegation that the accused forcibly committed rape upon the deceased stood negated by medical evidence leaving no apparent motive for him to take on the deceased---Besides accused was acquitted of the charge of carnal assault by the Trial Court---Magnitude of violence, essentially reflecting a time intensive assault with obvious resistance by an able bodied village-hardened woman could not have gone unnoticed by the residents of the houses located nearby---Constricted legs reflecting onslaught of rigor mortis negated the hypothesis of witnesses' arrival within the timeframe, suggested in the crime report---Any assailant actuated by carnal designs was not expected to bring a hammer with him to accomplish the task---Prosecution case was fraught with doubts, benefit whereof could not be withheld from the accused---Shariat appeal was allowed, and accused was acquitted of the charge.

Ansar Mehmood Mirza, Advocate Supreme Court for Appellant.

Ch. M. Sarwar Sidhu, Additional Prosecutor General Punjab for the State.

Muhammad Zafar, witness for the Complainant.

2021 S C M R 686

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

INAYATULLAH KHAN and others---Petitioners

Versus

SHABIR AHMAD KHAN---Respondent

Civil Petition No. 2547 of 2019, decided on 10th March, 2021.

(On appeal against the judgment dated 11.02.2019 passed by Peshawar High Court, Bannu Bench in C.R. No. 319-B of 2012)

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

----S. 29---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell immoveable property---Essential ingredients---Uncertainty and vagueness---Scope---Document in question did not describe the land, its area, the total sale consideration and when the balance of the sale consideration was payable and the transaction to be completed---Such a document did not constitute a contract to sell land, therefore, it would be void for uncertainty in terms of S. 29 of the Contract Act, 1872---Petition for leave to appeal was converted into appeal and allowed and suit filed by respondent was dismissed.

Rauf Ahmed Ghori v. Managing Director, Cholistan Development Authority 1998 CLC 1464; Akhtar Aziz v. Shabnam Begum 2019 SCMR 522 and Saidino Khan v Zaibunissa 1991 SCMR 972 ref.

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

----S. 52---Transfer of property pending suit relating thereto---Scope---Suit filed by plaintiff seeking specific performance of purported agreement to sell after property already sold by owner to a third party---In such circumstances the sale to the third party could not be defeated by placing reliance on S. 52 of the Transfer of Property Act, 1882 since transfer of property was not done when the suit was pending, but had already taken place---Moreover, the plaint did not state, nor was it established, that the sale to the third party was fraudulent or collusive---Petition for leave to appeal was converted into appeal and allowed and suit filed by respondent was dismissed.

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

----S. 41---Transfer by ostensible owner---Scope---Where the transferor was the ostensible owner, the transfer was made by consent express or implied of the real owner, the transfer was for consideration, the transferee acted in good faith and took reasonable care to ascertain that the transferor had power to transfer, he would be entitled to statutory protection under S. 41 of the Transfer of Property Act, 1882---Bona fide purchasers could not be penalized for any fraud or misrepresentation by their predecessors-in-title unless they were pari delicto with their vendors.

Officer on Special Duty v. Bashir Ahmad 1977 SCMR 208; Kanwal Nain v. Fateh Khan PLD 1983 SC 53; Muhammad Jamil v. Lahore Development Authority 1999 SCMR 2015; Muhammad Nawaz Khan v. Muhammad Khan 2002 SCMR 2003; Abdul Ghafoor Khan v. Ghulam Sadiq PLD 2007 SC 433 and Muhammad Shamim v. Nisar Fatima 2010 SCMR 18 ref.

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

----S. 27(b)---Parties against whom decree for specific performance may not be issued---Scope---Decree for specific performance may not be issued in respect of transferees for value who paid the sellers in good faith and without notice of a pre-existing contract as per S. 27(b) of the Specific Relief Act, 1877---In the present case, the transferee had purchased the land from the ostensible owners thereof, and did not know that they, or either one of them, had entered into a contract with the plaintiff for the sale of the subject land to him---Incidentally, the transferee had purchased other lands too, which was an additional factor showing their bona fide---Revenue record also did not disclose any interest of the plaintiff in the said land nor disclosed that the ostensible owners (sellers) had any restriction placed on them to sell their land---Transferees had purchased the property for valuable consideration, in good faith and having acted honestly and without knowledge of the purported contract between the ostensible owners (sellers) and the plaintiff could not be deprived of the said land---Petition for leave to appeal was converted into appeal and allowed and suit for specific performance filed by plaintiff was dismissed.

Khair-ul-Nisa v. Muhammad Ishaque PLD 1972 SC 25; Pak United Housing Enterprise v. Ramzan 1992 CLC 1678; Karachi Raees Amrohvi Foundation v. Muhammad Moosa 1999 CLC 296; Jamil Akhtar v. Las Baba PLD 2003 SC 494 and Tassaduq Hussain v. Lal Khatoon PLD 2011 SC 296 ref.

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

----S. 12--- Suit for specific performance of agreement to sell immoveable property--- Pre-requisites--- Payment of balance consideration in court--- Scope--- Person seeking the specific performance of a contract must first show that he was ready, able and willing to perform his obligations under the contract---Although the law did not require that the balance sale consideration must be tendered or deposited in court, but such tender/deposit helped establish that the buyer was not at fault---Supreme Court observed that invariably the value of money depreciated over time and that of land appreciated; that courts adjudicating such cases should not be unmindful of such reality and should endeavor to secure the interest of both parties; that in a suit for specific performance of land, if the seller/vendor had refused to receive the sale consideration, or any part thereof, it should be deposited in court and invested in some government protected security (such as Defence or National Savings Certificates); that in case the suit was decreed the seller would receive the value of money which prevailed at the time of the contract and in case the buyer lost he could similarly retrieve the deposited amount.

Malik Salahuddin, Advocate Supreme Court and Mehmood Ahmed Sheikh, Advocate-on-Record for Petitioners.

Tariq Javed Qureshi, Advocate Supreme Court and Mir Aurangzeb, Advocate-on-Record (Absent) for Respondent.

2021 S C M R 699

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

DINSHAW HOSHANG ANKLESARIA---Petitioner

Versus

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

Civil Petition No. 3714 of 2019, decided on 6th January, 2021.

(On appeal against the judgment dated 07.08.2019 passed by the Islamabad High Court, Islamabad in Writ Petitions Nos. 2167/2019 and 2206/2019)

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), S. 9---Illegal allotment of State land in connivance with government officials---Bail, grant of---Delay in conclusion of trial---Although the Reference against accused had been filed but there were 36 witnesses whose testimony was to be recorded before the Trial Court---Rest of the evidence was in the possession of the prosecution, which was in the documentary form and there was no likelihood of any tampering or manipulation---Accused had already suffered 20 months of incarceration without even commencement of trial, which clearly reflected that the conclusion of the same was not in sight in near future---Even otherwise, there were 27 accused in all and the majority of the same were enjoying their liberty and free life---Petition for leave to appeal was converted into appeal and allowed, and accused was granted bail with the direction that his passport be impounded before the Trial Court and his name be placed on the Exit Control List till the final conclusion of the trial.

Rasheed A. Rizvi, Senior Advocate Supreme Court and Mian Abdul Rauf, Advocate Supreme Court for Petitioner.

Syed Asghar Haider, P.G., Hassan Akbar, Additional P.G., Nasir Mehmood Mughal, Special Prosecutor, Asghar Khan, I.O. and Mustansar, I.O. for Respondents.

2021 S C M R 702

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

REGIONAL OPERATION CHIEF, NATIONAL BANK OF PAKISTAN, HUMAN RESOURCE DEPARTMENT, REGIONAL OFFICE, SARGODHA and others---Petitioners

Versus

Mst. NUSRAT PERVEEN and others---Respondents

C.P. No. 2717-L of 2015, decided on 23rd December, 2020.

(Against the order of Federal Service Tribunal dated 14.09.2015, passed in MP No. 23/2015 in Appeal No. 99(L)CE/2004)

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan, Arts. 4, 10, 14, 23 & 24---Appeal filed by a civil servant in the Federal Service Tribunal ("Tribunal")---Question as to whether such an appeal would abate on death of civil servant or his legal heirs could pursue the same---Held, that abatement of proceedings on the death of a civil servant, in a case, where the cause of action carried a survivable interest would unduly deprive the deceased civil servant, as well as, his legal heirs of their constitutional rights to livelihood, property, dignity and fair trial---Other than pecuniary and pensionary benefits that inured to the benefit of the legal heirs (of a civil servant), the right to restore one's reputation was also a survivable right and flowed down to the legal heirs to pursue and take to its logical conclusion.

Service disputes were not always attached merely with the person of a civil servant as an individual but more often than not with some benefits which could potentially be enjoyed by the successors of the civil servant in accordance with law which were contingent on the adjudication of the controversy.

The question whether after the death of the civil servant proceedings would abate would primarily depend on the nature of cause of action and the relief claimed in the peculiar facts of each case. Service benefits may be enjoyed by the successors of the deceased civil servant. Some of those were inheritable which formed part of the estate of the deceased while others were grants to be distributed among his family members according to law. Such a claim did not extinguish with the death of civil servant. Letting the claim lapse on the basis of an ultra textualist interpretation of the Service Tribunals Act, 1973 would be denying the heirs the right to seek adjudication on merits.

Itrat Zahida v. President ABL 2006 SCMR 1287; Acebal v. United States 60 Fed. Cl. 551; Rendek v Sheriff of Bristol County 440 Mass. 1017; Harris (suing as personal representative of Andrews (deceased) v. Lewisham and Guy's Mental Health NHS Trust [2000] 3 All ER 769; McFeeley v. Jackson Street Entm't, LLC 2014 U.S. Dist. LEXIS 114767, 2014 WL 4182231; Gasior v. Mass. Gen. Hosp. 446 Mass. 645; Rameshwar Manjhi v. Management of Sangramgarh Colliery AIR 1994 SC 1176; Sudha Shrivastava v. Comptroller and Auditor General of India AIR 1996 SC 571; The Government of Pakistan v. General Public PLD 1991 SC 731; Zaheer Abbas v. Pir Asif 2011 CLC 1528; Dawa Khan v. The Government of Pakistan 2015 PLC (C.S.) 1255; Amtul Habib v. Musarrat Parveen PLD 1974 SC 185; Fred O. Smith, Jr., 'The Constitution After Death' (2020) 120 Colum. L. Rev. 1471, 1531; Kirsten Rabe Smolensky, 'Rights of the Dead' (2009) 37 Hofstra L. Rev. 763, 764; Bilanow v. United States 159 Ct. Cl. 93 and Law v. Canada (Minister of Employment and Immigration) [1999] 1 SCR 497 ref.

Under the constitutional scheme, abatement of proceedings on the death of a civil servant, in a case, where the cause of action carried a survivable interest would unduly deprive the decedent civil servant, as well as, his legal heirs of their constitutional rights to livelihood, property, dignity and fair trial. Fundamental right to life including right to livelihood ensured the security of the terms and conditions of service; fundamental right to property ensured security of the pecuniary and pensionary benefits attached to the service; fundamental right to dignity ensured that the reputation of the civil servant was not sullied or discredited through wrongful dismissal, termination or reversion etc; and fundamental right to fair trial and due process, inter alia, safeguarded and protected the survivable interest and ensured continuity of the legal proceedings even after the death of the civil servant, equipping the legal heirs to purse the claim.

Other than pecuniary and pensionary benefits that inured to the benefit of the legal heirs, the right to restore one's reputation was also a survivable right and flowed down to the legal heirs to pursue and take to its logical conclusion. Any slur on the reputation of a civil servant impinged on his human dignity and weighed equally on the dignity and honour of his family.

(b) Service Tribunals Act (LXX of 1973)---

----S. 5---Civil Procedure Code (V of 1908), Preamble---Proceedings before the Service Tribunal---Civil Procedure Code, 1908, applicability of---Scope---Notwithstanding that C.P.C. was not as a whole strictly applicable to the proceedings before the Tribunal, the Tribunal was bound to follow the basic norms of justice---Provisions of C.P.C. may not stricto sensu apply in proceedings under a special law yet its equitable principles would always be applicable in order to do complete justice between the parties and meet the ends of justice.

Ali Khan Subanpoto v. Federation of Pakistan 1997 SCMR 1590 and Sheikh Saleem v. Shamim Atta Ullah Khan 2104 SCMR 1694 ref.

(c) Constitution of Pakistan---

----Pt. II, Chapt. 1---Fundamental Rights under the Constitution---Scope---Such rights did not only protect and safeguard a citizen but extended beyond his life and protected and safeguarded his survivable interests by being equally available to his legal heirs.

M. Qamar-uz-Zaman, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Hasan Riaz, Civil Judge cum Research Officer at SCRC1 for Research Assistance.

2021 S C M R 710

[Supreme Court of Pakistan]

Present: Gulzar Ahmad, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

DIRECTOR GENERAL, DIRECTORATE GENERAL OF TRAINING AND RESEARCH (INLAND REVENUE), LAHORE and another---Appellants

Versus

IJAZ YOUNAS---Respondent

Civil Appeal No. 1122 of 2020, decided on 2nd March, 2021.

(Against judgment dated 11.04.2016 passed by Federal Service Tribunal at Lahore in Appeal No. 151(L)CS of 2014)

Punjab Service Tribunals Act (IX of 1974)---

----S.5---Federal Service Tribunal ('the Tribunal'), powers of---Scope---Unauthorized continuous absence from duty---Penalty of dismissal from service imposed upon civil servant (respondent) by the departmental authorities converted into compulsory retirement by the Tribunal---Legality---Case record showed that the appellant-department sent repeated notices calling upon the respondent to join duty but he consistently failed to do so---Respondent also failed to participate in the departmental proceedings initiated against him---Charge sheet and statement of allegations were sent to the respondent which were received by his spouse, but even then he did not participate in the proceedings---Respondent was all along aware of the proceedings being taken against him by the department, but he consciously and deliberately stayed away from the same---On proof of the charges against him, the respondent was called upon to explain why major penalty should not be imposed upon him to which he failed to give any satisfactory response---No material was available on record to support the conclusion of the Tribunal that despite proof of all charges against the respondent, there were mitigating circumstances and the harsh penalty of dismissal from service was not commensurate with the enormity of allegations levelled and proved against the respondent---Such finding of the Tribunal was wholly unsupported by the record---Appeal was allowed, impugned judgment of Tribunal was set-aside, and penalty of dismissal from service imposed upon the respondent by the department was restored. [

Ibrar Ahmed, Advocate Supreme Court for Appellants.

Mrs. Bushra Qamar, Advocate Supreme Court for Respondent.

2021 S C M R 714

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

ADMINISTRATOR MUNICIPAL CORPORATION, PESHAWAR and others---Petitioners

Versus

TAIMUR HUSSAIN AMIN and others---Respondents

Civil Misc. Applications Nos. 6762 and 2797 of 2020 in Civil Appeal No. 20 of 2014, decided on 15th March, 2021.

(a) Constitution of Pakistan---

----Arts. 140A & 153---Local Government elections---Council of Common Interest ("CCI")---Delay in conducting Local Government elections---Supreme Court observed that matters of State took priority over all other matters; that to postpone indefinitely a constitutional requirement, of holding elections, because CCI, which comprised of the highest executive functionaries of the Federation and the provinces, could not be bothered to meet, violated the fundamentals of the Constitution, and that the Constitution could not be permitted to be violated---Applications were disposed of.

(b) Constitution of Pakistan---

----Arts. 140A, 219(d) & 220---Local Government elections---Election Commission, powers of---Scope---Supreme Court observed that the matter of holding local government elections laid within the domain of the Election Commission as per Art. 219(d) of the Constitution and a province could not dictate to the Commission, if and/or when, the same could be held; that on the contrary, Art. 220 of the Constitution mandated that it shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions; that in case the Federation and/or the Province(s) created hurdles in the way of the Election Commission holding elections, they would be violating the Constitution, which may attract serious consequences --- Applications were disposed of.

(c) Constitution of Pakistan---

----Art. 5---Government servant---Obedience and loyalty to the Constitution---Scope---Supreme Court observed that a Government servant's loyalty must always be to the Constitution, the law and the people, whose taxes paid his salary and who would also be paying for his pension; that a government servant's overt anxiousness to please politicians and project the political views of a political party must be frowned upon---Applications were disposed of.

(d) Punjab Local Government Act (XIII of 2019)---

----S. 3---Constitutional petition before the Supreme Court challenging dissolution of subsisting local governments in the Province of Punjab before completion of their mandated five-year period---Registrar Supreme Court delaying fixing of hearing of petition---Supreme Court expressed its displeasure at the Registrar's conduct and observed that Registrar of the Supreme Court should have ensured that the petition in question was fixed at the very earliest, however, unnecessary objections to its maintainability were first raised and then it took a few months before the petition was placed for hearing in Court; that the progress of the petition was further delayed when, after issuance of notice by the Supreme Court, the Registrar did not fix it for hearing; that if election matters were not decided at the earliest, people lost faith in democratic institutions; that petition in question raised questions of immense public importance as the people of the most populous province of the country had been disenfranchised at the local level; that by not fixing the petition for hearing, the Registrar undoubtedly undermined the people's perception of the independence of the Supreme Court---Supreme Court directed the Registrar to immediately fix the subject petition for hearing and immediately solicit the orders of the Chief Justice to have it fixed for hearing---Applications were disposed of.

(e) Punjab Local Government Act (XIII of 2019)---

----S. 3---Constitution of Pakistan, Arts. 128 & 140A---Punjab Local Government (Amendment) Ordinance (III of 2021), Preamble---Local Government elections---Whether mala fide and intentional contravention of Art. 128 of the Constitution by the Provincial Governor---Contentions that Art. 128 of the Constitution empowered promulgation of Ordinances by Governors under certain stipulated, limited and prescribed conditions and such power could only be exercised when the provincial assembly was not in session; that in the present case the Provincial Assembly was prorogued on 1st February 2021, whereas the Punjab Local Government (Amendment) Ordinance, 2021 ['the Amendment Ordinance'] was promulgated by the Governor on 3rd February 2021; that the Provincial Government could not have come up with the 70 page Amendment Ordinance overnight, and have it drafted, vetted, finalized and then approved by the provincial cabinet and having done so, sent it to the Governor, through the Chief Minister, for the issuance of an Ordinance; that it was clear that the Amendment Ordinance was already ready for promulgation when the Provincial Assembly was prorogued but was withheld by the Governor to avoid submitting it as a bill before the Provincial Assembly for its consideration, and such act of the Governor was a fraud on the Constitution---Held, that there was substantial merit in said contentions because it was extremely difficult to believe that a 70 page Amendment Ordinance suddenly emerged for promulgation by the Governor immediately after proroguing the provincial assembly, therefore, it needed consideration whether this constituted a case of mala fide and intentional contravention of Art. 128 of the Constitution by the Provincial Government/Governor, and if so, what were the consequences thereof---Applications were disposed of.

Syed Rifaqat Hussain Shah, Advocate-on-Record for Applicant (in C.M.A. No. 2797 of 2020).

Nawazish Ali Pirzada, Advocate Supreme Court, Voluntarily Appeared.

Ch. Aamir Rehman, Additional Attorney-General for Pakistan with Maulvi Ijaz-ul-Haq, DAG for the Federation on Court's Notice.

Shumail Ahmed Butt, Advocate General, Atif Ali Khan, Additional Advocate General and Shakeel Ahmed, Secretary, Local Government for Government of Khyber Pakhtunkhwa on Court's Notice.

Qasim Ali Chohan, Additional Advocate General and Noorulamin Mengal, Secretary Local Government and Community Development for Government of Punjab on Court's Notice.

Arbab Muhammad Tahir, Advocate General and Fareed Dogar, Additional Advocate General for Government of Balochistan on Court's Notice.

Nemo for the Government of Sindh on Court's Notice.

Afnan Karim Kundi, Advocate Supreme Court, Dr. Akhtar Nazir, Secretary and Muhammad Arshad, D.G. (Law) for the Election Commission of Pakistan on Court's Notice.

2021 S C M R 726

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Qazi Muhammad Amin Ahmed and Sayyed Mazahar Ali Akbar Naqvi, JJ

ALI ASJAD MALHI---Appellant

Versus

Ms. Syeda NOSHEEN IFTIKHAR and others---Respondents

Civil Appeal No. 166 of 2021, decided on 16th March, 2021.

(a) Elections Act (XXXIII of 2017)---

----S. 9---Constitution of Pakistan, Art. 218(3)---Power of the Election Commission to declare a poll void---Scope---Election Commission was empowered under Art. 218(3) of the Constitution read with S. 9 of the Elections Act, 2017 to ensure that elections were conducted honestly, justly, fairly and lawfully in such a manner that coercion, intimidation and pressure tactics were stymied.

(b) Elections Act (XXXIII of 2017)---

----S. 9---Power of the Election Commission to declare a poll void---Scope---Death of two persons at a polling station---Forty polling stations affected by aerial firing---Presiding Officers of twenty polling stations going missing and failing to hand over the results to the Returning Officer in time---Question as to what standard of proof, quantum of evidence, and scale and severity of violations of law (during the election) would warrant a re-poll in the entire constituency---Held, that S. 9 of the Elections Act, 2017 operated in a very limited span of sixty days following the publication of the result of an election---Jurisdiction of Election Commission under S. 9 partook of executive and quasi-judicial powers that may be exercised promptly to cure any irregularity in the conduct of an election---Benchmarks laid down by the law for the Election Tribunal to annul an election and order a re-poll may not strictly apply to the Election Commission under the S. 9 without suitable modification---In such circumstances the Supreme Court observed that it would like to examine whether the allegedly excessive action of the Election Commission, in the present case, namely declaring election in the whole constituency as null and void was within its jurisdictional parameters; that the parties before the Court had not addressed the questions as to what transgressions on the polling day could constitute grave illegalities or violations calling for a fresh rather than a partial re-poll, and in what situations would non-pervasiveness of the illegalities or violations committed on polling day still attract the same result; that to assist the Court in answering said questions the Election Commission could present a map of the constituency labelling the polling stations where specified wrongs were committed along with a chart explaining the said labels---Case was adjourned.

M. Shahzad Shoukat, Advocate Supreme Court, Mian Abbas Ahmed, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Appellant.

Respondent No.1 in person.

Ghulam Mustafa Kandwal, Advocate Supreme Court for Respondent No. 7.

Mian Abdul Rauf, Advocate Supreme Court and M. Arshad, D.G. E.C.P. for ECP.

2021 S C M R 729

[Supreme Court of Pakistan]

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

SAMI ULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 111 of 2021, decided on 3rd March, 2021.

(Against the order dated 29.01.2021 passed by the Peshawar High Court, Peshawar in Crl. Misc. B.A. No. 169-P of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 489-B & 489-C---Using as genuine, forged or counterfeit currency-notes---Bail, grant of---Further inquiry---As per contents of FIR, allegation against the accused was that at the time of his arrest, forged local currency notes of 1000 domination were recovered from his possession---Even from the contents of FIR, prima facie the provisions of S. 489-C, P.P.C. were attracted (and not S. 489-B, P.P.C) as there was no allegation against the accused of using as genuine forged or counterfeit currency notes allegedly recovered from him---Nevertheless, it was for the Trial Court to determine finally whether provisions of S. 489-B or 489-C, P.P.C. were attracted, after recording evidence---Case against the accused called for further enquiry 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 granted bail.

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

Ms. Ayesha Tasneem, Advocate Supreme Court and Hidayat, SI for the State.

2021 S C M R 730

[Supreme Court of Pakistan]

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

The PROVINCE OF PUNJAB through Secretary, Finance Department, Government of the Punjab, Lahore and others---Petitioners

Versus

KANWAL RASHID and others---Respondents

C.P. 883-L of 2020 and C.P. 1791-L of 2020, decided on 9th February, 2021.

(Against the judgment of Lahore High Court, Lahore dated 27.01.2020, passed in I.C.A. No. 50253/2019 and order dated 07.09.2020 passed in W.P. No. 13125/2020)

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

----S. 18(2)---Punjab Civil Services Pension Rules, 1963, R. 4.10---Family pension, entitlement to---Unmarried daughter of deceased civil servant parents---Entitled to draw the pension of 'both' her parents simultaneously---However, such daughter would be disentitled from drawing pension, when she was married or acquired a regular source of income on her own, regardless of the family pension received by her.

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

----S. 18(2)---Punjab Civil Services Pension Rules, 1963, R. 4.10---Constitution of Pakistan, Art. 14(1)---Children of deceased civil servants---Family pension, entitlement to---Clarification notification issued by Provincial Finance department with regard to family pension---Legality---Provincial Finance Department had no authority under the law to clarify, interpret, abridge or extend the right of (family) pension provided under S. 18(2) of the Punjab Civil Servants Act, 1974 and further regulated by the Punjab Civil Services Pension Rules, 1963---Supreme Court observed that depriving the children of civil servants of their family pension on the basis of an unauthorized and unlawful clarification by the (Provincial) Finance Department, offended the right to dignity of the deceased civil servants who were assured under the law that they and their children would enjoy the security of pension upon retirement---Petitions for leave to appeal were dismissed and leave was refused.

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

----S. 18(2)---Punjab Civil Services Pension Rules, 1963, R. 4.10---Family pension, entitlement to---Unmarried daughter of deceased civil servant parents---Entitlement of unmarried daughter of deceased civil servants to pension till her marriage or till 'acquiring a regular source of income' [Rule 4.10 of the Punjab Civil Services Pension Rules, 1963]---'Acquiring a regular source of income'---Meaning---"Acquiring a regular source of income" under the Punjab Civil Services Pension Rules, 1963 meant that the unmarried daughter on her own, irrespective of the source of pension, had acquired a regular source of income---Acquire signified gain by one's own effort---Entitlement to family pension by virtue of the death of the parents did not constitute acquisition of a regular source of income; it was also not "regular" as the unmarried daughter was disentitled to receive family pension the minute she was married---Both said conditions must be met by her own self irrespective of the pension---Unmarried daughter must acquire a regular income of her own expertise and efforts---Disqualification (from receiving family pension) mentioned in Punjab Civil Services Pension Rules, 1963 must be independent of the family pension and pension itself could not constitute a ground for disqualification.

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

----S.18---Constitution of Pakistan, Art. 9---Pension, right of---Scope---Right to pension had a constitutional significance; it drew its strength from the right to life or the right to livelihood under Art. 9 of the Constitution.

M. Shan Gull, Additional A.G, Punjab, Rana Shamshad Khan, Additional A.G., Jawad Yaqoob, Additional A.G., Abdul Rauf, Deputy Secretary and Nasir Mahmood, Law Officer for Petitioners (in both cases).

Rana Asad Ullah Khan, Advocate Supreme Court for Respondents (in C.P. 883-L/2020).

Nemo for Respondents (in C.P. 1791-L/2020).

2021 S C M R 736

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Sayyed Mazahar Ali Akbar Naqvi, JJ

NAJAF ALI SHAH---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 902 of 2017, decided on 11th January, 2021.

(On appeal against judgment dated 16.02.2017 passed by the Lahore High Court, Lahore in Criminal Appeal No. 422-J/2013 and Murder Reference No. 429/2013)

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Admittedly the complainant was the step paternal grandmother of the accused and the step mother of the co-accused---First plea of accused before the investigating officer soon after his arrest was that his father (co-accused) had asked him to come to the place of occurrence, but he reached the spot after the incident---Said plea of accused was never taken into consideration by the courts below---According to the own showing of the complainant, the occurrence took place on a January evening in peak winter season, whereas no source of light had been mentioned in the FIR---Prosecution had neither established the source of light nor taken into possession the bulb to substantiate that the prosecution witnesses had seen the occurrence in the light of a bulb---In such circumstances the presence of the witnesses, who claimed to have seen the occurrence without any hinderance, appeared to be doubtful---In spite of arms carried by accused and co-accused persons, which were intensely used during the occurrence, the complainant did not receive even a single scratch and instead in midst of such commotion, she noted with great accuracy the persons who fired and the parts of the body where the fires hit the deceased persons---Prosecution story that the assailants had not even made an attempt to cause any injury to the prosecution witnesses enabling them to appear against them during trial also did not appeal to common sense---Brutality of the assailants could be gauged from the facts and circumstances which did not leave any room to consider that they had no intention to cause any injury to the witnesses when they were extremely cruel towards the male members of the same family with the same motive---Petition for leave to appeal was converted into appeal and allowed and the accused was acquitted of the charge.

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

----Art. 27---First plea of accused---Admissible in evidence under Art. 27 of the Qanun-e-Shahadat, 1984.

Raza v. The State PLD 2020 SC 523 ref.

(c) Criminal trial---

----Benefit of doubt---Scope---For the accused to be afforded the right of benefit of doubt, it was not necessary that there should be many circumstances creating uncertainty---If there was only one doubt, the benefit of the same must go to the accused.

Mst. Asia Bibi v. The State PLD 2019 SC 64 ref.

(d) Criminal trial---

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

Abdul Jabbar v. State 2019 SCMR 129 ref.

Aurangzaib Mart, Advocate Supreme Court for Petitioner.

Muhammad Jafar, Additional P.G. for the State.

2021 S C M R 743

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

Syed AHMAD---Appellant

Versus

ALI AKBAR and others---Respondents

Civil Appeal No. 72-L of 2018, decided on 11th March, 2021.

(Against the Order dated 08.02.2018 passed by the Lahore High Court, Lahore in Civil Revision No. 3655 of 2016)

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

----Ss. 123 & 129---Registration Act (XVI of 1908), Ss. 17 & 49---Oral gift---Scope---Unregistered gift deed acknowledging the oral gift---Scope---Valid gift could be effected even orally if the formalities prescribed by Islamic Law were complied with i.e., a declaration of gift by the donor; acceptance of gift expressly or impliedly by or on behalf of the donee, and delivery of possession of the subject matter by the donor to the donee---If said three conditions were complied with the gift was complete---Registration of the document (unregistered gift deed acknowledging the oral gift)would not be helpful if any of the said conditions was not satisfied---Written instrument in any case would not create a gift but was a mere evidence of the gift and as such would not in the case of a Muslim require registration---If there was an acknowledgement of the previous gift, the registration of the said acknowledgement was not necessary but independent ingredients of oral gift were to be established---If there was any acknowledgement in writing of the oral gift, and such acknowledgment was not registered, that made no difference, but if on the basis of any gift deed a gift was claimed, that must be registered in the light of S. 17 of the Registration Act, 1908 and effect of its non-registration would be the same as mentioned in S. 49 of the Registration Act, 1908.

Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623 and Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662 ref.

Syed Muhammad Kalim Ahmed Khurshid, Senior Advocate Supreme Court for Appellant.

Mian Abdul Qaddus, Advocate Supreme Court for Respondents Nos.1 and 2.

2021 S C M R 747

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others---Appellants

Versus

Syed SADIQ SHAH and others---Respondents

Civil Appeal No. 827 of 2020, decided on 4th March, 2021.

(On appeal against the judgment dated 04.03.2020 passed by the Peshawar High Court, Peshawar in Writ Petition No. 5281-P/2019)

(a) Constitution of Pakistan---

----Art. 25---Equality of citizens---Scope---'Reasonable/permissible classification' and intelligible differentia---Scope and meaning.

Article 25 of the Constitution, guarantees to every person the right to equality before the law and the equal protection of the laws. The expression "equal before law" is a declaration of equality of all persons irrespective of gender, race, religion, colour, caste, creed, status and language etc, implying thereby the absence of any privilege in favour of any individual. The guiding principle of Article 25 is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges conferred and liabilities imposed. Equality before law means that amongst equals should be equal and equally administered and that like should be treated alike. Hence what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. However, Article 25 does not forbid different treatment of un-equals. The rule is rather that alike should be treated equally and that unlike should be treated differently. As a matter of fact all persons are not alike or equal in all respects. Application of the same laws or yardstick uniformly to all of them will, therefore, be inconsistent with the principal of equality. To avoid that situation laws must distinguish between those who are equals and to whom they must apply and those who are different and to whom they should not apply. In fact identical treatment in unequal circumstances would amount to inequality. So a reasonable classification or sub-classification is only not permitted but is necessary if society is to progress. It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the authority.

Persons may be classified or further sub-classified into entities and such entities may be treated differently if there is a reasonable basis for such difference. Article 25 forbids class legislation but it does not forbid classification or differentiation which rests upon reasonable grounds of distinction. The classification however must not be arbitrary, artificial or evasive but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation.

Principle of equality does not mean that every law, policy matter, notification, administrative or executive order etc must have universal application to all the persons who by nature, attainment or circumstances are not in the same position.

The varying needs of different classes of persons require different treatment. In order to pass the test for permissible classification two conditions must be fulfilled i.e. (i) the classification must be founded on an intelligible differentia which distinguishes persons or things those are grouped together from others left out of the group, (ii) the intelligible differentia must have a rational nexus with the object sought to be achieved. However it must disclose that there must be a substantial basis for making the classification and there should be a nexus between the basis of classification and the object of action under consideration based upon justiciable reasonings.

Intelligible differentia was an exception to the basic principle of equality based upon the principle of natural justice in more refined manner to provide equality amongst the subjects of the society and while introducing certain legal expressions with an intent to bring the society close to equality eliminating the chances of facing the hardships of economical pressure which had squarely affected the society at large around the globe.

(b) Constitution of Pakistan---

----Arts. 25 & 38(e)---Dis-proportionality in salary of various classes of employees--- Discrimination--- Scope--- Employees of High Court (BPS 17 to BPS 19) drawing Special Judicial Allowance---Ad-hoc relief allowance of 5%, entitlement to---Provincial Government vide the impugned notification provided 5% ad-hoc relief allowance to employees of BPS 17 to BPS 19 but the same was not made available to those employees of the Provincial Government who were already drawing special allowances including Special Judicial Allowance, subject matter of issue in dispute---Respondents being employees of BPS 17 to BPS 19 of the High Court were already drawing Special Judicial Allowance, therefore, they were denied the said 5% ad-hoc relief allowance--- Constitutionality--- Through the impugned notification, the relief of 5% was denied to those employees of BPS-17 to BPS-19, who were already drawing special allowances in the name of Health Professional Allowance, Special Judicial Allowance, Scheduled Post Allowance, Technical Allowance, Prisons Allowance and Prosecution Allowance---Reason for such classification as furnished by the Provincial Government/appellant was due to financial impediment the employees from BPS-17 and above, being officers were in receipt of more salary than those employees from BPS 1 to BPS 16, which in common parlance was called dis-proportionality in the salary of the employees---Article 38(e) of the Constitution made it mandatory for the Government that it shall "reduce disparity in the income and earnings of individuals, including persons in the various classes of the service of Pakistan"---In a way, it was the duty of the Government to remove the dis-proportionality in the salaries of various classes of employees who were in service of Pakistan---In the present case, intelligible differentia existed between the two sets of employees and such differentia was logical and lucid and could not be termed as artificial or arbitrary---Impugned notification was impliedly in consonance with the spirit of the Constitution, therefore, the High Court ought to have refrained from interfering in it---Impugned notification was declared to be legal and rightly issued in accordance with law---Appeal was allowed.

House Building Finance Company Ltd. v. Muhammad Irfan Khan 2020 SCMR 98 and Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division 1997 SCMR 1026 ref.

(c) Constitution of Pakistan---

----Art. 199---Judicial review---Scope---Policy matters of Provincial Government---Policy notification of Provincial Government to compensate employees getting disproportionate salary as compared to other employees---Whether High Court ought to interfere in policy matters of the Provincial Government under the garb of judicial review---Held, that Constitutional courts being guardians of the Constitution had the power to judicially review the executive actions and the conduct of the public authorities but the same should be on the touchstone of fairness, reasonableness and proportionality---Courts while exercising power of judicial review must not violate the right of any other organ of the state and (should) remain within the prescribed limits as disclosed in the Constitution---Each Province had its limited quota under the National Finance Commission Award and the Provinces were supposed to run their affairs within the prescribed financial limits, hence, the impugned notification could be safely termed as a subject of policy to compensate the employees getting disproportionate salary as compared to other employees---Impugned notification was declared to be legal and rightly issued in accordance with law---Appeal was allowed.

Atif Ali Khan, Additional A.G., Khyber Pakhtunkhwa and Amanatullah Qureshi, Deputy Secretary Finance, Khyber Pakhtunkhwa for Appellants.

Qazi Jawad Ehsanullah, Advocate Supreme Court for Respondents Nos. 1 - 10.

Aftab Javed, Sr. Research Officer, PHC for Respondent No. 11.

2021 S C M R 758

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ASHRAF---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 50-Q of 2017, decided on 13th October, 2020.

(Against the judgment dated 19.06.2017 passed by the Balochistan High Court, Quetta in Criminal Appeal No.337/2016)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 449---Qatl-i-amd, house-trespass in order to commit offence punishable with death---Reappraisal of evidence---Witnesses who furnished the ocular account were all related to the deceased and were residents of the locality---Said witnesses unanimously pointed their fingers upon the accused---Hypothesis of a mistaken identity in the month of June during early dawn was beside the mark---Given the location of police station at a distance of 30/32 kilometers from the place of occurrence in an area with primitive means of communication, the delay in reporting the matter to the police could not be viewed with suspicion---Statements of witnesses were in unison with each other, and confirmed an ongoing dispute between the deceased and one of the absconding co-accused---Witnesses being inmates of the premises, themselves had no axe to grind against the accused nor were expected to swap the actual offender with an innocent person, as there was nothing on the record to even obliquely entertain any theory of substitution---Petition for leave to appeal was dismissed and convictions and sentences recorded against the accused under Ss. 302 & 449, P.P.C. were maintained.

Zahoor Ahmed Chishti, Advocate Supreme Court for Petitioner.

Wallayat Hussain, Additional Prosecutor General Balochistan for the State.

2021 S C M R 760

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

DEPUTY DIRECTOR FOOD FAISALABAD DIVISION, FAISALABAD and others---Petitioners

Versus

MUHAMMAD TAUQIR SHAH and others---Respondents

C.P. No. 43-L/2021 to C.P.58-L/2021, decided on 10th March, 2021.

(Against the order of Punjab Service Tribunal, Lahore dated 26.10.2020, passed in Appeals Nos.321 to 336 of 2020)

Punjab Regularization of Service Act (XV of 2018)---

----Ss. 2(f), 3, 6(1)(a) & 6(1)(b)---Contract employees regularized in service under the Punjab Regularization of Service Act, 2018 ('the 2018 Act')---Whether regularization operated from the date of regularization of the service of the employee or from the date of initial appointment of the employee on contract basis---Held, that provisions of the 2018 Act were unambiguous and clearly mentioned that regularization shall be with immediate effect i.e., from the date of regularization---Regularization of contract employees under the 2018 Act shall be considered from the date of their regularization.

Rana Shamshad Khan, Additional A.G. for Petitioners (in all cases).

Hafiz Tariq Naseem, Advocate Supreme Court for Respondents (in all cases).

2021 S C M R 763

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

MUHAMMAD SHAFIQ ULLAH and others---Petitioners

Versus

ALLAH BAKHSH (DECEASED) through LRs and others---Respondents

Civil Petition No. 634/2020, decided on 25th March, 2021.

(On appeal against the judgment dated 05.12.2019 passed by Peshawar High Court, D.I. Khan Bench in C.R. No. 102-D/2015)

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

----S. 54---Oral contract for sale of immoveable property---Proof---Sale consideration/balance consideration--- Oral contract, by its very nature, was difficult to establish---Since the terms of an oral contract were not self-evident, the plaint seeking the enforcement of an oral contract must set forth the contract's requisite ingredients, including when the sale consideration and/or its balance was to be paid.

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

----S. 24(b)---Transfer of Property Act (IV of 1882), S. 54---Person for whom contract could not be specifically enforced---Scope---Oral contract for sale of immoveable property---Balance consideration---Buyer who sought the specific performance of a contract must perform or demonstrate that he was ready to perform the essential terms thereof, which would include the payment of sale consideration---Admittedly, in the present case, neither the plaintiff nor his legal heirs (the petitioners) tendered the balance sale consideration to the sellers nor deposited the same in court, if they had refused to receive it---Not paying the balance of the sale consideration constituted violation of an 'essential term of the contract that on his (buyer's] part remained to be performed' (clause (b) of S. 24 of the Specific Relief Act, 1877)---For such reason the specific performance of the purported contract could not be enforced in the present case---Plaintiff and his legal heirs also did not demonstrate that they were ready, able and willing to perform their obligation to make payment of the balance sale consideration---Suit was rightly dismissed by all the courts below---Petition for leave to appeal was dismissed, and leave was refused with the Supreme Court disabusing/correcting the oft repeated contention that a buyer was only required to tender sale consideration, or the balance thereof, if so ordered by the court.

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

----S. 27(b)---Contract Act (IX of 1872), S. 41---Parties against whom decree for specific performance may not be issued---Scope---Oral contract for sale of immoveable property---Land bought in 'good faith'---Scope---Purchasers were not related to the ostensible owners from whom they had bought the land---Plaintiff never suggested that the purchasers had not paid the market price for the said land---Purchasers had bought the land for consideration and 'in good faith' in terms of S. 41 of the Contract Act, 1872 and were protected by clause (b) of S. 27 of the Specific Relief Act, 1877---Suit for specific performance of oral contract was rightly dismissed by all the courts below---Petition for leave to appeal was dismissed, and leave was refused.

Muhammad Younis Thaheem, Advocate Supreme Court and Ahmed Nawaz Chaudhary, Advocate-on-Record (Absent) for Petitioners.

Nemo for Respondents.

2021 S C M R 767

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

PROVINCE OF PUNJAB through Secretary Livestock and Dairy Development Department, Government of the Punjab, Lahore and others---Petitioners

Versus

Dr. JAVED IQBAL and others---Respondents

C.P. 2210-L/2020 to C.P. 2239-L/2020 and C.M.A. 489-L/2021, decided on 25th March, 2021.

(Against the consolidated order of Punjab Service Tribunal Dated 14.10.2020, passed in Appeals Nos.1347 of 2020, etc.)

Punjab Regularization of Service Act (XV of 2018)---

----S. 3(1)---Contract employee---Regularization in service---Date of regularization of contract employees was the date of their regularization under the relevant Regularization Policy.

Contractual employee was appointed under a scheme, which was totally different from that of regular appointment and a contractual appointee did not enjoy the right to be appointed on regular basis or to be readily shifted into the regime of regular appointment. It did not matter if the appointment on contract was through the same process of public advertisement and scrutiny through (Provincial) Public Service Commission, it was still a contractual appointment for a limited period of time and was different from a regular appointment by virtue of which a person attained the status of a civil servant.

In the present case, the Regularization Policy ["Appointment of Contractees in BS-16 and above on Regular Basis dated 10.11.2010"] provided for a special procedure whereby the cases of the contractual employees were considered for regularization on a case-to-case basis, keeping in view their performance and other qualifications. Regularization of a contract employee was, therefore, a fresh appointment into the stream of regular appointment. A contractual employee for the first time became a civil servant. Regularization Policy in question clearly provided that contractual employees enjoyed no vested right to regularization much less to be regularized from any particular date. The benefit of regularization extended to them under the Regularization Policy was prospective in nature and there was no legal justification to give it a retrospective application.

Consistent governmental policies on regularization had finally manifested themselves in the Punjab Regularization of Service Act, 2018 ("Act") which specifically provided for regularization from immediate effect. Therefore, there had been a consistent design behind the scheme of regularization and it has always been conceived from the date of regularization.

Judgment of a five member Bench of this Court dated 29.1.2018, passed in Civil Review Petition No.471/2015 ref.

Rana Shamshad Khan, Additional A.G., Ms. Irum Bukhari, Additional Chief Secretary, Ahmed Ali Kamboh, Secretary Regulations, Ms. Khadija Tul Kubra, Addl. Secy. Reg., Hafiz Arshad Mahmood, Law Officer and Anwaar Hussain, Advocate Supreme Court (C.M.A. 489-L/2021) for Petitioners (in all cases).

Mahmood Ahmed Qazi, Advocate Supreme Court for Respondents (in all cases).

2021 S C M R 772

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

BASHIR AHMAD ANJUM---Petitioner

Versus

MUHAMMAD RAFFIQUE and others---Respondents

Civil Petition No. 1127/2020, decided on 25th March, 2021.

(On appeal against the order dated 04.03.2020 passed by Lahore High Court, Lahore in C.R. No. 167103 of 2018)

(a) Gift---

----Proof---Purported gift mutation to deny siblings of inheritance---Subject land was not directly gifted to the petitioner by his deceased father, but was stated to have been gifted to him by a person, who was stated to be the father's attorney---Burden to establish that the father had executed the said power of attorney lay upon the petitioner and all the more so as it was on its basis that the gift was made in favour of the petitioner---However, the original of the said power of attorney was not produced nor permission to produce secondary evidence was obtained---Repository of the record, i.e., the District Registrar's Office denied execution of such power of attorney and it did not exist in their record---During recording of evidence it was also noted that at the relevant time the father was a very old man---Petitioner also gave no reason as to why his father, would execute a power of attorney, nor why he would not appoint anyone from amongst his two sons and three daughters---Moreover, if the father was able to have gone to the District Registrar's office to execute the said power of attorney, he could easily have also gone to the Revenue Office to directly gift his land to the petitioner---Petitioner deprived his siblings of their inheritance and managed to do so for about twenty two years compelling an heir to file a suit to claim what was legally theirs---Trial Court had rightly decreed the suit filed by petitioner's brother---Petition for leave to appeal was dismissed with costs throughout.

(b) Islamic law---

----Inheritance---Principles---When a Muslim died, his legal heirs became owners of his estate at the very moment of his death to the extent of their shares as determined by shariah.

Tauseef Ijaz Malik, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (Absent) for Petitioner.

Nemo for Respondents.

2021 S C M R 775

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

Criminal Petition No. 713-L/2020

(Against the judgment of Lahore High Court dated 02.06.2020, passed in I.C.A. No.196 of 2019)

CHIEF EXECUTIVE OFFICER, MULTAN ELECTRIC POWER COMPANY LTD, KHANEWAL ROAD, MULTAN---Petitioner

Versus

MUHAMMAD ILYAS and others---Respondents

Criminal Petition No. 714-L/2020

(Against the judgment of Lahore High Court dated 02.06.2020, passed in I.C.A. No.201 of 2019)

D.G HR AND ADMIN MEPCO, MULTAN ELECTRIC POWER COMPANY LTD. KHANEWAL ROAD MULTAN---Petitioner

Versus

MUHAMMAD ILYAS and others---Respondents

Criminal Petitions Nos. 713-L and 714-L of 2020, decided on 22nd March, 2021.

(a) Civil service---

----Appointment against vacancy---Directions for appointment issued by the High Court not complied with by the petitioner-company---Whether contempt of court---Judicial overreach---Scope---In the present case the entire recruitment process for the posts in question was cancelled---As a result not a single appointment was made to the said posts as per the public advertisement on the basis of which respondent-candidate had applied---Since the entire recruitment process for the posts was scrapped, respondent could not lay any claim to the said post---Consequently the contempt proceedings initiated (by the High Court) on the basis of order to issue appointment letter to the respondent also came to an end---Petitions for leave to appeal were converted into appeals and allowed, and the constitutional petition filed by the respondent before the High Court was dismissed with the observations that the (High Court) Judge in the present case, instead of deciding the case on merits, passed the final order of appointment of respondent without adjudicating the issue in hand and then executed the order by directing the petitioner-company that the appointment letter be issued by the next date of hearing; that by assuming the role of the Executive the judge disregarded his core function of adjudication, in accordance with law; that ignoring the constitutional boundaries of separation of powers could easily equip a judge with a false sense of power and authority, and that this was a dangerous tendency and must be guarded against to ensure that the judicial role continued to remain within its constitutional limits.

(b) Constitution of Pakistan---

----Art. 199---Judicial review---Scope---Judicial review was the power of the court to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions were consistent with the Constitution and the law---Actions judged inconsistent were declared unconstitutional or unlawful and, therefore, rendered null and void---Court entrusted with the power to judicially review an executive action could only declare it to be right or wrong but could not take over the functions that belonged to another organ of the State.

(c) Administration of justice---

----Judge must always stay within the four corners of the law and must not be swayed by emotions or his own understanding of justice, because in doing so he failed to decide the case in accordance with law.

(d) Constitution of Pakistan---

----Art. 199---Judicial overreach---Scope---When judiciary encroached upon the domain of the Executive, it was said to commit judicial overreach - which occurred when a court acted beyond its jurisdiction and interfered in areas which fell within the Executive and/or the Legislature's mandate---Through such interference the court violated the doctrine of separation of powers by taking on the executive functions upon itself---Such judicial role imperiled the separation of powers, jeopardized the legitimacy of the judicial institution and undermined constitutional democracy---Thus, it was imperative that the courts did not derogate from their constitutionally mandated oversight function of judicial review.

R Suttner "The Question of 'Judicial Overreach'" Polity (22 May 2017) available at http://www.polity.org.za/article/the-question-of-judicial-overreach-2017-05-22 ref.

Mian Muhammad Javaid, Advocate Supreme Court along with Ikram ul Haq, CEO, MEPCO and Nasar Hayat, Director HR MEPCO for Petitioners (in both cases).

Respondents in person (in both cases).

2021 S C M R 780

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

LIAQAT ALI and another---Petitioners-Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 327-L of 2020, Criminal Petitions Nos. 1204-L of 2020 and 1436-L of 2016, decided on 26th March, 2021.

(On appeal from the judgment of the Lahore High Court, Lahore dated 04.10.2016 passed in Criminal Appeal No. 610 of 2012 and M.R. No. 170 of 2012)

Penal Code (XLV of 1860)---

----Ss. 302(b), 34 & 459---Qatl-i-amd, common intention, hurt caused, whilst committing lurking house-trespass or house-breaking---Reappraisal of evidence---Complainant and a witness claimed to have taken the deceased to the hospital in an injured condition, however in the Medico Legal Certificate, there was no mention of their names rather it was mentioned that the deceased was medically examined through a police official (who was not produced during the trial)---Complainant was not the inmate of the house, wherein occurrence took place---In his cross examination, the complainant admitted that he did not mention the purpose of his visit to the house of deceased on the day of occurrence---Presence of eyewitnesses at the place of occurrence at the relevant time was not free from doubts---Motive set out by the prosecution had not been believed by the Courts below by assigning valid and convincing reasons whereas the recovery of a rifle at the instance of accused was of no avail to the prosecution because the report of Forensic Science Laboratory was confined only to its working condition---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Convictions and sentences of accused were set-aside and he was acquitted of the charges framed against him---Since prosecution case was not free from doubts, therefore, acquittal of co-accused by the High Court was also maintained---Appeals were disposed of accordingly.

Mian Shah Abbas, Advocate Supreme Court for Petitioner-Appellant (in Criminal Appeal No. 327-L and Criminal Petition No. 1204-L of 2020).

Syed Tayyab Mehmood Jafri, Advocate Supreme Court for Petitioner (in Criminal Petition No. 1436-L of 2016).

M. Amjad Rafiq, Additional P.G. Punjab for the State.

2021 S C M R 785

[Supreme Court of Pakistan]

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

MUHAMMAD NAEEM KHAN---Appellant

Versus

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

Civil Appeal No. 1474 of 2015, decided on 10th December, 2020.

(Against the judgment dated 16.12.2014 passed by the Peshawar High Court, Peshawar in Writ Petition No. 162 of 2014)

(a) National Bank of Pakistan (Staff) Services Rules, 1973---

----Rr. 3(d), 38 & 39 & Appendix-I, Sr. No. 12---Branch manager of a bank---Negligence and dereliction of duty --- Charge sheet, issuance of---Authorized officer---Perusal of the Appendix-I to the National Bank of Pakistan (Staff) Services Rules, 1973 ('Rules, 1973') revealed that delegation of powers in respect of issuance of show cause notices had been mentioned at Sr. No. I2. thereof---In terms of the said item, the power to issue show cause notice to all categories except (i)(a),(b) and (c) mentioned therein were delegated to Deputy Managing Director, Head of Administration Department, Head Office, Principal Offices and Senior Regional Managers---In the present case, the show cause notice was issued by Executive Vice President/Divisional Head, Head Office, therefore it would appear that the show cause notice to the appellant had prima facie been issued by a competent authority---Power conferred through Rules, 1973 was rightly exercised by the Executive Vice President and the objection of the appellant in such regard was misconceived---Appeal was dismissed.

(b) Civil service---

----Branch manager of (National) Bank---Negligence and dereliction of duty---Penalty of demotion to one lower grade for a period of three years---Appellant being Branch Manager was responsible to keep an eye on the activities in his Branch relating to its business---In view of his senior and supervisory position, it was his responsibility and duty to supervise, exercise, control and keeping a vigilant eye on each and every aspect of business and services provided by different sections of the Branch; he was not only required to be vigilant but to have direct and first-hand knowledge and maintain supervision of all activities and the manner in which such activities were being conducted---Admittedly fraud was committed in the Branch and in the opinion of the inquiry officer, lack of vigilance for long periods of time and failure of the appellant to put systems in place and maintaining the relevant registers perpetrated and perpetuated continuous fraud for almost four years---Appellant consciously and deliberately covered up the fraud and thereby facilitated commission of such fraud which resulted in misappropriation of substantial sums of money at the cost of the exchequer---No explanation was available on the record as to why despite being intimated by a whistleblower and others including surprise audits the appellant remained complacent, failed to take any action and steps to ensure that the delinquents were brought to book by way of appropriate action in accordance with law and that continuation of the fraud and misappropriation of public money was stopped---Instead, the appellant pressurized the whistleblower to remain silent and ultimately removed him from the pension payment section and failed to take any action despite identification of fraud and misappropriation of funds from the pension account during surprise audits---Further the appellant failed to inform the Regional Management, his immediate superior authority about the delinquency of his subordinate staff---On the contrary, he made active efforts to cover up and hide their activities and let embezzlement continue unabated for about four years---Such failure by the appellant emboldened those who were misappropriating funds to continue their activities for years on end---Appellant was provided all relevant documents required by him in order to build his defence and he was also given, an opportunity to cross-examine the witnesses who appeared against him---Appellant also signed the inquiry proceedings confirming the fact that he was provided all due process rights for his defence---Penalty imposed on the appellant was proportionate to the gravity of his offence---Besides Bank had made a statement before the High Court to the effect that the penalty imposed on the appellant was for a limited period of three years and that he shall be considered for promotion in accordance with the rules by the competent authorities on expiry of the said period---Appeal was dismissed.

(c) Civil service---

----Promotion---Expiry of penalty period---After the period of penalty of an official had expired, the same did not operate as an impediment in his future prospects of promotion if otherwise due.

Abdul Rehman Khan, Advocate Supreme Court for Appellant.

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

2021 S C M R 795

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

MUHAMMAD SOHAIL alias SOHAILA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 379-L of 2020, decided on 1st April, 2021.

(On appeal from the judgment of the Lahore High Court, Lahore dated 21.10.2020 passed in Criminal Appeal No. 1668 of 2005 and M.R. No. 670 of 2005)

Penal Code (XLV of 1860)---

----Ss. 302, 393 & 34---Qatl-i-amd, attempt to commit robbery, common intention---Reappraisal of evidence---Formal FIR was registered on the same night of the occurrence and as such there was no delay in reporting the matter to police---Complainant and a prosecution witness who witnessed the occurrence appeared before the Trial Court and remained consistent on all the material aspects of the case and the defence remained unsuccessful in bringing on record any mala fide or ulterior motive on the part of prosecution witnesses for false implication of accused in the case---Test identification parade was conducted in the jail premises where the complainant and two other witnesses duly identified the accused---Prosecution also produced the Special Judicial Magistrate who conducted the identification proceedings to prove the same---Postmortem examination on the dead body of deceased and the nature of firearm injuries mentioned therein supported the case of prosecution---Prosecution had successfully proved its case against the accused beyond reasonable doubt---High Court had already taken a lenient view by converting sentence of death of accused into imprisonment for life, which in the circumstances of the case, met the ends of justice---Appeal was dismissed.

Ch. Nisar Ahmed Kausar, Advocate Supreme Court for Appellant.

M. Irfan Malik, Advocate Supreme Court for the Complainant.

Khurram Khan, Additional P.G. Punjab for the State.

2021 S C M R 799

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

ZAINAB---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 1279 of 2020, decided on 14th December, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of 6.250 kg of charas---Petition for post-arrest bail---DNA test of suckling baby---Accused lady contended that she was arrested with a two years suckling baby, therefore, she be enlarged on bail---Held, that the question of hizanat would come under consideration for grant of bail, therefore, before proceeding further, the DNA test of the child must be carried out, so as to ascertain her age and relationship with the accused---Case was adjourned till DNA report was received.

Iltaf Samad, Advocate Supreme Court for Petitioner.

Ayaz Shaukat, D.A.G. for the State.

2021 S C M R 800

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

CONTROLLER GENERAL OF ACCOUNTS---Appellant

Versus

FAZIL AHMAD, DAO EC (C&W DIVISION HANGU) and others---Respondents

Civil Appeal No. 597 of 2020, decided on 10th February, 2021.

(Against the judgment dated 06.11.2019 passed by the Peshawar High Court, Peshawar in Writ Petition No. 1806-P of 2017)

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

----R. 3(2)---Controller General of Accounts (Appointment, Functions and Powers) Ordinance (XXIV of 2001), S. 12---Two part departmental examination for promotion to Divisional Accounts Officer (BS-17)---Change in method of examination after first part already conducted---Legality---In order to become entitled to promotion respondents participated and qualified the departmental examination Part-I in the year 2012 in accordance with the Rules and Regulations prevalent at that time---Respondents also completed their practical training for six months---Part-II of the examination which was scheduled to be conducted in the year 2013 did not take place---Through the impugned notification dated 09-03-2017 the method of examination was changed---Previously, the examinations were conducted by the department itself but through the impugned notification the Federal Public Service Commission ("FPSC") was assigned the job of conducting the promotion examination---Pursuant to the notification in question which was issued by the Office of Controller General of Accounts, the impugned Resolution No. 881 was circulated by the said Office intimating that promotion examination would henceforth be conducted by the FPSC---Held, that perusal of impugned notification revealed that it had not been issued by the Federal Government and only the concurrence of the Establishment and Finance Divisions had been solicited---While it was true that R. 3(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ('the Rules, 1973') empowered the concerned Ministry/ Division subject to consultation with the Establishment Division to lay down methods of appointment, the notification in question as well as the Resolution under challenge were neither issued by any Ministry or Division nor published in the official Gazette---Record did not indicate that the Federal Government had notified the impugned notification after following the legal and procedural requirements and in accordance with the provisions of R. 3(2) of the Rules, 1973---Furthermore respondents had already successfully completed Part-I of the departmental examination and received the prescribed training in accordance with the Rules and Regulations prevailing at the relevant time---Part-II of the examination was due to be held in 2013 and was not held for the next four years without any fault on the part of the respondents---Right had already accrued in favour of the respondents by reason of passing Part-1 of the departmental examination which could not have been taken away merely on the basis of a notification issued by the Office of Controller General of Accounts without following due process of law---Respondents were entitled to undergo Divisional Accounts Officers' Examination Part II to be conducted by the department itself as per .the previous Regulations---Appeal was dismissed.

(b) Constitution of Pakistan---

----Art. 90---Power conferred on the Federal Government in a provision of a statute/Rules---Connotation---Wherever such a power was conferred on the Federal Government, it was construed as a power given to the Prime Minister and the Federal Ministers/Cabinet to be exercised in the name of the Federal Government.

Mustafa Impex v. Government of Pakistan 2016 PTD 2269 ref.

(c) Notification---

----Prospective effect---Scope---Notification which was duly published in the official gazette took effect from the date on which it was published except otherwise provided in the notification itself.

Moulvi Ejaz ul Haq, DAG, M. Mushtaq Khan, Account Officer and Maqbool Ali, ACGA for Appellants.

Sabit Ullah Khan, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Respondents Nos. 1-3, 8-11, 17, 18, 22, 25, 27, 28 and 30.

Abdul Latif Afridi, Advocate Supreme Court for Respondents Nos.4-7, 12-16, 19, 21-24, 26, 29, 31-32.

2021 S C M R 806

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

AKHTAR ALI---Petitioner

Versus

Mst. TAJ MAHAL and another---Respondents

Civil Petition No. 1564 of 2020, decided on 2nd April, 2021.

Supreme Court Rules, 1980---

----O. III, Rr. 9 & 10(b)---Chief Justice and Registrar of the Supreme Court---Power to fix cases for hearing---Scope---Power(s) to be exercised by the Chief Justice (of the Supreme Court) or the Registrar (in the matter of fixing cases for hearing) must advance the cause of justice, and not defeat it or undermine it---Cases in which interim orders were passed suspending judgments of the High Court which had held a law to violate Fundamental Rights and/or the Constitution were required to be decided as soon as was practicable, and this was only possible if they were fixed for hearing as early as possible---Supreme Court's independence, authority and public respect was undermined when such important cases were not fixed for hearing.

Dr. Adnan Khan, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record (absent) for Petitioner.

Sher Muhammad Khan, Advocate Supreme Court and M. Tariq Khan, Advocate-on-Record (absent) for Respondent No. 1.

Shumail Ahmed Butt, Advocate General, Khyber Pakhtunkhwa on Court's Notice.

2021 S C M R 810

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

KHALID MEHMOOD and another---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 179 of 2017 and Criminal Petition No. 528-L of 2017, decided on 24th March, 2021.

(On appeal from the judgment of the Lahore High Court, Lahore dated 20.02.2017 passed in Criminal A. No. 464-J of 2013 and M.R. No. 418 of 2013)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Presence of alleged eye-witnesses at place of occurrence doubtful---Complainant had not mentioned in her application for registration of FIR that she was also accompanying the persons who took the deceased to the hospital---Nothing was available on record to show that the deceased in injured condition was shifted to a hospital and was medically examined by a doctor---Postmortem examination on the dead body of deceased was conducted belatedly after about fourteen hours of the occurrence and after about seven hours of registration of FIR, whereas the doctor who conducted autopsy of dead body of the deceased mentioned that facility of post mortem was available at the hospital round the clock---While appearing before the Trial Court, complainant made material improvements in her examination in chief in comparison to the version she had given in the FIR---Other eyewitness also made improvements in his examination in chief over the statement he recorded before the police---In the FIR, it was the case of prosecution that the accused and co-accused persons belonging from rival parties fired at the deceased, however, the doctor who examined the deceased observed only a single entry wound on the chest of deceased---No empty was secured from the spot by the investigating agency, therefore, the report of Forensic Science Laboratory was confined to working condition of weapon allegedly recovered at the instance of accused---Motive for the occurrence set out by the prosecution had rightly not been believed by the High Court---All such circumstances led to the definite conclusion that the presence of eyewitnesses at the place of occurrence at the relevant time was not above board and prosecution had failed to prove its case against the accused beyond reasonable doubt---Jail petition was converted into an appeal and allowed, the conviction and sentence of accused was set aside, and he was acquitted of the charge framed against him.

Hasnat Ahmed Khan, Advocate Supreme Court for Petitioner (in Jail Petition No. 179 of 2017).

Muhammad Faisal Malik, Advocate Supreme Court for Petitioner (in Criminal Petition No. 528-L of 2017).

M. Amjad Rafiq, Additional P.G. Punjab for the State.

2021 S C M R 816

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others---Appellants

Versus

ZAHOOR AHMED KHALIL and another---Respondents

Civil Appeals Nos. 712 and 713 of 2020, decided on 1st February, 2021.

(Against the judgment dated 22.02.2018 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos. 5304-P and 5305-P of 2017)

(a) Khyber Pakhtunkhwa Provincial Management Service Rules, 2007---

----Sched. I---Examination for Provincial Management Service (PMS) posts---Reserved quota for in-service candidates---Caretakers (BS-11) working in the Chief Minister's Secretariat---Whether such Caretakers were eligible to participate in the PMS examination on basis of 10% reserved quota for in-service candidates---Held, that Khyber Pakhtunkhwa Provincial Management Service Rules, 2007 ('the Rules, 2007') provided 10% quota for persons holding specific posts and such posts had been spelt out as "Superintendents, Private Secretaries, Personal Assistants, Assistants, Senior Scale Stenographers, Stenographers, Data Entry Operators, Computer Operators, Senior and Junior Clerks"---Further condition was that such persons must possess Postgraduate qualification, from a recognized University and should have at least five years' service under the Government---Rules of 2007 specifically created a class of Government employees to whom, the benefit of 10% quota was provided to the exclusion of others and if the interpretations given by the High Court were to be accepted it would amount to not only reading in something which was not there but also extending and expanding the scope of the Rules, 2007 which was the domain of the Executive and could not lightly be interfered with without recording strong, cogent and compelling reasons---Such reasons had neither been recorded by the High Court nor were available on the record---High Court has misread the Rules, 2007 and taken them out of context in observing that the Rules did not prescribe as to what should be the nature of experience required to participate in the competitive examination for appointment against the 10% quota posts---Plain reading of the Rules, 2007 showed that five years' experience under the Government was relatable to the files/job descriptions mentioned in the earlier part of the Rules, therefore, holding that because there was no specific and elaborate description of the sort of experience that was required, a totally unrelated experience, (in the present case working as a Caretaker/Household staff) would also count as experience of Government service appeared to be without sound legal basis---Importantly respondents [Caretakers (BS-11)] had not altogether been excluded from participating in the competitive examination insofar as if they met the criteria for participation they were not precluded from doing so by competing in open merit --- Furthermore admittedly the respondents did not constitute ministerial staff and were also not borne on the cadre/strength of the Provincial Secretariat---Respondents/Caretakers (BS-11) were not allowed to participate in the PMS examination on basis of 10% reserved quota for in-service candidates---Appeals were allowed and impugned judgment of the High Court was set aside.

Government of Khyber Pakhtunkhwa v. Hayat Hussain 2016 SCMR 1021 and Central Board of Revenue Government of Pakistan v. Asad Ahmed Khan PLD 1960 SC 81 ref.

(b) Interpretation of statutes----

----Ejusdem generis, rule of---Scope---Provisions of a statute and Rules had tobe read in their context and unless otherwise provided or there were compelling and lawful reasons to do otherwise the rule of ejusdem generis had to be followed.

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa, Shahid Iqbal, Litigation Officer, KP, PSC and M. Tufail Khattak, Additional Secretary, Establishment, Khyber Pakhtunkhwa for Appellants (in C.As. Nos. 712 and 713 of 2020).

Respondents in person (in C.A. No. 712 of 2020).

Ishtiaq Haider, Advocate Supreme Court (appeared without filing enter appearing on behalf of Respondent but appeared with Court permission) (In C.A. No. 713 of 2020).

2021 S C M R 822

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

Sheikh ABDUL RAHEEM---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 304-L of 2021, decided on 30th March, 2021.

(Against the order dated 18.02.2021 passed by Lahore High Court, Lahore in Criminal Miscellaneous No. 361-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Offence alleged against the accused fell outside the prohibitory clause of S. 497, Cr.P.C., maximum punishment whereof was three years---Accused had been arrested in the present case, more than six months ago---Furthermore in three other cases (of similar nature) accused had been allowed bail---Petition for leave to appeal was converted into an appeal and allowed, and accused was granted bail with the observation that if the concession of bail was misused by the accused or any delay in the conclusion of trial was caused by him or anyone else acting on his behalf, the Trial Court shall be competent to recall the bail granted to him, after hearing the parties, strictly in accordance with law.

Malik Matee Ullah, Advocate Supreme Court for Petitioner.

Muhammad Amjad Rafiq, Additional P.G. along with Ihsan, SI for the State.

Rashid Javaid Lodhi, Advocate Supreme Court for Respondent No.2.

2021 S C M R 824

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

SHAHZAD SHAHMIR and others---Petitioners

Versus

GOVERNMENT OF SINDH through Chief Secretary, Karachi and others ---Respondents

Civil Petitions Nos. 590, 671 and 696 of 2021, decided on 12th April, 2021.

(Against the order dated 19.1.2021, passed by the High Court of Sindh, Karachi, in C.P. No. D-2839 of 2017)

(a) Civil service---

----Project posts---Recruitment of Headmaster/Headmistress (BPS-17) initiated by the Provincial Government for an education reform project---Legality---Petitioners seem to have been employed in the project to the posts of Headmaster/Headmistress in BPS-17 on two years' contract from 12-07-2017, whereas the very project was for the period between 2013 to 2017---Fact that the project in which the petitioners were alleged to have been appointed was no more in existence and such project having not been taken over by the Provincial Government on the non-development side, it was not understandable as to how the petitioners were appointed on the posts when the very project was not in existence---Appointments of the petitioners were on their very face illegal and, therefore, no right whatsoever existed with the petitioners to continue with the employment---Petitions for leave to appeal were dismissed and leave was refused.

(b) Constitution of Pakistan---

----Art. 242---Civil service---Project posts of BPS-17---Recruitment of Headmaster/Headmistress (BPS-17) initiated by the Provincial Government for an education reform project---Constitutionality---Appointments in BPS-17, as per law, made under Art. 242 of the Constitution, had to be made by the Provincial Public Service Commission, therefore, no contract employment could have been made on the posts in question---Appointments of the petitioners were on their very face illegal and, therefore, no right whatsoever existed with the petitioners to continue with the employment, more so, when the very contract appointments were not in accordance with law---Petitions for leave to appeal were dismissed and leave was refused.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioners (in C.P. No. 590 of 2021).

Rafiq Ahmed Kalwar, Advocate Supreme Court for Petitioners (in C.P. No. 671 of 2021).

Shahab Sarki, Advocate Supreme Court for Petitioners (in C.P. No. 696 of 2021).

Nemo for Respondent (in all cases).

2021 S C M R 827

[Supreme Court of Pakistan]

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

SHAHID SULTAN DURRANI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 117 of 2021, decided on 3rd March, 2021.

(Against the order of the Peshawar High Court, Peshawar dated 08.02.2021 passed in BBA No. 3873-P of 2020)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail, grant of---Bail conditional upon payment of disputed amount within a stipulated time---Accused while present in court submitted that he was ready to pay the whole disputed amount of two cheques to the complainant if some reasonable time was allowed to him---Complainant who was also present in the court submitted that he was willing to accept the said offer provided that it was clarified to the accused that concession of bail would not be available to him if he did not honour his commitment---Held, that considering the circumstances of the case, the accused shall pay whole amount of two cheques i.e. Rs.40,00,000/- (Rupees forty lac only) to the complainant within a period of one month and fifteen days and till then he shall not be arrested in the present case, however, if the accused failed to honour his commitment and did not pay the whole amount, as undertaken by him, to the complainant by the stipulated time, the restraining order shall lapse automatically and police shall be at liberty to arrest the accused---Petition was disposed of.

Ghulam Asghar Khokhar, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Petitioner and Petitioner in person.

Iltaf Samad, Advocate Supreme Court for the Complainant and Complainant in person.

Raja Rizwan Ibrahim Satti, Advocate Supreme Court and Yahya Jan, ASI/IO for the State.

2021 S C M R 829

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education,Peshawar and others---Appellants

Versus

LATIF ULLAH KHAN---Respondent

Civil Appeal No. 178 of 2020, decided on 3rd February, 2021.

(Against judgment dated 07.11.2019 of Peshawar High Court, Peshawar passed in Civil Revision No. 127-B of 2016)

(a) Civil service---

----Posts of Primary School Teachers---Eligibility criteria---Preference of one diploma over the other---Under the recruitment policy, a Regular Institute of Technical Education (R.I.T.E) diploma holder was to be given preference over other candidates---However, such preference was only to be given when the candidate had equal marks as the other competing candidate on merit---Therefore, a distinction must be drawn between a R.I.T.E diploma holder who had equal marks as other candidates on the merit list and was thereby given preference on the basis of his qualification, and a R.I.T.E diploma holder who scored significantly lower marks than competing candidates---Latter candidate was not to be given preference merely by virtue of the diploma--Accordingly, the respondent-candidate, who possessed a R.I.T.E diploma, could not be given preference over the candidates appointed against the respective posts when his overall marks were significantly lower than those who were appointed on merit---Appeal was allowed.

(b) Civil service---

----Posts of Primary School Teachers---Recruitment process---Proposed policy of five extra marks for field experience---Contention of respondent-candidate that he should be appointed against the advertised post based on the five additional marks for his field experience---Held, that the, marks obtained by the respondent were 51.89 and even if the additional five marks for experience were added, his overall marks would be 56.89---On the other hand, the candidates who had been appointed against the respective posts had obtained 58.826, 58.84 and 67.832 marks respectively---Therefore, even if the respondent was granted the additional five marks, he would still not have similar marks as those of the three candidates who had been appointed---Furthermore respondent's own witness admitted during his cross-examination that the said policy for granting additional marks for experience had not yet been implemented in practice and that only a mere proposal regarding it had been circulated---In the absence of any concrete policy in place, the respondent could not get any relief on account of his five years of experience in the field of education---Appeal was allowed.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Under S. 115 of the Code of Civil Procedure, 1908, the supervisory jurisdiction of the High Court in a civil revision petition was purely discretionary and rather limited---However, such discretion must be exercised in a lawful and valid manner on the basis of well entrenched principles of the exercise of such discretion---High Court should not arbitrarily refuse to exercise its discretionary powers, rather, it must satisfy itself as to whether jurisdiction had been exercised properly and whether the proceedings of the subordinate Court suffered from any illegality or irregularity.

Atif Ali Khan, Additional A.G., Khyber Pakhtunkhwa for Appellants.

Tariq Javed Qureshi, Advocate Supreme Court for Respondent along with Respondent in person.

2021 S C M R 834

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik andSyed Mansoor Ali Shah, JJ

D. G. KHAN CEMENT COMPANY LTD.---Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary,Lahore and others--Respondents C.P. 1290-L/2019, decided on 15th April, 2021.

(Against the Order of Lahore High Court, Lahore dated 31.01.2019, passed in W.P. No. 5898/2019)

(a) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)---

----S. 3---Restrictions on establishment of industrial undertakings---Zoning and classification of land---Declaring an area as 'positive' or 'negative' area---Purpose and scope---Authority to regulate land use, introduce zones or negative or positive areas, was recognized as the police power of the state, asserted for public welfare---Zoning of the Province into positive and negative areas was a means towards achieving organized and planned industrial growth without impinging on the social, environmental, ecological, civic and economic interests of the locals---Zoning divided land into distinct geographical areas and imposed restrictions with respect to use of land in each area---Such regulatory controls allowed or disallowed use of land in a particular geographical zone, therefore, any application requesting permission to establish or enlarge an industrial undertaking under S. 3 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 ('the Ordinance') in an area that was already marked as a zone (negative or positive) was decided accordingly---Organization and planning under the Ordinance was, therefore, in effect, actualized on the basis of the parameters mentioned under S. 3(b) of the Ordinance.

Euclid v. Ambler Realty Co. 272 U.S. 365, 387 ref.

(b) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)---

----S. 3(b)---Restrictions on establishment of industrial undertakings---Sustainable development---Scope---Terms 'prejudicial to national interest', 'injurious to health' and 'source of nuisance' used in S. 3(b) of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 ('the Ordinance')---Interpretation---Organized and planned growth in the world today would undoubtedly mean "sustainable development" and the terms prejudicial to national interest, injurious to health and source of nuisance [mentioned in S. 3(b) of the Ordinance] would naturally encompass the pressing issues of the time i.e., climate change; environmental degradation; food and health safety; air pollution; water pollution; noise pollution; soil erosion; natural disasters; and desertification and flooding having an appreciable impact on public health, food safety, natural resource conservation, environmental protection, social equity, social choice, etc.

(c) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)---

----S. 3---Restrictions on establishment of industrial undertakings---Zoning of area as 'positive' or 'negative' area---Scope---Zoning of areas for the purposes of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 was not absolute but was subject to change provided such change was necessitated by new circumstances.

Zoning of areas into positive and negative was not absolute. Organization and planning of future growth could not be frozen in time and was never intended to be static. Zoning allowed the flexibility needed to respond to change. The choices that governed a particular territorial zoning may not hold good indefinitely. Land use patterns changed giving rise to opportunities to revise earlier standards as zoning measures were introduced in public interest. The value of zoning laid in the flexibility by which it was administered to react to new social and economic situations. Daniel R. Mandelker, 'Spot Zoning: New Ideas for an Old Problem' (2016) 48 Urb. Law. 737 and Keith H. Hirokawa, 'Making Sense of a "Misunderstanding of the Planning Process" ' (2012) 44 Urb. Law. 295 ref.

(d) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)---

----S. 3---Punjab Local Government Act (XVIII of 2013), Ss. 4, 72(2)(a), 77(n), 81(1)(d) & 87(1)(g)---Restrictions on establishment of industrial undertakings---Zoning and classification of land---Whether mandate of Provincial Government or Local Government---By way of impugned notification establishment of new cement plants, and enlargement and expansion of existing cement plants was not allowed in the "Negative Area" falling within the Districts 'C' (Chakwal) and 'K' (Khushab)---Petitioner-company that owned and ran a cement manufacturing plant in District 'C' challenged the notification on the ground that the Provincial Government and its concerned department lacked jurisdiction to issue the impugned notification and only the Local Government under the Punjab Local Government Act, 2013 ("Act") could exercise jurisdiction over matters relating to zoning and classification of land, land use, environment control, water sources and ecological balances---Held, that the present matter involved a trans-district issue which could be dealt with by the Provincial Government exercising the authority conferred by the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 ('the Ordinance')---Even so, the functions of the local government could not mean to trump the executive authority of the Provincial Government---Ordinance of 1963 was a special law compared to the Act and therefore took preference---Furthermore, under S. 4 of the Act, local governments had to function within the provincial framework and were to faithfully observe the federal and provincial laws---In the performance of their functions, the local governments were not to impede or prejudice the exercise of the executive authority of the Provincial Government---Supreme Court upheld the impugned notification---Petition for leave to appeal was dismissed and leave was refused.

LDA v. Imrana Tiwana 2015 SCMR 1739 ref.

(e) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)---

----S. 3---Constitution of Pakistan, Arts. 18 & 25---Restrictions on establishment of industrial undertakings---Zoning of area as 'negative' area---Whether discriminatory and infringement of right to trade and business---By way of impugned notification establishment of new cement plants, and enlargement and expansion of existing cement plants was not allowed in the "Negative Area" falling within the Districts 'C' (Chakwal) and 'K' (Khushab)---Petitioner-company that owned and ran a cement manufacturing plant in District 'C' challenged the notification on the ground that its right to freedom of trade, business and profession guaranteed under Art. 18 of the Constitution was infringed and the actions of the Provincial authorities unreasonably discriminated between the petitioner and other cement manufacturers---Held, that the rights granted under Art. 18 of the Constitution were "subject to such qualifications" that had been "prescribed by law"---Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 ('the Ordinance') forbade the setting up of any industrial undertaking except by the prior written permission of the Government---Placing an embargo on establishment and expansion of cement plants in the Negative Area to provide for organized and planned growth of industries in the Province in line with the objectives of the Ordinance did not offend Art. 18 of the Constitution---Furthermore the decision to impose a ban on the establishment and expansion of cement plants was not taken to benefit or punish anyone but to ensure the organized and planned growth of industry in the Province in view of the findings of a multidisciplinary study which provided reasonable basis for zoning of project area without violating Art. 25 of the Constitution---Impugned notification was in accordance with the provisions of the Ordinance and negative area could be planned and designed banning industrial activity within its bounds---Petitioner-company was not allowed to enlarge or enhance the capacity of its existing cement plant till such time that the Negative Area subsisted---Petition for leave to appeal was dismissed and leave was refused.

Tariq Khan Mazari v. Government of Punjab PLD 2016 SC 778 ref.

(f) Constitution of Pakistan---

----Arts. 184(3) & 199---Scientific and technical data presented to court by Government functionaries---Judicial review---Scope---Courts while reviewing scientific and technical determinations generally exhibited deference to institutional competence because of the specialized nature of the subject matter, as there was a risk that the courts would unravel layers of careful scientific work as a result of their combined ignorance and judicial second-guessing while reviewing science-based regulatory decisions---However, scientific complexity did not provide excuse to evade judicial scrutiny as it needed to be ensured that Government did not transgress its mandate or did not mangle scientific results to produce certain outcomes---Judicial oversight of specialized administrative decision-making was necessary to obviate the possibility of capture and incompetence.

Emily Hammond Meazell, 'Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science' (2011) 109 Mich. L. Rev. 733, 734; Elizabeth Fisher, Pasky Pascual and Wendy Wagner, 'Science Challenges for Law and Policy: Rethinking Judicial Review of Expert Agencies' (2015) 93 Tex. L. Rev. 1681, 1682; Laura Anzie Nelson, 'Delineating Deference To Agency Science: Doctrine or Political Ideology?' (2010) 40 Envtl. L. 1057, 1068 and Eduardo Jordao and Susan Rose-Ackerman, 'Judicial Review of Executive Policymaking in Advanced Democracies: Beyond Rights Review' (2014) 66 Admin. L. Rev. 1, 68 ref.

(g) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)---

----S. 3---Constitution of Pakistan, Arts. 9 & 14(1)---Restrictions on establishment of industrial undertakings---Zoning of area as 'negative' area---Precautionary principle of environmental law---Scope---In Dubio Pro Natura, principle of---Scope---By way of impugned notification establishment of new cement plants, and enlargement and expansion of existing cement plants was not allowed in the "Negative Area" falling within the Districts 'C' (Chakwal) and 'K' (Khushab)---Petitioner-company that owned and ran a cement manufacturing plant in District 'C' challenged the notification on the ground that it was not validly issued and it also infringed its various Fundamental rights under the Constitution---Held, that enlargement of an existing cement plant in a negative area attracted the well-established principle of international environmental law called the Precautionary Principle, reflected in Principle 10 of the Rio Declaration, 1992---Said principle provided that where there were threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation---Another emerging environmental principle declared as Principle 5 of the IUCN World Declaration on the Environmental Rule of Law (2016) was 'in dubio pro natura' i.e. in cases of doubt, all matters before courts, administrative agencies, and other decision-makers shall be resolved in a way most likely to favour the protection and conservation of the environment, with preference to be given to alternatives that were least harmful to the environment---Actions were not to be undertaken when their potential adverse impacts on the environment were disproportionate or excessive in relation to the benefits derived therefrom---In the facts of the present case, the Provincial Government was obliged to take a precautionary approach and act in-line with the principle of in dubio pro natura, till, inter alia, a detailed hydrogeological study assessing the potential of groundwater resources for industrial purposes of the project area was carried out---Such approach was also constitutionally compliant as the courts were to protect the fundamental rights of the public and in the present case right to life, sustainability and dignity of the community surrounding the project remained paramount till such time that the Government was of the view that the project of the petitioner-company had no adverse environmental effects---Also, the environment needed to be protected in its own right---Impugned notification was in accordance with the provisions of the Ordinance and negative area could be planned and designed banning industrial activity within its bounds---Petitioner-company was not allowed to enlarge or enhance the capacity of its existing cement plant till such time that the Negative Area subsisted---Petition for leave to appeal was dismissed and leave was refused.

(h) Punjab Environmental Protection Act (XXXIV of 1997)---

----Preamble---Environmental legal personhood---Concept and scope---Approach of personifying the environment in order to protect and preserve nature and its objects was one of the latest evolutions in environmental law---Man and his environment each needed to compromise for the better of both and this peaceful co-existence required that the law treated environmental objects as holders of legal rights.

Mohd. Salim v. Uttarakhand 2017 (2) RCR (Civil) 636); Human Rights and Peace for Bangladesh v. Bangladesh (2019) W.P. No.13989 of 2016 (HCD) and Alexandre Lillo, 'Is Water Simply a Flow? Exploring an Alternative Mindset for Recognizing Water as a Legal Person' (2018) 19 Vt. J. Envtl. L. 164, 165 ref.

(i) Punjab Environmental Protection Act (XXXIV of 1997)---

----Preamble---Water justice---Precautionary principle---Scope---In Dubio Pro Natura, principle of---Scope---Approach to be adopted by courts when adjudicating water related disputes---Precautionary principle should be applied in the resolution of water-related disputes---Notwithstanding scientific uncertainty or complexity regarding the existence or extent of risks of serious or irreversible harm to water, human health or the environment, judges should uphold or order the taking of the necessary protective measures having regard to the best available scientific evidence---Consistent with the principle in dubio pro natura, in case of uncertainty, water and environmental controversies before the courts should be resolved, and the applicable laws interpreted, in a way most likely to protect and conserve water resources and related ecosystems---In adjudicating water and water-related cases, judges should be mindful of the essential and inseparable connection that water had with the environment and land uses, and should avoid adjudicating those cases in isolation or as merely a sectoral matter concerning only water---Water justice required appreciation that there were no easy, simple or singular solutions to the water crisis, and that water problems could not be resolved through technical solutions alone but required broader recognition that they were inherently ecological, political and social issues simultaneously.

Farhana Sultana, 'Water justice: why it matters and how to achieve it' (2018) 43 Water International 483; Principle 1 - Water as a Public Interest Good; Principle 2 - Water Justice, Land Use, and the Ecological Function of Property; Principle 5 - Water Justice and Precaution; Principle 6 - In Dubio Pro Aqua and Principle 9 - Water Justice and Environmental Integration ref.

(j) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)---

----S. 3---Constitution of Pakistan, Art. 9---Restrictions on establishment of industrial undertakings---Zoning of area as 'negative' area-- Climate change---Significance---By way of impugned notification establishment of new cement plants, and enlargement and expansion of existing cement plants was not allowed in the "Negative Area" falling within the Districts 'C' (Chakwal) and 'K' (Khushab)---Petitioner-company that owned and ran a cement manufacturing plant in District 'C' challenged the notification on the ground that it was not validly issued and it also infringed its various Fundamental Rights under the Constitution---Held, that the fragility of the Negative Area needed to be examined in the larger context of climate change---Environmental issues initially brought to the courts were local geographical issues, be it air pollution, urban planning, water scarcity, deforestation or noise pollution, but now climate change had a bearing on these issues---Impugned notification, in the current facts of the case, was a climate resilient measure and in step with the National Climate Change Policy, 2012 (Pakistan) and the Constitution---Petition for leave to appeal was dismissed and leave was refused.

Shehla Zia's case PLD 1994 SC 693; Imrana Tiwana's case PLD 2015 Lah. 522 and Asghar Leghari's case PLD 2018 Lah. 255 ref.

(k) Punjab Environmental Protection Act (XXXIV of 1997)---

----Preamble---Constitution of Pakistan, Art. 9 & Preamble---Climate change---'Climate democracy' and 'intergenerational justice'---Concept and scope---Important dimension of climate change was intergenerational justice and the need for climate democracy---Courts had a role to play in reducing the effects of climate change for the present generation and for the generations to come---Through the pen and jurisprudential fiat, the courts needed to decolonize future generations from the wrath of climate change, by upholding climate justice at all times---Post climate change, democracies had to be redesigned and restructured to become more climate resilient and the fundamental principle of rule of law had to recognize the urgent need to combat climate change---Robust democracies needed to be climate democracies in order to save the world and further generations from being colonized at the hands of climate change---Supreme Court observed that Premabular constitutional value of democracy under the Constitution (of Pakistan) was in effect climate democracy, if we were to actualize the Constitution and the fundamental rights guaranteed under the Constitution for ourselves and our future generations.

Salman Aslam Butt, Advocate Supreme Court for Petitioner.

Ms. Aliya Ejaz, Assistant A.G., Dr. Khurram Shahzad, D.G. EPA, M. Nawaz Manik, Director Law, EPA, M. Younas Zahid, Dy. Director, Fawad Ali, Dy. Director, EPA (Chakwal), Kashid Sajjan, Asstt. Legal, EPA and Rizwan Saqib Bajwa, Manager GTS for Respondents.

Hasan Riaz, Civil Judge-cum-Research Officer at SCRC1 for Research Assistance.

2021 S C M R 855

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

WALI JAN---Appellant

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Agriculture, Livestock Cooperative Department, Peshawar and others---Respondents

Civil Appeal No. 931 of 2020, decided on 1st February, 2021.

(Against the judgment dated 8.9.2015, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar, in Appeal No.1681 of 2011)

Constitution of Pakistan---

----Arts. 187(1) & 212(3)---Service appeal before the Supreme Court---Scope---Party (civil servant) had no right to raise an absolutely new plea before the Supreme Court and seek a decision on it, nor could such plea be allowed to be raised as a matter of course or right on the pretext of doing complete justice---Besides, the Supreme Court in its appellate jurisdiction would not generally determine a question of fact that had not been pleaded or raised by the party in the lower forum.

Sarhad Development Authority N.W.F.P. (Now KPK) v. Nawab Ali Khan 2020 SCMR 265 ref.

Amjad Ali (Mardan), Advocate Supreme Court (via video link from Peshawar) and Haji Muhammad Zahir, Advocate-on-Record (absent) for Appellant.

Zahid Yousaf Qureshi, Addl. A.G., Khyber Pakhtunkhwa for Respondents.

2021 S C M R 857

[Supreme Court of Pakistan]

Present: Mushir Alam andAmin-ud-Din Khan, JJ

HASSAN NAWAZ---Petitioner

Versus

ATTA MUHAMMAD (DECEASED) through his LRs.---Respondent

Civil Petition No. 510 of 2019, decided on 1st January, 2021.

(Against the judgment dated 05.12.2018 passed by Lahore High Court, LahoreinC.R.2144/2013)

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

----O. XVIII, Rr. 8, 13 & 14---Memorandum when evidence not taken by Judge---Scope---Situations explained where it was not necessary to take the evidence of a witness verbatim in writing but the Judge was required to make a memorandum.

There were two situations that were contemplated under the Civil Procedure Code, 1908 where it was not necessary to take the evidence of a witness verbatim in writing but the Judge was required to make memorandum of the substance of what each witness deposed as the examination of each witness proceeded. One such situation that was provided for was, where the evidence was not taken down in writing by the Judge, and secondly in unappealable cases. Every memorandum so made formed part of the record. In cases where a Judge was unable to prepare such memorandum, he was required to record reasons for the same. On examining the scheme of Order XVIII, C.P.C. and other enabling provisions of the Code, it was clear that where the verbatim evidence was being recorded in writing, there was no necessity of making any memorandum of the substance of what each witness deposed. The recording of a memorandum of the substance of evidence meant the essence, substance, or crux of the evidence that may be necessary for the just determination of the controversy in issue.

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

----O. XVIII, Rr. 8, 15, 16(3), 17 & O. XXVI, Rr. 1, 7---Memorandum where evidence not taken down in writing by a Judge---Scope---Evidence recorded through Local Commission appointed by consent of both parties---Rule 8 of O. XVIII, C.P.C. was not applicable in cases where the evidence was recorded, under the orders of the Court through a Commission---Trial Court/Judge may take into consideration the evidence or memorandum of evidence, as the case may be, either recorded by the court itself, the predecessor Judge, or through Commission---Once such report of the Commissioner, along with the evidence so recorded was taken on record, it formed part of the judicial record and was to be read at any hearing of the suit and for making any order or pronouncement of judgment.

Ch. Nusrat Javed Bajwa, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Masood A. Malik, Advocate Supreme Court for Respondent.

2021 S C M R 863

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

HUMAN RIGHTS COMMISSION OF PAKISTAN through Chairperson and others---Appellants

Versus

FEDERATION OF PAKISTAN through Ministry of Education and others---Respondents

C.M.A. No.4821 of 2018 in S.M.C. No.01 of 2014 and C.M.A. No.516 of 2019 in Constitutional Petition No.62 of 2017 and Constitutional Petitions Nos.62 and 63 of 2017, decided on 15th February, 2021.

Constitution of Pakistan---

----Art. 184(3)---Matter regarding reconstruction and restoration of Hindu temples---Issues including payment to Hindu Council for restoration of Samadhi shrine in Karak; criminal cases against persons accused of causing damage to Samadhi shrine; restoration of Prahlad mandir in Multan; management of Katas Raj temple by Provincial Government; and details of properties leased out by the Evacuee Trust Property Board---Supreme Court gave directions to relevant functionaries, and sought compliance reports from others to be made available on next date of hearing, to address the issues highlighted.

In Attendance:

Sohail Mehmood, Additional A.G.P., Shoaib Suddle, Chairman of Commission, M. Saqib Jillani, Member of Commission and Dr. Ramesh Kumar, Member of Commission.

M. Ikram Ch., Senior Advocate Supreme Court, Dr. Aamir Ahmed, Chairman ETPB and Tariq Khan Wazir, Additional Secy., (Shrines) ETPB for ETPB.

Shumail Ahmed Butt, A.G. Khyber Pakhtunkhwa, Qasim Niaz, Chief Secy., Khyber Pakhtunkhwa, M. Rafiq, Additional Assistant Commissioner, Kohat, Tayyab Khan, RPO, Kohat and M. Naeem, Deputy Secretary, H.E., Khyber Pakhtunkhwa for Government of Khyber Pakhtunkhwa.

Ch. Faisal Fareed, Additional A.G. Punjab, Ibad Ullah Sajid, Social Welfare Officer, Government of Punjab, Mian Zahid Mehrnood, Law Officer, H.R. Punjab, Rizwana Naveed, Additional Secy., H.R. Punjab, Amir Riaz, Director, PCTB, Lahore, Dr. Sohail Sarwar, Deputy Director, PCTB, Lahore, Shehzad Manzoor, DSP, Multan and Wajid Ullah Kundi, Secretary I&C, Punjab for Government of Punjab.

Niaz Ullah Niazi, A.G. Islamabad for ICT.

Ayaz Khan Swati, Additional A.G., Balochistan for Government of Balochistan.

Iftikhar Ahmed, S.O. Ministry of Religious Affairs, Sohail Aijaz, Dy. Director Litigation Ministry of Federal Education and M. Rafiq Tahir, J.E.A. Ministry of Federal Education, Kamran Murtaza, Senior Advocate Supreme Court (via video-link from Quetta) and Peter Jacob, E.D. CSJ/Chairperson PCMR for Federal Department.

Ms. Leela Kalpana, Additional A. G. Sindh (via video-link from Karachi) and Abdul Hadi, Secretary Minorities Affairs, Sindh (via video-link from Karachi) for Government of Sindh.

2021 S C M R 867

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J.,Ijaz ul Ahsan andSayyed Mazahar Ali Akbar Naqvi, JJ

The CHAIRMAN BOARD OF GOVERNORS, MEDICAL TEACHING INSTITUTE (MTI) LADY READING HOSPITAL, (LRH), PESHAWAR and others---Appellants

Versus

Syed ROIDAR SHAH, CLINICAL TECHNICIAN (PHARMACY), MEDICAL TEACHING INSTITUTE (MTI), LADY READING HOSPITAL (LRH), PESHAWAR and others---Respondents

Civil Appeal No. 925 of 2020, decided on 3rd February, 2021.

(Against the judgment dated 29.07.2020, passed by the Peshawar High Court, Peshawar in Writ Petition No.2527-P of 2020)

(a) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Ss. 16(3A) & 16(3B)---Civil servants working in Medical Teaching Institutions ('the Institutions')---Deputationists---Joint reading of Ss. 16(3A) & 16(3B) of the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 showed that all civil servants employed in the Institutions were deemed to be on deputation and the Board of Governors was competent to terminate the deputation period and relieve the employees from the Institutions and it was not required to give any reason for doing so---Appeal was allowed.

(b) Civil service---

----Deputationist, rights of---Scope---Deputationist had no right to continue in an employment as a deputationist and the employer, where the deputationist was employed, was competent to terminate the deputation and relieve the deputationist from its employment for reporting to his parent department.

Dr. Shafi-ur-Rehman Afridi v. C. D.A., Islamabad through Chairman and others 2010 SCMR 378; S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 799 and Senate Secretariat through Chairman and another v. Miss Faiqa Abdul Hayee 2014 SCMR 522 ref.

Waseem-ud-Din Khattak, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Mian Shafaqat Jan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 1 - 7.

Imran Hamid, Additional Secretary, Health Department, Khyber Pakhtunkhwa, Hafeez ur Rehman Shah, S.O. Health Department, Kyber Pakhtunkhwa and Shehbaz Khan, Superintendent, Health Department, Khyber Pakhtunkhwa for Respondent No. 9.

2021 S C M R 871

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

TARIQ AHMED and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Civil Petitions Nos. 1017/2021 to 1020/2021, 1077/2021 to 1091, 1093 to 1102/2021, 1123/2021 to 1146/2021, 1278/2021 to 1288/2021, 442-K/2021 and C.M.A. No.418-K/2021, decided on 14th April, 2021.

(Against the order dated 02.03.2021 in Constitutional Petition D-299/2017, order dated 10.3.2021 in Constitutional Petitions Nos. D-599, 546/2019, 4740, 4423/2016, 543, 537/2019, 1262/2020, 443/2018, 541/2019, 3067/2016, 569/2019, 528/2018, 944/2019, 541/2018, 493/2018, 472/2018, 923/2018, 473/2018, 497/2018, 460/2018, 644/2018, 627/2018, 474/2018, 423/2018, 1203/2018, 728/2018, 1593/2018, 626/2018, 624/2018, 522/2018, 516/2018, 527/2018, 665/2018, 573/2018, 492/2018, 625/2018, 568/2019, 314/2019, 520/2018, 770/2018, 1376/2019, order dated 17.3.2021 passed in Constitutional Petitions D-1175/2020, 1160/2020, 1243/2020, 1168/2020, 1162/2020, 966/2020, 1157/2020 and order dated 16.3.2018 passed in Const.

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---Pre-arrest/post-arrest bails---Petitioners, who were arrayed as accused persons in different National Accountability Bureau (NAB) references, were admitted to bails, both anticipatory as well as post arrest by the High Court in different Constitutional petitions, allowed in lieu of deposit of amounts allegedly embezzled by the each petitioner---Supreme Court observed that such wholesale treatment of motions seeking bails, pre-arrest as well as post arrest, in an omnibus manner, in isolation to the distinct facts and circumstances of each case as well as different legal regimes applicable thereto, could not be approved---Petitions for leave to appeal were converted into appeals and allowed; impugned orders of the High Court were set-aside and bail petitions filed by the petitioners before the High Court of Sindh were remitted with the directions that the same shall be deemed as pending for decisions afresh, and the petitioners on pre-arrest bail shall remain on ad-interim bail and they were to be notified by the Court for their appearance.

Shah Khawar, Advocate Supreme Court and Mehmood A. Sh, Advocate-on-Record for Petitioners (in C.Ps. Nos. 1017-1020/2021).

Zulfikar Khalid Maluka, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1077-1084, 1095-1102, 1123-1146, 1278-1282/2021).

Mukesh Kumar G. Karara, Advocate Supreme Court and M. Kassim Mirjat, Advocate-on-Record for Petitioners (in C.Ps. Nos. 1085-1091, 1093-1094/2021).

Malik Mumtaz Hussain Jai, Advocate Supreme Court and Mehmood A. Sh, Advocate-on-Record for Petitioners (in C.Ps. Nos. 1283-1288/2021).

Ms. Abida Parveen Channar, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.P. 442-K/2021 and C.M.A..418-K/21).

Abdus Sattar Awan, Special Prosecutor, NAB, M. Hasan Akbar, Additional Prosecutor General, NAB for the NAB (in all cases).

2021 S C M R 873

[Supreme Court of Pakistan]

Present: Mushir Alam,Sardar Tariq Masood and Yahya Afridi, JJ

The STATE through P.G. Sindhand others---Appellants/Petitioners

Versus

AHMED OMAR SHEIKH and others---Respondents

Criminal Appeals Nos. 599 to 602 of 2020 and Criminal Petitions Nos. 1085 and 1086 of 2020, decided on 28th January, 2021.

(On appeal against the judgments judgment dated 2.4.2020 passed by the High Court of Sindh, Karachi, passed in Sp. Crl. Anti-Terrorism Appeals Nos. 66, 67 and 68 of 2002 and Confirmation Case No.12/2002)

Per Sardar Tariq Masood, J; MushirAlam, J agreeing; Yahya Afridi, J disagreeing to the extent of acquittal of two accused persons.

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

----Ss. 302(b), 120-A, 362 & 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 6(a) & 7---Criminal Procedure Code (V of 1898), S. 164---Qanun-e-Shahadat (10 of 1984), Art. 37---Kidnapping and murder of a foreign journalist, criminal conspiracy---Reappraisal of evidence---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 convictions 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 all charges---Held, that the prosecution failed to prove any conspiracy between the accused and an acquitted co-accused in a hotel room in presence of an alleged prosecution witness---Identification of accused by the witnesses in Court had no value because on several occasions the accused was brought in court with an open face and the witnesses had all the opportunity to see him---Crime report/FIR was lodged twelve (12) days after the occurrence, indicating that till that time consultation and deliberation was going on and FIR was chalked out after such consultation and deliberation---Last seen evidence was available with the complainant well before lodging the FIR but was not mentioned therein which created serious doubt regarding such piece of evidence---Complainant never produced her laptop/computer on which she received threatening emails after the kidnapping of deceased---Complainant did not come forward to join the investigation to support the prosecution version and ultimately it was the prosecution that gave her up under the pretext of her pregnancy---No forensic analysis of the video clip/tape showing beheading of deceased was ever carried out nor any report of expert was ever produced by the prosecution, thus, no reliance could be placed on such piece of evidence---Only a copy of the video clip/tape was delivered to the Investigating Officer but not its original---Original clip/tape was willfully withheld by the witness who received it and an adverse presumption could be drawn that the said clip was prepared in a laboratory or some film studio---Date and place of arrest of accused and co-accused persons as claimed by the police was also doubtful---Admission of accused before the police was not admissible in evidence, whereas the delay in recording the judicial confessions of two co-accused persons, which were subsequently retracted, was indicative of the fact that the confessional statements were not made voluntarily---Perusal of the confessional statements of the two co-accused persons showed that the fear of police was not removed from their mind and the confessions made by them were not free from extraneous influence such as threat of police torture---Handwriting expert relied upon by the prosecution to prove the ransom manuscripts allegedly written by the accused and a co-accused had no qualification, knowledge or expertise to be regarded as a handwriting expert---Prosecution evidence was full of doubts and it had failed to prove the guilt of the accused and co-accused persons---Appeal filed by accused against his conviction under S. 362, P.P.C. was allowed and he was acquitted of all charges against him by extending the benefit of doubt to him---Appeals challenging acquittal of co-accused persons were dismissed, and impugned judgment of High Court to the extent of acquittal of all four co-accused persons from their charges was maintained. [Majority view]

Per Sardar Tariq Masood, J: (Majority view): Prosecution had failed to establish any conspiracy between the accused and an acquitted co-accused regarding the abduction of the deceased/ foreign journalist. Facts available on record clearly indicated that a false witness was introduced as the receptionist of a hotel where the alleged conspiracy to murder the deceased was hatched. Factum of alleged conspiracy was also completely denied by one of the main prosecution witnesses. The statement of another witness in whose presence the alleged conspiracy was hatched in a hotel room did not indicate that before hatching the conspiracy the accused entered into an agreement, written or oral, to do an illegal act and the crime was committed in pursuance of a conspiracy by the accused.One of the conspirators/co-accused, who was also allegedly in the room where the alleged conspiracy was planned with the accused, was acquitted by the trial Court, and no appeal against his acquittal was ever filed by the prosecution. So such acquittal attained finality and story of hatching conspiracy by the accused was falsified.

Although one of the prosecution witnesses identified the accused in the Court but identification in the Court had no value because said witness and six other witnesses were examined by the prosecution in court and on each occasion the accused was brought with an open face and the witness had all the opportunity during this time to see the accused in Court. Even prior to that the accused was brought many a times before the Court during physical and judicial remand and there was every opportunity for everyone to see him with an open face. So the identification in the Court, by the witness in question, had no persuasive value. According to prosecution and the FIR the occurrence took place on 23-1-2002 whereas report was lodged on 4-2-2002. Prior to that the complainant/wife of deceased had received email on 27-1-2002, including photographs showing her husband held in detention. She also received another email subsequently on 30-1-2002 through which it was threatened that her husband would be killed within 24 hours, if certain demands were not fulfilled. She did not report the matter when she received emails containing photographs of her husband while he was held in detention or even when she was threatened that her husband would be murdered within 24 hours. Her husband was under thick clouds of danger but she kept quiet for twelve long days, which could not be overlooked merely because of gravity of the offence. Wife of deceased did not lodge the crime repot promptly and the matter was deferred till 4-02-2002, indicating that till that time consultation and deliberation was going on and FIR was chalked out after such consultation and deliberation, loosing its evidentiary value and creating serious doubt upon the prosecution story A taxi driver/prosecution witness claimed that before the occurrence he picked up the deceased from outside a bungalow in the presence of the complainant (wife of deceased); that thereafter he (i.e. the taxi driver) dropped the deceased outside a restaurant; that from outside the restaurant a person de boarded a car, shook hands with the deceased and took him away. Said taxi driver claimed that he mentioned all such facts to the complainant on the next day, however the complainant did not mention such important facts while lodging the FIR. Had the story of deceased going with a person who de-boarded a car outside the restaurant been true the same must have been mentioned in the FIR particularly when the taxi driver claimed that he had given the details of such episode of last seen to the complainant. The last seen evidence was available with the complainant well before lodging the FIR but was not mentioned therein which created serious doubt regarding such piece of evidence. So it was quite clear that the story of last seen was introduced after the lodging of FIR, when the taxi driver was arrested as a suspect and his statement under section 161, Cr.P.C. was recorded regarding last seen. So the last seen evidence was not in existence, prior to lodging of FIR, which is why such piece of evidence was missing in the FIR, creating serious doubt regarding it.

Complainant did not explain in the FIR as to from which laptop/computer she received the threatening emails. Allegedly she handed over the copies of the said emails to the police and same were taken into possession through a Mushirnama, but surprisingly said Mushirnama was not signed by her. Complainant never produced her laptop/computer on which she received the emails. The prosecution even did not produce any person who might have delivered the said emails to her. So withholding her evidence and her non-appearance was a circumstance indicating that till lodging of FIR the story of last seen was not in existence and till that time the only information with the complainant was that the taxi driver dropped the deceased in front of a restaurant, It was only the complainant who could have produced the source or gadget/computer on which the emails were received, which could have led to the computer from which these emails were originated. She did not come forward even to join the investigation to support the prosecution version and her evidence was held up by the prosecution. During trial she made request that her statement be recorded through commission. She ensured that she would appear before the Court with the permission of the doctor, but it was the prosecution who ultimately gave her up under the pretext of her pregnancy. The accused party had also filed an application under section 540, Cr.P.C. for summoning the complainant, which prosecution opposed and ultimately, she was given up. The prosecution could have made an application for postponing the trial till the recovery of complainant and her availability but even such effort was not made. An adverse presumption could easily be drawn against the prosecution that had the complainant appeared in Court, she would have not supported the prosecution version. Evidence given by a witness who forensically examined the laptop allegedly recovered from a co-accused and the timeline of events provided by him suggested that the laptop which was shown to be recovered on 11-02-2002 from the residence of a co-accused, was already available in the (United States) Consulate on 4-2-2002. This fact by itself was indicative of the fact that all the recoveries were fabricated and planted to create an evidence against the accused persons which evidence was already available in the (US) Consulate. So the recoveries along with the laptop and the expert report generated from the said laptop were clouded in doubts and no reliance could be place on such recovery and expert report.

The prosecution also alleged that deceased was subsequently murdered and the charge was also framed to that extent. For proving the murder one video clip/tape was produced during the evidence through a witness. Said witness claimed that said video clip/tape was delivered to him in a hotel by someone. He had not disclosed the source, and even the nationality of the said source was not disclosed. The original video clip/tape was never produced during the trial and it was the said witness who prepared four copies of the said video clip/tape and delivered one copy to the investigating agents. Admittedly in the video clip/tape the pictures of accused and co-accused persons were not shown, and only one hand was shown slaughtering the neck of deceased and then holding his head. The said hand did not lead to identity of anyone. Even otherwise, the said video did not lead to any identity of the culprits. The said video clip/tape was delivered to the witness in question, when all the four accused and co-accused persons were already in police custody. It was a circumstance that no forensic analysis of the said video clip/tape was ever carried out nor any report of expert was ever produced by the prosecution. If original video clip/tape was delivered to the Investigating Officer then the forensic test could have been done. The original clip/tape was willfully withheld by the witness and an adverse presumption could be drawn that the said clip was the result of a camera trick. It was not established by the prosecution that as to when and by whom the original video clip was prepared, so there was possibility that the same was prepared in the laboratory or some film studio. In absence of any forensic report about the genuineness or otherwise of the said video clip, no reliance could be placed on such piece of evidence.

Asfandyar and another v. Kamran and another 2016 SCMR 2084 and Ishtiaq Ahmed Mirza and others v. Federation of Pakistan PLD 2019 SC 675 ref.

In the present case, admittedly, the admission of accused was before the police and whether he made any admission before the Administrative Judge, Anti-Terrorism Court was not supported by the order of the judge nor the said Judge came forward to confirm such admission. Admittedly, at that time, the accused was in police custody and was handcuffed. Prosecution further mainly relied upon the judicial confession of two co-accused persons recorded under section 164, Cr.P.C. Admittedly, the said confessions were retracted and the Court had to see whether such retracted confessions had been made voluntarily without any inducement, promise or coercion and whether the object of making such confession was to state the truth. Admittedly, accordingly to the prosecution's own case, the statements under section 164, Cr.P.C. were recorded after 17/18 days to the extent of one co-accused and about 10/11 days of the arrest of second co-accused. Keeping in mind the date of arrest of co-accused persons, as claimed by the parents of the deceased, the delay in recording judicial confession came out to be 25 days and 17 days respectively. This delay by itself was indicative of the fact that the confessional statements were not made voluntarily. If the object of the accused persons was to tell the truth and they were volunteered to make such statement the same must have been recorded on the first or second day of their arrest. Keeping them in such long detention clearly made both the retracted judicial confessions doubtful and non-voluntarily. The complaint of torture by one of the co-accused to the Magistrate and reasons of making confession in order to save himself, were sufficient to establish that the confessions were not voluntarily. From the perusal of the confessional statement of both the co-accused persons it was clear that the fear of police was not removed from the mind of the co-accused and the confessions made by them were not free from extraneous influence such as threat, promise or inducement.

Date and place of arrest of accused and co-accused persons as claimed by the police was doubtful. Facts on record showed that the arrest of the accused persons were shown subsequently and prior to that they were kept in illegal confinement. So while keeping the accused persons in illegal detention, the prosecution had violated their fundamental rights, and the constitutional mandate. Due to this illegal detention of accused persons, the recoveries which were planted subsequently were negated from the statement of prosecution witnesses themselves and had lost their evidentiary value.

In order to prove the ransom manuscripts allegedly written by a co-accused in Urdu and by the accused in English, the prosecution produced a handwriting expert, who gave a positive report that handwritten sample taken from the co-accused and accused matched with the manuscripts which were recovered from the residence of a co-accused. Cross-examination of the hand writing expert revealed that he had no qualification, knowledge or expertise to be regarded as a handwriting expert. Further the said person had not given any reason/ground or basis in his report as to how he had formed his opinion and on which ground he came to the said conclusion. He had not mentioned identical letters, natural flow of words and formation of letter etc. So no reliance could be placed on such piece of evidence and expert report.

Prosecution case was full of doubts and it failed to bring home guilt of the accused and co-accused persons as the evidence furnished during the trial was filled with factual and legal defects. The High Court had rightly extended the benefit of doubt to the three co-accused persons and acquitted them from all the charges and had also rightly extended the benefit of doubt to the accused qua all other charges. However, the High Court wrongly convicted the accused under section 362, P.P.C. when the evidence of the taxi driver (prosecution witness), was full of doubts and no reliance could be placed on his doubtful statement. So the conviction of accused under section 362, P.P.C. was not justified. Even otherwise no sentence was provided under section 362, P.P.C., so conviction or sentence passed by the High Court under section 362, P.P.C. was also illegal.

Appeal filed by accused against his conviction under section 362, P.P.C. was allowed and he was acquitted of all charges against him by extending the benefit of doubt to him. Appeals challenging acquittal of co-accused persons were dismissed, and impugned judgment of High Court to the extent of acquittal of all co-accused persons from their charges was maintained.

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

----S. 120-A---Criminal conspiracy---Scope and pre-requisites---To constitute a conspiracy meeting of two or more persons for doing an illegal act through illegal means was the primary condition---To ascertain conspiracy it had to be seen and kept in mind by the Court that the evidence, concerning each and every circumstance, must clearly be established by reliable evidence; there should be a prima facie evidence affording a reasonable ground for the Court to believe that two or more persons were members of the conspiracy and conspiracy consisted not merely in the intention of two or more persons but in an agreement of two or more persons to do an unlawful act.

(c) Criminal trial---

----Precedent---Rules/principles laid down in previous cases---Relevance---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 the crimes were seldom committed in identical situations---Criminal cases were to be decided on their peculiar facts and circumstance as such the rules laid down in earlier cases could not be applied in subsequent cases in an 'omnibus' manner.

Khan alias Khani and another v. The State 2006 SCMR 1744; Imtiaz Ahmad v. The State 2001 SCMR 1334; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Allah Wadhayo and another v. The State 2001 SCMR 25 ref.

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

----S. 428---Appellate Court may take further evidence or direct it to be taken---Scope---Impartiality of court---Scope--- Courts had to remain impartial and they were not meant to fill up the lacunas/gaps and other infirmities left by either party.

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

----S. 164---Judicial confession---Scope---Any confession, even recorded under S. 164, Cr.P.C. would become invalid if the accused produced before the Magistrate remained in handcuff while making such confession.

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

----S. 164---Delayed judicial confession---Evidentiary value---Longer an accused was in (illegal) custody of police before making his judicial confession lesser the evidentiary value of such confession.

(g) Constitution of Pakistan---

----Art. 189---Principles/guidelines relating to criminal law given by the Supreme Court in its judgments---Such principles/guidelines had binding effect upon all the courts below in view of Art. 189 of the Constitution.

Azeem Khan v. Mujahid Khan 2016 SCMR 274 ref.

(h) Criminal trial---

----Benefit of doubt---Scope---Benefit of doubt automatically went in favour of an accused---Even if a single circumstance created reasonable doubt in a prudent mind regarding guilt of an accused then the accused shall be entitled to such benefit not as a matter of grace and concession but as a matter of right and such benefit must be extended to the accused person(s) by the Courts without any reservation---Even in high-profile cases the benefit of doubt could not be extended to the prosecution and such benefit could only be extended to the accused who was facing the trial.

Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Imran v. The State 2020 SCMR 857; Abdul Jabbar and another v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Gul Dast Khan v. The State 2009 SCMR 431 and Daniel Body (Muslim name Saifullah) and another v. The State 1992 SCMR 196 ref.

(i) Appeal against acquittal---

----Principles---Parameters to deal with an appeal against conviction and an appeal against acquittal were totally different because acquittal carried double presumption of innocence and same could be reversed only when found blatantly perverse, illegal, arbitrary, capricious or speculative, shocking or rested upon impossibility---If there was a possibility of a contrary view even then acquittal could not be set aside.

The State v. Khuda Dad and others 2004 SCMR 425; Muhammad Nazir v. Muhammad Ali and another 1986 SCMR 1441; Rehmatullah Khan v. Jamil Khan and another 1986 SCMR 941; Mst. Daulan v. Rab Nawaz and another 1987 SCMR 497 and Gulzar Hussain v. Muhammad Dilawar and others 1988 SCMR 847 ref.

Per Yahya Afridi, J; disagreeing with Sardar Tariq Masood, J to the extent of acquittal of two accused persons.

(j) Constitution of Pakistan---

----Art. 185---Appellate jurisdiction of the Supreme Court---Scope---Person aggrieved---Scope---Paramount consideration for the exercise of jurisdiction, in terms of Art. 185(3) of the Constitution, was to foster the dictates of justice, and not to look at the person invoking the jurisdiction of Supreme Court---Jurisdictional contours of the Supreme Court for entertaining criminal petitions under Art. 185 of the Constitution could be flexed for bolstering the ends of justice.

Muhammad Shafi v. Muhammad Asghar PLD 2004 SC 875 ref.

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

----S. 428---Appellate Court may take further evidence or direct it to be taken---Scope---Appellate courts were to be cautious in allowing the production of additional evidence at an appellate stage, especially when such fact was available and in the knowledge of the party seeking to produce it, as additional evidence---Underlying reason for the Appellate Court to exercise restraint was that it might prejudice the case of the accused or be used to fill the lacunas of the prosecution case---Therefore unless the said evidence could not have been collected earlier, despite due diligence or where the said party was prevented from collecting and producing the same at the trial for reasons beyond its control and power, the appellate courts were not to allow production of such additional evidence.

Dildar v. The State through Pakistan Narcotics Control Board, Quetta PLD 2001 SC 384; Fazal Ellahi and others v. Crown PLD 1952 Lah. 388; Nasir Khan and others v. The State 2005 PCr.LJ. 1; Ali v. Crown PLD 1952 FC 71; Ghulam Muhammad v. State PLD 1957 Lah. 263; Muhammad Ismail v. State PLD 1970 Kar. 261; Muhammad Ehsan v. State PLD 1975 Lah. 1431; Gullan v. State PLD 1977 Lah. 1103 and Barkat Ali v. Crown 1969 SCMR 448 ref.

(l) Criminal trial---

----Newspapers reports/items--- Admissibility as evidence--- Such evidence must be viewed with strict caution.

Muhammad Ashraf Khan Tareen v. The State 1996 SCMR 1747 and Ishtiaq Ahmed Mirza v. Federation of Pakistan 2019 PLD SC 675 ref.

(m) Criminal trial---

----Evidence---Evidence of one case could not be read into another case, and each case was to be decided in the light of evidence, so produced in that case alone.

Khushi Muhammad alias Natho v. The State PLD 1986 SC 146; Akbar Ali v. Qazi Javed Ahmad and others 1986 SCMR 2018; Ali Sher v. The State PLD 1987 Kar. 507 and Malik Aman v. Haji Muhammad Tufail PLD 1976 Lah. 1446 ref.

(n) Words and phrases---

----'Conspiracy'---Definition and scope.

Halsbury's Laws of England (vide 4th Ed. Vol. 11, pages 44), 58; Black's Law Dictionary, 9th edn.; American Jurisprudence (2nd Edition, Volume-16, page-129) and Dr. Sri Hari Singh Gour's "Commentary on Penal Law of India" ref.

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

----Ss. 120-A & 120-B---Qanun-e-Shahadat (10 of 1984), Art. 23---Criminal conspiracy---Essential elements and proof.

To constitute criminal conspiracy under section 120-A, P.P.C. two essential elements were required to be proved: (i) intent to do or cause to be done an illegal act, or an act which was not illegal but by illegal means; (ii) existence of a conspiratorial agreement. Realising the clandestine nature of the offence, the legislature had employed a special rule of evidence, as provided under Article 23 of the Qanun-e-Shahadat, 1984. The said rule was an exception to the general rules of proof. This rule provided that there should be 'reasonable ground' that a person was a party to the conspiracy before his acts, statements or writings could be used against his co-conspirators. Mere association of a person with a conspirator or even a serious suspicion of one's involvement with the other was not sufficient to constitute 'reasonable ground' for the former to be in conspiracy with the latter. Similarly, it was not necessary to establish by direct evidence that the accused and the person whose acts, statements or writings were sought to be given in evidence against the accused, entered into a formal agreement to commit an offence.

In cases of conspiracy, direct evidence was seldom available and a conspiracy could be established by circumstantial evidence. On this subject, it was difficult to establish a general inflexible rule, as each case must be adjudged by its own peculiar circumstances. Therefore, strict proof of conspiracy was not necessary; what was required by Article 23 of the Qanun-e-Shahadat, 1984, was that there should be "reasonable grounds" to believe that the accused and the person whose acts, statements or writings were sought to be given in evidence had conspired to commit an offence or an actionable wrong. Where once the prosecution proved the existence of 'reasonable grounds' that two or more had committed an offence or an actionable wrong, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, was relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it.

Bhagwan Swarup Lal Bishan Lal and others v. The State of Maharashtra AIR 1965 SC 682 ref.

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

----Ss. 120-A & 120-B---Qanun-e-Shahadat (10 of 1984), Art. 23---Criminal conspiracy---Principles relating to essential ingredients, scope and proof of criminal conspiracy stated.

Following are the principles relating to essential ingredients, scope and proof of criminal conspiracy:

(i) The essential ingredients for constituting criminal conspiracy were; an agreement between two or more persons and the agreement must relate to doing or causing to be done either an illegal act or an act which was not illegal in itself but was done by illegal means. Mere common intention or discussion would not constitute the offence unless, there was an agreement;

(ii) In most of the cases, criminal conspiracy was hatched in secrecy and no direct evidence could be obtained. Therefore, the circumstances and manner in which each accused played his role and his level of involvement would be the relevant factors. The circumstances indicating the guilt of the accused would be cumulatively considered in view of the common design and object. The isolated approach, by evaluating the role of individual accused, could not be adopted. However, the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution;

(iii) Each one of the accused was aware that he had a part to play in a conspiracy though he may not know all the details or the means by which the common purpose was to be accomplished;

(iv) The conspiratorial scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continued until it was broken up;

(v) The offence of criminal conspiracy was an exception to the general principle of criminal law requiring both, mens rea and actus reus. The offence of criminal conspiracy did not require any actus reus, and stood completed when the conspiratorial agreement was made;

(vi) Criminal conspiracy was an "independent offence", and the means adopted by the conspirators may lead to commission of independent offences, for which they would be criminally liable in addition to the offence of criminal conspiracy. The marked yet subtle distinction between the offence of 'criminal conspiracy' and that of 'abetment' had always remained a touchy issue. Any person, who was not privy to the conspiratorial agreement but aided and abetted any person in achieving the unlawful goal of the criminal conspiracy would be committing abetment of the substantive offence, so committed in achieving the unlawful goal. In such cases, the person abetting would be charged for abetment of the substantive offences committed in achieving the ultimate unlawful goal and not for criminal conspiracy; and

(vii) Criminal conspiracy was a 'continuing offence'. The offence continued till the illegal object was achieved or when the same was abandoned by the conspirators.

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

----S. 164---Confession before the Judicial Magistrate---Scope---No specific statutory requirement existed for S. 164, Cr.P.C. mandating the Magistrate to inform the accused that he would not be sent back to police custody should he decide to render a confession or not---Essential element was the satisfaction of the recording Magistrate that the confessional statement was voluntary.

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Arts. 37, 38, 39 & 40---Confession before the Judicial Magistrate---Judicial Magistrate, powers of---Scope---Legal jurisdiction of the Judicial Magistrate recording the confessional statement of an accused was vested under S. 164, Cr.P.C., which provided wide power to the recording Judicial Magistrate to refuse recording the confession, if it found the same to lack voluntariness---However once, the certificate of correctness was signed, then the jurisdiction to adjudge the relevancy of confessional statement, within the contemplation of Arts. 37, 38, 39 & 40 of the Qanun-e-Shahadat, 1984 vested upon the Trial Court, and not the Judicial Magistrate, who recorded the same.

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

----Ss. 302(b), 120-A, 362 & 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 6(a) & 7---Criminal Procedure Code (V of 1898), S. 164---Qanun-e-Shahadat (10 of 1984), Arts. 23 & 37---Kidnapping and murder of a foreign journalist, criminal conspiracy---Reappraisal of evidence---Trial Court convicted the accused and co-accused under Ss. 120-A, 365-A & 302, P.P.C, read with Ss. 6(a) & 7 of the Anti-Terrorism Act, 1997 and sentenced them to imprisonment for life with fine--- High Court acquitted the accused and co-accused of all charges---Held, that the confessional statement of accused lacked voluntariness within the purview of Art. 37 of the Qanun-e-Shahadat, 1984---Incriminating articles allegedly bought by the accused were not of much help to the prosecution as their recovery from the apartment of a co-accused was doubtful---When the judicial confession of accused had been legally discarded, then there remained no reliable evidence, other than mere suspicion of him being part of the conspiracy; that being so, the condition precedent of there being 'reasonable grounds to believe' accused was part of a conspiratorial agreement, as envisaged under Art. 23 of the Qanun-e-Shahadat, 1984 was starkly lacking---Since the judicial confession of accused had been legally discarded for being not voluntary, the only evidence against the co-accused for committing criminal conspiracy to abduct deceased for ransom was the statement of a co-conspirator/another co-accused--- Sole statement of a co-conspirator would not fulfill the condition precedent of there being 'reasonable grounds to believe' co-accused was part of a conspiratorial agreement, as envisaged under Art. 23 of the Qanun-e-Shahadat, 1984---Prosecution had not been able to prove the charges framed against the accused and co-accused, and they had been rightly acquitted by the High Court---Appeal against acquittal was dismissed.

Confessional statement of accused lacked voluntariness within the purview of Article 37 of the Qanun-e-Shahadat, 1984. The other pieces of prosecution evidence that connected him to the crime were the testimony of two witnesses who deposed the purchasing of printer, scanner and polaroid cameras by the accused. Testimony of said two witnesses was of no legal credence or value, as the very recoveries of said incriminating articles, from the home of a co-accused at the time of his arrest was doubtful. Furthermore, testimony of a forensic expert who examined the laptop allegedly recovered from the place of aco-accused completely contradicted the prosecution's version of recovering the laptop from the said co-accused on the date claimed by the prosecution. Similarly, the other recoveries made in the same raid on the date, and in particular, the printer and the scanner would also become doubtful.

Thus, the only evidence to link the accused with the crime was the confession of a co-accused. This single piece of evidence could not be more than circumstantial evidence, and would not alone, suffice to prove that accused was guilty of committing criminal conspiracy to abduct deceased for ransom. Convicting a person solely on the basis of the confession of a co-conspirator on the strength of Article 23 of the Qanun-e-Shahadat, 1984 would surely run counter to the settled principles of safe administration of criminal justice enshrined in Article 37 of the Qanun-e-Shahadat, 1984. Thus, when the judicial confession of accused had been legally discarded, then there remained no reliable evidence, other than mere suspicion of him being part of the conspiracy. That being so, the condition precedent of there being 'reasonable grounds to believe' accused was part of a conspiratorial agreement, as envisaged under Article 23 of the Qanun-e-Shahadat, 1984 was starkly lacking. Accordingly, the statements, writings or actions of another accused could not implicate the accused to be part of the criminal conspiracy, within the contemplation of Article 23 of the Qanun-e-Shahadat, 1984. In these circumstances, one could safely conclude that the prosecution did not produce sufficient trustworthy evidence to prove the charge of criminal conspiracy against the accused. [p. 950] EEE

As compared to the accused, the case of the prosecution against the co-accused, was much weaker. Apart from the judicial confessions of accused and another co-accused, prosecution was unable to produce any credible evidence against him. And when the judicial confession of accused had been legally discarded for being not voluntary, the only evidence against co-accused for committing criminal conspiracy to abduct deceased for ransom was the statement of a co-conspirator/another co-accused. The sole statement of a co-conspirator would not fulfill the condition precedent of there being 'reasonable grounds to believe' co-accused was part of a conspiratorial agreement, as envisaged under Article 23 of the Qanun-e-Shahadat, 1984.

Prosecution had not been able to prove the charges framed against the accused and co-accused, and they had been rightly acquitted by the High Court. Appeal against acquittal was dismissed.

(t) Criminal trial---

----Recovery of incriminating articles---Scope---When one piece of evidence recovered was found to be tainted, then relying on the other incriminating material recovered therewith would not be just and legally correct---Thus, reliance thereon in any manner would be against the safe administration of criminal justice.

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

----Ss. 363 & 365-A---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 122---Criminal Procedure Code (V of 1898), S. 342---Abduction for ransom---Burden of proof---Scope---Once the prosecution had proved that the deceased was "last seen" with the accused, then the "legal burden" under Art. 117 of the Qanun-e-Shahadat, 1984 on the prosecution would stand discharged, and then for the accused to avoid conviction for the charge of abduction, he would have to discharge the "evidential burden" under Art. 122 to provide a plausible explanation or produce evidence of facts to nullify the stance established by the prosecution---Mere bold evasive denial of accused in his statement under S. 342, Cr.P.C. would not legally suffice to escape criminal culpability.

Rahmat v. The State PLD 1997 SC 515; AIR 1927 Lah. 541; PLD 1956 FC 123; 1972 SCMR 15 and PLD 1966 SC 644 ref.

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

----S. 302(b)---Qatl-i-amd---Last seen evidence---Scope---"Last seen" evidence was merely a circumstantial evidence, and that too a weak type of evidence, which alone could not sustain the weight of a capital punishment, and would require other independent corroborative evidence to effect conviction---In a case of murder, where the prosecution case rested on "last seen" evidence, then corroboration would be required from other circumstantial evidence; each piece of such evidence would have to be proved to complete the chain, stemming from the accused being "last seen" with the deceased, leading to his death---To achieve this, the prosecution had to prove that the death of the deceased took place in close proximity to the time and place, where the accused was "last seen" with the deceased---Thus, the evidentiary value of the "last seen" evidence of an accused with the deceased would depend upon the facts and circumstances of each case, and for a court to reach a conclusion of guilt of the accused, such circumstances must not only be proved, but must also be found to be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt.

Khurshid v. The State PLD 1996 SC 305 and Muhammad Amin v. The State 2000 SCMR 1784 ref.

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

----Art. 164---Video tape---Proof and admissibility as evidence---Not disclosing the source of obtaining the video or forensically confirming it not to be tampered would render its admissibility at naught.

Ishtiaq Ahmed Mirza and others v Federation of Pakistan PLD 2019 SC 675 ref.

(x) Criminal trial---

----Newspaper/press reports---Admissibility as evidence---When the authors of press reports were not produced to own their reporting, admitting the said reports, and that too, as proof of the contents thereof, would be against safe administration of criminal justice.

Per Yahya Afridi, J [Minority view]

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

----Ss. 302(b), 120-A, 362 & 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 6(1)(b), 6(2)(e) & 7---Criminal Procedure Code (V of 1898), S. 164---Qanun-e-Shahadat (10 of 1984), Art. 91---Kidnapping and murder of a foreign journalist, criminal conspiracy---Reappraisal of evidence---Trial Court convicted the accused and co-accused 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 was sentenced to imprisonment for life with fine---High Court altered convictions of accused to that under S. 362, P.P.C. and sentenced him to 7-years rigorous imprisonment, whereas the co-accused was acquitted of all charges---Held, that the accused was identified by two witnesses in two separate test identification parades carried out by a Judicial Magistrate---Steps taken by the Judicial Magistrate, before and during recording the confessional statement of co-accused clearly showed his voluntariness in recording the statement---Confession of co-accused, showed the ease with which each material fact relating to his introduction to the accused and their discussions in the two meetings they had, was narrated with all essential details, which provided a complete picture of the criminal conspiracy leading to sending the ransom and death threat emails to the complainant---Moment co-accused communicated his acceptance to the accused that the ransom demand in the written scripts would be emailed, he entered in the conspiratorial agreement to commit a crime, namely, a criminal conspiracy of abduction for ransom---Digital foot-prints regarding the threatening email sent to the complainant, were produced by two totally independent and professionally qualified, which established beyond any reasonable doubt that the email, which was sent from an email account, and it contained the information regarding kidnapping of deceased and demands for ransom, originated from an internet connection owned by the co-accused---Motive of the accused to carry out the crime did not relate to any private dispute or vendetta with the deceased, but in fact, the matter was clearly the use of a threat designed to intimidate not only the Federal Government, but also the foreign government and organisations to create a sense of fear and insecurity in the society---Thus the 'design' and 'purpose' of the accused and co-accused to carry out the abduction of deceased for ransom, brought the commission of the crime within the mischief of the term "terrorism"---Prosecution had been able to prove beyond reasonable doubt that the accused and co-accused had committed the offences under Ss. 365-A & 120-B, P.P.C., and S. 7 of the Anti-Terrorism Act, 1997, thus, they were convicted for the said offences and sentenced to imprisonment for life on each count. [Minority view]

Two prosecution witnesses identified the accused in two separate Test Identification Parades carried out by a Judicial Magistrate. Both courts below had held not only that the two identifying witnesses were independent and trustworthy, but also declared the proceedings of the Test Identification Parades carried out by Judicial Magistrate to comply with the governing law.

When one of the identifying witnesses recorded his statement to the police under section 161, Cr.P.C. describing the "last seen" evidence, the accused was by then not in police custody, even according to the defence version. Thus, the assertion of the defence of police tutoring the identifying witness about the "last seen" evidence was contrary to the facts and bereft of merit. Testimony of the two identifying witnesses and another prosecution witness had concurrently been accepted as reliable and truthful, and the said three witnesses had been rightly declared to be independent and trustworthy. The careful review of their testimony established that the accused was using multiple fake names and was consistently trying to conceal his identity; that the accused was the person who met the deceased in a hotel room, and that the deceased was "last seen" with the accused in a vehicle near a hotel.

The steps taken by the Judicial Magistrate, before and during the confessional statement of the co-accused, clearly indicated that: firstly, all the requisite information to be communicated to the co-accused and questions to be asked therefrom, as mandated under subsection (3) of section 164, Cr.P.C, were duly complied with; secondly, the Judicial Magistrate provided sufficient time and free space to the co-accused to contemplate his decision to record the confession or otherwise; thirdly, the statutory certificate was signed by the Judicial Magistrate, and thereby raising a presumption of correctness within the contemplation of Article 91 of the Qanun-e-Shahadat, 1984. Almost all the answers given by the co-accused in response to the questions asked by the Judicial Magistrate before recording his confession, distinctly reflected the co-accused's relaxed state of mind and ease, reflecting his voluntariness in rendering the statement.

The fact that the recording Magistrate affixed her signature on the certificate (in terms of section 164, Cr.P.C.) revealed her state of mind, that at the relevant time when the confessional statement of co-accused was being recorded, the said confession was voluntary. Thus, the absence of the specific instruction to the co-accused by the recording Magistrate that he would not be sent back in police custody could not be the sole reason to discard the voluntariness or relevancy of the confessional statement.

Nanji v. The State 1957 Cri.LJ 199 and Nakula Chandra Aich v. State of Orissa 1982 Cri.LJ 2158 ref.

From the digital foot-prints, as produced by two totally independent and professionally qualified persons (one an employee of an internet service provider firm and the other an internet cable provider), it was established beyond any reasonable doubt that the threatening email, which was sent from an email account, and it contained the information regarding kidnapping of deceased and demands for ransom, originated from a connection owned by the co-accused. These crucial pieces of evidence, regarding the email, created a complete digital chain, which led to its origin, an account maintained in the name of co-accused. Accordingly, the requisite legal independent corroboration to the confession of co-accused had been duly provided by the two independent witnesses. When the digital foot print linking the email to co-accused was considered in juxtaposition with his confessional statement, it completed the picture of how he met the accused and their discussions regarding the preparation and execution of sending ransom demands.

The moment co-accused communicated his acceptance to the accused that the ransom demand in the written scripts would be emailed, he entered in the conspiratorial agreement to commit a crime, namely, a criminal conspiracy of abduction for ransom. His subsequent actions, thereafter, would not materially affect his culpability of committing the offence of criminal conspiracy. Indeed, it may constitute committing another crime - aiding or abetting the actual crime. In the present case, his very act of emailing the ransom notes would constitute another crime - abduction of deceased for ransom under section 365-A, P.P.C., which would be independent of his criminal culpability to commit the offence of criminal conspiracy of abducting him for ransom under section 120-A, P.P.C. Prosecution had successfully proved the charge of abduction for ransom under section 365-A, P.P.C. against accused and the co-accused.

Keeping the prosecution evidence in its true and correct perspective, it was established beyond any reasonable doubt that the identity of accused, and him being part of the conspiratorial agreement with the co-accused had been duly established; that the accused was the person who met the deceased in a hotel room, and was also 'last seen' with the deceased; that the email was sent from the email account of co-accused on the directions of the accused.

The motive of the crime was not any private dispute or vendetta against the deceased, but went beyond it. The contents of the ransom and death threat email, made it clear that the motive of the accused to carry out the crime did not relate to any private dispute or vendetta with the deceased, but in fact, the matter was clearly the use of a threat designed to intimidate not only the Federal Government, but also the foreign government and organisations to create a sense of fear and insecurity in the society. Thus, viewing the 'design' and 'purpose' of the accused and co-accused to carry out the abduction of deceased for ransom, brought the commission of the crime within the mischief of the term "terrorism", as envisaged under clause (b) of subsection (1) of section 6 of the Anti-Terrorism Act, 1997 ('the 1997 Act').

Prosecution was not only able to prove that the acts of accused and co-accused, constituted 'abduction for ransom' within the purview of clause (e) of subsection (2) of section 6 of the 1997 Act, and the 'design' and 'purpose' of the crime, fell squarely in terms of clause (b) of subsection (1) of section 6 envisaged under the 1997 Act. Accordingly, accused and co-accused were found guilty of the offence of terrorism punishable under section 7 of the 1997 Act.

Appeal of accused against the conviction and sentence of death passed by the Anti-Terrorism Court remained pending before the High Court for almost two decades. Admittedly, it was not the case of the prosecution that the accused delayed or was in any manner a cause for the delay in deciding his appeal. Such prolonged incarceration of around two decades in the death cell gave rise to his 'right to expectancy of life', entitling him to the sentence of life imprisonment, and not death.

The prosecution had been able to prove beyond reasonable doubt that the accused and co-accused had committed the offences under sections 365-A and 120-B, P.P.C., and section 7 of the Anti-Terrorism Act, 1997, thus, they were convicted for the said offences and sentenced to imprisonment for life on each count.

Farooq H. Naek, Senior Advocate Supreme Court, Dr. Faiz Shah, P.G. Sindh assisted by Ms. Rahat Ahsan, Additional P.G. Sindh, Hussain Bux Baloch, Additional P.G. Sindh, Adnan Shuja Butt, Advocate Supreme Court, Feroze Jamal Shah, Advocate Supreme Court, Usman Waleed Sh. Advocate and Muhammad Kassim Mirjat, Advocate-on-Record for Appellants/State (in Criminal Appeals Nos. 599 to 601/2020 and Criminal Petitions Nos. 1085 and 1086/20, Respondent in Crl. A. No. 602/20 and R. No.1 in Crls. Nos.1085-1086/20).

Barrister Mehmood A. Sh., Senior Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Respondents/State (in Criminal Appeal No. 602/20 also for Respondents (in Crl.A.599/20 for Respondents Nos. 1 and 3 in Crls. As. Nos. 600 and 601/20 Respondent in Crl. P. 1085/20 and Respondents Nos. 2 and 3 in Crl. P. No.1086/20)

Faisal Siddiqui, Advocate Supreme Court assisted by Ms. Sheza Ahmed, Advocate, Ms. Amna Anjum, Advocate and Saad Fayyaz, Advocate for Petitioners (in Cr. Ps. Nos. 1085 and 1086/20).

Rai Bashir Ahmed, Advocate Supreme Court for Respondents (in Crl. Ps. Nos. 600 and 601/20 and R-2 and 3 in Crl.P. No.1086/20).

2021 S C M R 959

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J.,Ijaz ul Ahsan andSayyed Mazahar Ali Akbar Naqvi, JJ

SECRETARY ELEMENTARY AND SECONDARY EDUCATION DEPARTMENT, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and others---Appellants

Versus

NOOR-UL-AMIN---Respondent

Civil Appeal No. 985 of 2020, decided on 22nd February, 2021.

(Against the judgment dated 21.11.2019 of the Khyber Pakhtunkhwa Service Tribunal, Peshawar passed in Appeal No.961 of 2018)

Civil service---

----Failure to report to duty on expiry of ex-Pakistan leave---Removal from service---Service Tribunal by way of impugned judgment converted the major penalty of removal from service into a major penalty of compulsory retirement with effect from the date of his absence, and the absence period was treated as unauthorized absence---Tribunal proceeded to modify the penalty on two counts; one that no regular inquiry was conducted and the other that the respondent had 10 years' service---Legality---Held, that the very fact of respondent-civil servant remaining absent was not a disputed fact and thus there was no occasion for holding a regular inquiry in the matter---Being an employee for 10 years did not give any authority to the respondent on the basis of which he could stay away from his job continuously for years altogether and thus, such ground could not have been pressed for modifying the penalty imposed by the department upon the respondent giving premium to him for his misconduct---More so, looking at the travelling history of the respondent, it showed that almost twelve times the respondent had visited abroad and returned to Pakistan showing that he was involved in some other activities and thus was not interested in continuing his government service---In such circumstances the modification of penalty by the Tribunal was not in accordance with law---Impugned judgment to the extent of modification of penalty was set aside and the appeal to such extent was allowed.

National Bank of Pakistan and another v. Zahoor Ahmed Mengal 2021 SCMR 144; Commissioner Faisalabad Division, Faisalabad and another v. Allah Bakhsh 2020 SCMR 1418 and Government of the Punjab through Chief Secretary v. Muhammad Arshad and 2 others 2020 SCMR 1962 ref.

Zahid Yousaf Qureshi, Additional Advocate General, Khyber Pakhtunkhwa for Appellants.

Khaled Rahman, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2021 S C M R 962

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malikand Syed Mansoor Ali Shah, JJ

MUHAMMAD SHARIF and others---Petitioners

Versus

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

C.Ps. Nos. 517-L, 1019-L, 1062-L, 1232-L of 2016 and 1929-L of 2017, decided on 28th April, 2021.

(Against the judgment(s)/order(s) of Punjab Service Tribunal, Lahore dated 21.12.2015 passed in Appeal No. 494/2015 and 09.02.2016 passed in Appeal No. 3223/2015 and 01.03.2016 passed in Appeal No. 1025 of 2015)

(a) Civil service---

----Back benefits/back pay---Meaning.

10th Edition, Thomson Reuters, 2014, 166; Aguinaga v. United Food and Commercial Workers Int'l Union 993 F.2d 1463, 1473; Robinson v. Lorillard Corp. 444 F.2d 791, 804 and Smith v West 1999 U.S. App. Vet. Claims LEXIS 475, 6 ref.

(b) Civil service---

----Reinstate in service---Meaning and scope.

Black's Law Dictionary (10th Edition, Thomson Reuters, 2014) 1477; Black's Law Dictionary, (6th Edition, St. Paul, MINN., West Publishing Co., 1990) 1287 and Aiyar's Judicial Dictionary (10th Edition, 1988) 871 ref.

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

----S. 16, second proviso---Constitution of Pakistan, Arts. 4, 10A, 14 & 25---Fundamental Rules, R. 54--- Civil Service Rules (Punjab), R. 7.3---Civil servant---Reinstatement in service after order for removal or dismissal from service set-aside---Back benefits, entitlement to---Scope and principles---Civil servant on unconditional reinstatement in service was to be given all back benefits and the only exception justifying part withholding of back benefits could be that he accepted gainful employment/engaged in profitable business during the intervening period---In case, the dismissal/removal of a civil servant was declared illegal for a defect in disciplinary proceedings without attending to the merits of the case, the entitlement to back benefits may be put off till the inquiry was conducted in the matter finally determining the fault of the civil servant---In case, where there was some fault of the civil servant, including a situation where concession of reinstatement was extended to the civil servant while applying leniency or compassion or proportionality as standard and where penalty was modified but not wiped off in a way that the civil servant was restored to his position, he may be denied a portion of back benefits/back pay, while maintaining a proportion between the gravity of the fault of the civil servant and special/extenuating circumstances of the case.

A civil servant once exonerated from the charges would stand restored in service as if he were never out of it and would be entitled to back benefits. Chairman State Life v. Siddiq Akbar 2013 SCMR 752; Umer Said v. District Education Officer (Female) 2007 SCMR 296 and 2015 SCMR 77 = 2015 PLC (C.S.) 366 ref.

Civil servant, whose wrongful dismissal or removal had been set-aide goes back to his service as if he were never dismissed or removed from service. The restitution of employee, in this context, meant that there had been no discontinuance in his service and for all purposes he had never left his post. He was therefore entitled to arrears of pay for the period he was kept out of service for no fault of his own. No different was the position where an employee had been served with a penalty like reduction in rank or withholding of increment(s) or forfeiture of service, etc. and the penalty had been set-aside. The employee stood restored to his post with all his perks and benefits intact and would be entitled to arrears of pay as would have accrued to him had the penalty not been imposed on him. This general principle of restitution fully met the constitutional requirements of fair trial and due process (Articles 4 & 10A of the Constitution) besides the right to life (Article 9) which included the right to livelihood ensuring all lawful economic benefits that came with the post. Reinstating an employee but not allowing him to enjoy the same terms and conditions of service as his colleagues was also discriminatory (Article 25). All this snowballed into offending the right to dignity (Article 14) of an employee for being treated as a lesser employee inspite of being reinstated or restored into service.

The "concept of reinstatement into service with original seniority and back benefits" was based on the established principle of jurisprudence that if an illegal action/wrong was struck down by the Court, as a consequence, it was also to be ensured that no undue harm was caused to any individual due to such illegality/wrong or as a result of delay in the redress of his grievance. If by virtue of a declaration given by the Court a civil servant is to be treated as being still in service, he should also be given the consequential relief of the back benefits (including salary) for the period he was kept out of service as if he were actually performing duties.

Federation of Pakistan v. Sindh High Court Bar Association PLD 2012 SC 1067; Pakistan v. Mrs. A. V. Issacs PLD 1970 SC 415; Muhammad Bashir v. Government of the Punjab 1994 SCMR 1801 and Inspector-General of Police, Punjab v. Tariq Mahmood 2015 SCMR 77 = 2015 PLC (C.S.) 366 ref.

Where the order of dismissal, removal or reduction in rank was set aside unconditionally, back benefits were to be paid necessarily. The grant of back benefits to an employee who had been illegally kept away from his employment was a rule and denial of service benefits to such reinstated employee was an exception. When a civil servant was reinstated in service and his dismissal from service was held to be illegal and for no fault of his, then his reinstatement in service would mean that he had always been in service and as a consequence be paid salary from the day he was illegally removed or dismissed from service. One of the exceptions of not granting full back benefits was that if the reinstated employee had accepted another employment or engaged in any profitable business during the intervening period; in such a case, the said amount would be set off against the salary. This concept was now available as an instruction under Sl. No. 155, Vol-II, Esta Code, 2007 edition.

Qadeer Ahmad v. Punjab Labour Appellate Tribunal PLD 1990 SC 787; General Manager v. Mehmood Ahmed Butt 2002 SCMR 1064; Muhammad Hussain v. E.D.O. (Education) 2007 SCMR 855; Umer Said v. District Education Officer (Female) 2007 SCMR 296; Sohail Ahmed Usmani v. DG CAA 2014 SCMR 1843; Chairman State Life v. Siddiq Akbar 2013 SCMR 752; Pakistan v. Mrs. A.V. Issacs PLD 1970 SC 415; Muhammad Bashir v. Government of the Punjab 1994 SCMR 1801 and Inspector General of Police, Punjab v. Tariq Mahmood 2015 SCMR 77 = 2015 PLC (C.S.) 366 ref.

The reinstatement or restoration of an employee to the post may be due to the following different reasons: (a) purely on merits; (b) on technical grounds without touching the actual merits of the case and (c) on the ground of leniency where the actual order was either converted into a lesser penalty or totally set-aside.

An employee on reinstatement on merits could not be deprived of back benefits. Any such deprivation would be against his constitutional rights guaranteed to an employee. Besides, Rule 7.3(a) of Civil Service Rule (Punjab) also pointed in this direction. In case of reinstatement or restoration to a post on merits, the employee was entitled to full back benefits and there was no discontinuity of service, thus the question of intervening period did not arise in such a case. The discretion (as to awarding arrears/back benefits) under the second proviso to section 16 of the Punjab Civil Servants Act, 1974 ('the 1974 Act') was to be exercised in favour of the employee by granting him all the back benefits. However, the said principle of grant of back benefits was qualified by a situation where the order of reinstatement was conditional; either civil servant's dismissal from service was declared illegal for a defect in disciplinary proceedings or the penalty was modified to be on the lower side with the result that the civil servant was reinstated. In the former situation, the merits of the case and the determination of the fault of the employee went untouched, even though he stood reinstated. Here, an inquiry could still be made into the employee's conduct or his conduct may be considered such as to call for a departmental inquiry. The de novo proceedings could be initiated from the stage where the defect had crept in. In such a situation, the entitlement with regard to back benefits was put off till the final determination with regard to the civil servant's conduct. If he was found at fault, the competent authority could justifiably deny him part of the back benefits. And, in the latter situation, the civil servant was not declared blameless; rather, his penalty was reduced and, therefore, part of back benefits, as necessitated by the implications of reduced penalty, may justifiably be denied to him.

Muhammad Arif Khan v. Dy. Enc. E'in'C's Branch, GHQ 1991 SCMR 1904 and Qadeer Ahmad v. Punjab Labour Appellate Tribunal PLD 1990 SC 787 ref.

Appellate authorities, often, without saying a word about the charge, reinstated a civil servant taking a lenient view or on compassionate ground or on the ground of proportionality. In such a case the charge stood established yet the authority or the court, applying leniency or compassion or proportionality as standard, felt inclined to extend concession of reinstatement to the civil servant. Notably the civil servant in such a case was not reinstated unconditionally a nd, therefore, he may be denied a portion of pay - while maintaining a proportion between the gravity of the fault of the civil servant and special/ extenuating circumstances of the case - he would otherwise get on reinstatement. Such treatment would be in step with the second proviso to section 16 of the 1974 Act and would also be consistent with the spirit of Fundamental Rule 54 ("FR") and Civil Service Rules (Punjab) 7.3(b) ("CSR"). If an employee was reinstated in such an eventuality, the authority or the court needed to clearly state that though the charge ascribed to the employee stood proved, concession was being shown to him to avoid the rigors of major penalty, which would otherwise be unwarranted in view of peculiar circumstances of the case.

(d) Civil service---

----Period spent by a civil servant away from duty due to dismissal from service or absence from duty, etc.---"Leave without pay" or "leave of the kind due" granted to a civil servant---Purpose and meaning.

In case back benefits as of right were not awarded to the civil servant and he was served with any other penalty after reinstatement in service, the intervening period had to be counted for, otherwise the interruption in the service of a civil servant may entail forfeiture of his service, therefore, the intervening period had to be regularized by treating it as an extraordinary leave without pay or leave of the kind due or leave without pay, as the case may be. The regularization of the intervening period was a totally separate matter and had no bearing on the penalty imposed upon the civil servant. The competent authority may condone interruptions in service provided that the gaps were not due to any fault or willful act of the employee. The service gaps were usually regularized as extraordinary leave without pay or leave of the kind due. Terming absence period as extraordinary leave without pay was not a punishment, rather, a treatment given to regularize the period spent away from duty. Nor could a concession given to a civil servant that his absence from duty be treated as extraordinary leave without pay mean that major penalty imposed in the same order was wiped off. Nevertheless, the powers given to treat the period of absence as extraordinary leave without pay or leave of the kind due were to be exercised after due application of mind and considering the facts and circumstances of a case.

National Bank of Pakistan v. Zahoor Ahmed Mengal 2021 SCMR 144; NAB v. Muhammad Shafique 2020 SCMR 425; Federation of Pakistan v. Mamoon Ahmed Malik 2020 SCMR 1154 and DIG, NH & MP, Karachi v. Ghulam Mustafa Mahar 2019 SCMR 95 ref.

Khan Muhammad Vehniwal, Advocate Supreme Court for Petitioners (in C.P. No. 517-L of 2016).

Rana Shamshad Khan, Additional A.G., Ch. Zafar Hussain Ahmad, Additional A.G. along with Shaukat Ali, DSP, Munir Hussain, DSP, Naeem Cheema, Law Officer, Imran Ashraf, S.P., Muhammad Ijaz Khan, Lit. Officer and Muhammad Anwar Yasir, Lit. Officer for Petitioners (in C.Ps. Nos. 1019-L, 1062-L, 1232-L of 2016 and C.P. No. 1929-L of 2017).

Mahmood Ahmad Qazi, Advocate Supreme Court for Respondents (in C.P. No. 1929-L of 2017).

Hasan Riaz, Research Officer-Civil Judge, SCRC, Islamabad for Research Assistance.

2021 S C M R 977

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J.,Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

KHUSHAL KHAN KHATTAK UNIVERSITY through Vice-Chancellor and others---Appellants

Versus

JABRAN ALI KHAN and others---Respondents

Civil Appeals Nos. 617 to 626 of 2020, decided on 26th April, 2021.

(Against judgment dated 12.02.2020 of Peshawar High Court, Bannu Bench, passed in Writ Petitions Nos. 759-B, 296-B, 586-B, 609-B, 581-B, 192-B, 195-B, 193-B, 196-B of 2019 and 649-B of 2018)

(a) Khyber Pakhtunkhwa Universities Act (X of 2012)---

----S. 23---Constitution of Pakistan, Art. 199---Syndicate of a University---Interference in internal working of a Syndicate by the High Court in its Constitutional jurisdiction---Scope---Where a matter related to the internal working and procedures of the Syndicate, then in the absence of bias, partiality or lack of transparency on the part of a Committee (acting on instructions and authorization of the Syndicate) the same could not be interfered with---Where the committee, under lawfully delegated authority passed an order which addressed the issues raised by the High Court, the same could not be rejected (by the High Court) without assigning cogent and legally sustainable reasons---High Court in its Constitutional jurisdiction cannot substitute the findings of the Syndicate without proof of mala fides, bias, illegality or lack of transparency.

(b) Constitution of Pakistan---

----Art. 199--- Civil service--- Contractual employees seeking regularization in service---Contract of employment expiring during pendency of Constitutional petitions before the High Court---Effect---Constitutional petitions filed by contractual employees before the High Court would become infructuous---High Court lacked jurisdiction to revive or renew expired contracts---Conferring a retrospective right upon the contractual employees when their contracts had already expired was ex facie erroneous, illegal and without jurisdiction---Department was at liberty to dispense with the services of the contractual employees in accordance with the terms and conditions of the contract which were accepted by the employees when they accepted contractual employment---High Court could not have amended or altered the terms and conditions of the contract of the employees in exercise of its constitutional jurisdiction under Art. 199 of the Constitution---Appeals were allowed.

(c) Civil service---

----Contractual employees--- Regularization in service---No vested right---Contractual employees had no vested right to seek regularization unless there was legal and statutory basis for the same---Contractual employees could not disown the terms and conditions of their own employment contracts and claim permanent employment when at the very inception of their employment they had accepted contractual employment on the condition that they would have no right to claim regularization.

Government of Khyber Pakhtunkhwa Workers Welfare Board v. Raheel Ali Gohar 2020 SCMR 2068 ref.

(d) Civil service---

----Allegation of mala fides made against appointing authority---Mala fides where alleged must be proved.

(e) Constitution of Pakistan---

----Art. 199---Civil service---Appointment---Constitutional powers of the High Court---Scope---In its Constitutional jurisdiction the High Court could not arrogate to itself the executive function of being an appointing authority---Such function was beyond the pale of jurisdiction of the High Court and militated against the fundamental concept of tracheotomy of powers.

Ghulam Mohyuddin Malik, Advocate Supreme Court for Appellants (via video link from Peshawar).

M. Shoaib Shaheen, Advocate Supreme Court for Respondents Nos. 1-5 (in C.A No. 617 of 2020) and for Respondent No. 1 (in C.As. Nos.623-626 of 2020)).

M. Junaid Akhtar, Advocate Supreme Court for Respondents Nos.1-8 (in C.A. No. 618), for Respondent No. 1 (in C.As. Nos. 619, 620 of 2020) and for Respondents Nos. 1 - 2 (in C.A. No. 622 of 2020).

Imran Fazal, Advocate Supreme Court for Respondents Nos. 1-6 (in C.A. No. 621 of 2020).

2021 S C M R 988

[Supreme Court of Pakistan]

Present: Umar Ata Bandial,Qazi Muhammad Amin Ahmed andSayyed Mazahar Ali Akbar Naqvi, JJ

SHAMONA BADSHAH QAISARANI---Appellant

Versus

ELECTION TRIBUNAL, MULTAN and others---Respondents

Civil Appeal No. 1399 of 2019, decided on 16th March, 2021.

(On appeal against the judgment dated 12.08.2016 of the Lahore High Court Multan Bench, Multan passed in W.P. No. 136 of 2015)

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

----S. 12(2)(a)---Constitution of Pakistan, Art. 62(1)(f)---Nomination papers, rejection/acceptance of---Non-disclosure or misdeclaration of assets in nomination papers---Every non-disclosure or mis-declaration would not be sufficient enough to permanently disqualify a member of the parliament or a candidate---If the non-disclosure or mis-declaration was such that it gave an illegal advantage to a candidate, then it would lead to termination of his candidature.

Every non-disclosure or mis-declaration would not be sufficient enough to permanently disqualify a member of the Parliament or a candidate. The purpose and intention needed to be seen behind the non-disclosure or mis-declaration. The returned candidate would be disqualified only when if he/she had dishonestly acquired assets and was hiding them to derive certain benefits. If the non-disclosure or mis-declaration was such that it gave an illegal advantage to a candidate then it would lead to termination of his candidature.

Mere fact that a candidate had not declared an asset in the nomination papers would not end in his disqualification but it had to be seen whether the act of non-disclosure of the asset was with dishonest intent or not and only if there was dishonest intent behind the nondisclosure, the candidate would be disqualified. It was the credibility of the explanation that would be the determining factor as to whether non-disclosure of an asset carried with it the element of dishonesty or not.

Khawaja Muhammad Asif v. Muhammad Usman Dar 2018 SCMR 2128; Shakeel Awan v. Sheikh Rasheed Ahmed PLD 2018 SC 643; Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189 and Murad Bux v. Kareem Bux 2016 SCMR 2042 ref.

In the present case, before disqualifying the appellant-candidate, the fora below ought to have established whether the act of the appellant of non-mentioning of agricultural property was a dishonest act with a view to gain some benefits i.e. to evade tax payment etc. or the property was acquired later on after elections by using corrupt practices etc. However, the fora below had made no effort to ascertain these aspects of the matter. Admittedly the subject agricultural property was legitimate as it was inherited from her parents vide duly attested mutations. No wrongdoing was associated with the acquisition of the property or its retention, therefore, the act of non-mentioning of the property could not have been termed as dishonest act, rather it could only be termed as bad judgment or negligence but certainly not dishonesty.

Election Tribunal disqualified the appellant in a slipshod manner. The act of the appellant at best could be termed as bad judgment or negligence and as the property was legitimately acquired through inheritance, the same could not be labeled as acquired through dishonest means. For such negligence, she could not be disqualified for life. Consequently, appeal was allowed and the impugned judgment rejecting the nomination papers of the appellant was set aside.

(b) Maxim---

----'Actus curiae neminem gravabit'---Scope---No man should suffer because of the fault of the court---Said maxim was founded upon justice and good sense which served a safe and certain guide for the administration of law---In a case, where any undeserved or unfair advantage had been given to a party invoking the jurisdiction of the court and the same needed to be neutralized, the said maxim was to be made applicable.

Muhammad Shahzad Shaukat, Advocate Supreme Court for Appellant.

Barrister Umer Aslam, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate Supreme Court for Respondent No. 3.

M. Arshad, D.G. (Law) for the ECP.

2021 S C M R 998

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

PAKISTAN TELECOMMUNICATION COMPANY LTD.---Appellant

Versus

MUHAMMAD SAMIULLAH---Respondent

Civil Appeal No. 616 of 2020, decided on 20th April, 2021.

(Against judgment dated 10.04.2019 of Peshawar High Court, D.I. Khan Bench, passed in Writ Petition No. 1141-D of 2016 with C.Ms. Nos. 1301-D of 2018 and 454-D of 2019)

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

----Ss. 35 & 36---Pakistan Telecommunication Corporation Act (XVIII of 1991), S. 9 [since repealed]---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of the High Court---Scope---"Master and servant" relationship---Ad hoc or temporary employees employed by the Pakistan Telecommunication Corporation (the Corporation) or the Pakistan Telecommunication Company Limited (the Company)---Non-statutory terms and conditions of service---Distinction had to be drawn between departmental employees of the Pakistan Telegraph and Telephone Department (T&T Department)whose terms and conditions of service on their transfer to the Pakistan Telecommunication Corporation (the Corporation) and then to the Pakistan Telecommunication Company Limited (the Company)were protected by law and those who were employed by the Company on contract or work-charge basis whose terms and conditions of service were governed by the rules of the Company that were clearly non-statutory---In the present case, the respondent-employee fell squarely in the latter category as he was employed as a workman on daily wages by the Corporation in 1992 whereafter his services were regularized in 1998 and subsequently terminated---At no point in time was the respondent working in the T&T department---Employees such as the respondent who were employed by the Corporation or the Company on ad hoc or temporary basis were not afforded statutory protection, and their employment was governed by the principle of 'master and servant'---Any alleged violation of non-statutory rules was not amenable to Constitutional jurisdiction of the High Court---Even otherwise, an adequate and efficacious remedy of filing a grievance petition before the Labour fora was available to the respondent, which alternate remedy he did not avail---Appeal was allowed and impugned judgment of High Court, whereby respondent was reinstated in service, was set aside.

Masood Ahmad Bhatti and others v. Federation of Pakistan and others 2012 SCMR 152; PTCL and others v. Masood Ahmad Bhatti and others 2016 SCMR 1362 and Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 ref.

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

----S. 34---Constitution of Pakistan, Art. 199(5)---'Person' within the meaning of Art. 199(5) of the Constitution---Pakistan Telecommunication Company Limited (PTCL) was a person within the meaning of Art. 199(5) of Constitution.

Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 ref.

(c) Civil service---

----Ad hoc, temporary employee or contract employee---No vested right of regularization---Ad hoc, temporary or contractual appointment did not create any vested right of regularization in favour of the appointee.

Shahid Anwar Bajwa, Advocate Supreme Court for Appellant (via video link from Lahore).

Raheel Zafar, S.M. Legal for Appellant.

Ahmed Ali, Advocate Supreme Court for Respondent.

2021 S C M R 1008

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shahand Yahya Afridi, JJ

DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS, RAWALPINDI and others---Appellants/Petitioners

Versus

Syed USMAN ALI and others---Respondents

Civil Appeals Nos. 864 to 872 of 2017 and Civil Appeals Nos. 1090 to 1116 and 1059 to 1075 of 2019 and Civil Petitions Nos. 324 to 334, 430 and 431 of 2019, 2853 of 2016 and C.M.A. No. 5767 of 2016 and Civil Petitions Nos. 2104 to 2109 and 2980 to 3006 of 2019 and C.M.As. Nos. 5918 to 5926 of 2016, decided on 8th October, 2019.

(On appeal against the judgment of Federal Service Tribunal, Islamabad, dated 10.05.2016, 18.10.2018, 06.08.2018, 28.11.2018, 23.05.2016, 27.03.2019 and 08.05.2019 passed in Appeals Nos. 68 to 76(R)CS of 2013 and 4322 to 4334, 4654 to 4658 and 4406 to 4414(R)CS of 2017 and 868 to 884(R)CS of 2016 and 1465 to 1467, 1469 to 1472, 1474 to 1477, 1468 and 1473(R)CS of 2016 and 1402(R)CS/2013 and 58 to 63(R)CS of 2017 and 4040 to 4060 and 4303 to 4308(R)CS of 2017)

Civil service---

----Temporary Labour Appointments/daily wagers in Pakistan Railways---Regularization in service---Whether date of regularization would operate from the date of initial appointment---Held, that respondents-employees were appointed as daily wagers/Temporary Labour Appointments (TLAs) in the year 2006/2007---Subsequently their services were regularized with immediate effect under the Regularization Policy, 2012---As the said Policy of 2012 was with immediate effect i.e. 20-02-2012, the respondents could not claim the regularization from the date of their initial appointment---Furthermore previous Regularization Policies of 1985 and 2000 were not applicable to the respondents---No illegality was found in the regularization of the respondents under Regularization Policy, 2012 from the date of regularization i.e., 20-02-2012---Appeals were allowed and impugned judgment of Service Tribunal was set aside.

Hafiz Hafiz ur Rehman, Advocate Supreme Court and M.A. Sheikh, Advocate-on-Record for Appellants (in C.As. Nos.864-872/2017, 1059-1075/2019 and 2853/2016).

Jawad Mahmood Pasha, Advocate Supreme Court for Appellants (in C.As. Nos. 1090-1116, 324-334, 430-431, 2104-2109 and 2980-3006 of 2019).

Ijaz Buriro, CEO/GM, Sufian Dogar, CPO and Salman Kazmi, Legal Directorate for Pakistan Railways (on Court's Notice).

Zulfiqar Ahmed Bhutta, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.As. Nos.864-872 of 2017).

Zulfiqar Khalid Malooka, Advocate Supreme Court for Respondents (in C.A. 2853 of 2016).

Nemo for Respondents (in C.As. Nos. 1091-1116, 1059 to 1075 of 2019 and C.Ps. Nos. 2104-2109, 325, 326, 329-331 of 2019).

2021 S C M R 1016

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik,Syed Mansoor Ali Shah and Amin ud Din Khan, JJ

AHMAD KHALID BUTT---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 193 of 2021, decided on 12th April, 2021.

(Against the order dated 03.02.2021 passed by Islamabad High Court, Islamabad in Criminal Misc. No. 30-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 20, 21 & 24---Penal Code (XLV of 1860), Ss. 34 & 109---Malicious code, cyber stalking, common intention, abetment---Offences alleged in the FIR fell outside the prohibitory clause of S. 497, Cr.P.C., maximum punishment whereof was five years and three years respectively---Accused was behind bars for the last about four months---Even as per contents of FIR, he was not the principal accused---Grant of bail in such like cases was a rule and refusal thereof an exception---No exceptional circumstances had been pointed out to refuse the concession of bail to the accused---Petition for leave to appeal was converted into an appeal and allowed, and accused was allowed bail.

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

Ayyaz Shaukat, D.A.G. along with Qaiser Masood, Adl. Director (Law) and M. Wasim Sikandar, S.I., CCRC, FIA for the State.

2021 S C M R 1017

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

PUNJAB PUBLIC SERVICE COMMISSION and others---Appellants

Versus

HUSNAIN ABBAS and others---Respondents

Civil Appeal No. 359 of 2020 and Civil Petition No. 14 of 2020, decided on 16th March, 2021.

(Against judgment dated 30.10.2019 of Lahore High Court, Lahore passed in Writ Petition No. 243917 of 2018)

(a) Constitution of Pakistan---

----Art. 27---Civil service---Reserved quota for underrepresented class or area---Constitutionality---Legislation put in place by the competent legislature for redressal of under representation of any class or area in the service of Pakistan was neither ultra vires nor violated Art. 27(1) of the Constitution.

Mushtaq Ahmed Mohal v. Honourable Lahore High Court 1997 SCMR 1043 ref.

(b) Civil service---

----Rules/conditions applicable for appointment against advertised posts---Scope---Rules applicable and the conditions required to be specified were those which were in force on the date of appointment and not those which were obtained earlier i.e. at the time of inviting applications, etc.

Habibur Rehman v. West Pakistan Public Service Commission PLD 1973 SC 144; Nusrat Baig Mirza v. Government of Pakistan PLD 1992 FSC 412; Abdul Jabbar Memon's case 1996 SCMR 1349 and Governor N.W.F.P. v. Gul Naras Khan 1987 SCMR 1709 ref.

(c) Civil service---

----Erroneously prepared merit list---No vested right of appointment---No vested right could accrue in favour of a candidate by virtue of an erroneous merit list which was prepared on the basis of an erroneous advertisement; which had been published in violation of the Government Policy, and the applicable rules and regulations.

(d) Civil service---

----Appointment--- Legitimate expectancy, doctrine of---Scope---Candidate's claim to appointment based on the doctrine of legitimate expectancy could not be allowed to override or overshadow another candidate's right which was based upon constitutional protections and statutory provisions put in place on the basis of a constitutional mandate.

(e) Punjab Public Service Commission Ordinance (II of 1978)---

----S. 7---Punjab Public Service Commission ('the Commission'), powers of---Scope---Neither the Commission nor its Chairman had the power or authority to appoint a candidate against any post in view of the fact that mandate of the Commission and its Chairman was limited only to making recommendations to the concerned Departments for appointment against available posts.

Barrister Qasim Ali Chouhan, Additional A.G., Punjab for Appellants.

Mudassar Khalid Abbasi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in Civil Petition No. 14 of 2020) and for Respondent No. 2 (in C.A. No. 359 of 2020).

Mian Shah Abbas, Advocate Supreme Court via video link from Lahore for Respondent No. 1 (in C.A. No. 359 of 2020).

Respondent No. 1 in person (in C.P. No. 14 of 2020).

2021 S C M R 1027

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

SENIOR GENERAL MANAGER/CEO, PAKISTAN RAILWAY HEADQUARTERS, LAHORE and others---Appellants

Versus

ABDUL RAUF SHAMOON---Respondent

Civil Appeal No. 10 of 2021, decided on 19th April, 2021.

(Against the judgment dated 11.06.2019, passed by the Federal Service Tribunal, Islamabad in Appeal No. 3343(R)CS/2017 with MPs)

Civil service---

----Railway engine driver---Violation of red signal causing an accident---Dismissal from service---Tribunal by way of impugned judgment converted the major penalty of dismissal from service into that of compulsory retirement with effect from the date of dismissal---Legality---Train which was being driven by the respondent met with a catastrophic accident causing substantial loss of Rs. One Hundred and Twenty million to Railways and also loss of four innocent lives---Respondent in his reply had merely taken an evasive stand, rather on its close reading appeared to have admitted that he has moved the train while signal was red---Two defences taken by the respondent of i.e. hand signal by a gate man and the signal turning to green had not been established---Respondent had violated the red danger signal---Further, the respondent has accelerated the train to the speed of 80 kilometres per hour and did not apply emergency brakes, which charges had not been denied by the respondent---Tribunal in its impugned judgment had not considered such important aspects of the matter---Appeal was allowed, impugned judgment of Tribunal was set-aside and penalty of dismissal from service imposed upon the respondent was restored.

Jawad Mehmood Pasha, Advocate Supreme Court and Naveed Mubashar Ch. D.S. Multan for Appellants.

Zubair Hussain Jarral, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent.

2021 S C M R 1032

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

ANWAR SHAHEEN and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 252 of 2021, decided on 15th April, 2021.

(Against the order dated 26.02.2021 passed by the Peshawar High Court, Peshawar in Criminal M. B.A. No. 476-P of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, unlicensed possession of arms---Bail, grant of---Further inquiry---During the incident the deceased and the injured complainant each received only one firearm injury---Present case was registered against four persons, out of whom one co-accused with similar allegations to that of present accused and co-accused had been found innocent during. the course of investigation and his name was placed in column No.2 of the report under S. 173, Cr.P.C.---During the course of investigation nothing was recovered at the instance of or from the possession of present accused and co-accused---Furthermore one of the co-accused got recovered a pistol and two out of eight empties secured from the spot matched with that pistol---All such circumstances made the case of present accused and co-accused one of further inquiry falling within the ambit of S. 497(2), Cr.P.C.---Resultantly both of them were admitted to post-arrest bail---Petition for leave to appeal was converted into appeal and allowed accordingly.

Arshad Hussain Yousafzai, Advocate Supreme Court for Petitioners.

Anis Muhammad Shahzad, Advocate Supreme Court along with Sabz Ali, S.I. for the State.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for the Complainant.

2021 S C M R 1033

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

DIVISIONAL SUPERINTENDENT, POSTAL SERVICES, GUJRANWALA and another---Appellants

Versus

MUHAMMAD ARIF BUTT---Respondent

Civil Appeal No. 1385 of 2019, decided on 31st March, 2021.

(Against judgment dated 12.12.2018 of Federal Service Tribunal, Lahore passed in Appeal No. 2(L)CS of 2017)

(a) Civil service---

----Misappropriation of public money---Dismissal from service---Penalty of dismissal from service imposed upon respondent-postman by the departmental authorities was converted by the Service Tribunal into stoppage of two increments for a period of two years without future effect with reinstatement in service with all back benefits---Legality---Government servant who was found to have misappropriated public money, notwithstanding its amount, breached the trust and confidence reposed in a Government servant who was charged with the responsibility of handling public money---Misappropriation of the same, whether temporary or permanent and irrespective of the amount constituted dishonesty and misconduct---Such an/employee/individual had no place in Government service because he broke the trust and proved himself to be unworthy of the confidence that the State reposed in him---In the present case, despite recording a finding to the effect that the allegations of inefficiency and misconduct stood proved against the respondent, who in his defence had failed to contest or disprove the same, the Tribunal proceeded to take a lenient view in the matter---Such leniency by the Tribunal amounted to granting a premium to an employee who had admittedly and blatantly violated the laws and rules applicable to his service and had been proven guilty of misconduct and misappropriation---Further, the impugned judgment of the Tribunal was conspicuous by the absence of any reasoning for the impugned modification let alone cogent or legally sustainable one---Appeal was allowed, impugned judgment of the Tribunal was set-aside and penalty of dismissal from service imposed upon the respondent by the departmental authorities was affirmed and restored.

Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others 2013 SCMR 817 distinguished.

Government of Pakistan v. Nawaz Ali Sheikh 2020 SCMR 656; Chief Postmaster Faisalabad v. Muhammad Afzal 2020 SCMR 1029; Government of the Punjab through Chief Secretary v. Muhammad Arshad and 2 others 2020 SCMR 1962 and District Police Officer v. Muhammad Hanif 2020 SCMR 1610 ref.

(b) Service Tribunals Act (LXX of 1973)---

----S. 5---Federal Service Tribunal ('the Tribunal')---Discretion to modify punishment awarded by departmental authorities---Scope---Although the Tribunal had the discretion to interfere in the questions of quantum of punishments, such discretion could neither be exercised arbitrarily nor were the powers of the Tribunal under S. 5 of the Service Tribunals Act, 1973 ('the 1973 Act') unqualified or unlimited---Where the penalties awarded by the competent departmental authorities after following due process of law were to be interfered with in exercise of the discretionary powers of the Tribunal under S. 5 of the 1973 Act, such discretion had to be exercised in a circumscribed, restricted and structured manner duly supported by the legally sustainable reasoning which justified the conclusions reached by it.

Sohail Mehmood, Additional AGP for Appellants.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondent.

2021 S C M R 1039

[Supreme Court of Pakistan]

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

MUHAMMAD BILAL and another---Applicants

Versus

The STATE and others---Respondents

Criminal Appeal No. 106 of 2020 and Criminal Petition No. 168 of 2020, decided on 21st September, 2020.

(On appeal from the judgment dated 21.11.2019 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.1118-P of 2019 and Criminal Revision No. 232-P of 2019)

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd--- Reappraisal of evidence--- Juvenile accused--- Judicial confession---Extra caution was to be taken by the Court while recording confession of a juvenile-accused---In case of a juvenile-accused it was desirable and appropriate that the accused should be provided counseling/consultation facility of his natural Guardian or any close blood relative---Confession should be voluntary, based on true facts and corroborated by other evidence available on record.

The accused was minor at the time of commission of offence. Being a child of impressionable age, he was vulnerably placed and, thus, more susceptible to fear, threat or inducement. He, as per prosecution, remained in police custody from 2nd August, 2016 till 5th August, 2016 but it was the version of the accused that he remained in police custody for five days. It had been admitted by the Investigation Officer and the Judicial Magistrate that the accused was not medically examined after the completion of three days police custody. In these circumstances, it could not be said with certainty that the alleged confession was made voluntarily. Confession should be voluntary, based on true facts and corroborated by other evidence available on record. Going through the entire evidence of the prosecution, there was no piece of circumstantial evidence corroborating the confessional statement of accused.

When the appellant admittedly was a minor aged about 12½ years at the time of commission of offence then it was the bounden duty of the Judicial Magistrate that he should have taken extra care in this regard. Though the Code of Criminal Procedure and the Juvenile Justice System Act, 2018 did not provide any special procedure or manner for recording the confessional statement of a minor/juvenile but this became the prime duty of the Magistrate recording confession that he should be extra vigilant. It was desirable and appropriate that the accused should have been provided counseling/consultation facility of his natural Guardian or any close blood relative. But no such effort or any other extra measures were adopted by the learned Magistrate in the present case. The basic theme behind this was to rule out all kinds of fears from the mind of an accused, especially the juvenile accused, making confession particularly that in case he was not making a confession he would not be handed over to police. But in the present case the Investigation officer had admitted that the accused was handed over to him after recording his confessional statement to take him to judicial lockup and then he took him to jail along with warrant.

Hashim Qasim and another v. The State 2017 SCMR 986 ref.

The certificate of the Judicial Magistrate showed that the accused got recorded his statement in Pashto language which was translated into Urdu language by the steno of the Court and was scribed by the recording Magistrate in his own hand writing and the same was read over to the accused. It had come on record that the recording Magistrate was not fully conversant with Pashto and the statement of the steno who translated statement of accused was not recorded. Even signatures of said steno were not obtained on the statement. Another important aspect of the case was that the accused had retracted the confession and claimed that he had not made any incriminating statement. Thus, in such a situation, the only evidence to be relied upon was the said retracted confession and no other reliable and trustworthy evidence was available with the prosecution.

Prosecution had failed to prove its case against the accused beyond reasonable doubt. Appeal was allowed; conviction and sentence of the accused awarded by the Courts below were set aside and he was acquitted of the charges levelled against him.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Reappraisal of evidence---Recovery of weapon from accused doubtful---Weapon and empties sent together for forensics---Record of the case reflected that the pistol was allegedly recovered from the immediate possession of the accused at the time of his arrest on 2nd August but there was nothing on the record to show that in whose custody it remained from the time of its alleged recovery on 2nd August till 4th August---Police official who was the witness to the memo deposed that the alleged pistol was not recovered from the possession of the accused in his presence and similarly the accused was also not present at the time of its presentation by the Muharrir to the Investigation Officer---Besides the empty and the pistol were sent together to Forensic Science Laboratory---In such circumstances, positive forensic report becames highly doubtful and could in no way be considered as a piece of corroborative evidence worth reliance--- Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed; conviction and sentence of the accused awarded by the Courts below were set aside and he was acquitted of the charges levelled against him.

Astaghfirullah, Advocate Supreme Court for Appellant (in Criminal Appeal No. 106 of 2020).

Shahid Kamal, Advocate Supreme Court for the Complainant (in Crl. Appeal No. 106 of 2020).

Shahid Kamal, Advocate Supreme Court for Petitioner (in Crl. P. No. 168 of 2020).

Arshad Hussain Yousafzai, State counsel, Khyber Pakhtunkhwa for the State.

2021 S C M R 1045

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others---Appellants

Versus

MUHAMMAD YOUNAS---Respondent

Civil Appeal No. 258 of 2020, decided on 22nd February, 2021.

(Against the judgment dated 30.11.2017 passed in Writ Petition No. 4801-P of 2017 of the Peshawar High Court, Peshawar)

(a) Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----Ss. 2(b) & 3---Project posts---Contractual employees---Question as to whether project employees appointed to a project which was converted to the regular budget after the cut-off date of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 i.e. 24.10.2009, were eligible to be regularized under the relevant provisions of the said Act---Held, that contractual or adhoc employees appointed before 24.10.2009 i.e. the date of the commencement of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act'), were eligible for regularization---However, in the present case, since the post against which the respondent was appointed, was converted to the regular budget in 2014, it was clear that the respondent fell outside the purview of the 2009 Act---Before the conversion of the post to the regular budget, the respondent was simply a project employee---Under S. 2(b) of the 2009 Act, project employees were categorically excluded from the benefit of regularization under S. 3 of the 2009 Act, therefore the said Act was clearly inapplicable to the respondent---Appeal was allowed and impugned judgment of High Court was set aside.

(b) Interpretation of statutes---

----Clear and consistent interpretation by Courts in accordance with law---Scope---Courts of law were required to interpret the law and could neither rewrite the law nor read into the law something which was not provided therein---No matter how sympathetic a Court may feel towards a litigant or a set of litigants, Courts were duty-bound and required by the Constitution to adhere to the letter of law and not decide cases based on subjective feelings of sympathy which could vary from person to person---Law and its interpretation must be clear and consistent which was precisely why the adherence to the law was insisted upon as it lent stability to the system and increased the confidence of citizens in the law and the legal system---Involvement of subjectivity had the potential to make dispensation of justice variable and uncertain which was an anathema to a system based upon laws.

(c) Civil service---

----Project posts---Contractual employees---No right of regularization in service---In the present case, the policy governing appointment against Project Posts made it abundantly clear that upon conversion of the project to the regular budget, the services of the respondent-employee shall stand terminated---Furthermore, the appointment orders also clearly provided that the services of the respondent shall be terminated upon expiry of project period and thathe shall not have any right to regularization---Respondent was fully aware of these terms and conditions when he applied and subsequently got appointed onto his respective former post---Appeal was allowed and impugned judgment of High Court was set aside.

Shumail Ahmad Butt, AG KP, Atif Ali Khan, Ad. AG KP, Barrister Qasim Wadood, Ad. AG KP, Irum Shaheen, DD, HED, Asif Khan, Litigation Officer, HED, Amin Jan, AD, Fisheries, Gulzar Mahmood, AD Fisheries KP, Engineer Falak Niaz, AD (Dost), Rajbar Khan, SDO, PHE, KP, Sadullah, Asst. Secretary, BOR, KP, Faheem Ullah Khan, Senior LO, KPPSC, Assad Ullah Khan, SO, P&D Deptt. and Amanatullah Qureshi, Dy. Secy. Fin. Div. KP for Appellants.

Nemo for Respondents.

2021 S C M R 1051

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

FAYYAZ ULLAH KHAN---Petitioner

Versus

PESHAWAR HIGH COURT, PESHAWAR through Registrar---Respondent

Civil Petition No. 2902 of 2018, decided on 15th April, 2020.

(Against the judgment dated 09.06.2018 passed by the Khyber Pakhtunkhwa Subordinate Judicial Service Tribunal in Service Appeal No.52 of 2011)

Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act (VIII of 1991)---

----S. 6---District and Sessions Judge---Charges of corruption and living beyond ostensible legal means---Compulsory retirement---Subordinate Judiciary Tribunal had rightly noted that reply of the petitioner-Judge to the show cause notices showed that he had accepted the allegation of leading a stylish life which was beyond his lawful means; that on admission, he was required to discharge the burden which he took upon his shoulders but he did not produce any iota of evidence to that effect; that had he not taken the plea, which he took, then of course burden would have been on the Establishment to substantiate its charge but once the petitioner admitted that he was a Grade-21 Officer with a handsome salary, and that his wife was a specialist doctor having served abroad for a long time and that he had sufficient means of livelihood from his ancestral property, then, upon taking such plea, he was bound to produce some material in support of his plea, which he did not do---No evidence of any nature whatsoever was placed on record to show the earnings of petitioner's wife as a doctor or the earnings of the petitioner from his alleged ancestral property---Neither during the course of hearing of present petition nor before the Tribunal, the petitioner filed any material to substantiate his plea that he possessed the means to live a lifestyle beyond his known means as alleged in the show cause notices---Petition for leave to appeal was dismissed and leave was refused.

Malik Ghulam Mohy-ud-Din, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2021 S C M R 1055

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan andSayyed Mazahar Ali Akbar Naqvi, JJ

CHAIRMAN PAKISTAN ORDNANCE FACTORIES BOARD, WAH CANTT.---Appellant

Versus

SHAHZAD AMIN and others---Respondents

Civil Appeal No. 31 of 2020, decided on 16th February, 2021.

(Against the order dated 13.03.2018 passed in the Federal Service Tribunal, Islamabad in M.P. No. 2273 of 2017 in Appeal No.1813(R)CS of 2012)

Civil Service Regulations (CSR)---

----Regln. 371-A---Pensionary benefits, entitlement to---Minimum years of service to qualify for pension---Respondent had rendered 13 years of service---Service Tribunal, which converted respondent's dismissal from service into compulsory retirement, directed the appellant-employer to proceed in the matter of respondent's pension in accordance with the provisions of Regln. 371-A of the Civil Service Regulations ("CSR")and finalize the issue of his pensionary benefits within a period of three months---Legality---Provisions of Regulation No.371-A of CSR made no mention of payment of pension to an employee who had rendered only 13 years of service---Qualifying service for receipt of pension was 25 years which qualifying service had not been rendered by the respondent---In such circumstances the Service Tribunal came to the incorrect conclusion that respondent's case fell within the parameters of Regulation No.371-A of CSR having more than 10 years of service and was therefore entitled to pension---Said conclusion was not only unsupported by the record but also by the Regulation---Impugned order of the Tribunal being unsustainable on facts as well as law was set aside with the direction that the respondent was only entitled to a gratuity payment in the sum of Rs.124,000---Appeal was allowed.

Haseeb Shakoor Paracha, Advocate Supreme Court for Appellant.

Zaheer-ud-Din Babar, Advocate Supreme Court for Respondent No.1.

2021 S C M R 1059

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Amin-ud-Din Khan, JJ

ABDUL WASAY and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 35-Q/2017 to 37-Q/2017, decided on 19th February, 2021.

(On appeal from the judgment dated 5.6.2017 passed by the High Court of Balochistan, Quetta in Crl. A. No. 107/2014 and M.R. No. 3/2014 and Crl. Acquittal Appeal No. 122 of 2014)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Patrolling police reached at the spot during the occurrence and the accused along with his acquitted co-accused persons were arrested at the spot along with their respective weapons of offence i.e. knives and dagger---Weapons were taken into custody by the investigating officer vide recovery memo---Police not only confirmed the arrest of the accused at the spot but had also confirmed the recovery of the weapons of offence---Crime report was promptly lodged---Case of the prosecution was fully supported by the two injured prosecution witnesses---Medico Legal Certificate issued by the doctor fully supported the story of the prosecution regarding murder of deceased---Since the motive alleged by the prosecution was not proved, so, the benefit to that extent i.e. conversion of death sentence to life imprisonment had already been extended to the accused in his appeal before the High Court---Prosecution had fully proved its case against the accused---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---Appeal against acquittal---Accused was charged for causing knife blows to the complainant and a witness but no medical evidence of the said injuries from a proper source was brought on the record---Investigation officer produced their medical certificates but the same were not considered and relied upon by the Trial Court to record conviction against the accused---Furthermore the complainant had also received injuries in the earlier round of occurrence (separately reported vide an FIR of the same date) and in absence of a specific medical report, it was difficult for the Trial Court to determine the injuries inflicted during the present/subsequent occurrence---As far as the other two acquitted co-accused persons were concerned, they were charged for giving kicks and fists blows to the complainant party, but the prosecution had also failed to prove the case against them---Petition for leave to appeal challenging acquittal of accused and co-accused persons was dismissed and leave was refused.

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

----Chapt. XVI---Criminal Procedure Code (V of 1898), Preamble---Criminal Law (Second Amendment) Ordinance (VII of 1990), Preamble [since repealed]---Criminal Law (Second Amendment) Ordinance (I of 1991), Preamble [since repealed]---Criminal Law (Amendment) Ordinance (CXIII of 1996), Preamble [since repealed]---Criminal Law (Amendment) Act (II of 1997), Preamble---Provisions relating to Qisas and Diyat introduced in Pakistan Penal Code, 1860 (P.P.C.) and Code of Criminal Procedure, 1898 (Cr.P.C.), through different Ordinances (since repealed) and finally made permanent part of P.P.C. and Cr.P.C. vide Criminal Law (Amendment) Act, 1997----Supreme Court observed that after provisions of law relating to Qisas and Diyat were permanently made part and parcel of P.P.C. and Cr.P.C. vide Criminal Law (Amendment) Act, 1997, and accordingly Chapter XVI was permanently made part of P.P.C. applicable throughout the country, mentioning of such offences under any of the repealed Ordinances instead of P.P.C. or Cr.P.C. was not only unlawful but a grave misconception of law---Supreme Court directed all the concerned departments and the Courts to rectify such mistake and also be vigilant in this regard in future.

Liaqat Ali Tareen, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Cr. P. 35-Q of 2017).

Zahoor-ul-Haq Chishti, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in Cr. P. 36-Q and 39-Q of 2017).

Syed Baqir Shah, Advocate Supreme Court (State Counsel) for the State (in all cases).

Zahoor-ul-Haq Chishti, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for the Complainant (in Cr. P. 35-Q of 2017).

2021 S C M R 1064

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD SAJJAD---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petition No. 283-K of 2020, decided on 8th March, 2021.

(On appeal against the judgment dated 11.03.2020 passed by the High Court of Sindh, Karachi in Constitutional Petitions Nos. D-5659 and D-3597 of 2018)

(a) Cantonment Servants Rules, 1954---

----R. 5(1)---Transfer to another station---Legality---In the appointment letter of the petitioner-employee, it was clearly mentioned that the service of the petitioner was transferable, and it was made clear to him that only if he accepted the clauses of his appointment letter, he should report for duty---Joining of duty by the petitioner meant that he had accepted the appointment letter, which stated that his service was transferable at any other station throughout the country---When the petitioner had accepted the conditions mentioned in the appointment letter, he was estopped to challenge his transfer order---Petitioner neither agitated any element of mala fide on the part of the department nor any of his right had been infringed---Petition for leave to appeal was dismissed and leave was refused.

Tariq Iqbal v. D.G. Military Lands and Cantonments Department 2018 SCMR 335 ref.

(b) Civil service---

----'Transfer' and 'posting'---Scope---Transfer of an employee/public servant fell within the ambit of "terms and conditions" of service, which included transfer and posting---Transfer and posting was part of service and it was for the authority to determine where services of any staff member were required.

Muhammad Akbar Awan, Advocate Supreme Court for Petitioner (w/o PoA) (through video link from Karachi).

Nemo for Respondents.

2021 S C M R 1068

[Supreme Court of Pakistan]

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

MUHAMMAD RAFIQUE and another---Appellants

Versus

Syed WARAND ALI SHAH and others---Respondents

Civil Appeal No. 1295 of 2019, decided on 22nd February, 2021.

(On appeal from the order dated 11.02.2019 passed by the High Court of Sindh, Sukkur Bench in R.A. No. S-25 of 2014)

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

----Ss. 39 & 42---Suit for declaration and cancellation of mutation---Registered sale deed subsequent in time to oral sale of same property---Proof---Plaintiff claimed to be purchaser of suit property from his mother/real owner in the year 1973 whereas the impugned transaction of oral sale mutation in favour of predecessors of defendants was of the year 1971---Plaintiff had to prove the case through valid and reliable evidence and bring enough material for a court to cancel the mutation of sale in favour of predecessor of defendants---Plaintiff himself opted not to appear before the Court and make his statement on oath as required by law for appearance of a witness to take oath before the court for making a correct statement---Instead plaintiff appointed his attorney to appear before the court for which an inference could be drawn that without any justifiable reasons the plaintiff opted not to appear as his own witness when the case pleaded required his personal statement to substantiate the facts in his own knowledge i.e. for making a statement that his mother never appeared before the revenue officials for making a statement of sale of suit land and that she never received the consideration amount when admittedly she never disputed the sale in favour of predecessor of defendants in her life time who survived long after the sale in favour of predecessors of defendants---When the plaintiff pressed for grant of a declaration in his favour, he was required to make a statement himself by appearing in the witness-box otherwise when without any justification the plaintiff opted not to appear in the court in such like situation (adverse) inference could be drawn against the plaintiff---Furthermore the suit was not only barred by time but the plaintiff remained silent when continuous change of hands through sales, gifts of the suit land and its acquisition and construction of roads as well as construction of houses, commercial buildings etc. continuously was going on in the suit land and no objection was raised by the plaintiff for a long period of more than four decades---Plaintiff/respondent was required to prove the case pleaded by him, which he failed to do---Appeal was allowed and suit filed by plaintiff was dismissed with costs throughout.

Mrs. Zakia Hussain and another v. Syed Farooq Hussain PLD 2020 SC 401; Niaz Rasool through Muhammad Bilal v. Mst. Parveen Ikram and others 2013 SCMR 397 and Mir Ajam Khan v. Mst. Quresha Sultana and others 2006 SCMR 1927 ref.

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

----O. VI, R. 1---Pleadings---Scope---Pleadings could not be equated with evidence---Person claiming a right or interest in a property was bound to prove a case pleaded by it through valid reasonable oral as well as documentary evidence acceptable by the court.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellants.

Mian Abdul Rauf, Advocate Supreme Court for Respondents Nos.1, 15 to 17.

Rai Muhammad Nawaz Khasral, Advocate Supreme Court for Respondents Nos.12 to 14.

2021 S C M R 1077

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan andSayyed Mazahar Ali Akbar Naqvi, JJ

MEMBER (ADMINISTRATION), FEDERAL BOARD OF REVENUE and others---Petitioners

Versus

MIAN KHAN---Respondent

Civil Petition No. 1033 of 2020, decided on 20th April, 2021.

(On appeal against the judgment dated 08.01.2020 passed by the Federal Service Tribunal, Islamabad in Appeal No. 878(R)CS/2019)

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

----R. 4(1)(b)(ii)---Taking bribe---Major penalty imposed on basis of CCTV footage without forensic audit of such footage---Legality---Admittedly in the present case no regular inquiry was conducted by the Department and the same was dispensed with on the ground that the other evidence in the shape of CCTV footage was so authentic that major penalty could be imposed upon the respondent in the absence of regular inquiry and while imposing the major penalty CCTV footage was made the sole criterion to proceed against the respondent---Said CCTV footage was never sent to the office of Forensic Science Laboratory for its authenticity---In the absence of any forensic report qua the authenticity of the CCTV footage, the same could not be considered a legal basis for proceeding against a person---Said footage was even not produced before the Service Tribunal---Even otherwise, mere producing of CCTV footage as a piece of evidence without any forensic test was not sufficient to be relied upon unless and until corroborated and proved to be genuine---Persons who allegedly gave the bribe to the respondent, had also not been associated with the departmental proceedings---Service Tribunal had rightly set-aside the penalties of compulsory retirement and reduction to the lower rank awarded to the respondent---Petition for leave to appeal was dismissed by the Supreme Court with the observation that departmental proceeding in such a casual way by the departmental authority inviting a public servant into litigation for considerable time should be avoided because on one end, it wasted time of the court and on the other it caused physical stress, loss of reputation in public eyes, which ultimately led to mental agony for a public servant, which had no legal or moral justification.

Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675 ref.

M.D. Shahzad Feroz, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

2021 S C M R 1080

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mushir Alam and Mazhar Alam Khan Miankhel, JJ

SUO MOTU CASE NO.1 OF 2020

(Suo Motu action regarding combating the pandemic of Corona Virus (COVID -19))AND C.M. Appeal 167/2020 IN C.M.A. NIL/2020 IN S.M.C. 1/2020

C.M. Appeal 6/2021 IN C.M.A. NIL/2021 IN S.M.C. 1/2020 (Application for impleadment as party)

SAMIRA MAHAMADI---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

Suo Motu Case No. 1 of 2020 and C.M. Appeal No. 167/2020 in C.M.A. NIL/2020 in S.M.C. 1/2020, C.M. Appeal No. 6/2021 in C.M.A. NIL/2021 in S.M.C. 1/2020, decided on 5th May, 2021.

(a) Constitution of Pakistan---

----Art. 184(3)---Suo motu action regarding combating the pandemic of Corona virus (Covid -19)---Issues concerning import of medical devices; availability of oxygen and medicines in the country for treatment of Covid-19 patients; exorbitant prices of oxygen cylinders; steps taken by the National Disaster Management Authority (NDMA) in dealing with the pandemic of Covid-19; and steps being taken in Cantonment areas to contain the pandemic---Supreme Court gave directions to relevant functionaries, and sought reports from others to be made available on next date of hearing, to address the issues highlighted.

(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 ---Pakistan International Airline Corporation (PIAC) filed its report before the Supreme Court showing action taken against the delinquent officials of the PIAC, including the list of pilots, who had been dismissed on account of holding fake academic documents and list of cases pending in Courts, where stay orders had been obtained---Chairman PIAC informed the Court that to have said cases decided by the respective Courts, he had approached the office of the Attorney General to assist PIAC in having all said cases, filed by the employees indifferent Courts, decided, particularly in which injunctive orders were operating and the same be vacated---Supreme Court took the said report on record and observed the Chairman, PIAC may take necessary steps for removing surplus and non-required staff to ensure that the airline was brought to a level to make it a viable commercial airline.

(c) Pakistan Civil Aviation Authority Ordinance (XXX of 1982)---

----Preamble---Constitution of Pakistan, Art. 184(3)---Suo motu case---Employees of Civil Aviation Authority involved in misconduct and crimes---Director General, Civil Aviation Authority ('the Authority) filed a report before the Supreme Court that provided comprehensive details regarding the employees' misconducts and crimes while performing their duties in the Authority, and progress of their prosecution; and which also gave details of the action taken by the Authority on departmental side against the officials, including the pilots, who had obtained fake licences, and the cases in which injunctive orders had been passed---Supreme Court observed that normally criminal cases were not seriously prosecuted by the Government departments, therefore, mostly delinquent employees got acquitted for the reason that no effective evidence was brought on record by the department concerned; that the Director General of the Authority may approach the office of the Attorney General to ensure that the cases before the Courts, particularly where injunctive orders had been passed, were properly pursued and dealt with to bring them at a logical conclusion, and that a further report shall be submitted by the Director General before the next date of hearing.

(d) Constitution of Pakistan---

----Arts. 184(3)---Suo motu case---Provincial budget for the year 2020-2021 announced by the Provincial (Sindh) Government---Amounts allocated for education, health, water supply and sanitation and infrastructure development---Supreme Court observed that the report filed by the Provincial Government in regard to the issue was not satisfactory; that a huge amount had been shown to have been allocated for education, health, water supply and sanitation, infrastructure development but said funds apparently were not applied in these sectors; that the Provincial Government had spent an enormous amount of US $ 2600 million on Sindh Education Sector Reforms Project (SERP-II) during the period 2013-2017, but, despite spending a such huge amount in the education sector, apparently, nothing had changed in the standards of education in the Province, as the literacy rate continued to be dismal---Case was adjourned for next date of hearing. [p. 1086] H

Sohail Mehmood, Addl.AGP and Abdul Samad, SO Food Security for Federation.

Lt. Gen. Akhtar Nawaz, Chairman NDMA and Adrees Mehsood, Member, NDMA for NADRA.

Aamir Ashraf Khawaja, Secretary Health, Rana Safdar, DG Health, Ghulam Mustafa Jakhrani, Dy. Dir. (Legal) for Ministry of NHSR&C.

Niaz Ullah Khan Niazi, Advocate General, Islamabad and Babar Sahib Din, Addl. DC Islamabad for ICT.

Air Marshal Arshad Malik, CEO and Syed Rifaqat Hussain Shah, Advocate-on-Record for PIAC.

Dr. Asim Rauf, CEO, Dr. Fakhar Uddin Aamir, Director, MDMC, Dr. Ghazenfar Ali, Addl. Dir. and Shoaib Ali Khan, AD Legal Affairs for DRAP.

Ahmed Awais, Advocate General (via video link), Ch. Faisal Fareed, Addl. A.G. Punjab and Ms. Imrana Baloch, Advocate-on-Record for Government of Punjab.

Sibtain Mehmood, Addl. AG, Tariq Ali Khan, Secretary Energy, Kazim Hussain Jatoi, Secy. Health, Dr. Saeed Ahmed Qureshi and Focal Person to Chief Secretary Sindh for Government of Sindh (all via video link from Karachi Branch).

Shumail Butt, AG KPK, Atif Ali Khan, Addl. AG,, Younis Rahim, Secretary Relief and Rehabilitation, Ikramullah, Home Secretary and Syed Imtiaz Hussain, Secretary Health for Government of Khyber Pakhtunkhwa.

Arbab Muhammad Tahir, Advocate General (via video link from Quetta Branch), Ayaz Khan Swati, Addl. A.G. and Noor ul Haq Baloch, Secretary Health for Government of Balochistan.

Nemo for Government of Gilgit-Balistan.

Khaqan Murtaza, DG, Nadir Shafi Dar, DDG Regulatory, Malik Mazhar, DHR, Ms. Nasira Jabeen, Senior Legal Officer, Ms. Amna Warsi, Legal Consultant, Rana M. Bilal Anwar, Law Officer and Riffat Ullah, Director Flight Standards for CAA.

M. Ikhlaw Awan, ASC/LA for Air Blue.

Muhammad Safdar Khan, CEO for Serene Air.

Appellant in person (in C.M. Appeal No.167/2020).

Appellant in person (in C.M. Appeal No.06/2021).

2021 S C M R 1088

[Supreme Court of Pakistan]

Present: Mushir Alam, Maqbool Baqar and Munib Akhtar, JJ

Messrs SHAHBAZ GARMENTS (PVT.) LTD. and others---Appellants

Versus

GOVERNMENT OF SINDH through Secretary Labour and Human Resource Department, Karachiand others---Respondents

Civil Appeals Nos. 65-K to 117-K of 2019, decided on 11th March, 2021.

(On appeal from the judgment dated 23.8.2018 passed by the High Court of Sindh, Karachi in C.Ps. Nos. D-7077, 3082, 3083, 3940, 4068, 4429, 4918, 5140, 6009, 6063, 6899, 6900, 6971, 7117, 7118, 7119 of 2016, 460, 461, 464, 598, 783, 855, 886, 887, 946, 1282, 1309, 1339, 1340, 1764, 2281, 2755, 2825, 2913, 3569, 4527, 4533, 1637, 4810, 4947, 5736 to 5779, 6016, 6092, 9194, 7813, 8357, 8535 of 2017, 334, 335, 336, 479, 480, 481, 482, 539, 624, 897 to 903, 1037, 1272, 1273, 1274, 1276, 1277, 1740, 1766, 2040, 2236, 2263, 2265, 2700, 2872, 2873, 3016, 3017, 3127, 3158 and 3316 of 2018)

Sindh Employees' Social Security Act (VI of 2016) [as amended by the Sindh Employees' Social Security (Amendment) Act (XVIII of 2018)---

----Ss. 2(9)(e), 5, 20(1) & 75---Provincial Employees' Social Security Ordinance (X of 1965) [since repealed], Ss. 2(8)(f), 20 & 71---Provincial Employees' Social Security (Contributions) Rules, 1966 [as applicable in Sindh], Rr. 3, 4(3) & Sched.---Sindh Minimum Wages Act (VIII of 2016), S. 6---Minimum Wages Ordinance (XXXIX of 1961) [since repealed], S. 6---Social security---Rate of contribution---Rate of contribution for the period between the enactment of the Sindh Employees' Social Security Act, 2016 (from 12-04-2016) up to its amendment by the Sindh Employees Social Security (Amendment) Act, 2018 (from 17-05-2018)---Rate of contribution became unalterably fixed at six percent in the Sindh Employees' Social Security Act, 2016 ('the 2016 Act'); this consolidated in the parent statute (i.e. the 2016 Act') the position that had already emerged in Sindh since 1976, i.e., of the rate being fixed---Only difference was that previously this was the combined result of the Provincial Employees' Social Security Ordinance, 1965 ('the 1965 Ordinance') and the Provincial Employees' Social Security (Contributions) Rules, 1966 ('the 1966 Rules')---Fixed rate was seven percent from 1976 to 2008, and thereafter was six percent---Under the previous regime the situation could have been altered by suitable amendments to the 1966 Rules, though of course the "cap" imposed by the parent statute (i.e. the 2016 Act) of six percent could not be changed in such way---However, even the 1966 Rules were not changed, and entire position was consolidated and incorporated in the parent statute in 2016---When the 2016 Act came into force and up to the changes made by the Sindh Employees' Social Security (Amendment) Act, 2018 ('the 2018 Act'), a combined reading of S. 20(1) of the parent statute (i.e. the 2016 Act') and R. 4(3) of the 1966 Rules ensured that, as before, the rate of contribution was six percent, to be computed on the basis of the minimum wage---Amendments of the 2018 Act consolidated this position in the parent statute (i.e. the 2016 Act) by the introduction of the second proviso to S. 20(1), which, in effect, expressly incorporated in statute what had earlier been set out in the 1966 Rules.

Zahoor ul Hassan Minhas, Advocate Supreme Court and Jameel Ahmed Virk, Advocate-on-Record for Appellants (in C.As. Nos. 65-K to 92-K, 96-K, 98-K to 117-K/2019).

Shahid Bajwa, Advocate Supreme Court for Appellants (in C.A. No.65-K/2019).

Nemo for Appellants (in C.As. Nos.93-K to 95-K, 97-K/2019).

Jawad Akbar Sarwana, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No. 2 (in all cases.)

2021 S C M R 1106

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridiand Qazi Muhammad Amin Ahmed, JJ

HAROON-UR-RASHEED and others---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No.739 of 2018 and Criminal Petitions Nos.1344 and 1351 of 2018, decided on 13th April, 2021.

(Against the judgment dated 10.10.2018 of the Islamabad High Court Islamabad passed in Crl. Appeal No.62 of 2018)

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

----S. 9(c)--- Possession and transportation of 10 kilograms of cannabis---Reappraisal of evidence---Sentence, reduction in---Witnesses were in substantial unison with each other on all the details of the episode---Joint arrest of the accused persons with the vehicle they were travelling in and seizure of contraband therefrom were circumstances heavily looming over their culpability---Forensic report substantially detailed the procedure adopted by the analyst to undertake the analysis, unambiguously confirming the narcotic character of the contraband, a conclusion that went unrebutted/unchallenged during the trial---With accused persons belonging from different backgrounds, the only common ground for their convergence was their illicit pursuit, which by itself confirmed a collaboration for a purpose far from being usual or just---In the totality of circumstances, accused persons had been rightly convicted under S. 9(c) of the Control of Narcotic Substances Act, 1997, however, saddling each accused distinctly with different quantities of the contraband, ranging from 2 to 5 k.g., the case set up by the prosecution itself, spelt out a makeshift union instead of a concerted joint detour, therefore, the sentences of accused persons were to be moulded proportionately---Consequently, while maintaining their conviction, sentences awarded to accused persons were reduced from 10 years imprisonment to a period of 5 years with a corresponding reduction in the fine from Rs. 100,000/ each to Rs.50,000/- each with 6-months simple imprisonment in the event of default---Petitions for leave to appeal were converted into appeals and partly allowed accordingly.

Mudassir Khalid Abbasi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in J.P.739/2018).

M. Amjad Iqbal, Advocate Supreme Court for Petitioners (in Crl.P.1344/2018).

Maik Qamar Afzal, Advocate Supreme Court for Petitioners (in Crl.P.1351/2018).

Raja Inaam Ameen Minhas, and Ch. Ehtisham-ul-Haq, Special Prosecutors, ANF for the State.

2021 S C M R 1108

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmad, JJ

MUHAMMAD JAMIL and others Petitioners

Versus

MUHAMMAD ARIF---Respondent

Civil Petition No. 852 of 2020, decided on 10th September, 2020.

(Against the order dated 23.12.2019 passed by Lahore High Court, Lahore in Civil Revision No. 77548 of 2019)

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

----S. 22---Discretion as to decreeing specific performance---Scope---Specific performance was a discretionary relief, and the Courts were not bound to grant such relief mechanically merely, because it was lawful to do so---Discretion to grant relief of specific performance or otherwise, by the Court was not something mechanical or arbitrary exercise of jurisdiction but, was structured on sound and reasonable judicial principles, amenable to judicial review and correction by the court of appeal.

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

----S. 52---Performance of reciprocal obligations---Scope---Reciprocal obligations under the agreement were to be performed, in the manner and sequence it was provided for---Where the agreement did not expressly provide the manner by which such obligations were to be accomplished, then the respective obligations were to be performed in the manner and sequence, which the nature of transaction required.

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

----S. 54---Specific Relief Act (I of 1877), S. 12---Contract Act (IX of 1872), S. 51---Specific performance of agreement to sell immoveable property---Obligations of vendor and vendee---Foremost requirement to seek specific performance, for a vendee was to demonstrate his readiness and willingness to perform the agreement---Promisor (vendor) need not perform his part of promise or obligation, unless the promisee (i.e vendee) was ready and willing to perform his reciprocal promise---In cases arising out of agreement to sell, a vendee to demonstrate his readiness and willingness to perform his part of obligation, had to plead, that he had offered to pay, and was always prepared to pay the consideration---Vendee could not seek enforcement of reciprocal obligation on the part of vendor to execute the sale deed, unless he demonstrated that he not only had the financial capacity but he was also always willing and ready to meet the same.

Mst. Samina Riffat v. Rohail Asghar and others 2021 SCMR 7; Abdul Hamid v. Abbas Bhai Abdul Hussain PLD 1959 (W.P.) Karachi 629; Hamood Mahmood v. Shabana Ishaq 2017 SCMR 2023; Kwait National Real Estate Co. (Pvt.) Ltd. v. Educational Excellence Ltd. 2020 SCMR 171; Pushparani S. Sundaram and others v. Pauline Manomani James (deceased) and others (2002) 9 SCC 582; Saradamani Kandappan and others v. S. Rajalakshmi and others (2011) 12 SCC 18 Paragraph 31 and C.S. Venkatesh v. A.S.C. Murthy D. through LRs. AIR 2020 SC 930 = 2020 (3) SCC 280 ref.

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

----S. 54---Specific Relief Act (I of 1877), S. 12---Contract Act (IX of 1872), S. 55---Specific performance of agreement to sell immoveable property---Time essence of the contract---Rule that generally time was not of essence in contracts involving sale/purchase of immoveable property---Said rule could not be used as a ground to grant or otherwise specific performance, unless the circumstances that proved otherwise were highlighted and proved by the vendor and or vendee as the case may be.

PLD 1962 SC 1; PLD 1973 SC 39; 2009 (5) SCC 182; 2010 SCMR 286; 2015 SCMR 21; Malik Bahadur Sher Khan v. Haji Shah Alam 2017 SCMR 902 and Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 ref.

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

----S. 54---Contract Act (IX of 1872), S. 55---Agreement to sell immoveable property---Time essence of the contract---Balance consideration not paid within the time stipulated in the agreement---Forfeiture of earnest money---Scope---Court may always allow the vendor to appropriate the earnest money in terms of the forfeiture clause in the agreement and or as may be deemed appropriate, the court may compensate the vendor as it deemed just and reasonable.

The vendee-plaintiff conceded in evidence that consequence for not making payment in time would result in forfeiture of the earnest money. He also declined the offer of the vendor-defendant to purchase the property at the current value. In the present case, earnest amount paid to the vendor represent merely 7.834% of total sale consideration. The vendor was unjustly entangled in litigation by the vendee and dragged up to the Supreme Court with two suits, several rounds of appeals and revisions, injunctive orders, repeated non-compliance of orders of the trial and appellate court to deposit the balance sale consideration, delay in deposit of the amount beyond three years as set out in the agreement, and clog of injunctive order on the rights of the vendor to deal with his property etc. Court could approve forfeiture of the earnest money by the vendor on basis of such considerations.

Space Telecommunication (Pvt.) Ltd. v. Pakistan Telecommunication Authority 2019 SCMR 101 and Mst. Samina Riffat and others v. Rohail Asghar and others 2021 SCMR 7 ref.

From the facts, circumstances and evidence available on record it had become discernable to the Court, that the vendee had deliberately created a cobweb to entice the court into concluding that he had an intention to pay balance sale consideration. Specific time was set for performance of the contract, with consequences for both the parties committing breach of the time line. The vendee was not able to convincingly demonstrate that the time was not the essence of the contract and or that the vendor was either willing to accept the performance beyond the time so fixed or that the circumstances were such that the vendor could be forced to accept the performance beyond the time.

Court may always allow the vendor to appropriate the earnest money in terms of the forfeiture clause in the agreement and or as may be deemed appropriate, the court may compensate the vendor as it deemed just and reasonable. In the present case, by way of sheer indulgence, generosity and grace the vendor agreed to refund 50% of the earnest money received from the vendee through cross cheque. Supreme Court appreciated such benevolent gesture on the part of the vendor. Petition for leave to appeal was converted into appeal and allowed.

Ch. Ishtiaq Ahmad Khan, Advocate Supreme Court for Petitioners.

Malik Muhammad Qayyum, Senior Advocate Supreme Court for Respondent No. 1.

2021 S C M R 1124

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

CONTROLLER MILITARY ACCOUNTS (PENSION) LAHORE CANTONMENT and others---Appellants

Versus

MUHAMMAD SABIR (DECEASED) through L.Rs.---Respondent

Civil Appeal No. 527 of 2020, decided on 3rd December, 2020.

(Against the judgment dated 18.06.2019, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No. 785 of 2014)

Pakistan Army Reserve Rules, 1974---

----R. 11---Pakistan Army Act (XXXIX of 1952), S. 176-A---Army reservist---Minimum pension, entitlement to---Army reservists were fixed rated pensioners and they were not entitled to minimum pension as allowed through different Office Memorandums on the subject---Pension Regulations of the Armed Forces ('Pension Code') (issued under S. 176-A of the Pakistan Army Act, 1952) created a class of reservist pensioners and this class of reservist pensioners had been created on the basis that one-half of a reserve service would be counted as pensionable service in case of a person recalled to the colours or called up for active service and a person discharged from the reserve after a prescribed period of combined colour/active and reserve qualifying service of not less than 15 years would be eligible for a special pension at the rates mentioned therein---Classification of reservist pensioners was quite distinct from other classes of pensioners in the Army---Main reason for such classification was that the reservists were paid fixed rated pension as fixed by the Pension Code, whereas the remaining classifications were of those, who were Retiring Pensioners, Invalid Pensioners, Superannuation Pensioners and Compensatory Pensioners and their pensions were not provided for in the Pension Code to be fixed rated, rather their pensions were counted on their having qualifying period of service and last pay drawn etc.---In the present case, the Pension Book of the respondent-army reservist, showed his class of pension as "proportionate SPR" and having the rank of sepoy, he was paid proportionate pension of the rate fixed in the Pension Code---Respondent had admitted that he was discharged as a reservist and he never alleged that he was a retired employee paid from Defence Services Estimates---Being not a retired employee, the four subject Office Memorandums dealing with quantum of minimum pension had no application to the respondent---Respondent was not entitled to the grant of a minimum pension as prescribed by the said four Office Memorandums and subsequent Office Memorandums issued on the same subject---While announcing minimum pension by the Office Memorandums, the Federal Government did not change or alter the fixed rates of pensions of reservists as prescribed by the Pension Code---Appeal was allowed and impugned judgment of High Court was set aside.

Ayaz Shaukat, Deputy Attorney General for Pakistan and Imtiaz Ahmed, Assistant Accounts Officer for Appellants.

Malik Muhammad Asghar (son of Muhammad Sabir (deceased)) for Respondent (Legal Heirs).

2021 S C M R 1133

[Supreme Court of Pakistan]

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

Messrs FATEH YARN PVT. LTD. FAISALABAD---Petitioner

Versus

COMMISSIONER INLAND REVENUE FAISALABAD and others-- Respondents

Civil Petition No. 1972-L of 2017, decided on 15th January, 2021.

(Against the judgment dated 24.05.2017 of the Lahore High Court, Lahore passed in Sales Tax Reference No. 74 of 2010)

(a) Taxation---

----Factual controversy---Superior courts, jurisdiction of---Scope---Superior courts could not engage in factual controversies, however an exception had been carved out for situations where a substantial defect in the reading of oral or documentary evidence was pointed out.

Abdul Majeed v. Muhammad Subhan 1999 SCMR 1245 ref.

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

----S. 7(1)---Input tax credit, claim of---Fake documentary evidence---No reliable documentary evidence was provided by the petitioner-tax payer to support its claim of input tax credit, therefore the same should be disallowed (in fact whatever evidence had been provided was fake)---Petition for leave to appeal was converted into appeal and partly allowed

(c) Taxation---

----Notice---Tax liability mentioned in the notice---Scope---Order of adjudication passed on the basis of a ground not stated in the notice was palpably illegal and void on the face of it---Same logic should extend to an order imposing a tax liability for a time period not mentioned in the notice---Purpose of serving a notice on a taxpayer was to notify him of the case against him---When such a document contained incomplete information it could seriously prejudice the taxpayer's defence.

The Collector Central Excise and Land Customs v. Rahm Din 1987 SCMR 1840 ref.

Shahbaz Butt, Advocate Supreme Court (v.1 Lahore) for Petitioner.

Dr. Farhat Zafar, Advocate Supreme Court for Respondents.

2021 S C M R 1137

[Supreme Court of Pakistan]

Present: Mushir Alam and Yahya Afridi, JJ

CAPITAL DEVELOPMENT AUTHORITY (CDA) through Chairman CDA, Headquarter, Islamabad and another---Petitioners

Versus

Messrs HABIB RAFIQ (PVT.) LTD. and others---Respondents

Civil Petitions Nos. 3148, 3149, 3225 and 3360 of 2020, decided on 25th March, 2021.

(Against the judgment dated 10.03.2020 passed by Islamabad High Court, Islamabad in F.A.Os. Nos. 92 and 238 of 2019)

Arbitration Act (X of 1940)---

----Ss. 14(2) & 16---Arbitration award filed in court by the arbitrator---Plea of petitioner-authority that award was not filed in court by the arbitrator but by the counsel for the respondent-company---Held, that from perusal of the record, it was evident that the award was signed, made and announced by the Sole Arbitrator after due notice in writing to the parties and in presence of the parties --- Award along with all the deposition and annexures was filed in Court on, though it was disputed whether it was filed by the counsel for the respondent or by the Arbitrator, at the request of the respondent under S. 14(2) of the Arbitration Act, 1940---On the objections raised by the petitioner on the ground that the award was not filed in accordance with S. 14(2) and should be returned to the Arbitrator, the Trial Court remitted/returned the award to the Arbitrator to resubmit the same within 30 days---Subsequently the Arbitrator filed a Statement before Trial Court with a request to treat said Statement as covering letter to the award that was already filed in court earlier---Said Statement recorded that the letter of respondent's counsel, was in fact addressed to the Arbitrator requesting him, to file the award in Court, which letter of the counsel, was being treated as covering letter to the award---Arbitrator was bestowed authority to file the Award in Court at the request of any party or any person claiming through such authority---In the present case, the Sole Arbitrator, through his Statement, acknowledged that the Award was filed by him, at the request of respondent, which course was approved through the impugned judgment---In such circumstances the award was validly filed in terms of S. 14(2) of the Arbitration Act, 1940---Supreme Court observed that court of plenary jurisdiction could remit the award on any ground as recognized under S. 16 of the Arbitration Act, 1940, however once the award was filed in Court and a dispute arose, whether it was filed by the Arbitrator or otherwise, could effectively be resolved by issuing notice to the Arbitrator seeking clarification rather than remitting the award, as was done in the present case---Petition for leave to appeal was converted into appeal and dismissed.

Muhammad Munir Paracha, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners.

M. Masood Khan, Advocate Supreme Court for Respondent No.1.

2021 S C M R 1145

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ARSHAD ANJUM---Petitioner

Versus

Mst. KHURSHID BEGUM and others---Respondents

Civil Petition No.1530 of 2019, decided on 16th April, 2021.

(Against the order dated 04.03.2019 passed by the Lahore High Court Multan Bench Multan in F.A.O. 135 of 2011)

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

----S. 17---Civil Procedure Code (V of 1908), Ss. 10, 11 & 12(2)---Fraud---Land bought by petitioner, unknown to him, under attachment due to a decree passed by Family Court in favour of respondent---Question as to whether exclusion of the provisions of the Code of Civil Procedure, 1908 (C.P.C.) barring Ss. 10 & 11 thereof, stood in impediment to petitioner's approach to the Family Court for re-examination of the judgment within the contemplation of S. 12(2), C.P.C. or that he should have asserted his claim of being a bona fide purchaser with consideration through an intervener in civil plenary jurisdiction---Held, that there was no clog on the authority of a Family Court to re-examine its earlier decision with a view to secure the ends of justice and prevent abuse of its jurisdiction and for the said purpose, in the absence of any express prohibition in the Family Courts Act, 1964, it could borrow the procedure from available avenues, chartered by law---In the present case, the Family Court decreed the suit, without a full dress trial merely upon failure of respondent's husband to take special oath, a circumstance that also prevailed with the Appellate Court---Ostensible contest remained restricted between the spouses without slightest breach in their nuptial bond, therefore, in the circumstances, reconsideration/re-examination of the impugned judgment and decree by the Family Court was the only expedient option, conducive to the interest of the contestants---Petition for leave to appeal was converted into appeal and allowed, impugned judgment was set aside, and it was directed that the petitioner's application under S. 12(2) of C.P.C. before the Additional District Judge shall be deemed to be pending.

Muhammad Tabish Naeem Khan v. Additional District Judge Lahore and others 2014 SCMR 1365 and Haji Muhammad Nawaz v. Samina Kanwal and others 2017 SCMR 321 ref.

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

----S. 17---Civil Procedure Code (V of 1908), Ss.10 & 11 & Preamble---Proceedings before Family Court---Exclusion of provisions of Civil Procedure Code, 1908 (C.P.C.)---Scope---Exclusion of normal rules of procedure and proof, applicable in civil plenary jurisdiction for adjudication of disputes in proceedings before a Family Court, was essentially designed to circumvent delays in disposal of sustenance claims by the vulnerable; this did not derogate its status as a Court nor took away its inherent jurisdiction to protect its orders and decrees from the taints of fraud and misrepresentation---As such powers must vest in every tribunal to ensure that stream of justice ran pure and clean; such intendment was important yet for another reason, as at times, adjudications by a Family Court may involve decisions with far reaching implications/consequences for a spouse or a sibling and, thus, there must exist a mechanism to recall or rectify outcome of any sinister or oblique manipulation, therefore, there was no clog on the authority of a Family Court to re-examine its earlier decision with a view to secure the ends of justice and prevent abuse of its jurisdiction and for the said purpose, in the absence of any express prohibition in the Family Courts Act, 1964 it could borrow the procedure from available avenues, chartered by law.

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

----S. 12(2) & Preamble---Proceedings before Tribunals---Fraud and misrepresentation---Exclusion of provisions of Civil Procedure Code, 1908---Scope---Impact of fraud practiced upon tribunals exercising plenary or limited jurisdictions, respectively, could not be procedurally classified as in all jurisdictions it unredeemedly vitiated the very solemnity of adjudication, a wrong that could not be countenanced and must be remedied through dynamic application of equitable principles of law---Such approach had been approved by the Supreme Court in a good number of cases.

The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others PLD 1975 SC 331; Tanveer Jamshed and another v. Raja Ghulam Haider 1992 SCMR 917; Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908; Fazal Elahi Malis through legal heirs v. Miss Abida Reasat Rizvi 1993 SCMR 226; Haji Khudai Nazar and another v. Haji Abdul Bari 1997 SCMR 1986; Masjid Intizamia Committee and others v. Anjuman-e-Falah-o-Bahbood and others 2000 SCMR 540; Hanif and others v. Malik Armed Shah and another 2001 SCMR 577; Suhail Printing Press v. Syed Aley Eba Zaidi 2005 SCMR 882; Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818; Ammanullah Khan Leghari v. Abid Shaikh Ahmed 2007 SCMR 1434; Sheikh Saleem v. Mrs. Shamim Attaullah Khan and others 2014 SCMR 1694 and Abdul Salam v. Mrs. Tahira Zaidi 1984 CLC 2855 ref.

Ibad ur Rehman Lodhi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Maulvi Anwar ul Haq, Advocate Supreme Court and Barrister Umer Aslam, Advocate Supreme Court for Respondents.

2021 S C M R 1151

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J.,Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SECRETARY (M-V) FEDERAL BOARD OF REVENUE, ISLAMABAD---Appellant

Versus

ZEENAT BANGASH and others---Respondents

Civil Appeal No. 1989 of 2019, decided on 29th April, 2021.

(On appeal against the judgment dated 11.10.2018 passed by the Federal Service Tribunal, Islamabad in Appeal No. 407(L)CS/2016)

(a) Civil service---

----Deputation allowance, entitlement to---Officer of Postal Group working on deputation in Federal Board of Revenue---Held, that pursuant to a judgment of the Federal Service Tribunal passed in Appeals Nos. 39 and 40(R)CS/2003, which was upheld by the Supreme Court vide order dated 21-09-2005 passed in Civil Petitions Nos. 519 and 524/2004, all officers/officials of ministries, divisions etc, who had been transferred and posted on deputation basis were held entitled to deputation allowance vide Office Memorandum No. F.5(8)R-2/2007 dated 04-07-2007---Service Tribunal had rightly observed that according to paragraph 'ii' of the said Office Memorandum, old cases of transfers/postings on deputation basis were granted deputation allowance, and that on the basis of said Office Memorandum deputation allowance was allowed and disbursed to all the civil servants either old or fresh and no distinction was made between those, inducted in Office Management Group or otherwise---Appeal was dismissed.

(b) Civil service---

----Deputation allowance, entitlement to---Limitation---Officer of Postal Group (respondent) working on deputation in Federal Board of Revenue---Respondent worked in Federal Board of Revenue on deputation from the year 1994 to 2001 but he was not given deputation allowance---Contention of Federal Board of Revenue that the respondent was repatriated to his parent department in the year 2001 but filed his departmental appeal on 08-06-2015 which was clearly barred by limitation---Held, that present matter being a financial matter (as it related to deputation allowance), limitation would not have any adverse implication on respondent's claim---Service Tribunal had rightly held that respondent was entitled to the deputation allowance---Appeal was dismissed.

M.D. Shahzad Feroz, Advocate Supreme Court for Appellant.

Respondent No. 1 in person.

2021 S C M R 1154

[Supreme Court of Pakistan]

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

FEDERAL BOARD OF REVENUE through Chairman, Islamabad and others---Petitioners

Versus

ABDUL GHANI and another---Respondents

Civil Petition No. 1298 of 2019, decided on 4th October, 2019.

(Against the judgment dated 06.02.2019 passed by the Lahore High Court, Lahore in I.C.A. No. 98311 of 2017)

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

----Ss. 11(5) & 74---Default in payment of sales tax---Show cause notice, issuance of---Limitation---Delay of almost fifteen (15) years in sending notice---Condonation of delay under S. 74 of the Sales Tax Act, 1990---Scope---Section 11(5) of the Sales Tax Act, 1990 ('the Act') prescribed a limitation period of five years from the relevant date for commencing action through a show cause notice against the person in default---In the present case, to overcome the delay of nearly 15 years in the issuance of the said notice permission was obtained from the Federal Board of Revenue ('the Board') under S. 74 of the Sales Tax Act, 1990--- Held, that order passed under S. 74 of the Act by the Board failed to state any reason for extending the limitation period for issuance of a show cause notice against the respondent-tax payer---Said requirement was meant to ensure fairness and transparency in the exercise of statutory discretion by the Board which suffered from opacity and therefore unreasonableness---Section 74 of the Act neither specifically envisaged nor provided guidance, criteria or parameters for overriding any limitation period prescribed by the Act for initiating action against a taxpayer---Consequently, on the facts of the present case S. 74 could not be interpreted so as to authorise the unchecked reversal of a statutory limitation period and consequential legal rights created by it---Show cause notice issued by the tax department suffered from fatal defects that floated on the face of the record---Petition for leave to appeal was dismissed and leave refused.

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

----S. 11(5)---Law Reforms Ordinance (XII of 1972), S. 3---Default in payment of sales tax---Show cause notice, issuance of---Intra-Court Appeal before the High Court challenging show cause notice issued after the limitation period of five years---Maintainability---No remedy was provided in the Sales Tax Act, 1990 against the issuance of show cause notice, therefore the Intra Court Appeal filed by the tax payer was competent under S. 3 of the Law Reforms Ordinance, 1972---Petition for leave to appeal was dismissed and leave refused.

M. Umar Riaz, Advocate Supreme Court for Petitioners.

2021 S C M R 1157

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

GHAZAN KHAN---Petitioner

Versus

Mst. AMEER SHUMA and another---Respondents

Criminal Petition No.438 of 2021, decided on 17th May, 2021.

(Against the judgment dated 17.05.2021 passed by the Peshawar High Court Peshawar in Cr. Misc. B.1037-P/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---Having regard to the totality of circumstances whereunder the accused was alleged to have actively participated in the occurrence, that squarely constituted mischief of S. 324, P.P.C., punishable with imprisonment for a period of ten years, attracting the bar that could not be circumvented in the face of 'reasonable grounds' as contemplated by S. 497, Cr.P.C., the denial of bail to accused by the courts below was well within the remit of law and called for no interference---Petition for leave to appeal was dismissed and accused was denied bail.

Asad Ullah Khan Chamkani, Advocate Supreme Court for Petitioner.

Zahid Yousuf Qureshi, Additional A.G. Khyber Pakhtunkhwa with Mazhar Ali, ASI P.S. Katang, Mardan for the State.

2021 S C M R 1158

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Yahya Afridi, JJ

MUHAMMAD SHARIF and others---Petitioners

Versus

MCB BANK LIMITED and others---Respondents

Civil Petition No. 2104-L of 2019, decided on 9th March, 2021.

(Against the judgment dated 17.06.2019 passed by the Lahore High Court, Lahore in E.F.A. No. 702 of 2010)

(a) Limitation---

----Void order---Limitation against a void order would run from the date of knowledge which had to be explicitly pleaded.

Muhammad Raz Khan v. Government of N.W.F.P. PLD 1997 SC 397 ref.

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

----Art. 129(e)---Judicial proceedings---Presumption of correctness---Scope--- Presumption of correctness was attached to judicial proceedings, and strong and unimpeachable evidence was required to rebut such presumption.

Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587 ref.

M. Imran Malik, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2021 S C M R 1162

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

DIRECTOR POSTAL LIFE INSURANCE, LAHORE---Petitioner

Versus

SHAKEEL AHMAD---Respondent

Civil Petition No. 874-L of 2020, decided on 5th March, 2021.

(Against the judgment dated 20.02.2020 passed by the Federal Service Tribunal, Lahore in Appeal No. 109(L) of 2018)

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

----R. 4(1)(a)---Negligence in maintaining official record---Penalty of reduction in pay scale by four steps for five years reduced to minor penalty of 'censure'---Inquiry Officer had not found any documentary evidence to prove the allegation against the respondent of making double payments---Further, it was found that the alleged misconduct and negligence was not fully established---Inquiry Officer observed that although the respondent was negligent and showed lack of interest, there was no element of intentional omission or deliberate mishandling of records or overpayment to two individuals---On said basis, the Inquiry Officer had recommended issuance of a severe warning to the respondent---However the competent authority disagreeing with the findings of the Inquiry Officer imposed major penalty of reduction in pay scale by one step for two years without recording any valid or cogent reasons---Further, the Appellate Authority also did not record any valid reasons or lawful justification for further enhancing the penalty imposed upon the respondent---Service Tribunal re-examined the entire record and came to the correct conclusion that there was insufficient evidence against the respondent to establish charges of fraudulent double payments and negligence in handling official records and in discharge of his duties---Tribunal rightly came to the conclusion that the penalty imposed by the competent authority and further enhancement of the same by the Appellate Authority was disproportionately harsh to the allegations levelled and not fully proved against the respondent, particularly so where no documentary evidence was available to substantiate the charges against him---Furthermore record did not show if any mandatory show cause notice was issued by the Appellate Authority to the respondent or he was given an opportunity to defend his position and to plead his case against further enhancement of the penalty imposed upon him---Such material error/ defect in the procedure adopted by the Appellate Authority had violated the due process rights of the respondent---Service Tribunal was justified in reducing the major penalty of reduction in pay scale by four steps for five years to minor penalty of 'censure'---Petition for leave to appeal was dismissed and leave was refused.

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

----R. 6(A)---Recommendations of the Inquiry Officer---Scope---Although the competent authority had the power to disagree with the recommendations of the Inquiry Officer, however, such power had to be exercised on the basis of the record and for cogent and valid reasons duly recorded.

Moulvi Ejaz ul Haq, D.A.G. and Ms. Anam Ayaz, A.D. PLI, Islamabad (Pak. Post) for Petitioner.

Nemo for Respondent.

2021 S C M R 1166

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

MAQBOOL AHMED MAHESSAR and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman and others Respondents

Civil Petitions Nos. 3031, 1183, 1184 and 1290 of 2021, decided on 4th May, 2021.

(Against the order dated 17.03.2021 in Constitutional Petitions D-665/2019, 469/2020, 358/2020 and order dated 10.3.2021 in Const. P. No.D-598/2019 passed by the High Court of Sindh)

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

----S. 9---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---Pre-arrest bail---Petitioners, who were arrayed as accused persons in different National Accountability Bureau (NAB) references had been admitted to pre-arrest bails with a direction to furnish deposits equivalent to the amounts allegedly embezzled by them at the cost of public exchequer---Legality---Such directions for release of an accused on bail were ultra vires the law---Accused seeking bail desired transfer of his custody from Superintendent of the Jail, where he was confined, to his surety who undertook his production as and when required by the Court and for that he had to make out a case in accordance with the law applicable thereto; he could not be allowed or required to barter his freedom---Petitions for leave to appeal were converted into appeals and allowed; impugned orders were set aside with the directions that petitioners shall remain on ad-interim bail, while the bail petitions filed by them before the High Court shall be deemed as pending for decisions afresh.

Talat Ishaq v. National Accountability Bureau PLD 2019 SC 12 ref.

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

----S. 498---Pre-arrest bail, grant of---Scope---Grant of pre-arrest bail in a cognizable/non-bailable offence was a remedy, most extraordinary in the nature of judicial protection, extended by diverting usual course of law for the sole purpose of protecting reputation and honour of an innocent citizen, being hounded through abuse of process of law for purposes sinister and oblique---Such protection was based upon equity and could not be extended in every run of the mill criminal case prima facie founded upon incriminatory evidence, warranting custody for investigative purposes.

Hidayat Ullah Khan's case PLD 1949 Lah. 1 ref.

Mohammad Kassim Mirjat, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.P. No. 3031/2021).

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1183, 1184,1290/2021).

Abdus Sattar Awan, Special Prosecutor, NAB for NAB (in all cases).

2021 S C M R 1168

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

KHALILULLAH KAKAR and others Appellants

Versus

PROVINCIAL POLICE OFFICER, BALOCHISTAN and others---Respondents

Civil Appeals Nos. 909 to 912 of 2020 and Criminal Original Petition No. 87 of 2020, decided on 21st May, 2021.

(On appeal against judgment dated 31.01.2020 passed by the High Court of Balochistan, Quetta, in C.Ps. Nos. 246/2008 and 334/2019)

(a) Constitution of Pakistan---

----Arts. 199 & 212(3)---Balochistan Service Tribunals Act (V of 1974), S. 3(2)---Issue of joint seniority list of Deputy Superintendents of Police ('DSPs')---Matter relating to the terms and conditions of service---Constitutional jurisdiction of High Court---Scope---Article 212(2) of the Constitution specifically placed an embargo on all other courts except Service Tribunal to grant an injunction, make any order or 'entertain' any proceedings in respect of any matter relating to the terms and conditions of service even if they were mala fide, ultra vires or coram non judice---Word 'entertain' used in Art. 212(2) of the Constitution was of significant importance; it meant that any petition or proceeding relating to the terms and conditions of service should not even be entertained by the High Court in its constitutional jurisdiction under Art. 199 of the Constitution---Respondents being employees of Provincial Police Force were civil servants and the matter pertaining to issuance of joint seniority lists specifically related to their terms and conditions of service, which particularly rested within the jurisdiction of Provincial Service Tribunal---Filing of the Constitutional petitions before the High Court, at a time when the Provincial Service Tribunal was functional, was against the Constitutional mandate---Constitutional petitions filed by the respondents were not maintainable before the High Court---Appeal was allowed.

Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456; Asadullah Rashid v. Muhammad Muneer 1998 SCMR 2129 and National Assembly Secretariat v. Manzoor Ahmed 2015 SCMR 253 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction (of the High Court) was extraordinary in its scope, it had to be exercised sparingly---Jurisdiction conferred on the High Courts under Art. 199 of the Constitution was an extraordinary relief and the same had to be exercised in aid of justice and not to interfere in jurisdictions of other statutory forums---When the law has provided an adequate remedy, constitutional jurisdiction under Art. 199 of the Constitution could not be exercised as the same had to be exercised in exceptional circumstances, which could justify invoking the said jurisdiction---Tendency to bypass remedy provided under relevant statute by resorting to constitutional jurisdiction (of the High Court) was to be discouraged so that legislative intent was not defeated---Such jurisdiction was meant to be exercised in extraordinary circumstances and not in run of the mill cases.

(c) Balochistan Deputy Superintendent of Police Service Rules, 1978---

----R. 2(b)--- Balochistan Police Act (X of 2011), S. 3--- Balochistan Police Force--- Separate seniority lists prepared for Deputy Superintendents of Police ('DSPs') belonging to different branches---Legality--- Respondents who were DSPs belonging to the legal/prosecution branch challenged the issuance of separate seniority lists---Held, that as matter of common practice, which was prevalent in all four Provinces and Islamabad Capital Territory, seniority lists of DSPs of legal/prosecution branch was being prepared separately as compared to DSPs of other branches---Rule 2(b) of the Balochistan Deputy Superintendents of Police Service Rules, 1978, mentioned about different branches of the Police---Said Rules of 1978, the Balochistan Police Act, 2011 and the Police Rules, 1934, were silent on the point as to whether there should be separate or joint seniority lists of DSPs but the language used therein about the different branches of the police force and the fact that the mode of recruitment, nature of job, duties and training of legal/prosecution branch of the Balochistan Police was different than the other branches of the police, left no room to believe that the act of issuing separate seniority lists was well reasoned, in line with the practice followed in other Provinces including Islamabad Capital Territory and Gilgit Baltistan and in accordance with the intent of the law---Appeal was allowed.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Appellants (in C.As. 909 and 910 of 2020).

Appellants in person (in C.A. 911 of 2020 and Cr. O.P. 87 of 2020).

Sh. Riazul Haque, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.A. 912 of 2020).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Respondents (for Respondents Nos. 2, 3, 5 to 10, 20 in C.A. 909 of 2020, Respondents Nos. 2, 3, 5, 8, 12 in C.A. 910 of 2020 and Respondents Nos. 2, 3, 5 to 10, 12 in C.A. 911 of 2020).

Adnan Basharat, Advocate Supreme Court (for remaining Respondents in C.As. 909 to 912/2020)

Ayaz Khan Swati, Additional A.G for Government of Balochistan.

2021 S C M R 1176

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

Ex-PA 43620 Lt. ASIM BASHIR---Petitioner

Versus

FEDERATION OF PAKISTAN and 3 others---Respondents

Civil Petition No.1125 of 2018, decided on 6th May, 2021.

(Against the judgment dated 26.01.2018 passed by the Lahore High Court Rawalpindi Bench Rawalpindi in W.P. No.2271/2012)

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

----Ss. 302(b) & 496B---Criminal Procedure Code (V of 1898), S.549---Pakistan Army Act (XXXIX of 1952), Ss. 94 & 95---Qatl-i-amd, fornication---Reappraisal of evidence---Delivery to military authorities of persons liable to be tried by Court-martial---Prosecution before Field General Court Martial---Scope---On the relevant day, the accused was serving as a lieutenant in the Army---Though the incident occurred in a civilian neighbourhood, accused was apprehended by the Military Police on the fateful day and a case for murderous assault was registered on the basis of information laid by victim's husband, himself a serving Major in the Army---Accused conspicuously figured as the prime suspect therein---Given his status as an army officer, apprehension, custody and prosecution of accused before a Field General Court Martial were steps taken within the remit of S. 549 of the Code of Criminal Procedure, 1898 (Cr.P.C.) which unambiguously authorized such a prosecution on the option of Commanding Officer, a choice that was in line with the concurrent jurisdiction of Court Martial and Criminal Courts on the discretion of "Prescribed Officer" as contemplated by Ss. 94 & 95 of the Pakistan Army Act, 1952 ('the Act') laying down the procedure in such an eventuality---Therefore, the argument that the accused was not liable to be treated as subject to the Act in view of the nature and venue of the crime was entirely beside the mark---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 302(b) & 496B---Pakistan Army Act (XXXIX of 1952), S. 93---Qatl-i-amd, fornication---Reappraisal of evidence---Field General Court Martial---Venue---Accused was presented before a Field General Court Martial convened at Cantonment of city "B" for his prosecution---Plea of accused that the Field General Court Martial was not convened at the proper venue as contemplated by S. 93 of the Pakistan Army Act, 1952 ('the Act') as the accused had since been transferred to another station and, thus, the entire exercise was a nullity in the eye of law---Held, that in view of the options available to the Army authorities under S. 93 of the Act to convene Field General Court Martial "in any place", no exception could be taken to the convenience of choice exercised by the authorities---Accused was not able to point out any prejudice suffered by him by his trial at city "B" where, according to the record, he was afforded sufficient and fullest opportunity to meet the witnesses half way without let or hindrance---Petition for leave to appeal was dismissed and leave was refused.

(c) Pakistan Army Act (XXXIX of 1952)---

----Ss. 60(b) & 97---Constitution of Pakistan, Arts. 185(3) & 199---Finding/sentence recorded by Field General Court Martial---Judicial review---Scope---Settled parameters to examine the vires of a finding/sentence recorded by a Court Martial provided a limited space to examine hypothesis of any mala fide lurking behind the prosecution or any juridical flaw in holding of the Court Martial that may be viewed as coram non judice or without jurisdiction and in so doing a High Court should not attempt to search for a contra view of evidence, competently recorded during a Court Martial---Official acts protected by statutory presumption of being intra vires could not be readily branded as being actuated by considerations, tainted with mala fide---Exercise of jurisdiction by the functionaries of the State, vested in them by law, to accomplish a statutory purpose, deserved full faith and credit---Contra allegations must qualify falsification test on the strength of material capable of objective verification; and a bald accusation merited no consideration.

Ex-Capt. Muhammad Akram Khan v. Islamic Republic of Pakistan through the Secretary to the Government of Pakistan, Ministry of Law and Parliamentary Affairs, Islamabad and another PLD 1969 SC 174; The State v. Zia-ur-Rehman and others PLD 1973 SC 49; Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506; Sh. Karamat Ali v. The State PLD 1976 SC 476; Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Secretary Ministry of Religious Affairs and Minorities and others v. Syed Abdul Majid 1993 SCMR 1171; Mrs. Naheeed Maqsood v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan Islamabad and 4 others 1999 SCMR 2078; Ex-Lt. Col. Anwar Aziz v. Federation of Pakistan through Ministry of Defence Rawalpindi and others PLD 2001 SC 549; Mst. Tahira Almas and another v. Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and another PLD 2002 SC 830; Mushtaq Ahmed and others v. Secretary Ministry of Defence through Chief of Air and Army Staff and others PLD 2007 SC 405; Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another PLD 2007 SC 498; Ghulam Abbas Niazi v. Federation of Pakistan and others PLD 2009 SC 866; Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1229; Rana Muhammad Naveed and another v. Federation of Pakistan through Secretary Ministry of Defence 2013 SCMR 596; Ghulam Abbas v. Federation of Pakistan through Secretary, Ministry of Defence and others 2014 SCMR 849; District Bar Association Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401; Ex-Lance Naik Mukarram Hussain and others v. Federal Government, Ministry of Defence through Chief of the Army Staff and others 2017 SCMR 580; Ex-Gunner Muhammad Mushtaq and another v. Secretary Ministry of Defence through Chief of Army Staff and others 2015 SCMR 1071 and Said Zaman Khan and others v. Federation of Pakistan 2017 SCMR 1249 ref.

S.A. Mahmood Khan Saddozai, Advocate Supreme Court, Ms. Rubina Mahmood Khan Saddozai, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Sajid Ilyas Bhatti, Additional Attorney General for Pakistan and Major Haider and Major Azmat, JAG Branch for Respondents.

2021 S C M R 1182

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Dost Muhammad Khan, JJ

ENGLISH BISCUITS MANUFACTURERS PRIVATE LIMITED (EBM), KORANGI INDUSTRIAL AREAS, KARACHI and 6 others---Appellants

Versus

ASSOCIATED BISCUITS INTERNATIONAL LIMITED (ABIL) through Attorney---Respondent

Civil Appeal No. 506 of 2011, decided on 11th November, 2014.

(On appeal against the judgment dated 07.05.2004 passed by the High Court of Sindh, Karachi, in H.C.A. No. 59 of 2003)

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

----Ss. 86, 92(3) & 290---Dispute regarding valuation of shares---Fiduciary duties of directors---Scope---Respondent-company had a 40% shareholding in appellant-company---Company "C" was subsidiary of appellant-company, in which it held 51% shares, while the remaining 49% shares in company "C" were held by Directors of appellant-company---When a conflict of interest arose between the appellant-company and respondent-company, it was decided that appellant-company would buy/acquire the 49% shares in company "C" held by the shareholders/Directors of appellant-company---To finance such purchase it was decided to increase the paid-up capital of appellant-company through a right issue of shares, and the respondent-company was offered to subscribe to the right Issue to the extent of its entitlement---Dispute arose between the appellant and respondent companies with respect to valuation of right shares---Held, that the right shares which the Board of Directors of appellant-company had decided to issue by increasing its paid-up capital were basically meant for acquiring 49% shares of company "C" belonging to the same shareholders/Directors of appellant-company and primarily held by the family of two of the Directors---Thus, the valuation of shares of company "C" was of prime importance vis-a-vis issuing of right shares of appellant-company and the factor that had(rightly) influenced the courts below was that there should not be any element of self-enrichment by shareholders/Directors of appellant-company in purchasing their own 49% shareholding in company "C" to the detriment of the respondent-company, which had to acquire the right shares by making payment---Consequence of not acquiring the right shares by the respondent-company would have relegated it from a position of holding 40% shares in the appellant-company to that of mere 13%, therefore, the court below in considering the issue of right shares of appellant-company had directly related the same to the valuation of shares of company "C"---Appellant-company and its shareholders/Directors themselves gave in on the issue of valuation of shares of company "C", which amounted to an admission from their side that there was no fair and transparent valuation of the shares and the decision of Board of Directors of fixing the value of shares of company "C" was also not a fair one---Conduct of appellants during whole of the proceedings had been that of not supporting the valuation of shares of company "C" given by the auditors and they conceded to its revaluation---Directors of the company exercised fiduciary powers and were required to exercise such powers bona fide and in the interest and benefit of the company and its members without causing oppression---Such fiduciary powers in the facts and circumstances of the present case as per record were not exercised bona fide by the Directors of appellant-company, inasmuch as they themselves did not support the valuation of shares of company "C"---Once such fact stood established, there was hardly any reason or justification for the appellants to argue that respondent-company had forfeited its right to acquire right shares or that the right shares had been disposed of by the Directors and their property stood transferred---Appeal was dismissed in circumstances.

Anwar Manzoor Khan, Senior Advocate Supreme Court for Appellant No. 1.

Aziz A. Munshi, Senior Advocate Supreme Court and Hamid Khan, Senior Advocate Supreme Court for Appellants Nos. 2, 4 - 5.

Shaiq Usmani, Senior Advocate Supreme Court for Appellants Nos.3, 6 - 7.

Munir A. Malik, Senior Advocate Supreme Court and Zahid F. Ebrahim, Advocate Supreme Court for Respondents.

2021 S C M R 1192

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD AMEER alias KALI and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos.763-L and 746-L of 2016, decided on 14th October, 2020.

(Against the judgment dated 12.04.2016 passed by the Lahore High Court Lahore in Crl. Appeals Nos.2608 and 2755 of 2010 with M.R. No.611/2010)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---State of affairs between the families of the complainant and the accused party, as reflected in their cross examination, unmistakably pointed towards a troubled relationship---Illicit liaison and abduction of two females were succinct part of the record, pointing towards motive, which left hardly any space to entertain hypothesis of substitution---Accused started the assault with his first fire shot landing on the chest of deceased; it created five apertures all around the frontal part of deceased's body, caused massive damage---Two casings secured from the spot, were found wedded with the weapon recovered on the disclosure of accused, which pointed towards the accused as being the only aggressor---In such circumstances to maintain the conviction of the co-accused was fraught with risk of error but at the same time it did not dismantle prosecution's case qua the accused---Consequently, out of abundant caution and with a view to ensure safe administration of criminal justice, conviction and sentence of co-accused were set aside and he was acquitted of the charges against him, however, conviction and sentence of accused were maintained---Petitions for leave to appeal were disposed of.

Mian Bashir Ahmad Bhatti, Advocate Supreme Court for Petitioners (in Cr. P.763-L of 2016).

Javed Imran Ranjha, Advocate Supreme Court for Petitioners (in Cr. P.746-L of 2016)

Nemo for the State.

2021 S C M R 1195

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

Civil Appeal No. 1237 of 2020

(Against judgment dated 24.02.2020 of Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Writ Petition No. 775 of 2019-BWP)

Civil Petition No. 912 of 2019

(Against judgment dated 17.01.2019 of Punjab Service Tribunal

at Faisalabad, passed in Appeal No. 519 of 2018)

PROVINCE OF PUNJAB through Secretary, Finance Department, Civil Secretariat, Lahore and others---Appellants

Versus

ATTA MUHAMMAD ZAFAR and others---Respondents

Civil Appeal No. 1237 of 2020 and Civil Petition No. 912 of 2019, decided on 15th April, 2021.

(a) Civil service---

----Pension ---Voluntary opting for revised pay and pension package---Estoppel from claiming additional benefits granted to those who had not opted for the revised package---Both the employees in question opted for revised 2001 package/scheme and their pensions were accordingly calculated on the basis of revised pay scales which admittedly came. into effect from 1.12.2001 while they had retired on 30.11.2001---Said employees in essence requested and opted that the date of their retirement be treated as 1.12.2001 so that they may be able to avail the benefit of the policy of 2001 and hence the better financial package that it provided---Employees continued to receive salaries and periodical increases in pension granted to those who were governed by the 2001 package, however, when the two notifications in question, dealing with pension, were issued, the same envisaged an increase @ 20% for those retiring on or before 30.11.2001 and 15% for those who retired on or after 1.12.2001---Employees in question had opted for the revised package of 2001 and had been treated as per their own option, freely exercised, as having presumptively retired on or before 1.12.2001---Much after issuance of the notifications, employees wished to claim 20% increase in their pensions asserting that their date of retirement may again be treated as 30.11.2001 which was not justified for the reason that they had already availed the benefit of the presumptive provisions of 2001 package whereby they were treated as having retired with effect from 1.12.2001---Having availed the said benefit continuously till issuance of the notifications they were estopped from claiming that they may be treated differently this time by treating their date of retirement as 30.11.2001 so that they could avail an additional benefit which was not due to them and was not given to any other employee---Employees having voluntarily opted to be governed under the pay and pension package of 2001 effective from 1.12.2001 could not be given an additional benefit which was intended to bring those who had retired on or before 30-11-2001 and were being governed by the 1994 package at par with those who had opted for the 2001 package--- Employees were entitled to increase in their pension only to the extent @ 15% pursuant to the notifications---Appeal and petition for leave to appeal were disposed of accordingly.

(b) Locus poenitentiae, principle of---

----Scope---Locus poenitentiae was the power of receding till a decisive step was taken, but it was not a principle of law that an order once passed became irrevocable and it was a past and closed transaction---If an order was illegal then, a perpetual right could not be created on the basis of such illegal order.

Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207 ref.

Qasim Ali Chohan, Additional A.G., Punjab, Mian Zahid, Law Officer, FD, Punjab and Abdul Rauf, DS, FD, Punjab for Appellant.

Petitioner in person along with her husband.

Qasim Ali Chohan, Additional A.G. , Punjab, Mian Zahid, Law Officer, FD, Punjab and Abdul Rauf, DS, FD, Punjab for Respondents (in C.P. 912 of 2019).

M. Ozair Chughtai, Advocate-on-Record/Advocate Supreme Court for Respondents (via video link from Lahore in C.A. No. 1237 of 2020).

2021 S C M R 1204

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

GHAYASUDDIN SHAHANI and others---Applicants/Petitioners

Versus

AKHTAR HUSSAIN and others---Respondents

Civil Miscellaneous Applications Nos. 1824, 2357 and 2358 of 2021 in Civil Petitions Nos. Nil of 2021 and Civil Petitions Nos. 802 and 979 of 2021, decided on 19th May, 2021.

(CMAs have been filed seeking permission to file and argue the civil petitions)

(On appeal against the judgment dated 12.02.2021 passed by the High Court of Sindh, Karachi in Constitutional Petitions

Nos. D-7382/2019, D-7625/2019, D-7809/2019, D-4704/2020 and

D-5755/2020)

(a) Civil service---

----Posts of vaccinators (BPS-6)---Qualifications for candidates---Recruitment process---High Court in the impugned judgment the High Court had addressed all the issues those were brought forth in the recruitment process---Recommendations made by the High Court were in furtherance of clarity in the (recruitment) process and certainly would defeat any chance of nepotism, favourtism and undue enrichment of individuals---High Court had also given directions to establish an institute for training of vaccinators and in the meanwhile, the successful candidates of the interview had been required to undergo training of vaccinator---Said direction of High Court was specifically very timely and beneficial to public at large when such vaccinators were primarily meant to deal with infants and the younger generation---No fundamental right of the petitioners had been infringed because the recruitment process was initiated through advertisement with certain terms and conditions and only those who fulfilled those conditions were eligible to be appointed---Petitions for leave to appeal were dismissed and leave was refused.

(b) Civil service---

----Posts of vaccinators (BPS-6)-- Appointment process---Selection of candidates on union-wise basis instead of district or provincial level---Legality---Basic purpose of (selecting vaccinators for the) Expanded Program on Immunization (EPI) was to control the spread of Vaccine Preventable Diseases among infants/children and this target could not be achieved unless it went to grass roots level, which meant that it needed to be spread over the union council level by making appointments of the vaccinators from the concerned union councils enabling the public at large to benefit from the same---Secondly, it was specifically mentioned in the advertisement that an applicant must be resident of the same union council---Petitions for leave to appeal were dismissed and leave was refused.

(c) Civil service---

----Advertisement for a post---Terms of advertisement---Scope---Whatever the terms of the advertisement were, the appointments must follow the criterion as disclosed therein without any departure so that no one could raise any objection regarding its transparency.

M. M. Aqil Awan, Senior Advocate Supreme Court for Applicants/Petitioners (in C.M.As. 1824, 2357, 2358/2021 and C.P. 979/2021).

Petitioner No. 1 in person.

Javed A. Khan, Advocate Supreme Court for Respondents Nos.1-8 (in C.M.A. 1824/2021).

Nemo for other Respondents.

2021 S C M R 1210

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Yahya Afridi, JJ

SHAHID SHAFIQ ALAM FARIDI and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petitions Nos. 920-L and 2067 of 2020, decided on 25th November, 2020.

(Against the order dated 13.04.2020 passed by the Lahore High Court, Lahore in Writ Petitions Nos. 11006 of 2020 and 35056 of 2019)

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Constitution of Pakistan, Art. 199---Corruption and corrupt practices--- Bail, grant of---Unconscionable delay in conclusion of trial---Principle of consistency---One of the co-accused in the Reference who was behind bars for a much shorter period than the present accused persons, had been granted bail by the Supreme Court, on the ground that his prolonged and continued incarceration was unconscionable---Despite strict directions of the High Court to conclude the trial expeditiously, only three more prosecution witnesses had recorded their statements, and seventy-five witnesses still remained to be produced to record their evidence---Moreover the order-sheets of the proceedings before the Accountability Court, showed that the responsibility of the delay in the trial proceedings, could not be entirely saddled upon the accused persons---To keep the accused persons incarcerated in the present case, when a co-accused in the Reference having remained behind bars for a much shorter period had been granted bail on the ground of "unconscionable delay", would not only be legally inappropriate, but would in fact be outrightly unjust---Following the principle of consistency, a case for the grant of post-arrest bail was made out in favour of the accused persons, on the ground of "unconscionable delay"---Petitions for leave to appeal were converted into appeals and allowed and consequently accused persons were admitted to bail with the direction that they shall not leave the country or be allowed to leave the country without permission of the Trial Court.

Tallat Ishaq v. National Accountability Bureau through its Chairman and others PLD 2019 SC 112 ref.

Ashtar Ausaf Ali, Senior Advocate Supreme Court, Azam Nazeer Tarar, Advocate Supreme Court and Syed Qalb-i-Hassan, Advocate Supreme Court for Petitioners (in C.P. No. 920-L of 2020).

Muhammad Amjad Pervaiz, Advocate Supreme Court for Petitioners (in C.P. No. 2067 of 2020).

Imran ul Haq, DPG, NAB and Ikram AD/I.O. for the State (in both cases).

2021 S C M R 1212

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

NOOR KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Petition No.460 of 2021, decided on 24th May, 2021.

(Against the order dated 23.02.2021 passed by the Lahore High Court Rawalpindi Bench in Crl. Misc. No.246-B of 2021)

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

----Ss. 9(c) & 51---Possession of 1320 grams of cannabis---Bail, refusal of---Accused was caught red-handed with considerable quantity of contraband, which squarely brought his case within the remit of 'Prohibition, contemplated by S. 51 of the Control of Narcotic Substances Act, 1997---Claim of false implication raised by the accused was an issue that could not be attended without going beyond the barriers of tentative assessment, an exercise prohibited by law (during bail stage)---Petition for leave to appeal was dismissed and accused was refused bail.

Ms. Hifza Ibrar Bukhari, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for the State.

2021 S C M R 1213

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

ALLIED BANK LIMITED---Appellant

Versus

ZULFIQAR ALI SHAR and others---Respondents

Civil Appeal No. 82 of 2016, decided on 26th April, 2021.

(Against order dated 30.09.2015 of High Court of Sindh at Karachi, passed in C.P. No. D-95 of 2011)

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

----S.O. 12(3)---Termination of employment in simpliciter---Scope---Employee convicted and sentenced for a criminal offence subsequently acquitted by the Appellate Court---Employer terminating services of employee---Whether the termination of services of such employee required the process of issuing a show cause notice, holding a regular inquiry and the passing of a proper order by the competent authority after granting him a personal hearing or, was his termination simpliciter not requiring the said process---Held, that respondent-employee was accused of an offence, an FIR was lodged against him and he was arrested and later convicted by a Court of competent jurisdiction; he remained incarcerated for more than 6 years during which time he was not available to perform services as a cashier for the appellant-Bank (employer) for which he had originally been employed---Furthermore, the respondent-employee was holding the said post at the time when he got involved in the criminal offence---Courts below misinterpreted the respondent's letter of termination as one of dismissal from service for misconduct which was not the case as was evident from the record as well as the contents of the letter of termination---Scope of inquiry of Labour Court, Labour Appellate Tribunal as well as the High Court was limited to the extent of determining whether or not the reasons given by the appellant-Bank justifying its action for termination in simpliciter were explicit, clear, enough and valid---Lower fora could not have gone on the premise that the respondent-employee had been dismissed from service for misconduct and the process for dismissal from service for misconduct namely a show cause notice, regular inquiry and order of dismissal had not been followed---Order of termination of services of the respondent-employee was in essence and for all intents and purposes, an order under S.O. 12(3) of the Industrial and Commercial Employment (Standing Order) Ordinance, 1968, hence, it was a case of termination in simpliciter---Termination of the respondent-employee was not on account of misconduct and there was neither any requirement to issue a show cause notice, a charge sheet, regular inquiry and complete the process for dismissal on the ground of misconduct---Reason of termination of respondent's services was explicitly, clearly and unambiguously communicated to him and requirements of S.O. 12(3) of the 1968 Ordinance had properly and adequately been met---Order of termination in simpliciter passed by the appellant-Bank was affirmed, restored and upheld---Appeal was allowed.

Fazal Dad v. Attock Electric Supply Company Limited 1977 PLC 364; Muhammad Ramzan v. Messrs National Motors Limited 1980 PLC 780; Sikandar Hayat v. Sindh Labour Appellate Tribunal 1991 PLC 508; Ahmad Barch v. Chairman, Pakistan Steel, Karachi 2006 PLC (C.S.) 993 and Messrs Indian Iron and Steel Company v. Their Workmen AIR 1958 SC 130 ref.

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

----S.O. 12(3)---Termination of employment in simpliciter---Scope---Reinstatement in service---Scope---In exercise of powers under S.O. 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 ('the 1968 Ordinance'), where power of termination was "in simpliciter", and such order met and fulfilled the criteria given in S.O. 12(3), a workman could not be reinstated into service on the ground that charges of misconduct had not been established and that no regular inquiry was held against him---Requirement of law was limited to the extent of communication of the order in writing explicitly stating the reasons for such action---Such action could not be set aside or declared illegal simply on the ground that termination of service could only be made on proof of misconduct after issuance of a show cause notice, conducting a regular inquiry and by orders of the employer after granting him a personal hearing---Such interpretation would negate the very object and purpose of S.O. 12(3) of the 1968 Ordinance which envisaged that under certain circumstances, the employer could terminate the services of a workman "in simpliciter" by giving explicit reasons justifying such termination.

(c) Interpretation of statutes---

----Ordinary meaning and usage of words---Scope---In constructing and interpreting statutes, the Court first had to look at the language of the law and interpret the same in accordance with the ordinary meaning and usage of the words---Context in which the said words had been used by the legislature as evident from the language of the provision itself could also be considered without adding to or subtracting anything from the same---Incase of lack of clarity, as a second step, the Court may look for the intent and purpose of the lawmaker in using a particular language and words as evident from the language of the statute.

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

----S.O. 12(3)---Termination of employment in simpliciter---Scope---Employee convicted and sentenced for a criminal offence subsequently acquitted by the Appellate Court---Employer terminating services of employee---Question as to whether an employer was required to wait indefinitely and keep a post vacant till such time that all appellate remedies were exhausted and the employee became available to perform services against the post for which he was employed---Held, that it was unfair and unjust to expect an employer to wait indefinitely and keep a post vacant till such time that the employee had exhausted all legal remedies and in the meantime was either incarcerated or for any other reason unable or unwilling to join his duty and perform services for extended periods of time---Employer was only required to wait for a reasonable time which could vary on a case to case basis depending upon the nature of the job that the delinquent employee was performing and how long it could realistically be kept open and vacant without materially affecting the working of the employer---In the absence of mala fide on the part of the employer a reasonable period should not ordinarily exceed a period of two months during which if an employee was unable to return to work his services could be terminated simpliciter in exercise of powers under S.O. 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Shahid Anwar Bajwa, Senior Advocate Supreme Court for Appellant.

Syed Rafaqat H. Shah, Advocate-on-Record for Respondent No.1.

2021 S C M R 1225

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

NOOR ASLAM---Petitioner

Versus

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

Crl. P. No. 493 of 2021, decided on 2nd June, 2021.

(Against the judgment dated 16.04.2021 passed by the Peshawar High Court Bannu Bench in B.C.A. No.8-b of 2021)

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

----S. 497---Penal Code (XLV of 1860), S. 324---Attempt to commit qatl-i-amd---Bail, refusal of---Complainant's miraculous survival despite massive damage to his epigastrium region, confirmed by medical examination shortly after the assault, prima facie, attracted the mischief envisaged by S. 324 of the Pakistan Penal Code, 1860 and, thus, constituted "reasonable grounds" within the contemplation of S. 497 of the Code of Criminal Procedure, 1898, standing in impediment to release of an offender in the absence of any consideration calling for further probe---Trial Court also ran into error by conveniently describing disappearance of accused from law as inconsequential---Said error was rightly rectified by the High Court by recalling bail granted to accused---Petition for leave to appeal was dismissed and accused was refused bail.

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

----S. 497(5)---Bail, recalling of---Scope---Grant of bail was a discretionary relief, however, exercise of discretion must be structured on sound judicial considerations, objectively deducible from the record of the case, particularly in cases punishable with imprisonment of ten years or above, thus, grant of bail in disregard thereof by itself constituted a strong ground, justifiably calling for interference.

Muhammad Waheed Anjum, Advocate Supreme Court and Mehmood Ahmed Sheikh, Advocate-on-Record for Petitioner.

Mian Shafaqat Jan, Additional A.G. Khyber Pakhtunkhwa for the Respondents.

2021 S C M R 1227

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Sayyed Mazahar Ali Akbar Naqvi, JJ

Syeda SUMERA ANDLEEB---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 495 of 2021, decided on 7th June, 2021.

(On appeal against the order dated 16.02.2021 passed by the Lahore High Court, Lahore in Crl. Misc. No. 50990-B/2020)

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

----S. 497--- Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Female accused---Maintaining joint account with the main accused---Admittedly the accused lady was maintaining a joint account with her husband, who was fugitive from law---Accused was taken into custody by the police and she was behind bars for the last 11 months without commencement of trial---Maximum punishment provided under the statute for the offence was 3 years---Record further showed that the signature over the cheque mismatched with the specimen signature, which was ultimately dishonored---Even otherwise, the accused was a woman and had three children to look after including a 5 year old child---Offence alleged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

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

----S. 497---Bail, grant of---Scope---Registration of other cases similar to the one alleged---Effect---Mere registration of (other similar) criminal cases did not deprive a person from grant of bail, if he/she was otherwise entitled for the same relief.

Muhammad Rafiq v. State 1997 SCMR 412 and Moundar v. The State PLD 1990 SC 934 ref.

Mazhar Iqbal Sindhu, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Ch. Muhammad Sarwar Sindhu, Additional P.G. and Asif Raza, S.I. for the State.

2021 S C M R 1230

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

Civil Appeals Nos. 1134 to 1160 of 2020

(Against judgment dated 25.11.2019 of Federal Service Tribunal, Islamabad passed in Appeals Nos. 1200(R)CS of 2018 and others)

AND

Civil Petitions Nos. 139-L to 144-L of 2021

(Against judgment dated 19.10.2020 of Federal Service Tribunal, Lahore passed in Appeal No. 129(L)CS of 2019 and others)

AND

Civil Petitions Nos. 1039-L and 1040-L of 2020

(Against judgment dated 24.02.2020 of Federal Service Tribunal, Lahore passed in Appeals Nos. 219(L) and 220(L)CS of 2018)

ABDUL HAMEED and others---Appellants

Versus

WATER AND POWER DEVELOPMENT AUTHORITY

through Chairman, Lahore and others---Respondents

Civil Appeals Nos. 1134 to 1160 of 2020, Civil Petitions Nos. 139-L to 144-L of 2021 and Civil Petitions Nos. 1039-L and 1040-L of 2020, decided on 12th April, 2021.

(a) Civil service---

----Special WAPDA allowance---Category of employees entitled to the allowance and date from which such allowance took effect---Policy matter---Non-interference by superior Courts---Scope---Water and Power Development Authority (WAPDA) allowed allowance in question for Graduate Engineers (BPS-17) and above with effect from 20.2.2009---Said allowance was subsequently also allowed for Scientific Cadre Officers (appellants and the petitioners), with immediate effect from 26.11.2013---Appellants and petitioner contended that they should also be given the allowance in question with effect from 20.2.2009---Held, that respondent-authority (WAPDA) had to evaluate its fiscal capacity and could not simply dole out allowances at any date and time, and, at the whims of anyone who may feel aggrieved of an order which was otherwise properly passed by an authority competent to do so---Respondent-authority had the prerogative to ascertain which class of employees should receive additional allowances and from which date---Such decision would obviously depend on various factors including available financial resources, nature of job of the employees and reasons to allow additional incentives to a certain class of employees --- In the present case, respondent-Authority (WAPDA) vide office order dated 20.2.2009, accorded approval for the allowance to be paid to Graduate Engineers in BPS-17 and above, with immediate effect---Said allowance was clearly and obviously only meant for graduate engineers, as specified in the office order---As such, the claim of the appellants and the petitioners that they should (also) have been granted the allowance from 20.2.2009 was untenable because none of them were graduate engineers---Internal working of the respondent-authority (WAPDA) was an administrative and executive function in the domain of policy and unless an illegality or violation of rules and regulations could be shown, non-interference by the Courts was the norm---Grant of allowance being a policy matter could not be interfered with---Appeals and petitions for leave to appeal were dismissed.

Government of Punjab through Secretary Education, Civil Secretariat Lahore v. Sameena Perveen 2009 SCMR 1 and Hameed Akhtar Niazi v. Secretary Establishment Division, Government of Pakistan 1996 SCMR 1185 distinguished.

(b) Constitution of Pakistan---

----Arts. 199 & 185(3)---Policy decisions of a competent authority---Non-interference by superior Courts---Scope---Court's role was not to interfere in policy decisions, unless it was manifest that, such policy decisions were the outcome of arbitrary exercise of power, mala fides, were patently illegal or manifestly unreasonable.

Asaf Fasihuddin Khan v. Government of Pakistan 2014 SCMR 676 ref.

(c) Constitution of Pakistan---

----Arts. 184 & 185---Judgments/orders of the Supreme Court---Scope---When there was a categorical pronouncement of the Supreme Court, which was specific in nature, the same could not be expanded and extended to change its meaning, scope and applicability.

(d) Service Tribunals Act (LXX of 1973)---

----S. 4---Limitation Act (IX of 1908), Ss. 3 & 5---Service appeal involving a financial claim from an employee---Limitation---Condonation of delay---Scope---Principle that where a claim involved a financial matter or payment of dues, it constituted a recurring cause of action and thus impediment of limitation in filing service appeal would not be applicable, and any delay in filing the same was to be condoned---Held, that said principle applied only where the claim was found to be valid and entitlement of the litigant had been established in judicial proceedings before a court of law of competent jurisdiction---Only in such circumstances, courts had in appropriate cases, condoned delay---Condonation of delay could not be granted merely on the ground that a financial claim had been raised, irrespective of its merit legality and validity.

Khalid Ismail, Advocate Supreme Court for Appellants (in C.As. Nos. 1134 - 1153 of 2020 and C.Ps. Nos. 139-L-144-L of 2021).

M. Ikram Sheikh, Advocate Supreme Court for Appellants (via video link from Lahore in C.As. Nos. 1154 - 1160 of 2020 and C.Ps. Nos. 1039-L - 1040-L of 2020).

Sajeel Sheryar Swati, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Respondents (in C.As. Nos.1134-1160 of 2020).

Aurangzeb Mirza, Advocate Supreme Court for Respondents (via video link from Lahore in C.Ps. Nos. 139-L and 140-L of 2021).

Salman Mansoor, Advocate Supreme Court for Respondents (via video link from Lahore in C.Ps. Nos. 1039-L to 1040-L of 2020).

2021 S C M R 1241

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

MUHAMMAD YOUSAF---Petitioner

Versus

ALLAH DITTA and others---Respondents

Civil Petition No. 2597 of 2019, decided on 8th June, 2021.

(Against judgment and decree dated 07.05.2019 passed by Lahore High Court, Multan Bench, Multan in R.S.A. No. 21 of 2005)

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

----S. 12---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell immoveable property---Failure to pay balance consideration within stipulated time---Effect---Only obligation on the plaintiff/buyer was to tender money to the seller and in case of the seller's refusal to receive it then to deposit the same in the Court or otherwise demonstrate his ability and readiness to make payment, which elements were entirely missing in the present case---Plaintiff filed a suit seeking specific performance of a contract but did not at any stage demonstrate that he was ready, able and willing to perform his obligation there under, which was to tender/deposit the balance sale consideration, therefore, there was no justification for the court below to decree the suit and to permit the plaintiff/buyer to tender the balance sale consideration after a lapse of about twenty years.

Inayatullah Khan v. Shabir Ahmad Khan 2021 SCMR 686; Muhammad Shafiq Ullah v. Allah Bakhsh 2021 SCMR 763; Mst. Samina Riffat v. Rohail Asghar 2021 SCMR 7; Hamood Mehmood v. Mst. Shabana Ishaque 2017 SCMR 2022 and Kuwait National Real Estate Company (Pvt.) Ltd. v. Messrs Educational Excellence Ltd. 2020 SCMR 171 ref.

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

----S. 2(h)---Contract---Terms---Courts cannot rewrite the terms of a contract. [p. 1245] C

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

----S. 12---Transfer of Property Act (IV of 1882), S. 54---Suit seeking specific performance of contract for the sale of immoveable property---Such suit was a simple suit wherein to succeed the plaintiff was required to demonstrate that he had performed his obligations under the contract or that he had been prevented to do so by the other side and if this be so to then demonstrate his ability and readiness to perform the commitment undertaken by him in the contract.

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

----S. 41---Specific Relief Act (I of 1877), S. 27(b)---Bona fide purchaser for valuable consideration without notice---Scope---Agreement to sell immoveable property---Vendee failing to pay balance consideration within stipulated time---Vendor selling property to third party/petitioner---Whether petitioner entitled to protection under S. 41 of the Transfer of Property Act, 1882 and S. 27(b) of the Specific Relief Act, 1877---Held, that the sale was recorded by the Patwari and the transaction between the seller and petitioner stood finalized before the suit for specific performance was filed by the vendee --- Fact that the sale was subsequently sanctioned, when neither party thereto had repudiated the sale, would be of little significance as it was an administrative act of the revenue authorities, and one over which the petitioner and seller had no control---Petitioner had demonstrated that the transaction stood completed and the entire sale consideration had been paid before the suit was filed and he had also received possession of the land, therefore, he was entitled to the protection accorded to him by S. 41 of the Transfer of Property Act, 1882 and S. 27(b) of the Specific Relief Act, 1877---Petition for leave to appeal was converted into appeal and allowed, and suit filed by vendee was dismissed.

Mian M. Ismail Thaheem, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Petitioner.

Mian Shah Abbas, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 1 - 5.

Nemo for Respondent No. 6.

2021 S C M R 1246

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF PAKISTAN through Secretary Establishment Division, Islamabad---Appellant

Versus

MUHAMMAD ISMAIL and another---Respondents

Civil Appeal No. 410 of 2020, decided on 2nd June, 2021.

(On appeal against judgment dated 16.10.2018 passed by the Peshawar High Court, Peshawar in Writ Petition No. 1184-R of 2017)

(a) Civil service---

----Policy providing quota for employing children of Government employees, who died in service---Prospective effect---Respondent's father died in the year 1995 while he was in regular service---At that time, there was no scheme/policy in field for induction of family member of deceased civil servant in service, and it was only in the year 2006 that the Federal Government issued the `Assistance Package for Families of Government Employees who die in service', wherein employment for posts in BS-01 to BS-15 without advertisement was provided for the families of deceased government employees---Said Assistance Package and the subsequent amendments therein did not contain any provision which gave it retrospective effect especially when the grievance of respondent was agitated with a lapse of almost 17 years---Respondent was not deprived of any right accrued to him at the relevant time, when he was not appointed in pursuance of the Assistance Package in question--- Appeal was allowed.

(b) Interpretation of statutes---

----Statutes/notifications/executive and administrative orders---Operated prospectively unless retrospective operation was expressly provided for therein.

Hashwani Hotels Ltd. v. Federation of Pakistan PLD 1997 SC 315 ref.

Ch. Aamir Rehman, Additional Attorney General and Sajid ul Hassan, S.O. Establishment for Appellant.

Respondent in person.

2021 S C M R 1249

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

FEDERATION OF PAKISTAN through General Manager/ Operations Pakistan Railways, Headquarters Office, Lahore and others---Appellants

Versus

SHAH MOHAMMAD---Respondent

Civil Appeal No. 561 of 2020, decided on 6th June, 2021.

(Against the judgment dated 6.8.2019, passed by the Federal Service Tribunal, Islamabad (Karachi Bench), in Appeal No. 78(K)CS of 2013)

(a) Civil service---

----Pension, right of---Scope---Government servant, who retired from service qualifying for retirement benefits, including pension, did not get the same as a bounty of the State but as a right acquired after putting in satisfactory service---Grant of pension could not be refused arbitrarily and if refused, it had to be in accordance with the relevant rules.

(b) Civil service---

----Pension, stoppage of---Conviction in a criminal case---Right to hold or withdraw pension---Scope---Respondent was employed in Railways as Permanent Way Inspector (BPS-16) when an accident took place resulting in derailment of several Coaches, loss of eight lives and massive loss to Railways property---Criminal case (FIR) for the occurrence was lodged, and in the meanwhile the Railways department imposed penalty of reversion on the respondent and reverted him from BPS-16 to BPS-11 and also transferred him to another Division---After retirement respondent started getting pension from the department for about an year, when suddenly the payment of pension was stopped for the reason that he had been convicted by the criminal Court in the accident case---Legality--- Rule 2307 of General Conditions Governing Pension (C.S.R. 351) provided that in order to get the pension, the pensioner had to maintain future good conduct as an implied condition for grant of pension---Two instances had been given in the said rule, which gave power to the Government to withhold or withdraw a pension or any part of it i.e. where the pensioner was convicted of a serious crime or was guilty of a grave misconduct---For being entitled to pension, a civil servant had to have good conduct throughout his life, which meant that he had to maintain good conduct before entering service, during the period of service and even after retiring from service---Rule 2307 (C.S.R-351) did not apply only to good conduct of a pensioner after his retirement and to the crime committed by a pensioner after his retirement---Rule 2307 (C.S.R-351) was an exception to the general rule which entitled the civil servant to pension as of right after having rendered satisfactory qualifying service---Term "good conduct" was not defined in the Civil Service Rules, thus, it seems to have been left to the judgment of the authority, which was entitled to take a decision in the matter---In the present case the respondent was convicted under various penal provisions and sentenced to 5 years rigorous imprisonment, which fell within the ambit of the term "serious crime" as provided R. 2307 (C.S.R-351)---Respondent's pension was rightly stopped by the Railways department---Appeal was allowed.

The Government of N.W.F.P. through the Secretary to the Government of N.W.F.P., Communications and Works Department, Peshawar v. Mohammad Said Khan and another PLD 1973 SC 514 ref.

(c) Civil service---

----Civil servant charged for a criminal offence---Concurrent departmental and criminal proceedings---Permissibility---In respect of a charge, which also constituted a criminal offence under the law of the land, a civil servant could legally be proceeded departmentally and a criminal case could be lodged against him as well---Consequences of both departmental proceedings and criminal case were distinct---In the departmental proceedings, if a civil servant was found guilty, he suffered penalty as provided by the rules of service, while in the criminal case, if adjudged guilty he suffered conviction and sentence of imprisonment and fine as provided by law---Law allowed both types of proceedings to be conducted simultaneously.

Muhammad Ashraf Khan v. Director Food, Punjab Lahore 2004 SCMR 1472; Riasat Ali v. Principal, Government Technical Training Centre, Sahiwal 2004 PLC (C.S.) 413; Shahid Masood Malik v. Habib Bank Ltd. 2008 SCMR 1151 and Rab Nawaz Hingoro v. Government of Sindh 2008 PLC (C.S.) 229 ref.

(d) Words and phrases---

----"Serious crime"---Definition.

Black's Law Dictionary (Ninth Edition) and Advanced Law Lexicon (2005) ref.

M. D. Shahzad Feroz, Advocate Supreme Court for Appellants.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2021 S C M R 1257

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

PERFORMANCE AUTOMOTIVE (PVT.) LTD.---Petitioner

Versus

AKBAR ADAMJEE and others---Respondents

Civil Petition No. 593 of 2020, decided on 16th April, 2021.

(Against the judgment dated 30.1.2020 passed by High Court of Sindh at Karachi in H.C.A. No. 252 of 2019)

Sale of Goods Act (III of 1930)---

----Ss. 2(14) & 58---Specific Relief Act (I of 1877), S. 12---Specific performance in respect of a "specific or ascertained goods"---Scope---Breach of contract to deliver an imported customized vehicle---Vehicle import company not having option of retaining the vehicle and asking customer to collect his refund---Petitioner-company contended that it was an agent of dealer for the subject vehicle and on account of some impending/issues with the Customs authority, the clearance of the vehicle from the port could not be affected; that consequently, the vehicle order agreement was cancelled and the customer/ respondent was requested to collect his refund, and that since agreement stood terminated and cancelled, therefore, specific performance could not be granted in favour of customer---Held, that perusal of S. 58 of the Sale of Goods Act, 1930 showed that specific performance could be ordered in respect of "a specific or ascertained goods"---In case breach of contract to deliver specific or ascertained goods occurred, the court may, if it thought fit, direct that the contract shall be performed specifically without giving the defendant option of retaining the goods on payment of damages---In the present case the vehicle ordered by the customer was customized and made to order; it could be classified as a "specific and ascertained goods"---Given that the vehicle ordered was one of the leading luxury brands with particular exterior and interior specifications and colour mentioned in the vehicle order agreement, left no doubt that it was a "specified or ascertained goods" within the contemplation of S. 58 of the Sale of Goods Act, 1930---Once the customer had successfully demonstrated that he had fulfilled all the terms and conditions of the agreement, S. 58 of the Sales of Goods Act, 1930 would apply to his case---Petition for leave to appeal was dismissed and leave was refused.

Messrs Petrocommodities (Pvt.) Ltd v. Rice Export Corporation of Pakistan PLD 1998 Kar. 1 and Agha Saifuddin Khan v. Pak Suzuki Motors Company Limited and others 1997 CLC 302 ref.

Muhammad Umar Lakhani, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

Kh. Shams-ul-Islam, Advocate Supreme Court for Respondent No.1 (via video link, Karachi).

Nisar A. Mujahid, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 2 - 3.

2021 S C M R 1263

[Supreme Court of Pakistan]

Present: Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

HUSSAIN AHMED---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 458 of 2021, decided on 14th June, 2021.

(On appeal against the order dated 12.04.2021 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in Cr. M. (B.A.) No. 160-M of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2) --- Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of----Further inquiry---Manipulation/ tampering of police diaries---Rule of consistency---No specific role had been ascribed to the accused in the FIR and the allegation levelled against him was of general nature---Role of fire shot was attributed to the accused subsequently during the investigation---Co-accused had been granted bail by the Trial Court on the ground that there was no mention of eye-witnesses in the FIR and there was conflict between the role assigned to him in the FIR and the statements made by the eye-witnesses---Law Officer admitted that the (case) record was tampered with during the investigation---In such circumstances, when the High Court had (also) admitted about the tampering of the record, then following the rule of consistency the accused was also entitled for the same relief as the co-accused---Furthermore, neither any empty was taken into possession from the place of occurrence nor the weapon of offence had been recovered from the accused---Accused had made out a case squarely falling within the ambit of further inquiry as envisaged under S. 497(2), Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed, and accused was granted bail.

Muhammad Fazal alias Bodi v. The State 1979 SCMR 9 ref.

Raja Inaam Ameen Minhas, Advocate Supreme Court and Syed Tariq Aziz, Advocate-on-Record for Petitioner.

Shumayl Aziz, Additional A.G. Khyber Pakhtunkhwa for the State.

2021 S C M R 1266

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

SECRETARY AGRICULTURE, LIVESTOCK AND COOPERATION DEPARTMENT, PESHAWAR and others---Appellants

Versus

ANEES AHMAD---Respondent

Civil Appeal No. 40 of 2021, decided on 8th June, 2021.

(Against the judgments dated 12.09.2019, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Appeal No. 625 of 2018)

Civil service---

----Pro forma promotion---Respondent, who was otherwise eligible for promotion, was not promoted by the Departmental Promotion Committee (DPC), as it adjourned its meeting to a later date, by which time the respondent had retired---Held, that respondent had completed the requisite years of service provided by the promotion rules and the relevant official had also certified that there was no impediment in grant of promotion to him---Departmental Promotion Committee (DPC) for considering promotion was held on 19-06-2017 but was adjourned on the pretext that fresh option of officials forgoing their promotion be obtained---After adjourning of the meeting by DPC, the next meeting took place on 19-10-2017, but in the meantime, the respondent had retired from service on 21-06-2017---Due to the department's own non-vigilance and the DPC being insensitive to the employees who were on the verge of retirement, the department could not simply brush aside the case of an employee by merely saying that he had retired---Once the case of respondent had matured for promotion while in service and was placed before the DPC before his retirement, it was incumbent upon the DPC to fairly, justly and honestly consider his case and then pass an order of granting promotion and in case it did not grant promotion, to give reasons for the same---Impugned judgment of the Tribunal, directing the department to consider the case of promotion of respondent, did not suffer from any illegality---Appeal was dismissed.

Zahid Yousaf Qureshi, Additional Advocate General, Khyber Pakhtunkhwa, Asad ud Din, Asif Jan, Superintendents and Javaid Maqbool Butt, Incharge Litigation, Agriculture Department, Khyber Pakhtunkhwa for Appellants.

Fazal Shah Mohmand, Advocate Supreme Court for Respondents.

2021 S C M R 1270

[Supreme Court of Pakistan]

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

MUHAMMAD ASIF AWAN---Appellant

Versus

DAWOOD KHAN and others---Respondents

Civil Appeal No. 1767 of 2019, decided on 27th April, 2021.

(Against the order dated 19.02.2019 passed by the Lahore High Court in W.P. No. 243 of 2019)

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

----Ss. 12 & 24(b)---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance of agreement to sell immoveable property---Balance sale consideration---Deposit in court---Powers of Trial Court---Scope---Upon filing of a suit seeking specific performance of an agreement in respect of an immovable property, there was no provision in the Specific Relief Act, 1877 which cast any duty on the Court or required the vendee to first deposit the balance sale consideration---However, since the law of specific relief was based on the principles of equity and further that the relief of specific performance was discretionary and could not be claimed as a matter of right, therefore, the Court in order to ensure the bona fide of the vendee at any stage of the proceedings may put him to terms---In order to weigh the capacity of the vendee to perform and his intention to purchase, the Court may direct the vendee to deposit the balance sale consideration---Readiness and willingness on the part of the vendee to perform his part of obligation also prima-facie demonstrated that the non-completion of the contract was not the fault of the vendee and the contract would have been completed, if it had not been renounced by the vendor.

Abdul Hamid v. Abbas Bhai Abdul Hussain PLD 1959 (W.F.) Kar. 629 ref.

(b) Constitution of Pakistan---

----Art. 185(3)---Order of the Supreme Court granting/refusing leave---Such order was not a judgment which decided a question of law and therefore, it should not be followed necessarily and imperatively.

Haji Farmanullah v. Latifur Rehman 2015 SCMR 1708; Rana Tanveer Khan v. Naseeruddin and others 2015 SCMR 1401; Muhammad Tariq Badar and others v. National Bank of Pakistan and others 2013 SCMR 314 and Khairullah v. Sultan Muhammad 1997 SCMR 906 ref.

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

----Ss. 12 & 24(b)---Civil Procedure Code (V of 1908), O. XVII, R. 3---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance of agreement to sell immoveable property filed by vendee---Balance sale consideration---Trial Court directing vendee to deposit balance sale consideration in court without providing any penal consequences for failure to do the same---Whether the suit for specific performance filed by vendee could be dismissed by the High Court on account of non-deposit of balance sale consideration in Trial Court---Held, that order of the Trial Court whereby the vendee/appellant was directed to deposit the remaining consideration did not provide any penal consequences, on the contrary the suit was fixed for the evidence of the plaintiff, therefore, the suit in the circumstances could not have been dismissed on account of non-deposit---Approach of the High Court that the non-compliance of the order directing the deposit would amount to failure on the part of the vendee/appellant to perform act necessary to the further progress of the suit and therefore, would result in dismissal of the suit under O. XVII, R. 3, C.P.C. appeared to be totally misconceived---Order of the Trial Court reflected that the matter was fixed for evidence of the plaintiff and record did not show that further progress was not possible on account of non-production of vendee's evidence---In the given circumstances, unless the vendee would have been put to notice that the non-deposit of the balance sale price would be deemed to be his incapability of performing his part of the contract as envisaged under S. 24(b) of the Specific Relief Act, 1877 rendering the contract non-enforceable, the suit could not have been dismissed---Even otherwise, the language employed in O.XVII, R. 3, C.P.C. by using the word, "the Court may, notwithstanding such default, proceed to decide the suit forthwith" was permissive and discretionary and did not in all circumstances entail penal consequences and the discretion exercised by the Trial Court by extending time for deposit of balance sale price pendente lite just for few days in the face of denial of deal by the vendor was not perverse entitling High Court to interfere in it---Appeal was allowed and order of High Court non-suiting the vendee was set aside---Appeal was allowed.

Muhammad Munir Paracha, Advocate Supreme Court for Appellant.

Mushtaq Ahmed Mohal, Advocate Supreme Court for Respondents.

2021 S C M R 1277

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Sheikh ISHTIAQ AHMAD and others---Petitioners

Versus

MUHAMMAD USMAN ALI SHEIKH and another---Respondents

Civil Petitions Nos. 2836 and 2837/2020 and C.M.As. Nos. 7704 and 7705 of 2020, decided on 4th June, 2021.

(On appeal against the orders dated 29.09.2020 passed by the Lahore High Court, Multan Bench, in F.A.Os. Nos. 7 and 8 of 2019)

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

----S. 6(1)(c)---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for pre-emption---Shafi Jar---Proof---Plaint of suit not mentioning whether pre-emptor was owner of immovable property adjacent to the property sold---Effect---Rejection of plaint---Since the very foundation of the pre-emptor's claim was his ownership of the adjacent immovable property on the basis whereof he asserted superior pre-emptive rights of a Shafi Jar, it was necessary for him to assert his ownership, which was not only a material fact but an essential one---However the plaints did not state that the pre-emptor owned the immovable property, on the basis whereof he claimed rights of Shafi Jar to the two plots, and the same was the position with regard to his replies to the application under O. VII, R. 11, C.P.C.---No document was available on record which disclosed the pre-emptor's ownership to the immovable property on the basis of which he claimed the right of a Shafi Jar---As the plaints did not state that the pre-emptor was the owner of the adjacent property, therefore, he should not be permitted to lead evidence to assert and then to establish his ownership of the adjacent immovable property---Plaints in both suits were rejected under O. VII, R. 11, C.P.C.---Petitions for leave to appeal were converted into appeals and allowed.

Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469 473 ref.

Malik Muhammad Rafiq Rajwana, Advocate Supreme Court, Ch. Habibullah Nehang, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners (in both cases).

Qari Abdul Rasheed, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 1 (in both cases).

Ahmad Hassan Khan, Advocate Supreme Court and Umair Azam, Assistant Director, MDA for Respondent No. 2 (in both cases).

2021 S C M R 1281

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar

and others---Petitioners

Versus

HIZBULLAH KHAN and another---Respondents

Civil Petition No. 18-P of 2021, decided on 8th June, 2021.

(Against the judgments dated 13.11.2020, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Service Appeal No. 880 of 2018)

(a) Civil service---

----Promotion---Departmental Promotion Committee (DPC)---Once an employee's case (for promotion) was put up before the DPC, the same had to be decided by the DPC fairly, justly and honestly, by either allowing the promotion or not allowing the same---In the latter case, the employee had to be informed by giving reasons for denial of promotion to him---When the relevant promotion rules were in the field, a civil servant's case of promotion could not be kept pending by the DPC on the ground that new promotion rules were being finalized.

(b) Civil service---

----Promotion--- Criteria--- Eligibility and fitness--- Scope--- While considering the case of promotion on seniority-cum-fitness, the question of eligibility and fitness had to be determined---While eligibility could be determined on the basis of terms and conditions of service, the question of fitness was always based upon subjective evaluation on objective criteria, and such exercise had been left to be conducted by the competent authority in the department---Competent authority while exercising its discretion in determining the case of fitness or otherwise of a government servant for being promoted to hold higher post should not conduct itself arbitrarily or in colourable exercise but consider the question of fitness based upon reasons, fairly and justly.

Zahid Yousaf Qureshi, Additional Advocate General, Khyber Pakhtunkhwa, Asad ud Din, Asif Jan, Superintendents and Javaid Maqbool Butt, Incharge Litigation, Agriculture Department, Khyber Pakhtunkhwa for Petitioners.

Mukhtar Ahmed Maneri, Advocate Supreme Court for Respondent No. 1.

2021 S C M R 1284

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD SIDDIQUE---Appellant

Versus

Senior EXECUTIVE VICE-PRESIDENT, PTCL and others---Respondents

Civil Appeal No. 1477 of 2019, decided on 9th June, 2021.

(On appeal against the judgment dated 01.02.2017 passed by the Peshawar High Court, Peshawar in Writ Petition No. 1588-P of 2013)

Master and servant---

----Voluntary Separation Scheme (VSS)---Emoluments---Calculation of emoluments on basis of "Last basic pay" after availing VSS---Documentary evidence (Last Pay Certificate and Initial Pay Slip) showed basic pay of appellant as Rs. 8070/- , however during his cross-examination before the Tribunal below, he inadvertently mentioned his basic salary as Rs. 7,605---Held, that if a person had or had been bestowed some legal right and he omitted to claim such legal right through oral assertion but the best documentary evidence of the case was found in his favour then the documentary evidence should be given credence---In the present case the inadvertent statement of the appellant qua his basic pay had no force and could not be used to deprive him of his valuable rights---Supreme Court directed the respondent-department to recalculate the monthly pension and the amount of outstanding house building advance of the appellant in the light of his basic salary mentioned in the documentary evidence i.e. Rs. 8070/- and pay the difference to the appellant within a period of one month---Appeal was allowed.

Appellant in person.

Shahid Anwar Bajwa, Advocate Supreme Court for Respondents.

2021 S C M R 1287

[Supreme Court of Pakistan]

Present: Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

AKHTAR ULLAH alias AKHTAR ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 509 of 2021, decided on 16th June, 2021.

(On appeal against the order dated 26.04.2021 passed by the Peshawar High Court, Bannu Bench in Cr. Misc. (B.A.) No. 190-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 34 & 427---Attempt to commit qatl-i-amd, common intention, mischief causing damage to the amount of fifty rupees---Bail, grant of---Further inquiry---Injury on non-vital part of body---Incomplete medical legal report---Injury ascribed to the accused on the person of complainant was on his right heel---During the course of medical examination of complainant, the doctor had not given any details regarding dimension of the injury, therefore, question qua applicability of S. 324, P.P.C. would be determined by the Trial Court after recording of evidence---Perusal of medico legal report revealed that the same was on a plain paper and name and designation of the doctor who examined the injured witness had not been mentioned---As per prosecution, the complainant remained admitted in the hospital after the occurrence for a couple of days but discharge slip was not available on the record---Though one empty was secured from the spot by the investigating agency, but no recovery of alleged weapon was affected from the accused, therefore, the recovery of crime empty from the spot became inconsequential and did not have any legal force---Case of accused squarely was one of further enquiry falling within the ambit of S. 497(2), Cr.P.C.---Even otherwise, the accused was behind the bars for more than three and a half months, the investigation of the case was complete and no useful purpose would be served while keeping him behind bars till the conclusion of the trial pending adjudication before the Trial Court---Petition for leave to appeal was converted into appeal and allowed and accused was granted bail.

Muhammad Umar v. The State and another PLD 2004 SC 477 ref.

Farman Ali Khattak, Advocate Supreme Court for Petitioner.

Shumayl Aziz, Additional A.G. Khyber Pakhtunkhwa for the State.

2021 S C M R 1290

[Supreme Court of Pakistan]

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

COMMISSIONER INLAND REVENUE ZONE BAHAWALPUR, REGIONAL TAX OFFICE, BAHAWALPUR---Appellant

Versus

MESSRS BASHIR AHMED (DECEASED) through LRs---Respondent

Civil Appeal No. 1125 of 2020, decided on 28th January, 2021.

(On appeal from the Order dated 21.02.2017 of the Lahore High Court, Bahawalpur Bench passed in P.T.R. No. 04 of 2014)

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

----Ss. 111(1)(b), 122(1), 122(5) & 122(9)---Amendment of deemed assessment order---'Definite information' ---Scope---Tax return filed by the respondent (deemed assessment order) was scrutinized, and it was found that the respondent had only declared agricultural income of Rs.500,000/, whereas the department (as claimed by it) had definite information that the latter had acquired immoveable property in the sum of Rs.56,00,000---On such basis a notice ('the first notice') was issued under S. 122(1) of the Income Tac Ordinance, 2001 ('the 2001 Ordinance') read with subsections (5) & (9) thereof, requiring the respondent to show cause as to why the deemed assessment order should not be suitably amended---Subsequently another notice (second notice), under S. 111(1)(b) of the 2001 Ordinance was also issued in respect of the said property---Legality---First notice purported to state that "the department is in possession of definite information" regarding the investment allegedly made in immoveable property---Such claim was repeated in the second notice under S. 111 of the 2001 Ordinance---Respondent was not given an opportunity, as was mandatorily required by S. 111, to satisfy the tax authorities as to the source etc. of the funds by which the immoveable property was acquired---Rather, the department from inception, and throughout, proceeded on the basis that it already had definite information with it in this regard, such as was sufficient to allow the amendment of the deemed assessment order---However, that could not be so until first the proceedings under S. 111 of the 2001 Ordinance had culminated in an appropriate order--- Such an order could have constituted the definite information as would allow the amendment of the deemed assessment order---Proceedings under S. 111 were, as it were, "short circuited" altogether since the department began with the (incorrect) premise that it already had definite information available with it, and the concerned officer proceeded accordingly---Department did not have definite information available with it within the contemplation of the 2001 Ordinance---Appeal was dismissed.

Commissioner of Inland Revenue-Zone I v. Khan CNG Filling Station 2017 SCMR 1717 distinguished.

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

----Ss. 111(1)(b), 122(1), 122(5) & 122(9)---Amendment of deemed assessment order on basis of 'definite information'---Scope---Finding under S. 111 of the Income Tax Ordinance, 2001 (the 2001 Ordinance) and the amendment of the deemed assessment order could be done together, and the notice under S. 111 could also be issued along with the notice to amend---However, in such a case, the proceedings and notice(s) must expressly so state on the face of it.

Sarfraz Ahmed Cheema, Advocate Supreme Court for Appellant (via video-Link, Lahore).

Javed Iqbal Qazi, Advocate Supreme Court for Respondent.

2021 S C M R 1295

[Supreme Court of Pakistan]

Present: Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

SAEED YOUSAF---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 442 of 2021, decided on 15th June, 2021.

(On appeal against the order dated 09.04.2021 passed by the Peshawar High Court, Peshawar in Cr. Misc. (B.A.) No. 976-P/2021)

(a) 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---Suspicious injuries---Nature of injuries not described in medical report---Role of causing firearm injury to the deceased was ascribed to the co-accused whereas the only role attributed to the accused was that of causing injuries to the injured witnesses---During medical examination of the injured witnesses, it had been specifically mentioned in the medico legal report that the injuries sustained by both the witnesses were suspicious---Even otherwise, there was no specification of injury caused to the injured witnesses and even the nature of injuries had not been described by the doctor---From the place of occurrence, four empties were recovered but since no weapon of offence had been recovered, such recovery could not be used against the accused---No useful purpose would be served by keeping the accused behind bars till the conclusion of the trial---Petition for leave to appeal was converted into appeal and allowed, and accused was granted bail.

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

----S. 497---Bail---Co-accused persons fugitives from law---Effect---During bail stage criminal liability could not be shifted from one person to the other merely on the ground that the co-accused of the accused were still at large.

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

----S. 497(2)---Bail---Absconsion of accused---Effect---Accused could be granted bail if his case was otherwise made out on merits and his mere absconsion would not come in the way of his bail---Effect of absconsion depended on the facts of each case and bail could be granted if an accused had a good case for bail on merits---Mere absconsion would not deprive him of bail, if otherwise his case was one of "further inquiry" as envisaged under S. 497(2), Cr.P.C.

Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Tasaweer v. Hafiz Zulkarnain PLD 2009 SC 53 and Mitho Pitafai v. State 2009 SCMR 299 ref.

Dar-ul-Salam, Advocate Supreme Court for Petitioner.

Shumayl Aziz, Additional A.G. Khyber Pakhtunkhwa and Anwar Ali, Inspector for the State.

Complainant in person.

2021 S C M R 1298

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Amin-ud-Din Khan, JJ

IJAZ BASHIR QURESHI---Appellant

Versus

SHAMS-UN-NISA QURESHI and others---Respondents

Civil Appeal No. 1498 of 2016, decided on 11th June, 2021.

(Appeal from the judgment dated 28.04.2016 passed by Lahore High Court, Lahore in R.F.A. No. 445 of 2015.)

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

----Ss. 182 & 202---Irrevocable Power of Attorney---Test---When an agent himself had interest in the property which formed subject matter of the agency, the same could not be terminated to the prejudice of such interest, in the absence of any express contract---Where the Power of Attorney was not given for consideration, it could not be termed as irrevocable general Power of Attorney---Simply mentioning in the caption of a Power of Attorney the word "irrevocable" did not make it an irrevocable Power of Attorney unless it passed the said test for declaring a Power of Attorney irrevocable.

Mst. Hajran Bibi and others v. Suleman and others 2003 SCMR 1555 ref.

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

----Ss. 182 & 202---Irrevocable general Power of Attorney---Interest of attorney in the property---Whether under a general Power of Attorney the attorney could himself/herself transfer the property of a principal through gift---Held, that gift could be made by the owner/ principal only---Agent cannot himself or herself transfer the immovable property of principal through gift on the basis of any power of attorney even if the power of attorney contained the powers to transfer the property through gift---Such powers could only be used for completion of codal formalities of the gift which must be (made) by the owner/ principal himself/ herself---Attorney cannot transfer the property of principal himself/herself to anyone through gift and if such transfer was by the attorney, it was an invalid transfer.

Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and others 2016 SCMR 1781; Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others PLD 2008 SC 389; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 and Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 ref.

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

----Ss. 182 & 202---General Power of Attorney---Gift---Interest of attorney in the property ---Widow appointed as attorney by her children transferring her share and that of her son in subject property to her daughter---Legality---Power of Attorney in the present case was not an irrevocable one---Daughter/respondent had not claimed the gift of suit property by the principal (i.e. all legal heirs) rather she claimed the gift through the attorney (i.e. her mother)---Admittedly, the principal had never given specific power of attorney for gift of the specific/subject property in favour of the daughter/respondent---Furthermore impugned gift transaction was made by the widow twenty (20) years after the Power of Attorney, executed in her favour by her children/legal heirs---Widow/agent had gifted her share and that of her son (principal) herself in favour of her daughter, therefore, the gift was invalid to the extent of the share of the son---Appeal was allowed.

Aamir Iqbal Basharat, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Abdul Khaliq Safrani, Advocate Supreme Court for Respondents Nos. 2-5.

Ejaz Jamal, Advocate Supreme Court for Respondent No. 6.

2021 S C M R 1305

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

ZARAI TARAQIATI BANK LIMITED through President and others---Appellants

Versus

SARFRAZ KHAN JADOON and others---Respondents

Civil Appeal No. 97 of 2021 and Civil Petition No. 3478 of 2021, decided on 10th June, 2021.

(On appeal from the judgment dated 03.09.2019 passed by the Peshawar High Court, Abbottabad Bench in W.P. No. 535-A of 2019)

(a) Civil service---

----Out of turn promotions---Illegal promotion orders set aside by the Supreme Court---Prospective effect---Recovery/adjustment of financial benefits paid to such promotees---Held, that in the judgment reported as Akhtar Umar Hayat Lalayka and others v. Mushtaq Ahmed Sukhaira and others (2018 SCMR 1218) the Supreme Court directed that promotions granted to the respondents were "hereby" withdrawn---Word 'hereby' was very significant and it showed that the Supreme Court had withdrawn promotions by the very judgment delivered by it and not prior to it---Had the (Supreme) Court wanted to give effect to its judgment from the date when the promotions were granted, it could have been mentioned in the judgment but it was not done so purposely--- In any case, it was an established legal principle of law that the judgments of the Courts always operated prospectively---High Court had rightly given directions not to recover/adjust the financial benefits granted to the persons promoted illegally---Appeal was dismissed.

Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956 and Regarding Pensionary Benefits of the Judges of Superior Courts from the date of their Respective Retirements, Irrespective of their length of Service as Such Judges PLD 2013 SC 829 ref.

(b) Words and phrases---

----'Hereby'---Meaning.

Black's Law Dictionary; Oxford Advanced Learner's Dictionary; Advanced Law Lexicon and Words and Phrases (Permanent Edition),Volume 19A ref.

Syed Iqbal Hussain Shah Gillani, Advocate Supreme Court and Zulfiqar Khalid Maluka, Advocate Supreme Court for Applicant/ Petitioner (in C.A. No. 97 of 2021 and C.P. No. 3478 of 2021).

Sajeel Sheryar Swati, Advocate Supreme Court and Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.A. No. 97 of 2021).

Nemo for Respondent (in C.P. No. 3478 of 2021).

2021 S C M R 1308

[Supreme Court of Pakistan]

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

COMMISSIONER INLAND REVENUE, MULTAN and others---Petitioners

Versus

ACRO SPINNING AND WEAVING MILLS LTD., MULTAN and others---Respondents

Civil Petitions Nos. 846-L and 2074-L of 2017, decided on 27th May, 2021.

(Against the order of Lahore High Court, Multan Bench dated 23.01.2017, passed in W.P. No.570 /2017 and order of Lahore High Court, Lahore dated 08.12.2016 passed in W.P. No.37508 of 2016)

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

----Ss. 3(1), 3(1A) & 4 [as they existed before the Finance Act, 2017]---SRO No. 1125(I)/2011 dated 31-12-2011 (as amended vide SRO No. 491(I)/2016 dated 30-06-2016)---Taxable supplies to be charged at zero percent---Scope---Taxable supplies made by taxpayer to persons not registered under the Sales Tax Act, 1990---Held, that provision of S. 4 of the Sales Tax Act, 1990 dealing with zero rating of taxable supplies was an overriding provision on account of the non-obstante clause by which it started---Provisions of S. 3(1A) of the Sales Tax Act, 1990 pertaining to further tax were subservient to the effect of zero rating---Consequently, zero rated goods were not liable to any of the provisions under S. 3 of the Act---SRO No. 1125(I)/2011 dated 31.12.2011 (as amended vide SRO No. 491(I)/2016 dated 30-06-2016 provided, in sub-entry (iii) of entry No. 1 of Table II thereof that taxable supplies made by persons doing business in five specified sectors to "registered or unregistered persons" would be taxed at zero percent---SRO No. 1125 applied, as it stated on the face of it, not only to supplies made to registered persons (who would otherwise be covered by subsection (1) of S. 3 of the Sales Tax Act, 1990) but also those made to unregistered persons, who would be covered by both subsections (1) & (1A) of S. 3.

MKB Spinning Mills (Pvt.) Ltd. v. Federation of Pakistan and others 2018 PTD 2364 ref.

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

----Ss. 3(1), 3(1A) & 4 [as they existed before the Finance Act, 2017]---SRO No. 1125(I)/2011 dated 31-12-2011 (as amended vide SRO No. 491(I)/2016 dated 30-06-2016)---Taxable supplies to be charged at zero percent---Scope---Taxable supplies made by taxpayer to persons not registered under the Sales Tax Act, 1990---Certain erroneous observations regarding the Sales Tax Act, 1990 recorded by the High Court in Paragraphs 5 and 10 of the judgment reported as MKB Spinning Mills (Pvt.) Ltd. v. Federation of Pakistan and others 2018 PTD 2364 ("MKB Spinning Mills") highlighted by the Supreme Court.

Certain observations regarding the Sales Tax Act, 1990 made by the High Court in the decision reported as MKB Spinning Mills (Pvt.) Ltd. v. Federation of Pakistan and others 2018 PTD 2364 ("MKB Spinning Mills") were erroneous and could not be sustained. It had been observed in para 5 of the said judgment that "the Act visualizes two regimes of tax; one under section 3…. and the other under section 4 under which tax is to be charged at zero rate". It had also been said, of section 4, in para 10 of the judgment that "the benefit of zero percent tax conferred by this provision was meant to support that component of local industry which was engaged in manufacturing export-oriented products". These observations were incorrect, run contrary to the conceptual framework of a tax levied in the VAT mode, and, if not corrected, were liable to mislead. The Sales Tax Act, 1990 did not impose two (or more) tax regimes. It created and enforced one integrated tax regime, which operated as a single whole, namely the levy of tax in VAT (value added) mode.

MKB Spinning Mills (Pvt.) Ltd. v. Federation of Pakistan and others 2018 PTD 2364 ref.

Supreme Court observed that the erroneous observations of the High Court in the ("MKB Spinning Mills") were hereby rectified in terms of what had been said about the manner in which the VAT mechanism worked and the conceptual framework of the same including, in particular, the reason why exports were zero rated as explained in the judgment reported as Pakistan Beverage Ltd. v. Large Taxpayer Unit 2010 PTD 2673 (paras 10-17).

MKB Spinning Mills (Pvt.) Ltd. v. Federation of Pakistan and others 2018 PTD 2364 and Pakistan Beverage Ltd. v. Large Taxpayer Unit 2010 PTD 2673 ref.

Sarfraz Ahmad Cheema, Advocate Supreme Court for Petitioners (in both cases).

Ex-parte for Respondents (in C.P. No. 846-L of 2017).

Nemo for Respondents (in C.P. No. 2074-L of 2017).

2021 S C M R 1313

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

QUETTA DEVELOPMENT AUTHORITY through Director General---Appellants

Versus

ABDUL BASIT and others ---Respondents

Civil Appeal No. 1562/2020, C.M.A. No. 259-Q/2020 in C.A. No. 1562/2020 and C.A. No. 1563/2020, C.M.A. No. 260-Q/2020 in C.A. No. 1563/2020, C.A. No. 1564/2020, C.M.A. No. 262-Q/2020, C.A. No. 1565/2020 and C.M.A. No. 264-Q/2020 in C.A. No. 1565/2020, decided on 31st May, 2021.

(On appeal from the judgment dated 16.9.2020 passed by the High Court of Balochistan, Quetta in C.P. No.970/2015, C.P. No.1011/2015, C.Ps. Nos. 1258/2015, 1257/2018)

(a) Civil service---

----Civil Procedure Code (V of 1908), S. 11---Appointment orders, restoration of---Res-judicata, principle of---Applicability---Appellant Authority/employer ('the Authority") in the present round of litigation, had once again raised the same points of facts and the law raised in an earlier round of litigation involving other similarly placed employees regarding nature of appointments and then dismissal from service of the respondent-employees---Earlier part of the litigation had come to an end and had attained finality between the parties---Questions in the earlier round of litigation once decided by the competent Court of law, could not be re-agitated again by the Authority---Such aspect/issue would act as res judicata against the Authority precluding it to question the order of appointments of respondents and then their dismissals---Pros and cons of the appointments and the dismissal orders of similarly placed employees were thoroughly considered by the High Court and then upheld by the Supreme Court in the earlier round of litigation; they had attained finality, and were not open to any further dilation and consideration---Appeals were dismissed.

(b) Constitution of Pakistan---

----Art. 25---Civil service---Appointment orders, restoration of---Relief of restoration of appointments orders granted to similarly and equally placed employees---Present employees/respondents were appointed on the same terms and conditions of service as that of similarly placed employees ('earlier litigants') who had been given relief of restoration of their appointment orders by declaring the orders of their withdrawal/cancellation as null and void---Present respondents were hired and fired together in the same manner as earlier litigants and were standing on the same pedestal as them---Both sets of appointees could not be separated from each other with regard to their appointments and dismissal---Only difference between the two sets was that the earlier group/earlier litigants litigated for their rights and second group, i.e. the present respondents, did not go into litigation earlier and through present litigation sought the relief already given to the first group who litigated---To claim such a relief was the fundamental right of respondents and the Constitution extended protection to such right and as such they could not be treated differently; this was the mandate of Art. of 25 of the Constitution---Respondents being equally and similarly placed as the earlier litigants, they become entitled to the same relief which was extended to them---Appeals were dismissed.

Hameed Akhtar Niazi v. Secretary, Establishment Division 1996 SCMR 1185; Tara Chand v. Karachi Water and Sewerage Board 2005 SCMR 499; Government of Punjab v. Sameena Parveen 2009 SCMR 1 and Secretary, Government of Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others 2014 SCMR 1336 ref.

(c) Constitution of Pakistan---

----Art 199---Constitutional petition before the High Court---Laches, principle of---Scope---Rule of laches was applied in accordance with facts and circumstances of each case, and it could not be made a rule of universal application.

Syed Ayaz Zahoor, Advocate Supreme Court for Appellant (Via Video Link, Quetta) (in all cases).

Gul Hassan Tareen, Advocate Supreme Court (Via Video Link, Quetta) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.As. Nos. 1562-1563/2020).

Nemo for Respondents (in C.As. Nos. 1564-1565/2020).

2021 S C M R 1319

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Amin-ud-Din Khan, JJ

ZUBAIR ALI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Civil Petition No. 1171 of 2021, decided on 25th May, 2021.

(On appeal against the judgment dated 24.02.2021 passed by Peshawar High Court, Peshawar in W.P. No. 942-P of 2021)

(a) Elections Act (XXXIII of 2017)---

----S. 2(xxxix)--- Constitution of Pakistan, Art. 59(1)---Senate elections---Technocrat seat---Eligibility---In terms of S. 2(xxxix) of Elections Act, 2017, technocrat, meant a person, who had studied and had undergone at least 16 years of education in any specialized faculty and discipline, and therefore, applied his educational qualification in the specialized field of vocations he adopted/gained hands on experience, acquired expertise and rose to a higher or senior management or commanding position to be able to make and take policy decisions in the field of any vocation or discipline he was pursuing, may it be Engineering, Computer or Information Technology, Medicine, Social Sciences etc.; and in recognition of his qualification coupled with hands on experience he had a proven track record of achievements at national or international level to his credit at any organization, business or field.

Ihsanul Haq Pirzada v. Wasim Sajjad PLD 1986 SC 200; Zaffar Jhagra v. Khalur Rehman 2000 SCMR 250; Islam Hussain v. Election Commission of Pakistan 2018 CLC 820; Zafar Ali Shah v. Hanif Khan 1992 CLC 665 and Muhammad Abdul Qadeer v. Provincial Election Commissioner Balochistan and 2 others PLD 2018 Bal. 59 ref.

(b) Elections Act (XXXIII of 2017)---

----Ss. 2(xxxix) & 62---Constitution of Pakistan, Art. 59(1)---Senate elections---Nomination papers, rejection of---Technocrat seat---Eligibility---Held, that in his nomination papers the petitioner had declared his professional experience as being Principal Officer at a family run hotel---Merely running a shop or a small hotel/ restaurant at a local area did not qualify the petitioner as a technocrat---Furthermore the qualification of Master degree obtained by the petitioner was in International Relations, which, firstly was not in the field of his family vocation of running a hotel/restaurant, and secondly such qualification did not add any value or raise the standard of his family hotel/ restaurant---Merely attending to family vocation during studies was not sufficient unless the petitioner showed that he possessed not less than or at the minimum 20 years of practical experience, that thereafter earned him senior management policy making position---Petitioner's participation in the affairs of Chambers of Commerce and Industries and being a member of its Executive Committee, was not a position of excellence, and even otherwise his standing in the Chamber of Commerce as a member was hardly nine (9) years, which did not fulfil the requirement of 20 years of experience that earned him acclamation as a businessman of national and or international level---Nomination papers of petitioner for technocrat seat of Senate were rightly rejected---Petition for leave to appeal was dismissed and leave was refused.

(c) Elections Act (XXXIII of 2017)---

----S. 2(xxxix)--- Constitution of Pakistan, Art. 59(1)---Senate elections---Technocrat seat---Eligibility---Requirement of 'twenty years' of professional experience for being eligible to contest on technocrat seat---Such experience was to be counted only after acquiring the prescribed qualification mentioned under S. 2(xxxix) of the Elections Act, 2017.

Islam Hussain v. Election Commission of Pakistan 2018 CLC 820 ref.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehmood A. Sheikh, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2021 S C M R 1325

[Supreme Court of Pakistan]

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

CIVIL APPEAL NO. 502 OF 2017

(Against judgment dated 06.03.2015 passed by the Lahore High Court, Lahore in in PTR No.239/2014.)

AND

C.M.A. NO.1066-L OF 2015 IN CIVIL APPEAL NO.502 OF 2017

AND

CIVIL APPEAL NO.503 OF 2017

(Against judgment dated 06.03.2015 passed by the Lahore High Court, Lahore in PTR No.240/2014.)

AND

C.M.A. NO.1068-L OF 2015 IN CIVIL APPEAL NO.503 OF 2017

AND

CIVIL APPEAL NO.504 OF 2017

(Against judgment dated 06.03.2015 passed by the Lahore High Court, Lahore in PTR No.241/2014.)

AND

C.M.A. NO.1130-L OF 2015 IN CIVIL APPEAL NO.504 OF 2017

AND

CIVIL APPEAL NO.505 OF 2017

(Against judgment dated 06.03.2015 passed by the Lahore High Court, Lahore in PTR No.242/2014.)

AND

C.M.A. NO.1131-L OF 2015 IN CIVIL APPEAL NO.505 OF 2017

AND

CIVIL APPEAL NO.506 OF 2017

(Against judgment dated 06.03.2015 passed by the Lahore High Court, Lahore in in PTR No.243/2014.)

AND

C.M.A. NO.1087-L OF 2015 IN CIVIL APPEAL NO.506 OF 2017

COMMISSIONER INLAND REVENUE ZONE-I, LTU---Appellant

Versus

MCB BANK LIMITED---Respondent

Civil Appeal No. 502 of 2017 and C.M.A. No.1066-L of 2015 in Civil Appeal No.502 of 2017 and Civil Appeal No.503 of 2017 and C.M.A. No.1068-L of 2015 in Civil Appeal No.503 of 2017 and Civil Appeal No.504 of 2017 and C.M.A. No.1130-L of 2015 in Civil Appeal No.504 of 2017 and Civil Appeal No.505 of 2017 and C.M.A. No.1131-L of 2015 in Civil Appeal No.505 of 2017 and Civil Appeal No.506 of 2017 and C.M.A. No.1087-L of 2015 in Civil Appeal No.506 of 2017, decided on 13th January, 2021.

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

----S. 161---Failure to pay tax collected or deducted---Show cause notice---General and vague show cause notices issued by tax authorities under S. 161 of Income Tax Ordinance, 2001 by incorrectly relying on the observations of the High Court in the judgment reported as Bilz (Pvt) Ltd. v Deputy Commissioner of Income Tax and another 2002 PTD 1, PLD 2002 SC 353 ("Bilz case")---Supreme Court deprecated such misreading of the Bilz case by tax authorities and termed general and vague show cause notices issued under S. 161 as a fishing expedition and roving inquiry.

The judgment reported as Bilz (Pvt) Ltd. v Deputy Commissioner of Income Tax and another 2002 PTD 1, PLD 2002 SC 353 ("Bilz case") was sometimes taken as an authority for a broad and general proposition, namely, that since the taxpayer especially had knowledge of the persons to whom payments were being made, all that the tax authorities had to do for purposes of section 161 of the Income Tax Ordinance, 2001 ('the 2001 Ordinance') was to identify the payments, whether singly or in lump sum (i.e., as part of a broader class or category of such payments); that it was then for the taxpayer entirely to show whether the required deductions were made and if he failed to do so then section 161 came into operation. This interpretation was a complete misunderstanding of the law, and misreading of the Bilz case.

Bilz (Pvt.) Ltd. v. Deputy Commissioner of Income Tax and another 2002 PTD 1 = PLD 2002 SC 353 ref.

Tax authorities had seized on certain observations made in Bilz case and, taking them out of context, were misusing them as a tool and instrument to harass taxpayers. This so-called "understanding" and application of the decision must be strongly deprecated. It must be clearly understood that Bilz case was not, and could not be used as, a platform by the tax authorities to launch fishing expeditions and roving inquiries. It could not, and did not, support or allow the issuance of show cause notices of deliberate vagueness and breathtaking generality. And it certainly did not shift the burden under section 161, from the very inception, wholly and solely on the taxpayer by the expedient of simply identifying one or more payments, or a class or category of payments. The High Court misunderstood Bilz case in the judgment reported as Commissioner Inland Revenue v. Islam Steel Mills 2015 PTD 2335 ("Islam Steel Mills case"). Supreme Court held that the observations made in the Islam Steel Mills case which were inconsistent with the findings of the present judgment were overruled.

Bilz (Pvt.) Ltd. v. Deputy Commissioner of Income Tax and another 2002 PTD 1 = PLD 2002 SC 353 ref.

Commissioner Inland Revenue v. Islam Steel Mills 2015 PTD 2335 overruled.

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

----S. 161---Failure to pay tax collected or deducted---Show cause notice---Section 161 of the Income Tax Ordinance, 2001 ('the 2001 Ordinance')---Scope---Section 161 of the 2001 Ordinance became applicable not simply because a payment was made (or a transaction or event happens) but rather on a failure to either collect tax or deduct it---Failure was the triggering event, therefore, it was a gross misreading of S. 161 to conclude that for the said section to apply all that the Commissioner had to do was point to a payment, and that was sufficient to cast the burden wholly and solely on the taxpayer to show that there was no failure---At the very least, initially, there must be some reason or information available with the Commissioner for him to conclude that there was, or could have been, a failure to deduct---Such reason or information must satisfy the test of objectiveness, i.e., must be such as would satisfy a reasonable person looking at the relevant facts and information in an objective manner---Threshold was not so stringent as to require "definite information" but it was also not so low as to be bound merely to the subjective satisfaction of the Commissioner; it was only if this threshold was successfully crossed that the notice could be issued, and it was only then that the burden may shift on the person allegedly in default to show that S. 161 did not, or ought not to, apply.

Bilz (Pvt.) Ltd. v. Deputy Commissioner of Income Tax and another 2002 PTD 1 = PLD 2002 SC 353 ref.

Commissioner Inland Revenue v. Islam Steel Mills 2015 PTD 2335 overruled.

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

----S. 161---Failure to deduct tax---Show cause notice---Legality---Show cause notice issued to the taxpayer did not merely demand information regarding deductions; it also contained the monthly breakup of the deductions allegedly required under various sections, and also the amounts actually deducted and the alleged difference---In other words, there was an application of mind to the question whether there had been a failure to deduct and if so, on what basis and in what amount---Show cause notice under S. 161 of the Income Tax Ordinance, 2001 was validly issued---Appeals were partly allowed.

Ibrar Ahmed, Advocate Supreme Court and Naseem Hassan, Sec. Lit. (FBR) for Appellants/Appellants.

Sikandar Bashir Mohmand, Advocate Supreme Court for Respondents.

2021 S C M R 1336

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Sajjad Ali Shah, JJ

SOHAIL AHMED and another---Petitioners

Versus

Haji SHAFQAT ALI and others---Respondents

Civil Petitions Nos.2379/2016 and 2826-L/2016, decided on 2nd June, 2021.

(Against the consolidated judgment dated 14.6.2016 passed by the Lahore High Court Lahore in W.P. No.34259 of 2014)

(a) Punjab Land Revenue Rules, 1968---

----R. 17--Lambardar, appointment of---Process of appointment lacking bona fides---Record showed that there were only two contenting candidates for the position of Lambardar; one from the Chak for which the Lambardar was required to be appointed and the second candidate i.e. the petitioner, who was from a different Chak and was facing criminal cases---Further it was not clear from the record as to whether both the Chaks shared common boundaries---Candidate who appeared to be more suitable for the position being from the same Chak and having land holding therein not only surreptitiously withdrew from the contest but transferred some of his holdings in favour of the petitioner entitling him for the post---Moreover address of the petitioner given in the memo of the present petition demonstrated that even till date the petitioner was a non-resident of the Chak for which the Lambardar was required on basis of which the respondent argued that petitioner was an absentee Lambardar---In the present case, the intrigue appointment of petitioner with no contesting candidate from the village and suppression of the fact that the father of the respondent had been performing the duties of Lambardar for quite some time after the death of the regular Lambardar showed lack of bona fides on part of the petitioner---High Court had rightly set aside the appointment of petitioner as Lambardar and directed initiation of fresh process of appointment---Petition for leave to appeal was dismissed and leave was refused.

(b) Punjab Land Revenue Rules, 1968---

----R. 17---Lambardar, appointment of---Eligibility of candidate---In view of the duties a Lambardar was supposed to perform, it was necessary that he should be present at all times in the village or Chak for which he was appointed so that he could discharge his functions efficiently, adequately and properly---However, it did not mean that appointment of a Lambardar from a village which shared common boundaries with the village for which a Lambardar was to be appointed, be outrightly ruled out, in case the candidate otherwise qualified by virtue of his interest by way of holding or otherwise.

Muhammad Yousaf v. Member Board of Revenue and 4 others 1996 SCMR 1581 ref.

Tariq Mahmood, Senior Advocate Supreme Court for Petitioners (in C.P. No. 2379 of 2016).

Malik Amjad Pervaiz, Advocate Supreme Court for Petitioners (in C.P. No. 2826-L of 2016).

Mazhar Iqbal Sindhu, Advocate Supreme Court and Malik Amjad Pervaiz, Advocate Supreme Court for Petitioners (in C.P. No.2379 of 2016).

Nemo for Respondents (in C.P. No. 2826-L of 2016).

2021 S C M R 1341

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

MUHAMMAD FARRUKH IQBAL---Petitioner

Versus

Mrs. AYESHA IRAM and others---Respondents

Civil Petitions Nos. 1319 of 2020 and 1410 of 2021, decided on 21st June, 2021.

(Against the order dated 02.03.2020 and 23.12.2020 passed by the Islamabad High Court, Islamabad in F.A.O. No. 67 of 2019 and Regular First Appeal No. 64 of 2017)

(a) Gift---

----Oral gift---Proof---Trial Court had rightly found that there was no signature or thumb impression of the donor on the first page of the gift document while there were three thumb impressions, purporting to be of the donor, on the second page; that the documents produced by the alleged donee/petitioner which were allegedly submitted to the relevant Development Authority for transfer of the property/house in the name of the petitioner were not produced through a witness of the Development Authority; and that it was not believable that the same were not acted upon for a period of six years --- Petitioner did not seek to challenge either the Development Authority's refusal to transfer the house in his favour nor took any action to implement the gift document---House stood in the name of the purported donor when he died, and continued to stand in his name, when the suit was filed by the petitioner---Gift in favour of petitioner was not established---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 123---Registration Act (XVI of 1908), S. 17(a)---Purported oral gift---House allegedly gifted through a "Declaration of Oral Gift"---Whether such gift document was required to be registered ---Held, that S. 123 of the Transfer of Property Act, 1882 provided that 'For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses---Gift document stated that the, 'DONOR, hereby gift the above said property…', that is, the house---Thus, it was clear that the gift document did not merely record an earlier oral gift but it was through the gift document that the house was purportedly gifted---Title of the gift document was inconsequential in view of its clear and unambiguous contents, which stated that the house was sought to be gifted by and through the gift document---Furthermore S. 17(a) of the Registration Act, 1908 required that gifts of immovable property made by or through written documents required registration, therefore, the gift document required registration---In the absence of the statutory requirement of registration of the gift document it could not be used to transfer the property/house to the petitioner---Petition for leave to appeal was dismissed and leave was refused.

Bilawar Khan v. Amir Sabar Rahman PLD 2013 Pesh. 38 distinguished.

Muhammad Koukab Iqbal, Advocate-on-Record/Advocate Supreme Court for Petitioner with the petitioner in person (in both cases).

Nemo for Respondents (in both cases).

2021 S C M R 1344

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Amin-ud-Din Khan, JJ

MUHAMMAD QASIM and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No.390-L of 2021, decided on 11th June, 2021.

(Against the order dated 25.02.2021 passed by Lahore High Court, Lahore in Crl.Misc.-6413B/2021)

Criminal Procedure Code (V of 1898)---

----S. 497---Drugs Act 1976 (XXXI of 1976), Ss. 23 & 27---Drug Regulatory Authority of Pakistan Act (XXI of 2012), Ss. 2(ii) & 27(2)---Penal Code (XLV of 1860), S. 109---Manufacturing/stocking and selling therapeutic drugs in violation of the law, abetment---Bail, grant of---Rule of consistency---Prosecution stated that the medicines in question fall within the definition of alternate medicines within contemplation of S. 2(ii) of the Drug Regulatory Authority of Pakistan Act, 2012, yet the principal accused, had since been conceded bail---Record showed that case of present accused persons was on better footing compared to the principal accused, therefore, following the rule of consistency, the accused persons were entitled to bail---Petition for leave to appeal was converted into appeal and allowed, accused persons were granted bail with the directions that office shall make a separate file, register it as Suo Motu Case and place the same before the Chief Justice for placing the same before an appropriate Bench to consider the regulatory framework for alternate medicines, their dispensation either in raw form or in the form of finished products so as to ensure that people were not being looted and harmed.

Rashad Javid Lodhi, Advocate Supreme Court for Petitioners.

M. Usman, DPG Pb., M. Rafique, ASI, Syed Ali Sibtain, Drug Inspector and Ali Raza, IO for the State.

Sajid Ilyas Bhatti, Additional AGP, Rana Arif Kamal Noon, PG Pb. and Naveed Anwar, Drug Controller Rwp. on Court's call.

2021 S C M R 1347

[Supreme Court of Pakistan]

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

STATE LIFE INSURANCE CORPORATION OF PAKISTAN---Appellant

Versus

ATTA UR REHMAN---Respondent

Civil Appeal No.350 of 2020, decided on 25th June, 2021.

(On appeal from the judgment dated 09.05.2018 of the Peshawar High Court, Peshawar passed in F.A.O. No.49-P of 2014)

Insurance Ordinance (XXXIX of 2000)---

----S. 75---Life insurance policy---Duty of utmost good faith on part of insured---Scope---Insured mentioning in his insurance application that he never had heart disease, when in fact he had undergone heart surgery prior to signing up for the policy---Whether it was a deliberate concealment of a material fact known to the insured and, hence, breach of the duty of utmost good faith, which allowed the insurance-company to avoid the contract---Held, that insurance company did not merely rely on the answers given by the insured in his Personal Statement of Health---Insured was also thoroughly medically examined by a doctor of the insurance company's own choice, and said report gave the insured a clean chit by stating that his coronary state was perfectly normal---Insurance company was induced to issue the life insurance policy not on account of the statements made by the insured, rather, it was the examination by the insurance company's own medical examiner and his report that was clearly the most important factor, and instrumental in inducing the insurance company to go forward in the matter---Furthermore, the industry custom and practice uniformly followed was that insurers in the life insurance business did not issue policies without a thorough medical examination of the person proposed to be insured, and unless the resultant medical report was found satisfactory or acceptable---If therefore the medical examiner chosen by the insurer was negligent or the Standard Operating Procedures (SOPs) established for the examination (again, by the insurer) were so lax as to fail to result in a properly thorough examination, the burden of that fault laid on the insurer---In such a situation the insured could not be held to account for any non-disclosure such as would enable the insurer to escape liability on the policy unless there was fraud or a fraudulent misrepresentation---Nothing was available on record to show that the non-disclosure by the insured (i.e., his answer to having history of heart disease) was fraudulent---Fora below had righty decreed the claim of the legal heirs of insured to the extent of the insured amount---Appeal filed by insurance company was dismissed.

Jubilee Insurance Co. Ltd. v. Ravi Steel Company PLD 2020 SC 324 distinguished.

MacGillivray on Insurance Law (14th ed., 2018) and State Life Insurance Corporation of Pakistan and another v. Shazia Mir Arshad 2019 CLD 1263 ref.

Muhammad Faisal and another v. State Life Insurance Corporation and others 2008 SCMR 456 not to be regarded as good law.

Sana Ullah Zahid, Advocate Supreme Court for Appellant.

Respondent ex-parte.

2021 S C M R 1355

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

MUHAMMAD SHARIF---Appellant

Versus

Mst. NIAMAT BIBI---Respondent

Civil Appeal No. 954 of 2014, decided on 24th June, 2021.

(On appeal against the judgment dated 20.01.2014 passed by the Lahore High Court, Bahawalpur Bench, in C. R. No. 187-D/2002)

Islamic law---

----Inheritance---Sunni fiqh---Consanguine paternal uncle's son---Deceased dying issue-less and leaving behind only one full sister---Full sister would inherit both as a sister and if there was no residuary in the different categories for such purpose then she would also take the remainder as a residue, and exclude those falling in a category below her, including 'Consanguine Paternal Uncle's Son'.

Saadullah v. Gulbanda 2014 SCMR 1205 applied.

Zulfiqar Ali Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Ch. Irfan Saeed, Advocate Supreme Court for Respondent.

2021 S C M R 1358

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

FAYYAZ HUSSAIN---Petitioner

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), CITY DISTRICT GOVERNMENT RAWALPINDI and others---Respondents

Civil Petition No. 3525 of 2018, decided on 10th March, 2021.

(On appeal against the judgment dated 18.07.2018 passed by the Punjab Service Tribunal, Lahore in Appeal No. 285/2017)

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

----S. 4(1)(b)(v)---Willful absence from duty---Removal from service---Petitioner remained absent from duty for a period of eight long years without obtaining any leave from the department---Record showed that he went abroad---In the earlier departmental proceedings, he was issued three notices for personal hearing but instead of personally appearing before the competent authority he sent his brother---Absence of petitioner from duty was confirmed by the Head Master of the School where the petitioner was serving, and the competent authority i.e. concerned District Education Officer had also visited the school and found the petitioner absent from duty---Despite that to meet the ends of justice, de novo proceedings were directed to be carried out against the petitioner on the charge of absence---Inquiry officer was deputed to probe into the matter, who found the petitioner guilty of the charge---Petitioner was also heard by the competent authority in person and after that major penalty of removal from service was imposed upon him---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 4(1)(b) & 5(1)(a)---Willful absence from duty---Major penalty---Regular inquiry---Not required---Where the absence from duty was admitted, there was no need to hold regular inquiry.

National Bank of Pakistan v. Zahoor Ahmed 2021 SCMR 144 ref.

Muhammad Munir Paracha, Advocate Supreme Court and Mehmood Ahmad Sheikh, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2021 S C M R 1362

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

The COMMISSIONER IR (LEGAL), RTO, PESHAWAR and others---Appellants

Versus

AGE INDUSTRIES (PVT.) LTD., 97-A INDUSTRIAL ESTATE JAMRUD ROAD, PESHAWAR through Director and another---Respondents

Civil Appeal No. 489 of 2013 and Civil Appeals Nos. 490 of 2013 and 1302 of 2014, decided on 31st March, 2021.

(On appeal from the order dated 02.07.2010 passed by the Peshawar High Court, Peshawar in S.A.Os. Nos.17 and 18 of 2000)

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

----S. 80C & Second Sched., Pt IV, Cl. 9 [as amended by the Finance Act, 1996]---Presumptive tax regime---Finance Act, 1996 amended Cl. (9) of Part IV of the Second Schedule to the Income Tax Ordinance, 1979 ("Clause 9") by substituting the words "who opts out of" the presumptive tax regime, with the words "unless he opts for" the presumptive tax regime---Question as to whether or not the amendment made to "Clause 9" by the Finance Act, 1996 was procedural in nature and hence would have retrospective effect---Held, that as originally inserted, Cl. 9 gave the choice of opting out of S. 80C of the Income Tax Ordinance, 1979 ('the 1979 Ordinance') if the option, as given in terms of the first proviso, was properly exercised---Thus, S. 80C applied unless the "opt-out" was triggered---In other words, the legal meaning of income stood altered in respect of the payments within the ambit of S. 80C unless the assessee concerned took steps to the contrary---Amendment made to Cl. 9 made by the Finance Act, 1996 reversed this position, and now provided that it was only if the option given in terms of the proviso was exercised that S. 80C applied---In other words, the assessee had to "opt-in" into the Presumptive Tax Regime---If the option was not exercised, the legal meaning of income, even in respect of the payments within the ambit of S. 80C, was not altered---Prior to the amendment, the legal meaning of income stood altered to the extent of S. 80C unless the assessee did something; after the amendment, the legal meaning of income did not stand altered unless the assessee did something---Said two resultant situations were starkly different, and each had a substantive effect that was diametrically opposed to the other---In such circumstances the amendment made to Cl. 9 by the Finance Act, 1996 could not be regarded as procedural, having retrospective effect.

Ghulam Shoaib Jally, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in all cases).

Isaac Ali Qazi, Advocate Supreme Court for Respondents (in C.As. Nos.489 and 490 of 2013).

Ex-parte (in C.A. No. 1302 of 2014)

2021 S C M R 1367

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

TASAWAR HUSSAIN---Appellant

Versus

DEPUTY COMMISSIONER DISTRICT JHELUM and others---Respondents

Civil Appeal No. 130 of 2021, decided on 8th June, 2021.

(On appeal against the judgment dated 12.09.2019 passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No. 2436 of 2019)

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

----Ss. 4(1)(b)(v) & 4(1)(b)(vi)---Willful absence from duty---Penalty of dismissal from service converted to removal from service---Appellant remained absent from duty for a long period of 23 months without taking leave---Only defence put by him was that a fake criminal case was registered against him, therefore, due to fear of illegal persecution he absconded from the country---However, nothing had estopped the appellant to at least inform his department but he neither applied for leave nor informed his office---During his absence, the inquiry proceedings started against him and inquiry officer also issued publication qua absence of the appellant in newspaper and after fulfilling all requirements of inquiry proceedings recommended that the penalty of removal from service---Competent authority (disagreeing with the inquiry officer) instead imposed major penalty of dismissal from service---Enhancement of the penalty of removal from service into dismissal from service was not sustainable in the eyes of law and coupled with appellant's length of service and the fact that he had already suffered hardship, it was appropriate to modify the penalty of dismissal from service into removal from service---Appeal was partly allowed with the said modification of punishment.

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

----Ss. 4(1)(b) & 5(1)(a)---Wilful absence from duty---Major penalty---Regular inquiry---Not required---Where the absence from duty was admitted, there was no need to hold regular inquiry.

National Bank of Pakistan v. Zahoor Ahmed 2021 SCMR 144 ref.

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

----Ss. 10(6) & 13---Inquiry officer, recommendations of---Scope---Competent authority was not under obligation to act according to the recommendations made by the Inquiry Officer, rather it could inflict penalty as it deemed appropriate according to the facts and circumstances surfacing on the record.

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

----Ss. 4(1)(b)(v) & 4(1)(b)(vi)---Major penalties---'Dismissal from service' and 'removal from service'---Distinction---Penalty of removal from service did not debar the employee to seek re-employment and it was not considered as a continuous stigma but the penalty of dismissal from service stigmatized the employee on permanent basis, therefore, in all fairness the penalty of dismissal from service was placed at a higher pedestal as far as gravity of the punishment was concerned.

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

----Ss. 10(6) & 13(5)(ii)---Enhancement of penalty by competent authority---Judiciable reasoning---While enhancing the penalty (recommended by the inquiry officer), the competent authority was under legal obligation to assign judiciable reasoning.

Khawaja Muhammad Arif, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Barrister Qasim Ali Chohan, Additional P.G. and Mirza Muzafar Baig, Chief Officer, M.C. Pind Dadan Khan for Respondents.

2021 S C M R 1373

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

ZULFIQAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.277 of 2020, decided on 12th November, 2020.

(Against judgment dated 20.10.2010 passed by the Lahore High Court Multan Bench in Criminal Appeal No.173 of 2008 with M.R. No.375 of 2005)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Presence of witnesses at scene of occurrence doubtful---Record of the case showed that accused operated with impunity in inflicting fatal blows to the deceased persons despite presence of numerous witnesses---One of deceased, who was attacked with a barber razor, was a young female with average-built, who could not be expected to be a static target offering no resistance---Razor commonly used by the barbers, given its moving handle instead of a fixed grip, was an instrument to be managed with some difficultly against a moving object; it risked the handler more than the intended target unless the victim stayed still like a stone, which possibility was beyond contemplation due to the presence of witnesses nearby to foil the attempt, including three able-bodied males in their youth---Inaction on part of said witnesses was mind boggling, a circumstance that in retrospect insinuated their absence at the scene---Two of the said witnesses, named conspicuously in the crime report failed to come forward to support the prosecution case---Prosecution had not come forward with the whole truth and that presented a situation which did not allow, in the absence of evidentiary certainty, to maintain conviction of accused without potential risk of error---Consequently, by extending benefit of the doubt, appeal was allowed and accused was acquitted of the charge.

Rizwan Ejaz, Advocate Supreme Court for Appellant.

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

2021 S C M R 1376

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Agriculture, Livestock and Cooperative Department Peshawar and others---Appellants

Versus

SAEED-UL-HASSAN and others---Respondents

Civil Appeals Nos. 249, 250, 255 and 257 of 2020 and Civil Appeals Nos. 273, 285, 289 and 301 of 2020, decided on 21st April, 2021.

(Against judgment dated 04.10.2017, 22.11.2017, 22.11.2017, 25.10.2017, 04.10.2017, 29.11.2018, 22.01.2019, 14.03.2019 of Peshawar High Court passed in Writ Petitions Nos. 1298-P/17, 287-M/13, 1800/17, 2234-P/17, 449-P/15, 3289-P/17, 818-B/17 and 6347-P/17)

(a) Civil service---

----Contract/project posts---Termination from service on completion of projects---High Court ordering reinstatement and regularization of project employees---Legality---Policy for the projects in question stated that the employees, who were employed in a project, would stand terminated, on the completion of the project---Only exception was that the said employees would be re-appointed on need basis if the project was extended over any new phase or phases---Record revealed that the respondents were terminated after the projects in which they were appointed came to an end or, were converted to the regular side---Appointments on the regular and newly created posts was to be made through advertisement and open competition through a transparent process via the Provincial Public Service Commission---Thus, former project employees could not claim regularization as a matter of right---Furthermore, it had been specifically mentioned in the appointment orders of the respondents/employees that they could not claim regularization and further, that they were employed on contract for a specific period of time---High Court could not have altered, amended or renegotiated the terms and conditions of the appointment orders of the respondents/employees for the simple reason that it did not have jurisdiction to do so---Appeals were allowed and impugned judgments of the High Court ordering reinstatement and regularization of respondents in service were set aside.

(b) Civil service---

----Contract/project posts---Regularization in service, right of---Scope---Long or satisfactory contractual service did not confer a vested right for regularization as conversion from contractual to regular appointment required statutory support---Creation of a post or posts on the regular side did not confer, in the absence of any statutory support, an automatic right of regularization in favour of the employees employed on contractual basis against project posts.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Jurisdiction of the High Court was to interpret the law, test its vires on the touchstone of the Constitution and examine the legality of executive/administrative actions in exercise of its powers of judicial review---Court was supposed to interpret the law and apply it in letter and spirit---Court could not go beyond what the law was, and what interpretation permitted---Courts lacked jurisdiction to provide remedies which were otherwise not in the law or the Constitution by inventing remedies of their own---Reading provisions or interpreting existing provisions in a manner which had the effect of virtually adding new provisions constituted excessive and arbitrary exercise of jurisdiction and encroached upon the domain of the executive and legislative authority---Such modus operandi militated against the fundamental principle of trichotomy of powers which was a cornerstone of the Constitution.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Civil service---Creation/abolishment of posts---Domain of Executive---Executive policy making was not the domain of the High Court in the scheme of the Constitution and, was the prerogative of the executive to ascertain on the basis of its need, requirement, available resources and fiscal - space, which posts it wished to keep and which it wished to abolish.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Discretionary jurisdiction under Art. 199 of the Constitution could not be exercised in a vacuum; it must be grounded on a valid basis of violation of specific and enforceable legal or constitutional rights---Such discretion must be exercised in a structured and calibrated manner with due regard to parameters put in place by the Constitution as well as by the Supreme Court.

Shumail Ahmad Butt, A.G., Khyber Pakhtunkhwa, Atif Ali Khan, Additional A.G., Khyber Pakhtunkhwa, Barrister Qasim Wadood, Additional A.G., Khyber Pakhtunkhwa, Iram Shaheen, DD, HED, Asif Khan, Litigation Officer, HED, Amin Jan, AD Fisheries, Gulzar Mahmood, AD Fisheries, Khyber Pakhtunkhwa, Engr. Falak Niaz, AD (Dost), Rajbar Khan, SDO, PHE, Khyber Pakhtunkhwa, Sadullah, Asst. Secretary, BOR, Khyber Pakhtunkhwa, Faheem Ullah Khan, Sr. LO, KPPSC, Assad Ullah Khan, SO, P&D Deptt. and Amanatullah Qureshi, Dy. Secy. FDKP for Appellants.

Muhammad Asif Yousafzai, Advocate Supreme Court for Respondents (in C.A. No. 249 of 2020).

Nasir Mahmood-P, Advocate Supreme Court for Respondents (in C.A. No. 250 of 2020).

Khalid Rehman, Advocate Supreme Court for Respondents (in C.A. No. 257 of 2020).

Muhammad Ijaz Khan Sabi, Advocate Supreme Court for Respondents (in C.A. No. 273 of 2020).

Naveed Akhtar, Advocate Supreme Court and M. Sharif Janjuha, Advocate-on-Record for Respondents (in C.A. No. 285 of 2020).

Respondent No. 2 in person (wife of enter appearance) (in C.A. No. 301 of 2020).

2021 S C M R 1387

[Supreme Court of Pakistan]

Present: Justice Mushir Alam, Chairman, Justice Sardar Tariq Masood, Justice Qazi Muhammad Amin Ahmed, Dr. Muhammad Al-Ghazali, Ad-hoc Member-I and Dr. Muhammad Khalid Masud, Ad-hoc Member-II

MUHAMMAD YAQOOB---Petitioner

Versus

The STATE---Respondent

Jail Shariat Petition No. 03(s)/2020, decided on 2nd December, 2020.

(Against the judgment dated 08.02.2009 of the Federal Shariat Court passed in Appeal No.7-I of 2018)

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

----Ss. 302(b) & 34---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), S. 17---Qatl-i-amd, common intention, haraabah---Murderous assault on police contingent guarding worshippers at a mosque---Witnesses unanimously pointed their fingers at the accused for having participated in the occurrence, being an active member of the unlawful assembly, constituted in prosecution of a common object, a pursuit that resulted in the death of two police constables in their prime youth---Despite flux of considerable time, the witnesses confidently recollected the incident and faced the cross-examination---Prosecution's failure to effect recovery after almost 25 years of the incident was not surprising nor adversely reflected upon its case otherwise firmly structured on the statements of the witnesses whose presence at the crime scene could not be suspected---Deceased certainly died of the bullets conjointly fired upon them as was evident from the seizure of as many as 90 casings from the spot and, thus, accused alongside the co-accused persons was equally culpable to share the cumulative impact of the assault---Presence of electric lights at the mosque presented ample opportunity for the identification of assailants, each named in the crime report---Totality of circumstances did not allow any hypothesis other than guilt of accused---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 302(b) & 34---Murderous assault by a group of assailants sharing common intention---Death sentence, award of---Propriety---Community of intention was a valid concept to entail corporeal consequences, if in the circumstances of a particular case, participation of an offender was reasonably established through credible evidence.

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

----S. 302(b)---Qatl-i-amd---Night time occurrence---Identification of accused---Scope---Darkness by itself did not provide immunity to an offender if the witnesses otherwise succeed to capture/ascertain his identity through available means, conspicuously mentioned in the crime report.

Nemo for Petitioner.

Salim Akhter Buriro, Additional Prosecutor General for the State.

2021 S C M R 1390

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and others---Petitioners

Versus

Ms. SHAMIM USMAN---Respondent

Civil Petition No. 1097-L of 2020, decided on 1st July, 2021.

(Against the order of Lahore High Court, Lahore dated 19.02.2020, passed in W.P. No. 231042 of 2018)

Constitution of Pakistan---

----Arts. 212 & 199---Punjab Service Tribunals Act (IX of 1974), S. 4(1)(b)---Service matters---Terms and conditions of service of a civil servant---Bar of jurisdiction of the High Court---Scope---High Court had no jurisdiction to entertain any proceedings in respect of terms and conditions of service of a civil servant which could be adjudicated upon by the Service Tribunal under the Punjab Service Tribunals Act, 1974.

Non-obstante clauses of Articles 212(1) and (2) of the Constitution began with "notwithstanding anything hereinbefore contained," thus overriding, inter alia, the constitutional jurisdiction of the High Court under Article 199, which was already "subject to the Constitution".

The High Court had no jurisdiction to entertain any proceedings in respect of terms and conditions of service of a civil servant which could be adjudicated upon by the Service Tribunal under the Punjab Service Tribunals Act, 1974 ('the Act'). High Court as a constitutional court should always be mindful of the jurisdictional exclusion contained under Article 212 of the Constitution. Any transgression of such constitutional limitation would render the order of the High Court void and illegal.

National Assembly Secretariat through Secretary v. Mansoor Ahmed and others 2015 SCMR 253 and Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 ref.

It was only under section 4(1)(b) of the Act that no appeal could lie to a Tribunal against an order or decision determining the "fitness" of a person to be appointed or promoted and fell outside the purview of the jurisdiction of the Tribunal. In order to fall in the exception envisaged under section 4(1)(b) of the Act, the order must determine "fitness" of a civil servant to an appointment or promotion. Therefore, unless the jurisdiction of the Tribunal was ousted under section 4(1)(b) of the Act, assumption of jurisdiction by the High Court in respect of matters of terms and conditions of a civil servant was unconstitutional and impermissible.

Muhammad Arif Raja, Additional A.G. Punjab for Petitioners.

Mian Muhammad Nawaz, Advocate Supreme Court and Ms. Tasnim Amin, Advocate-on-Record for Respondent.

2021 S C M R 1395

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

SUI NORTHERN GAS PIPELINES LTD. through G.M. Hayatabad Peshawar---Petitioner

Versus

Messrs SAIF TEXTILE MILLS LTD.---Respondent

Criminal Petition No. 47-P of 2017, decided on 30th June, 2021.

(Against the judgment dated 08.9.2017 of the Peshawar High Court Peshawar passed in Cr. A. No. 338-P of 2016)

Khyber Pakhtunkhwa Consumers Protection Act (VI of 1997)---

----Ss. 2(c) & 2(j)---Constitution of Pakistan, Art. 185(3)---Petition for leave to appeal---Textile unit (respondent) powered by natural gas supplied by petitioner-Gas company---Shortfall in gas meter reading causing loss to exchequer---Respondent filed Constitutional petition before the High Court against the petitioner-company, seeking multiple declarations and prayers; the High Court, however, transmitted the Constitutional petition to the District and Sessions Judge/Tribunal Protection Consumer Interest to redress respondent's grievance; it also restrained the department from disconnecting the gas connection---Sessions Judge transferred the complaint to the Consumer Court, which dismissed the complaint---However, the High Court, once again remanded it for decision afresh to the Consumer Court, which dismissed the complaint for the second time---Appeal was filed by respondent before the High Court against dismissal of his complaint, which appeal was allowed, judgment of the Consumer Court was set-aside and the complaint was allowed---Counsel for the petitioner-company contended that there was no occasion for the High Court, in the first place, to transmit the Constitution petition involving factual controversies requiring technical verification for determination to the Consumer Court and, thus, on each occasion the Consumer Court rightly dismissed the complaint; that the Khyber Pakhtunkhwa Consumers Protection Act, 1997 ('the Act') was a statute devised to protect legitimate rights of a consumer to have best value for his money and for that it placed specified obligations upon the manufacturer; that the respondent was not a consumer nor the petitioner a manufacturer within the contemplation of Ss. 2(c) & 2(j) of the Act and, thus, the High Court had misdirected itself to refer the issue to the Court, an error rectified through successive dismissals leaving no space for the High Court to allow the complaint by putting at peril a colossal amount due to the public exchequer---Supreme Court observed that contentions raised by the counsel for petitioner-company needed consideration, therefore leave was granted.

Asad Jan, Advocate Supreme Court for Petitioner.

Shahid Qayyum Khattak, Advocate Supreme Court and Tasleem Hussain, Advocate-on-Record for Respondent.

2021 S C M R 1398

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Sayyed Mazahar Ali Akbar Naqvi, J

DIVISIONAL SUPERINTENDENT POSTAL SERVICES JHANG and another---Appellants

Versus

SIDDIQUE AHMED and another---Respondents

Civil Appeals Nos. 1499 and 1500 of 2019, decided on 8th July, 2021.

(On appeal against the judgment dated 10.09.2018 passed by the Federal Service Tribunal, Lahore in Appeals Nos. 243(L) and 244(L) of 2016)

(a) Civil service---

----Misappropriation of money orders by forging signatures of payees----Corruption, misconduct and inefficiency---Admission of guilt---Dismissal from service---Service Tribunal converting penalty of dismissal from service into withholding of one increment for two years---Legality---Fact of misappropriation of the money orders amount was not disputed---Respondents (postmen) gave an explanation before the Court that instead of delivering the said amount to the payees, they kept the same with them for 10/15 days, on asking of the payees, who were out of town---However respondents admitted that they were supposed to handover the money orders back to the Post Office if the payees were not available at the addresses---Service Tribunal itself took note of the fact that the respondents had used the money orders' amount for their own purpose and they were in the habit of committing misappropriation of the same amount but despite that took a lenient view, which was not warranted in law because misappropriation of the amount either meager or huge resulted in breach of trust which was reposed in a government servant and the delinquent had no right to be retained in service---Appeal was allowed, impugned judgment of Service Tribunal was set aside, and penalty of dismissal from service was restored.

Divisional Superintendent, Postal Services v. Muhammad Arif Butt 2021 SCMR 1033 ref.

(b) Civil service---

----Misappropriation of public money---Dismissal from service---Scope---Misappropriation of amount either meager or huge resulted in breach of trust which was reposed in a government servant and the delinquent had no right to be retained in service.

Divisional Superintendent, Postal Services v. Muhammad Arif Butt 2021 SCMR 1033 ref.

Sohail Mehmood, Additional Attorney General and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in both cases).

Respondent No. 1 in person (in both cases).

2021 S C M R 1401

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Amin-ud-Din Khan, JJ

YAR MUHAMMAD KHAN and others---Appellants

Versus

SAJJAD ABBAS and others---Respondents

Civil Appeal No. 153 of 2012 and C.M.A. No. 2009-L of 2011 in C.P. No. Nil of 2011, decided on 18th December, 2020.

(On appeal against the judgment dated 15.08.2011 passed by the Lahore High Court, Lahore in C.Rs. Nos. 382 and 73 of 2000)

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

----S. 11---Majority Act (XI of 1875), S. 3---Persons competent to contract---Minors---To protect minors and their interests a minor cannot enter into an agreement nor grant a power of attorney to another to do so---Section 11 of the Contract Act, 1872 explicitly stipulated that only those who were of the age of majority according to the law to which he/she was subject were 'competent to contract'.

Abdul Ghani v. Yasmeen Khan 2011 SCMR 837 ref.

(b) Limitation Act (IX of 1908)---

----S. 6---Contract Act (IX of 1872), S. 11---Persons competent to contract---Minors---General power of attorney purportedly executed by persons who were minors at the time of its execution---Property belonging to minors sold by attorney on basis of such Power of Attorney---Whether law of limitation applied for challenging the sale of property---Held, that General Power of Attorney and the sale deed to the extent of the minors/plaintiffs were ab initio null and void---However a challenge to such sale deed could not be postponed indefinitely and must be made within a reasonable period when the minors on becoming major acquired knowledge of the sale---Record of the present case did not establish whether the plaintiffs, who now had attained majority, had prior knowledge of the sale---Suit was filed a little over three years and seven months after one of the plaintiffs had attained majority, therefore date of filing of the suit may be construed to be within a reasonable period of said plaintiff attaining majority---Appeal was partly allowed.

Hamida Begum v. Murad Begum PLD 1975 SC 44; Mehr- Manzoor Huzzain v. Muhammad Nawaz 2010 SCMR 1042 and Shabbir Ahmed v. Abdul Haleem 2000 SCMR 1287 ref.

Mian Muhammad Hanif, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record with Ajab Khan, Advocate for Appellant No. 2(b).

Maulvi Anwar-ul-Haq, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 2.

Nemo for Respondent No. 3.

2021 S C M R 1409

[Supreme Court of Pakistan]

Present: Justice Mushir Alam, Chairman, Justice Sardar Tariq Masood, Justice Qazi Muhammad Amin Ahmed, Dr. Muhammad Al-Ghazali, Ad-hoc Member-I and Dr. Muhammad Khalid Masud, Ad-hoc Member-II

MUHAMMAD SIDDIQUE and others---Appellant/Petitioners

Versus

The STATE---Respondent

Criminal Shariat Appeals Nos.9 and 19 of 2017 and Jail Shariat Petition No.02 of 2020, decided on 3rd December, 2020.

(Against the judgment dated 17.02.2015 passed by the Federal Shariat Court Islamabad in Jail Criminal Appeals Nos. 15 to 19-I of 2014 along with Criminal Revision No.2/Q of 2014)

Penal Code (XLV of 1860)---

----Ss. 396 & 34---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), S. 17---Dacoity with murder, haraabah---Reappraisal of evidence---Non-voluntary confessional statement subsequently retracted---Deceased was found dead nearby his poultry farm; poultry flock comprising of 5000 birds along with accused and co-accused, employed as attendants at the farm, were also missing from the scene---Accused and co-accused who allegedly worked at the poultry farm were not confronted with their alleged employment, a grievous omission that escaped notice by both the courts below---According to the prosecution, the stolen flock was sold at an outlet, which was associated with the investigation, however, no one from the said outlet was produced during the trial to prove the sale, and instead prosecution remained content with some computer generated receipts, genesis whereof was shrouded in mystery---Prosecution appeared to have rested its case on the judicial confession of the accused, which was retracted by him at the first available opportunity---Said confessional statement was exasperatingly comprehensive, spread over six pages, and contained even minutest details remotely connected with the incident---Any accused who was struggling to clean his breast so as to ventilate the remorseful conscience, in the ordinary course of events would prefer to confine himself to the brevity of his crime instead of catering to prosecution needs to successfully prosecute its case---Furthermore cautions administered to accused, on a printed form, mentioned that he was tortured by police during custody and, thus, in the totality of circumstances, it was difficult to assume, without potential risk of error that his confessional statement was a voluntary declaration of guilt that too without any meaningful corroboration---Once found suspect qua its maker, the confessional statement of accused could not be considered vis-à-vis the co-accused---Impugned judgments were set-aside and accused and co-accused persons were acquitted of the charge---Shariat appeals and petitions were disposed of.

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

Syed Baqir Shah, Advocate Supreme Court/Standing counsel for the State.

2021 S C M R 1413

[Supreme Court of Pakistan]

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

RANA BASIT RICE MILLS PRIVATE LIMITED---Appellant

Versus

SHAHEEN INSURANCE COMPANY and another---Respondents

Civil Appeal No. 45-L of 2018, decided on 24th June, 2021.

(Against the Judgment dated 10.04.2018 passed by the Lahore High Court in Insurance Appeal No. 18 of 2017)

Insurance Ordinance (XXXIX of 2000)---

----S. 122---Civil Procedure Code (V of 1908), O. XXIX, R. 1---Insurance petition, filing of---Authorized person---Scope---No Board Resolution presented before the court authorizing the Chief Executive of the company to file and contest the insurance petition---Curable defect---Lack of a board resolution authorizing the attorney does not invalidate the institution of the suit/petition so long as the Articles of Association confer upon the person/persons to institute the suit on the company's behalf---Even otherwise such a defect could always be cured by placing on record a Board Resolution issued even at a subsequent date, which would put the matter to rest---Appeal was allowed.

Muhammad Siddiq Muhammad Umar and another v. Australasia Bank Ltd. PLD 1966 SC 685; Central Bank of India Ltd. v. Taj ud Din Abdur Rauf 1992 SCMR 846; Pak Turk v. Turkish Airlines Inc. 2015 CLC 1; Rahat and Company, through Syed Naveed Hussain Shah v. Trading Corporation of Pakistan Statutory Corporation 2020 CLD 872= PLD 2020 SC 366; Presentaciones Musicales SA v. Secunda and another [1994] 2 All ER 737 and Al-Noor Sugar Mills Ltd. v. Federation of Pakistan and others 2018 SCMR 1792 ref.

Liaqat Ali Butt, Advocate Supreme Court for Appellant.

Ch. Amjad Pervaiz, Advocate Supreme Court for Respondents.

2021 S C M R 1419

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz Ul Ahsan, J

PROVINCE OF PUNJAB through Special Secretary, Specialized Healthcare and Medical Education Department, Lahore and others---Appellants

Versus

KHADIM HUSSAIN ABBASI---Respondent

Civil Appeal No. 201 of 2020, decided on 13th April, 2021.

(Against judgment dated 18.09.2019 of Punjab Service Tribunal at Bahawalpur, passed in Appeal No. 2362 of 2018)

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

----Ss. 4(1)(b)(iv) & 4(1)(b)(iii)---Punjab Service Tribunals Act (IX of 1974), S. 5(1)---Misconduct, absence from duty without leave and tampering of record---Major penalty of compulsory retirement from service imposed by departmental authorities---Tribunal converting major penalty of compulsory retirement from service into minor penalty of forfeiture of past service for a period of two years---Legality---Inquiry was conducted against the respondent in which he was found guilty of all charges---Only defence taken by the respondent before the Tribunal was that the punishment may be reduced from major penalty to a minor penalty---No effort whatsoever was made to deny or contest the charges against the respondent, which constituted admission of charges of a very serious nature---Tribunal for reasons best known to it choose to ignore such a vital and material aspect of the case and found there was absence of "tangible material" against the respondent---Tribunal did not bother to elaborate how the process against the respondent was "unfair" or "lacked transparency"----Although the respondent had been acquitted of the criminal charges, it did not have any bearing on the independent inquiry conducted by the Department and clear and categorical findings of the departmental authorities holding the respondent guilty of the charges levelled against him---In converting the major penalty of compulsory retirement from service into a minor penalty of forfeiture of past service for a period of two years, the Tribunal had failed to assign any cogent, legally sustainable and valid reasons to support its finding---Appeal was allowed, impugned judgment of Tribunal was set-aside and the penalty of compulsory retirement from service imposed on the respondent by departmental authorities was restored.

Inspector General (Prisons) NWFP Peshawar and others v. Syed Jaffer Shah, Ex-Assistant Superintendent Jail and others 2009 PLC (C.S.) 47; Government of Pakistan v. Nawaz Ali Sheikh 2020 SCMR 656; Chief Postmaster Faisalabad v. Muhammad Afzal 2020 SCMR 1029; Government of the Punjab v. Muhammad Arshad 2020 SCMR 1962 and District Police Officer v. Muhammad Hanif 2020 SCMR 1610 ref.

(b) Civil service---

----Concurrent departmental proceedings and criminal prosecution---Scope---Acquittal in criminal case---Effect---Departmental proceedings and criminal prosecution were not mutually exclusive, and could proceeded independently---Acquittal in criminal proceedings did not affect the outcome of the departmental proceedings---In contrast to criminal proceedings, the departmental proceedings were undertaken under a different set of laws, were subject to different procedural requirements and were based upon different evidentiary principles and a different threshold of proof was to be met---Therefore, acquittal in criminal proceedings could not and did not automatically knock off the outcome of the departmental proceedings if all legal and procedural formalities and due process had been followed independently.

Nazir Ahmed v. Capital City Police Officer 2011 SCMR 484; Muhammad Iqbal v. District Police Officer 2011 SCMR 534; Shahid Wazir v. Secr0etary, Kashmir Affairs and Northern Areas and States of Frontier Regions Division 2006 SCMR 1653 ref.

(c) Punjab Service Tribunals Act (IX of 1974)---

----S. 5(1)---Quantum of punishment---Provincial Service Tribunal, discretion of---Scope---Although the Service Tribunal had the discretion to interfere in questions of quantum of punishment, such discretion could neither be arbitrarily and capriciously exercised nor were powers of the Tribunal unqualified or unlimited---Where the Tribunal exercised its discretion to interfere in the penalty awarded by the competent authorities, such discretion had to be exercised in a circumscribed, restricted, carefully calibrated and structured manner duly supported by legally sustainable reasoning.

Syed Wajid Ali Gillani, Additional A.G. Punjab for Appellants.

M.A. Rehman Qureshi, Advocate Supreme Court for Respondent.

2021 S C M R 1428

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

ABDUL LATIF---Petitioner

Versus

NOOR ZAMAN and another---Respondents

Criminal Petition No. 126-P of 2011, decided on 28th June, 2021.

(Against the judgment dated 23.11.2011 of the Peshawar High Court Peshawar passed in Cr. A. No.571 of 2009)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Petition for leave to appeal challenging acquittal---Complainant and witnesses named in FIR not appearing before the court---Conviction based on substituted witnesses---Complainant conveniently left the scene without even once appearing before the Court; same was the case with other witnesses (named in the FIR) that included deceased's aunt---Replacement of the witnesses named in the FIR with those, lacking reference therein, inevitably tremored the whole prosecution case, as such transposition reasonably hypothesized their absence at the scene---Explanations furnished by the substituted set of witnesses found no support from the record as statement of one of the substituted witnesses, i.e. the deceased's mother, was contradicted both by the Investigating Officer as well as the site plan of the crime scene---In the absence of confidence inspiring evidence, the accused could not have been convicted and sentenced merely on the strength of moral certainty regarding his guilt---High Court had rightly acquitted the accused --- Petition for leave to appeal was dismissed and leave was refused.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 154---Qatl-i-amd---Witnesses named in FIR substituted with other witnesses not named therein---Effect---First Information Report was not an encyclopedia of prosecution's case, nonetheless, it did contain certain details that served as its mainstay---Witnesses were the most prominent part of those details as their testimonies provided evidentiary certainty regarding the guilt of an offender---Replacement of the witnesses previously named in the crime report with those, lacking reference therein, would inevitably tremor the whole edifice as such transposition reasonably hypothesized their absence at the scene.

Suhail Akhtar, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2021 S C M R 1430

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Yahya Afridi, JJ

Haji MUHAMMAD LATIF---Petitioner

Versus

MUHAMMAD SHARIF and others---Respondents

Civil Petitions Nos. 805-L to 812-L and 814-L of 2019, decided on 9th March, 2021.

(Against the consolidated order dated 20.2.2019 passed by the Lahore High Court in W.Ps. Nos. 246503, 254424-25, 254408, 254428, 254415, 254418, 254421 and 254411 of 2018)

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 22(6)---Leave to contest, refusal of---Rent Tribunal refusing leave to contest filed by tenants but fixing ejectment petitions for production of supporting evidence of the landlord and awarding the tenants a right to cross-examine the landlord and his witnesses---Legality---Provision of S. 22(6) of the Punjab Rented Premises Act, 2009 ('the Act') specifically provide that in case where the leave to contest was refused or the tenant had failed to file application for leave to contest within the stipulated time, the Rent Tribunal shall pass the final order---Section 22(6) of the Act being a mandatory provision with the consequences spelled out left no option for the Rent Controller but to pass final order---Order passed by Rent Tribunal was against the mandate of S. 22(6) of the Act---Petitions for leave to appeal were converted into appeals and allowed and Rent Tribunal was directed to decide the ejectment petitions through a final order in terms of the provisions of S. 22(6) of the Act.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Interim order---In cases where a statute specifically barred the remedy of appeal against an interim order then such statutory command ordinarily should not be circumvented by allowing parties to invoke writ jurisdiction.

Nadeem ud Din Malik, Advocate Supreme Court for Petitioner.

Pirzada Mamoon Rashid, Advocate Supreme Court for Respondent No. 1 (VL Lhr.).

2021 S C M R 1433

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

SECRETARY LOCAL GOVERNMENT, ELECTION RURAL DEVELOPMENT, KHYBER PAKHTUNKHWA and others---Appellants

Versus

MUHAMMAD TARIQ KHAN and others---Respondents

Civil Appeals Nos. 957 and 958 of 2014, decided on 1st July, 2021.

(On appeal against judgment dated 19.06.2013 passed by the Peshawar High Court, Peshawar in Writ Petition No. 2927 of 2009)

(a) Civil service---

----Contract/project employees---Expiry of tenure of project---Such employees had no vested right of regularization in service.

Contract/project employees had no vested right to claim regularization. The direction for regularization, absorption or permanent continuance could not be issued unless the employee claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules and against the sanctioned vacant posts, which admittedly was not the situation in the present case. Admittedly, both the respondents were contract employees and were hired by the Project Management Unit for the project of slum upgrading, site and service etc, which subsequently came to an end and the respondents were terminated from service. Respondents were appointed on temporary basis pursuant to the service rules, which did not contain any provision for absorption of a project employee.

The respondents had no vested right to claim regularization against regular posts, being contractual employees of the project, the tenure of which had already been expired, thus they being project employees and hired for the said project period were not entitled to be regularized. When the project was completed and closed, the employees had to go along with its closure. Temporary/project employees, who were appointed specifically till the completion of a certain project could not be regularized as they neither had any vested right to hold such post beyond prescribed period nor the Government owed any obligation to maintain continuity in their service for an unlimited period.

Furthermore, appointment letters of respondents specifically mentioned that their employment was purely temporary and could be terminated at one month's notice or in case of the other respondent at any time without notice. Respondents had accepted the contingent terms of service and could not blow hot and cold in the same breath to claim regularization subsequently.

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

----S. 11---Res-judicata, doctrine of ---Principles relating to doctrine of res-judicata stated.

According to the maxim 'res judicata pro veritate accipitur', a suit/dispute in which a matter directly or substantially in issue has been decided directly/substantially by a competent court in a former suit/proceeding between the same parties or between parties under whom they or any of them claim, shall not be tried again in the same matter in any other court. A decision once rendered by a competent court on a matter in issue between the parties after a full inquiry should not be permitted to be agitated again by the same court or some other court between the same parties in the same matter. The rule of estoppel by res judicata is a rule of evidence, which prevents any party to a suit/proceeding which has been adjudicated upon by the competent court from disputing or questioning the decision on merit in subsequent litigation. It is based on the concept of public policy and private justice which apply to all the judicial proceedings. According to this, public policy involves that the general interest of the litigation must come to an end or that the litigation must have its finality. Similarly, private justice requires that an individual should be protected from vexatious multiplication of suits and prosecutions at the instance of an opponent whose superior power and resources may enable him to abuse the process of court. A decision by a competent court, which is final, should be binding and the same questions are sought to be controverted in the subsequent litigation.

Khurshid Soap and Chemical Industries (Pvt) Ltd v. Federation of Pakistan PLD 2020 SC 641 ref.

Barrister Qasim Wadood, Additional A.G. for Appellants (in both cases).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondents (in C.A. No. 957 of 2014).

Syed Iqbal Hussain Shah Gillani, Advocate Supreme Court for Respondent No. 1 (in C.A. No. 958 of 2014).

Sabah ud Din Khattak, Advocate Supreme Court for Respondent No. 2 (in C.A. No. 958 of 2014).

2021 S C M R 1443

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

STATE through Director ANF---Petitioner

Versus

KHURSHID KHAN---Respondent

Criminal Petition No. 30-P of 2012, decided on 28th June, 2021.

(Against the judgment dated 22.2.2012 of the Peshawar High Court Peshawar passed in Criminal Appeal No. 351 of 2011)

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

----S. 9(b)---Possession of cannabis found in a vehicle---Petition for leave to appeal challenging acquittal---Conflicting statements of official witnesses---One of the official witnesses while sticking to his case for a while, did provide a space for exit to the accused by stating that "it is correct that no paper or chit are recovered from the Gatrhi (packing) or from the physical search of the accused facing trial to show that the narcotics belonged to the accused"; in the next breath, he, however, volunteered that "the accused himself admitted the ownership of the said Gatrhi"---Same witness also stated that "it is correct that the Gatrhi was not lying in the lap of the accused nor he was holding it in his hand at that time" --- Another official witness stated that "it is correct that no narcotic was recovered from the accused from his body search"---Driver of the cab, from wherein the accused was apprehended, appeared in the witness-box to support the accused and categorically denied, on oath, the seizure of any contraband, which foreclosed all options for the High Court to maintain the conviction of accused---High Court had rightly acquitted the accused---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Tariq Shah, Special Prosecutor ANF for Petitioner.

Nemo for Respondent.

2021 S C M R 1446

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Amin-ud-Din Khan, JJ

ATIF MEHMOOD KIYANI and another---Petitioners

Versus

MESSRS SUKH CHAYN PRIVATE LIMITED, ROYAL PLAZA, BLUE AREA, ISLAMABAD and another---Respondents

Civil Petitions Nos. 3209 and 3359 of 2020, decided on 16th February, 2021.

(Against the judgment dated 22.10.2020 passed by the Islamabad High Court in FAO No. 7 of 2020 and C.R. No. 402 of 2019)

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

----S. 126---Contract of guarantee---Bank/insurance guarantee---Encashment---Scope---Bank or insurance guarantee that contained a categorical undertaking and imposed absolute obligation on the guarantor, i.e., the Bank or the insurance company, to pay the guaranteed amount, irrespective of any dispute which may arise between the parties regarding breach of the contract, for which performance one of the parties furnished the guarantee to the other, was an independent contract; therefore, the guarantor must discharge its obligations under the contract of guarantee as per the terms thereof, independent of the dispute as to performance of the primary contract between the parties.

National Construction Ltd. v. Awan-e-Iqbal Authority PLD 1994 SC 311 and Shipyard K. Damen v. Karachi Shipyard PLD 2003 SC 191 ref.

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

----Ss. 10 & 151---Stay of suit---Scope---For attracting the application of the provisions of S. 10 of the Code of Civil Procedure 1980 ("C.P.C."), the matter in issue or all the matters in issue, if there were more than one, must be directly and substantially the same---Where some of the matters in issue in the subsequent suits were same and some were not, then proceedings of that (subsequent) suit could not be stayed under S. 10, C.P.C.; however, in order to avoid any conflicting finding on the issues that were common in both the suits, the proceedings of both the suits may be consolidated by the court in exercise of its inherent power under S. 151, C.P.C., for securing ends of justice and preventing abuse of the process of the court.

Muhammad Yaqoob v. Behram Khan 2006 SCMR 1262 ref.

Syed Mujtaba Haider Sherazi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Muhammad Mansoor Usman, Advocate Supreme Court and Ahmad Nawaz, Advocate-on-Record for Respondents.

2021 S C M R 1451

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

NAZIR JAN---Petitioner

Versus

SAIL KHAN and another---Respondents

Criminal Petition No. 103-P of 2011, decided on 28th June, 2021.

(Against the judgment dated 21.9.2011 of the Peshawar High Court Peshawar passed in Criminal Appeal No. 621 of 2010)

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 417 [as amended by the Code of Criminal Procedure (Second Amendment) Act (XX of 1994)]---Qatl-i-amd---Reappraisal of evidence---Petition for leave to appeal challenging acquittal---Accused was first acquitted by the Trial Court way back on 28-9-1992---Notwithstanding the fact that the State did not opt to challenge his acquittal, the High Court remanded the entire case while taking the accused as well as the convicted co-accused on board in the absence of any appeal pending before it---Statute provided appeal against acquittal to the complainant or an aggrieved person by amending the Code of Criminal Procedure, 1898 through the Criminal Procedure (Second Amendment) Act, 1994, notified on 14-11-1994 and, thus, there was no statutory basis for accused's subsequent prosecution, which though again resulted into his acquittal---Such error had duly been noticed by the High Court in the impugned judgment---Even otherwise, Trial Court's analysis where under the accused was acquitted from the charge presented a possible view that did not call for interference---Petition for leave to appeal was dismissed and leave was refused.

Astaghfirullah, Advocate Supreme Court for Petitioner (with permission).

Nemo for Respondents.

2021 S C M R 1453

[Supreme Court of Pakistan]

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

SUI NORTHERN GAS PIPELINES LIMITED---Appellant

Versus

COMMISSIONER INLAND REVENUE, LEGAL DIVISION LARGE TAXPAYERS UNIT---Respondent

Civil Appeal No. 1134 of 2018, decided on 5th March, 2021.

(On appeal from the judgment dated 07-09-2017 of the Lahore High Court, Lahore passed in P.T.R. No. 464 of 2010)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 170 & 171---Additional payment for delayed refunds---Scope---Compensation payable to a taxpayer under S. 171 of the Income Tax Ordinance, 2001 ('the Ordinance') on account of a delay in the payment of a refund that becomes due and payable to the taxpayer---Whether such compensation was to be regarded as a capital or revenue---Held, that such compensation was not a capital receipt---Payment under S. 171 of the Ordinance became due when the taxpayer was not refunded, in a timely manner, the tax in excess to the amount which the taxpayer was properly chargeable under the Ordinance---In essence the question boiled down to this: if the amount that was liable to be refunded in terms of S. 170 was to revenue account, whether the compensation payable under S. 171 on account of late payment could nonetheless take the character of a capital receipt---High Court rightly came to the conclusion that in such circumstances the character of the compensation could not be altered or affected and continued to retain the character of what might be called principal payment (the refund payable under S. 170)---Even the audited accounts of the taxpayer in the present case showed that the compensation was disclosed by the tax payer itself as part of its income---Appeal filed by taxpayer was dismissed.

Mansoor Usman Awan, Advocate Supreme Court for Appellant.

Ibrar Ahmed, Advocate Supreme Court and Naeem Hassan, Sec. Lit. FBR for Respondent.

2021 S C M R 1456

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

GULSHAN SHAH---Petitioner

Versus

The STATE---Respondent

Jail Petition No.40 of 2017, decided on 30th November, 2020.

(Against the judgment dated 27.05.2014 passed by the Lahore High Court Bahawalpur Bench in Criminal Appeal No.97-J of 2010 with M.R. No.8 of 2010)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Acquittal of co-accused, assigned no role whatsoever, did not cast its shadows to possibly space an exit to the accused, who armed with hatchet fatally stabbed the deceased, a circumstance that convincingly conjoined medical evidence with ocular account furnished by three witnesses, who unanimously pointed their fingers upon the accused---Testimony of said witnesses did not suffer from any serious infirmity or flaw reflecting upon credibility of the deponents---Accused's long absence from law was yet another aspect that intriguingly reflected upon the hypothesis of his innocence---Courts below had rightly relied upon the prosecution evidence to return and uphold a guilty verdict against the accused that called for no interference---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Tayyab Wattoo, Advocate Supreme Court for Petitioner.

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

2021 S C M R 1458

[Supreme Court of Pakistan]

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

AMJID KHAN---Petitioner

Versus

The STATE through A.G. Khyber Pakhtunkhwa and others---Respondents

Criminal Petition No. 583 of 2021, decided on 8th July, 2021.

(Against the judgment dated 30.04.2021 of the Peshawar High Court, Abbottabad Bench passed in Crl. Misc. (B.A.) No.552-A of 2021)

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

----S. 173(1), proviso---Investigation report (challan)---Delay in the submission of investigation reports (challans) before Trial Court---Plea of prosecution that compliance with S. 173(1), Cr.P.C. was made if the investigation report (challan) was submitted to the Public Prosecutor---Held, that such interpretation of S. 173, Cr.P.C. was not correct; its language was clear and required that the report was to be submitted through the Public Prosecutor but its destination was the Magistrate/Court.

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

----Ss. 173(1), proviso & 497---Constitution of Pakistan, Art. 10A---Bail---Investigation report (challan)---Delay in the submission of investigation report (challan) before Trial Court---Effect--- Unjustifiable delay in the submission of investigation reports (challans) vitiated the Fundamental Rights of 'fair trial and due process' which were guaranteed under Art. 10A of the Constitution.

Mohammad Siddique Awan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Shumail Aziz, Additional A.G., Hayat Khan, Inspector and Naeem Gul, ASI for the State.

2021 S C M R 1461

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

GUL ZARIN and others---Petitioners

Versus

FAZAL KHALIQ and another--Respondents

Criminal Petition No. 27-P of 2014, decided on 6th July, 2021.

(Against the judgment dated 05.03.2014 passed by the Peshawar High Court Peshawar in Cr. A. No.100 of 2011)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, attempt to commit qatl-i-amd---Petition for leave to appeal challenging acquittal---Contentions on behalf of prosecution that in the face of overwhelming evidence comprising of witnesses that included an injured to support a dying declaration, there was no occasion for the High Court to acquit the accused, blamed alongside the absconding co-accused for the crime in the backdrop of a motive over immovable property, resulting into the loss of two lives; that accused remained an absconder for over a quarter of a century with his accomplices still away from law, to finally earn an acquittal; that non-performance of autopsy on the dead, being a practice in line with local custom did not adversely reflect upon the prosecution case inasmuch as the homicidal deaths of both the deceased remained a common ground throughout----Supreme Court granted leave to consider the said contentions of the prosecution.

Haji Muhammad Zahir Shah, Advocate Supreme Court for Petitioners.

Muhammad Nisar, Additional Advocate General, Khyber Pakhtunkhwa for the State.

Nemo for Respondents.

2021 S C M R 1463

[Supreme Court of Pakistan]

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

FAISALABAD ELECTRIC SUPPLY COMPANY LIMITED.---Petitioner

Versus

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

Civil Petition No. 3145-L of 2019, decided on 27th May, 2021.

(Against the judgment of Lahore High Court Lahore dated 20.09.2019, passed in W.P. No. 19561 of 2013)

Sales Tax Act (VII of 1990)---

----S. 74---Show cause notice, issuance of---Time barred tax period---Extension in time/condonation of time limit granted by Federal Board of Revenue (FBR) under S. 74 of the Sales Tax Act, 1990 ('the Act') for time barred tax period---Legality---Resorting to executive remedy of seeking condonation of time limit under S. 74 of the Act, was not permissible in relation to any proceedings which were pending before a judicial forum, or had become time barred on account of judicial findings given by such forum---In such circumstances commencement of proceedings for time-barred periods under a fresh show cause notice was legally invalid---Petition for leave to appeal was converted into appeal and allowed.

Mian Ashiq Hussain, Advocate Supreme Court (Video Link, Lahore) for Petitioner.

Izhar-ul-Haq, Advocate Supreme Court (Video Link, Lahore) for Respondents.

2021 S C M R 1466

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Syed HASNAIN HAIDER---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.540-L of 2021, decided on 14th July, 2021.

(Against the order dated 31.03.2021 passed by the Lahore High Court of Lahore in Crl. Misc. No.19186-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, refusal of---Plea of accused that the dishonored cheques were only issued as a security instrument/surety to settle a family dispute---Validity---Bank cheques admittedly belonged to the accused---Accused had not been able to point out, even obliquely, to any clause of contract/agreement or any portion thereof, in performance whereof, the accused purportedly stood surety---Supported by statutory presumption of being a valid instrument, a drawer could not ward off the consequences of its failure through a plea of being an unsuspecting surety---Even otherwise, within the family fold in a close degree, the accused has not been able to point out any mala fide or animosity, possibly lurking behind his arrest in a non-bailable/cognizable offence---Petition for leave to appeal was dismissed, leave was refused and accused was refused bail.

Syed Tayyab Nasir Mehmood, Advocate Supreme Court (video link at Lahore) along with Syed Husnain Haider, in person (at Islamabad) for Petitioner.

Ch. Muhammad Maqsood Butter, Advocate Supreme Court for Respondents.

2021 S C M R 1467

[Supreme Court of Pakistan]

Present: Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

RAFEED NIAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 486 of 2021, decided on 17th June, 2021.

(Against the judgment dated 06.04.2021 of the Peshawar High Court, Bannu Bench, Bannu passed in Crl. M. (B.A.) No. 152-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324 & 427---Attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees---Bail, grant of---Further inquiry---Deficient medical report---Though the injury ascribed to the injured witness/complainant was declared to be grievous but it was not mentioned under which definition/ class it fell---Nature of the injury clearly reflected that the same had not caused any serious damage to the body of the complainant---Although the doctor had declared it to be grievous but the dimension of the injury had not been apprised, therefore, the medical report was materially deficient in its contents and did not qualify to be material evidence---Investigation of the case was complete and the accused was no more required for further investigation---Case of the accused was of further inquiry as envisaged under S. 497(2), Cr.P.C. and further no useful purpose would be served while keeping him behind bars till the conclusion of his trial pending adjudication before the Trial Court---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

Salamat Shah Mahsud, Advocate Supreme Court for Petitioner.

Arshad Hussain Yousafzai, A.A.G. and Muhammad Arif, SI for the State.

2021 S C M R 1470

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD DAUD and others---Petitioners

Versus

Syed ABID ALI and another---Respondents

Criminal Petition No.48-P of 2015, decided on 12th July, 2021.

(Against the judgment dated 19.02.2015 passed by the Peshawar High Court Mingora Bench (Dar-ul-Qaza) Swat in Crl. Appeal No.182 of 2014)

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Petition for leave to appeal challenging acquittal---Shootout in an educational institution---Contentions on behalf of complainant that both the courts below, by acquitting the accused and co-accused (proclaimed offender), ran into grievous error by relying upon reticent deposition by the injured witnesses, notwithstanding, that other eye witnesses present at the spot categorically named the accused as well as the co-accused, both for spearheading the assault in a unison inside an educational premises; that forensic report confirming use of two different weapons with three empties wedding one weapon left at the spot, was a circumstance that heavily reflected upon the culpability of accused and co-accused---Validity---Though both the injured witnesses categorically confirmed receipt of fire shot injuries at the stated venue and point of time in the backdrop suggested in the crime report, however, given their positions in the opposite direction in a crowded canteen, they had not visually seen the accused and co-accused, taking on the deceased, a shortcoming seemingly made up by other witnesses present at the spot---In the totality of circumstances and having regard to the absconsion of the co-accused, the Supreme Court granted leave so as to reappraise the entire evidence.

Naveed Akhtar, Advocate Supreme Court for Petitioners.

Muhammad Inaam Yousfzai, Additional A.G. Khyber Pakhtunkhwa for Respondents.

2021 S C M R 1472

[Supreme Court of Pakistan]

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

CRIMINAL PETITION NO. 18-P OF 2011

(On appeal from the judgment of Peshawar High Court, Peshawar dated 08.02.2011 passed in Crl. A. No. 330 of 2009)

AND

CRIMINAL PETITION NO. 74-P OF 2014

(On appeal from the judgment of Peshawar High Court, Peshawar dated 12.06.2014 passed in Crl. A. No. 36-P of 2013)

SALEEM KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 18-P of 2011 and 74-P of 2014, decided on 12th December, 2018.\

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Petitions for leave to appeal challenging acquittal of accused persons---Person who had been injured by receiving a bullet injury in the incident, and thus establishing his presence at the crime scene and as an eye-witness, did not come forward to testify nor was summoned to do so, despite the fact that he was known and a resident of the same village in which the complainant resided, which cast a serious doubt on the prosecution case---Another ground which had prevailed with the High Court in acquitting the accused persons was that the medical report stated that the bullet injuries on the deceased showed charring of the wounds, suggesting that he was shot at from a close range, whereas the ocular account narrated by the purported eye-witnesses contradicted same---Moreover, the motive put forward by the prosecution was also attracted to the purported eye-witnesses, but surprisingly they did not receive a single injury at the hands of any of the three assailants, which would further suggest that they were not present at the crime scene---Petitions for leave to appeal challenging acquittal of accused persons by the High Court were dismissed, in circumstances.

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

Nemo for Respondents.

2021 S C M R 1474

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

GHULAM ABBAS and another---Petitioners

Versus

The STATE---Respondent

Criminal Petitions Nos.9-Q and 12 of 2021, decided on 6th April, 2021.

(Against the judgment dated 21.12.2020 passed by the High Court of Balochistan in Cr. Appeals Nos. 5 and 80 of 2017)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201---Qatl-i-amd, causing disappearance of evidence of offence---Reappraisal of evidence---Accused, who was employed by the co-accused as security guard at his restaurant, was alleged to have shot the deceased, a supervisor at the restaurant---Trial Court convicted the accused under S. 302(b), P.P.C. and sentenced him to imprisonment for life, whereas the co-accused was convicted under S 201, P.P.C. for taking the weapon away from scene of occurrence and sentenced to 5-years rigorous imprisonment---High Court maintained the convictions and sentences of both accused and co-accused---Validity---Occurrence took place in broad daylight wherein accused was apprehended at the spot; he was employed by co-accused as a guard, who had obviously provided him the weapon that he used, without provocation upon the deceased, who was a worker, earning livelihood for his family---Ocular account was furnished by witnesses with unanimity, and they faced lengthy cross-examination comfortably---Accused had already been shown leniency by the Trial Court in the matter of sentence---Assistance provided to the deceased in his injured condition by co-accused did not absolve him from his responsibility to assist the law, however, at the most it could be viewed as a mitigation to settle quantum of the sentence---Having regard to the totality of circumstances, sentence of 5-years imposed on co-accused was reduced to 3-years rigorous imprisonment, while life sentence imposed on accused was maintained---Petitions for leave to appeal were disposed of.

Muhammad Ewaz Zehri, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

M. Riaz Akhtar Tareen, Advocate Supreme Court for Petitioners (in Cr. P. 12-Q of 2021)

Tahir Hussain Khan, Advocate Supreme Court for Petitioners (in Cr. P. 9-Q of 2021)

Walayat Hussain, Additional Prosecutor General Balochistan for the State.

Kamran Murtaza, Senior Advocate Supreme Court for the Complainant (in both cases).

2021 S C M R 1476

[Supreme Court of Pakistan]

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

MASVEER AHMED alias AZIZ AHMED---Petitioner

Versus

AZHAR ALI and another---Respondents

Criminal Petition No. 61-P of 2015, decided on 17th September, 2018.\

(Against the judgment dated 16.03.2015 of the Peshawar High Court, Peshawar passed in Crl. Misc. B.A. No. 346-P of 2015)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Petition for cancellation of bail, dismissal of ---Contentions on behalf of accused-respondent that he had been on bail for over three years and despite submission of challan about 2 years and 10 months ago the charge had still not been framed; that the delay in the commencement and conclusion of the trial had not been attributed to the accused or the co-accused, and both of them had not abused the concession of bail in any manner; that the objective of the present petition for cancellation of bail, was to pressurize the accused and his family to compromise a criminal case in which the accused's father was murdered and wherein the father of the petitioner had been nominated as a culprit, and who had remained an absconder therein; that the petitioner too had become an absconder in another criminal case; that the co-accused also secured bail and the application for cancellation of his bail submitted before the High Court was dismissed in default and no step was taken to resurrect the application nor had the said dismissal order been assailed before the Supreme Court---Validity---In the peculiar facts and circumstances of the case, it would not be appropriate for the Supreme Court to interfere with the discretion exercised by the High Court (in granting bail to the accused) particularly as the accused had remained on bail for over three and a half years and it was not alleged that he has been responsible for the delay or misused the concession of bail in any manner---Petition for leave to appeal seeking cancellation of bail granted to accused was dismissed and leave was refused.

Altaf Samad, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record for Petitioner.

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

Arshad Jamal Qureshi, Advocate Supreme Court along with Azhar Ali for Respondent No. 1.

2021 S C M R 1479

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

ILYAS---Petitioner

Versus

WARIS KHAN and others---Respondents

Criminal Petitions Nos. 112-P and 113-P of 2014, decided on 6th July, 2021.

(Against the judgment dated 01.10.2014 passed by the Peshawar High Court Mingora Bench (Dar-ul-Qaza) Swat in Crl. Appeals Nos.164-M and 165-M of 2013)

Penal Code (XLV of 1860)---

----S. 302(b)---Pakistan Arms Ordinance (XX of 1965), S. 13---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, possession of illegal weapons---Petition for leave to appeal challenging acquittal---Accused-husband alleged to have murdered his wife with the assistance of his co-accused-brother---Contentions on behalf of complainant (deceased's father) that there was no occasion for the High Court to acquit the accused and co-accused in the face of formidable evidence comprising ocular account, furnished by an inmate who saw the deceased being mercilessly done to death inside the safety of complainant's house; that disproportionate reliance by the High Court on alleged flaws in the investigative process having little bearing on the mainstay of the prosecution, being artificial, were incompatible with the settled principles of administration of criminal justice, and that the evidence admitted no hypothesis other than guilt of accused and co-accused--- Supreme Court granted leave to consider the said contentions.

Abdul Qayum Sarwar, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2021 S C M R 1480

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ

MUHAMMAD SIDDIQUE---Petitioner

Versus

GUL NAWAZ and others---Respondents

C.P.L.A. No. 832-L of 2016, decided on 29th June, 2021.

(Against the judgment dated 04.02.2016 passed by the Lahore High Court in C.R. No. 958 of 2009)

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

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Scope---Question as to whether an Appellate Court while exercising powers under O. XLI, R. 27, C.P.C. could set aside the judgment and decree of Trial Court---Held, that the Appellate Court was required to decide the application for adducing additional evidence itself and had to give the reasons for allowing such application and that too within the parameters of O. XLI, R. 27, C.P.C.---In case such application was allowed then the Appellate Court may record the additional evidence itself or direct the trial court to record such evidence and to remit the same to the Appellate Court, however, under no circumstances the Appellate Court could set aside the judgment and decree of the Trial Court while remanding the case to the court whose decree was under appeal for having the additional evidence recorded.

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

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Scope---Order XLI, R. 27, C.P.C. didnot envisage providing of second opportunity to adduce evidence or to rectify the inadvertence or negligence of a party.

Chaudhry Muhammad Rafiq Warraich, Advocate Supreme Court for Petitioner.

Ozair Chughtai, Advocate Supreme Court and Amjad Hussain, Advocate-on-Record for Respondents.

2021 S C M R 1485

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

STATE through A.G. Khyber Pakhtunkhwa, Peshawar---Petitioner

Versus

HAKIM ZADA and others---Respondents

Criminal Petition No. 6-P of 2015, decided on 8th July, 2021.

(Against the judgment dated 10.12.2014 passed by the Peshawar High Court, Mingora Bench (Dar ul Qaza) Swat in Cr. A. No.2-M of 2013)

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Petition for leave to appeal challenging acquittal---Accused was charged for murdering his wife---Trial Court convicted the accused under S. 302(b), P.P.C. and sentenced him to imprisonment for life, however on appeal the High Court, considering the death as a suicide, set-aside the conviction and sentence of accused---Contention on behalf of prosecution that autopsy report conclusively ruled out possibility of suicide as the medical officer noted a complete scar, without obliquity, around the neck, unambiguously suggesting manual constriction of the neck with a ligature, a circumstance that escaped notice by the High Court and, thus, required an explanation from the accused with whom the deceased spent her last moments under the same roof---Supreme Court granted leave to consider the said contention.

Malik Akhtar Hussain Awan, Additional A.G. Khyber Pakhtunkhwa for Petitioner.

2021 S C M R 1486

[Supreme Court of Pakistan]

Present: Ijaz-ul-Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

Dr. SIKANDAR ALI MOHI UD DIN---Appellant

Versus

STATION HOUSE OFFICER and others---Respondents

Civil Appeal No. 572-L of 2009, decided on 23rd July, 2021.

(On appeal against the judgment dated 12.05.2004 passed by the Lahore High Court, Lahore in Writ Petition No. 5158 of 2004)

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

----S. 154---Constitution of Pakistan, Art. 199---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Quashing of FIR in constitutional jurisdiction of High Court---Propriety---Preparation of forged and fabricated 'fard malkiat' by Halqa Patwari (accused)---Held, that fard malkiat was found to be forged and fabricated during the course of an inquiry conducted by EDO(R) on the application of the appellant---Apart from that as the matter was of criminal nature, the same could not be closed down (by the High Court)with a stroke of pen on the ground that civil litigation was pending adjudication between the parties coupled with the finding in a police investigation---Crime report was lodged on the application of the appellant when the document in question was found forged and the same was based upon legal foundation---Judgment passed by the Single Bench of the High Court quashing the FIR in question was not sustainable, hence it was set aside---Consequently the trial court was directed to proceed with the matter and decide the same within a period of three months---Appeal was allowed accordingly.

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

----S. 154---Concurrent civil and criminal proceedings---Scope---Criminal as well as civil proceedings could continue side by side if the same were spelled out on the basis of a cogent foundation.

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

----S. 154---Constitution of Pakistan, Art. 199---Quashing of FIR in constitutional jurisdiction of High Court---Propriety---Prima facie, if an offence had been committed, ordinary course of trial before the (Trial) Court should not be allowed to be defeated by resorting to (quashing of FIR in) constitutional jurisdiction of High Court.

Ashtar Ausaf Ali, Senior Advocate Supreme Court for Appellant.

Syed Muhammad Shah, Advocate Supreme Court for Respondent No. 2.

Zafar Hussain Ahmed, Advocate Supreme Court for the State.

2021 S C M R 1490

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

IFTIKHAR ALI---Petitioner

Versus

GUL REHMAN and another---Respondents

Criminal Petition No. 46-P of 2015, decided on 12th July, 2021.

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Petition for leave to appeal challenging acquittal---Accused was convicted by Trial Court under S. 302(b), P.P.C. and sentenced to imprisonment for life, however on appeal the High Court set-aside the conviction and sentence of accused---Contention on behalf of prosecution that in the face of overwhelming evidence primarily comprising ocular account by natural witnesses, there was no occasion for the High Court to rely on prosecution's alleged failure on peripheral issues, an error that, resulted into miscarriage of justice---Validity---Impugned reasoning recorded by the High Court showed that to overturn the conviction it had been swayed primarily by a plea of alibi supported by the prayer leader of the village mosque who, however, opted to stay away from the witness-box alongside the accused himself---Similarly, certain discrepancies in the site plan were viewed to prosecution's detriment without having been confronted to the witnesses during the trial---Unscathed survival of the witnesses was also received with suspicion by the High Court --- Nonetheless, the High Court did not appear to have taken any exception to the ocular account furnished by the witnesses of the locality, a small rural neighborhood, unanimously pointing their finger upon the accused---Supreme Court granted leave to reappraise the entire evidence with a view to secure the ends of justice.

Altaf Khan, Advocate Supreme Court for Petitioner.

Muhammad Nisar, Additional A.G. Khyber Pakhtunkhwa for Respondents.

2021 S C M R 1492

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

PROVINCE OF PUNJAB and others---Petitioners

Versus

Hafiz MUHAMMAD AHMAD---Respondent

C.P. No. 1274-L of 2013, decided on 26th July, 2021.

(Against the order dated 31.05.2013 passed by the Lahore High Court, Lahore in W.P. No.11657 of 2013)

Law reports---

----Headnotes/Case notes of judgments published in law reports---Scope---Headnotes were not part of the judgment, therefore, it was neither safe nor desirable (for courts) to cite headnotes in their judgments.

The headnotes preceding the judgment of a court were not a part of that judgment but were the notes prepared by the editors of the law-reports, highlighting the key law points discussed in the judgment and were supplied just to facilitate the reader with a summarized version of the salient features of the case which helped in quickly scanning through the law reports.

Headnotes were at times misleading and contrary to the text of the judgment. Headnotes by the editors of the law-reports could not be taken as verbatim extracts of the judgment and relied upon as conclusive guide to the text of the judgment reported, hence they should not be cited as such. Therefore, it was neither safe nor desirable to cite a dictum by reference to the headnotes.

Salah-Ud-Din v. Zaheer-Ud-Din PLD 1988 SC 221; Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation AIR 2009 SC 6262 and Farhat Nasreen v. Muhammad Hussain PLD 1997 Kar. 204 ref.

Supreme Court observed that it was sanguine that in future the High Courts and the District Courts while referring to a precedent or case law in their judgments and orders would cite the actual text of the judgment rather than place reliance on the headnotes thereof.

Rana Shamshad Khan, Additional A.G. along with Abdul Majeed, Dy. Director ACE for Petitioners.

Nemo for Respondent.

2021 S C M R 1494

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

STATE through A.G. Khyber Pakhtunkhwa, Peshawar---Petitioner

Versus

AMANAT KHAN and others---Respondents

Criminal Petition No.30-P of 2014, decided on 6th July, 2021.

(Against the judgment dated 20.02.2014 passed by the Peshawar High Court Peshawar in Cr. A. No.78-P of 2013)

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Petition for leave to appeal challenging acquittal---Accused was convicted by Trial Court under S. 302(b), P.P.C. and sentenced to death, however on appeal the High Court set-aside the conviction and sentence of accused---Contentions on behalf of prosecution that in the face of overwhelming evidence furnished by natural witnesses having no axe to grind with the accused, there was no occasion for the High Court to acquit the accused from the charge, squarely structured on 'proof beyond doubt'; that the impugned view of the High Court, seemingly based upon various circumstances, considered by it as suspect, mostly related to peripheral or investigative flaws, with no bearing upon the preponderance of ocular account furnished by the witnesses who had satisfactorily explained their presence at the spot; that in the wake of accused's absconsion, a negative forensic report did not adversely affect the prosecution's case nor non-mentioning of specific caliber of the weapon could destroy the intrinsic value of the testimony that successfully withstood the test of cross-examination, particularly having regard to the criminal record of the accused---Supreme Court granted leave to consider the said contentions and to reappraise the entire evidence.

Muhammad Nisar, Additional A.G. Khyber Pakhtunkhwa for Petitioner.

2021 S C M R 1496

[Supreme Court of Pakistan]

Present: Mushir Alam, azhar Alam Khan Miankhel and Munib Akhtar, JJ

KHUSHDIL KHAN MALIK---Petitioner

Versus

SECRETARY, ESTABLISHMENT DIVISION CABINET BLOCK, ISLAMABAD and others---Respondents

Civil Petitions Nos. 1092 and 1093 of 2018, decided on 12th September, 2018.\

(Against the judgment dated 8.3.2018 passed by Islamabad High Court, Islamabad in I.C.A. No. 859 of 2013)

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

----R. 2, Cl. (viii) ---Induction in Secretariat Group---Pre-requisites---Petitioner was inducted into service against the post of Headmaster (BPS-18) on 24.12.1996 in the Federal Government Educational Institutions (Cantts/Garrison)--- In the year 2004 he was transferred to the Federal Government on deputation basis and he was repatriated to the parent department vide an Office Memorandum dated 20.10.2010; he had hardly served in his parent department as member of the teaching staff when he was again transferred in the year 2011 to the Federal Secretariat on deputation---Petitioner was neither an officer of Management Group nor of Secretariat Group as provided in Cl. 3 of the Office Memorandum No.2/2/75-ARC dated 12-04-1976 [Manual on Appointment, Promotion and Transfer (Edition-2013), Appendix A, Page No. 280]---Moreover he didn't belong to any of the 'Occupational Groups' in terms of Cl. (viii) of R. 2 of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990; therefore he could not be considered for appointment through horizontal movement---Moreover there was nothing on record to show that the petitioner was ever recommended by the controlling Ministry of the parent department to be considered for such appointment---Therefore the petitioner had no vested right to be considered for induction/absorption in the Secretariat Group as per prescribed eligibility criteria and conditions laid down in the relevant laws and policies, despite his best service record---Petitions for leave to appeal were dismissed.

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

----Ss. 3 & 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Pt. II--- Promotion on the basis of 'Time Scale Formula'---Scope--- Civil Servants Act, 1973 ('the 1973 Act') did not define the term 'Time Scale Promotion', therefore, it could not be considered as a term and condition of service---Promotion on the basis of Time Scale was not a regular promotion but a matter of policy granted to specific categories of professions by the relevant competent authority with the concurrence of the Finance Division---Such a policy was meant to grant benefits of higher pay scales to those cadres of civil servants who did not ordinarily get promotions to higher grades under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 on a regular basis---Monetary benefits under the Time Scale Formula could not be extended generally to all civil servants but only to those class of civil servants as mentioned in the approved policy.

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

----S. 9---Promotion from BPS-21 to BPS-22 on basis of meritorious service---Special Selection Committee, powers of---Scope---In terms of the relevant policy for Promotion from BPS-21 to BPS-22 on basis of meritorious service [Finance Division O.M. F. No. 2(3)-R-3/86 dated 7.4.1987 (revised and accordingly notified vide Finance Division's Office Memorandums dated 25.11.2008 and 04-10-2012)] it was exclusively the prerogative of the Special Selection Committee to consider the competence of the officer for the grant of promotion to BPS-21 and BPS-22 for technical and professional officers, and not a vested right of a civil servant; it was actually a reward for such technical and professional officer who had distinguished himself by rendering meritorious services as an acknowledgment for exceptional contributions in his specialized field---Role of Special Selection Committee could not be assumed by any other authority by any stretch of interpretation of the relevant policy, and not even by the courts.

Petitioner in person.

Nemo for Respondents.

2021 S C M R 1507

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

ZIA ULLAH and another---Petitioners

Versus

The STATE---Respondent

Jail Petition No.302 of 2017, decided on 19th January, 2021.

(Against the judgment dated 16.03.2017 passed by the Lahore High Court Lahore in Crl. Appeal No.1294 of 2012 with M.R. No.313 of 2012)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Prosecution case was primarily structured upon ocular account furnished by deceased's son and another witness---Deceased's son being resident of the house in front whereof the deceased was engaged by the assailants could be safely viewed as a natural witness; and he was not expected to swap the assassins of his father with innocent persons---Both the witnesses confidently furnished graphic details of the incident; and despite being subjected to lengthy cross-examination, both firmly held the ground---Although inclusion of abettors and three unknown aids in the crime was a suspect circumstance, nonetheless, it did not decisively reflect upon culpability of accused persons, which was independently established by confidence inspiring evidence---Plea of false implication raised by accused persons when seen in light of medical evidence merited outright rejection---Petition for leave to appeal was dismissed and conviction and sentence of imprisonment for life imposed on the accused persons was maintained.

Ms. Tehmina Mohibullah Kakakhel, Advocate Supreme Court for Petitioners.

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

2021 S C M R 1509

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

Dr. IQRAR AHMAD KHAN---Appellant

Versus

Dr. MUHAMMAD ASHRAF and others---Respondents

Civil Appeals Nos. 326-L and 327-L of 2020, decided on 13th July, 2021.

(Against judgment dated 05.03.2020 passed by the Lahore High Court, Lahore in Intra Court Appeal No. 11032 of 2020 and Intra Court Appeal No. 8516 of 2020)

(a) University of Agriculture Faisalabad Act (XII of 1973)---

----Ss. 11(8), 14(3) & 14(6)---University of Agriculture Faisalabad Conduct of Business Rules of the Syndicate, 1976, R. 3---Post of Vice-Chancellor---Appointment---Appointing authority (Chief Minister), discretion of---Structured exercise of discretion---Scope---Search Committee constituted by the Provincial Government for the selection of the Vice-Chancellor made recommendations to the Chief Minister who then advised the Governor / Chancellor of the University to appoint the respondent as the Vice Chancellor for a period of four years---Appellant who was placed highest on merit list was not appointed to the post on the grounds that certain unsettled audit paras had remained unaddressed during the appellants' tenure as Vice Chancellor and that four syndicate meetings that were required to be called in a year were not convened, which constituted sufficient reason to deny appointment to the appellant even though he was on top of the merit list having scored the highest marks---Chief Minister had made no effort to examine the mentioned audit paras to ascertain whether they were actually related to the financial control and management of the appellant---Record reflected that he recorded a general finding without ascertaining the facts with any degree of accuracy or due application of mind---Nothing had been shown that may connect the outstanding audit paras with poor financial controls of the appellant---Principal Accounting Officer of the Provincial Government was a member of the Search Committee that placed the appellant at Serial No. 1 of the merit list, and said official gave the appellant 10 out 10 marks in the category of "Administrative and Financial Management"---Further the appellant was given 45 marks in the interview, and against this, the respondent was given only 31 marks---With respect to the second reason provided by the Chief Minister that appellant was unable to hold the required number of syndicate meetings, the relevant provision i.e. R. 3 of the University of Agriculture Faisalabad Conduct of Business Rules of the Syndicate, 1976 was discretionary and not mandatory in nature as no consequence was provided in the law or the rules for failure to comply with the same---Reasons provided by the Chief Minister for not appointing the appellant, who was placed highest on the merit list, were justiciable and courts could examine them on the touchstone of validity, fairness and compliance with the law, rules and departmental practice---Discretion of the Chief Minister in such regard was not unfettered, unbridled and unregulated---Reasons provided by the Chief Minster in the present case for not appointing the appellant to the post showed an exercise of pick and choose with a pre-determined mind and a conscious and deliberate effort appeared to have been made to contrive reasons to appoint a person lower on merit and deprive a person better qualified, higher on merit and obviously more suitable for the post in question---Such act of the Chief Minister amounted to an illegal, arbitrary, capricious and unbridled exercise of discretion---Appeals were allowed.

Appointments of Permanent Vice-Chancellor of Punjab University (Human Rights Case No. 13865-P of 2018) ref.

Professor Dr. Razia Sultana and others v. Professor Dr. Ghazala Yasmeen Nizam and others 2016 SCMR 992 distinguished.

(b) Educational institution---

----Public sector universities---Post of Vice-Chancellor---Appointment---In the order of the Supreme Court titled "Appointments of Permanent Vice Chancellor of Punjab University (Human Rights Case No. 13865-P of 2018)" a rule of general application relating to the appointment of Vice-Chancellors in public sector universities on the basis of recommendations of search committees had been laid down---Applicability of the said rule was not limited only to the universities before the Supreme Court but to all universities in the public sector under the control or authority of the government which was fully represented before the Supreme Court when the order was passed---Further, the said order was not only implemented with reference to the institutions before the Supreme Court but to all other public sector universities for all intents and purposes---Said order had also attained finality and continued to hold the field.

(c) Constitution of Pakistan---

----Art. 189---Obiter dicta of the Supreme Court---Binding on the High Court.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 and Muhammad Ali Abbasi and 2 others v. Pakistan Bar Council PLD 2009 Kar. 392 ref.

Bilal Hassan Minto, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant (in C.A. No. 327--L of 2020).

Hamid Khan, Senior Advocate Supreme Court, assisted by Hafiz M. Tariq Naseem, Advocate Supreme Court and Muhammad Ahsan Bhoon, Advocate Supreme Court for Respondents (No. 1 in C.A. No. 326-L and No. 8 in C.A. No. 327-L of 2020).

Akhter Javed, Additional A.G. Punjab for Respondents (Nos. 2, 3, 6 and 7 in C.A. 326-L and Nos. 1, 2, 5 and 6 in C.A. No. 327-L of 2020).

Muhammad Shahzad Shaukat, Advocate Supreme Court along with Shafqat Nadeem, Law Officer for Respondents (No. 8 in C.A. No. 326-L and No. 7 in C.A. No. 327-L of 2020).

2021 S C M R 1525

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

STATE through A.G. Khyber Pakhtunkhwa, Peshawar---Petitioner

Versus

SABZ ALI KHAN---Respondent

Criminal Petition No.83-P of 2015, decided on 26th July, 2021.

(Against the judgment dated 06.03.2015 passed by the Peshawar High Court Peshawar in Cr. A. No. 188-M of 2012)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, attempt to commit qatl-i-amd---Petition for leave to appeal challenging acquittal---Contentions on behalf of prosecution that it had successfully driven home charge against the accused beyond a shadow of doubt on the strength of ocular account furnished by the witnesses that included an injured witness with a massive injury; that investigative conclusions drawn up pursuant to a promptly lodged FIR, inexorably pointed towards culpability of accused, singularly arrayed in the crime report; that reference by the High Court to peripheral issues and stated durations of time were too trivial to override the preponderance of evidence that unambiguously excluded every hypothesis other than accused's guilt; that stated lapses on part of the Investigating Officer, being inconsequential, certainly did not cast away prosecution's case, which otherwise was firmly structured on evidence furnished by independent witnesses---Supreme Court granted leave to consider the said contentions of the prosecution.

Ms. Abida Safdar, Assistant Advocate General, Khyber Pakhtunkhwa for Petitioner.

2021 S C M R 1527

[Supreme Court of Pakistan]

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

GUL ROZ---Petitioner

Versus

The GOVERNMENT OF PAKISTAN through Secretary SAFRON and others---Respondents

Civil Petitions Nos. 1557 and 1569 of 2017, decided on 24th January, 2018.\

(On appeal from the judgment dated 14.02.2017 passed by Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in W.P. No.500-M of 2016 and W.P. No. 753-M of 2016)

Civil service---

----Interim order/suspension order suspending promotion to next rank---Scope and effect---Suspension order was neither a final adjudication about the validity of a promotion order nor it tantamount to its reversal.

Petitioner who served as Subedar, Levies was promoted to rank of Subedar Major. However due to an interim order passed by the High Court, the petitioner's promotion was suspended. The whole controversy in the present case turned on the effect of the interim order of the High Court. That order did not validate or reverse the promotion of the petitioner; it merely postponed the implementation of the said promotion order. The mere fact that the promotion order of the petitioner was suspended, did not mean that he had been demoted or reverted or that the order had been cancelled. The continuance of the petitioner in the rank of Subedar on account of the interim order did not count towards his substantive tenure in that post but was merely a consequence of the interim order. Therefore, such service could not count towards the exhaustion of his tenure as Subedar for the purpose of retirement. In the circumstances of the present case the tenurial criterion could not be the determining factor for fixing the date of retirement of the petitioner. This was because such criterion for retirement was rendered superfluous due to the interim order passed in pending litigation.

Rather than implementing the promotion order of the petitioner as Subedar Major or taking other proceedings in relation thereto, the Commandant wrongly presumed that the petitioner was ineligible for that post. Hence he directed the said post of Subedar Major to be officiated by a junior officer and recalled the petitioner to the Levies Lines pending his retirement. Said approach was wrong on the facts of the case and the law applicable thereto. Accordingly, the promotion order of the petitioner merited implementation in accordance with law and the criteria laid down in the relevant service rules. Petitions for leave to appeal were converted into appeals and allowed accordingly.

Qazi Jawwad Ehsanullah, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in both cases).

Nemo for Respondent No. 1.

Abdul Latif Yousafzai, A.G. Khyber Pakhtunkhwa for Respondent No. 2 (in both cases).

Alamgir Khan, Additional Assistant Commissioner (Levies) Malakand for Dy. Commissioner/Commissioner Malakand Levies Malakand (in both cases).

Misbahullah Khan, Advocate Supreme Court for Respondent No. 4 (for C.P. No. 1569 of 2017).

Nemo for Respondent No. 5 (in C.P. No. 1557 of 2017).

2021 S C M R 1532

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

Mst. NASEEM---Petitioner

Versus

FARHAD KHAN and another---Respondents

Criminal Petition No.42-P of 2018, decided on 26th July, 2021.

(Against the judgment dated 25.01.2018 passed by the Peshawar High Court Peshawar in Cr. A. No.446-P of 2014)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Petition for leave to appeal challenging conversion of conviction from S. 302(b) to S. 302(c), P.P.C. and resulting reduction in sentence---Contentions on behalf of prosecution that present case of filicide (accused killing his own son) was an open and shut episode, admitting no space to treat the accused with any degree of leniency; that the accused had acted most callously and in a deliberate and calculated manner, thus, there was no occasion for the High Court to overstretch his culpability into the remit of S. 302(c), P.P.C.; that the deceased in his prime youth was 'Masoom-ud-Dam' and his gruesome murder with five consecutive shots had inflicted trauma on his sisters and mother and, thus, only a proportionate sentence would present them with any solace; that the accused contested the charge without remorse or regret and denied his culpability throughout and as such in the absence of any specific plea, High Court ran into error to let him off with a brief period of incarceration which tantamount to denial of justice both to the deceased as well as the family---Supreme Court granted leave to consider the said contentions of the prosecution.

Altaf Khan, Advocate-on-Record and Muhammad Ajmal Khan, Advocate-on-Record for Petitioner.

Ms. Abida Safdar, Additional Advocate General, Khyber Pakhtunkhwa for the State.

2021 S C M R 1534

[Supreme Court of Pakistan]

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

Mst. REHMAT and others---Appellantss

Versus

Mst. ZUBAIDA BEGUM and others---Respondents

Civil Appeal No. 108 of 2015, decided on 19th July, 2021.

(Against the judgment dated 22.4.2014 passed by High Court of Sindh Circuit Court, Hyderabad in 2nd Appeal No. 02 of 1990)

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

----Art. 30---Admitted facts---Such facts need not be proved.

Nazir Ahmed v. M. Muzaffar Hussain 2008 SCMR 1639 ref.

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

----S. 12---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance of an agreement to sell immoveable property---Rival vendees---Superior right---Scope---Right of a person having established that they were equipped with unregistered instrument, which was prior in time, and were in possession of property in part performance of such instrument, would rank superior even against the subsequent registered instrument---Therefore, in the present case, the position of respondent-vendee being in possession of the suit house, and having paid 80 % of the total sale consideration, much before the time fixed in the sale agreement and much before performance of reciprocal obligations set out under the sale agreement on the part of the vendor, was much stronger than that of the rival vendee; more particularly because the possession of respondent-vendee was specifically admitted---Appeal was dismissed.

Nazir Ahmed v. M. Muzaffar Hussain PLD 2021 SC 434 ref.

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

----S. 12 ---Transfer of Property Act (IV of 1882), S. 54 ---Contract Act (IX of 1872), Ss. 51 & 55---Specific performance of agreement to sell immoveable property---Whether time was essence of the agreement and whether the vendor could revoke the sale agreement---Held, that no cut-off date was given in the sale agreement for the payment of remaining sale consideration as it was settled between the parties that the remaining sum could be paid at the time of registration of sale deed or at any time before registration---Clause of the said agreement made it mandatory for the vendor to obtain all documents necessary for registration of the suit property---Agreement contained reciprocal promises on the part of vendor as well vendee and both the parties were required to perform their respective part of the contract in order to accomplish the sale transaction; however, the vendor failed to perform her part of reciprocal obligations and did not procured all the requisite documents---As the vendor herself failed to perform her part of contract, therefore, she could not rescind and revoke the agreement, after the delivery of possession of the suit property to the vendee and the receipt of 80% of the total sale consideration in part performance of the sale transaction---In such circumstances time was never the essence of the agreement and the failure on the part of the promisor/vendor to perform her part of contract could not put her into a position of rescinding or revoking the contract in terms of S. 51 of the Contract Act, 1872---Appeal was dismissed.

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

----S. 12---Transfer of Property Act (IV of 1882), S. 54---Contract Act (IX of 1872), S. 51---Specific performance of agreement to sell immoveable property---Balance sale consideration---Vendee seeking specific performance of an agreement to sell was essentially required to demonstrate that he is and was always ready and willing to perform his reciprocal obligation to pay balance sale consideration---If balance consideration was not offered or paid earlier, best time to demonstrate such readiness and willingness to perform was offering balance sale consideration at the time of filing suit for specific performance.

Muhammad Munir Paracha, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record and Syed Tahir Hussain, husband of Appellant No. 3 for Appellants.

M. Ishtiaq Ahmad Raja, Advocate Supreme Court for Respondent No. 1(LRs).

2021 S C M R 1544

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

Mst. RUKHSANA---Petitioner

Versus

REHMANULLAH and another---Respondents

Criminal Petition No.93-P of 2015, decided on 26th July, 2021.

(Against the judgment dated 04.06.2015 passed by the Peshawar High Court Peshawar in Cr. A. No. 657-P of 2013)

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Petition for leave to appeal challenging acquittal---Contentions on behalf of prosecution that the deceased, both in their prime youth, were brutally done to death in broad daylight under unmistakable premeditation within the view of witnesses who not only established their presence at the scene but also had no axe to grind against the culprits, one of whom was still avoiding justice; that each piece of evidence produced by the prosecution was synchronized with the events within the proximity of time and space, hardly leaving any room to deliberate a false case or entertain any hypothesis of substitution; that the High Court's disproportionate reliance on the peripheral issues purporting inconsequential omissions by the Investigating Officer, witnesses' inability to point out caliber of weapons with exactitude and reference to entries in the site plan without them having been confronted to the witnesses was incompatible with the settled norms of appreciation of evidence in administration of criminal justice and, thus, being artificial resulted in miscarriage of justice---Supreme Court granted leave to consider the said contentions of the prosecution.

Abdul Fayaz Khan, Advocate Supreme Court and Muhammad Ajmal Khan, Advocate-on-Record for Petitioner.

2021 S C M R 1546

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MINISTRY OF FINANCE through Secretary and others---Appellants

Versus

Syed AFROZ AKHTAR RIZVI and others---Respondents

Civil Appeal No. 1496 of 2019, decided on 12th July, 2021.

(Against judgment dated 05.10.2018 of the Federal Service Tribunal, Islamabad, passed in Appeal No. 256(R)CS of 2016)

Civil Service Regulations (C.S.R.)---

----Art. 371-A--- Contract employees subsequently regularized in service---Pension---Conditions of qualifying service---Article 371 of Civil Service Regulations (C.S.R.) did not allow Government servants rendering temporary service in a temporary establishment for more than 5 years to be entitled for grant of pension rather such period could be counted towards calculation of pension only if otherwise entitled to pension by meeting the criteria of qualifying service---Where the services of a contractual employee were converted into regular employment the period spent in contractual employment subject to a minimum of five years could be included in calculating pensionary benefits but only and only in a situation where the employee was otherwise entitled/eligible to receive pension subject to having rendered qualifying service (10 years) in permanent employment---Unless he met the criteria of having served for the duration of the qualifying period, the period spent in contractual employment could not be added to make up for any deficiency in qualifying service for the purpose of eligibility to receive pension.

An employee who was employed on contractual basis and was subsequently regularized may be entitled to pensionary benefits provided:

i) He was eligible for pension having served for the qualifying period (10 years) as a regular employee.

ii) For the purpose of calculating pensionary benefits his service as a contractual employee could be factored in to provide him any financial benefit that may be due to him.

iii) The period spent in employment as a contractual employee and as a regular employee could not be aggregated in order to determine his eligibility for entitlement to pension.

iv) Eligibility to receive pension was directly related to rendering qualifying service as a regular employee. Unless an employee had performed services in a regular appointment for the duration of the qualifying period (10 years), he was not entitled to receive pension.

Chairman, Pakistan Railway, Government of Pakistan v. Shah Johan Shah PLD 2016 SC 534 ref.

In case, an employee had served a Government department for the duration of the period qualifying him to receive pension, the period spent as a contractual employee may be added to his regular qualifying service only and only for the purpose of calculating his pension and for no other purpose. The provisions of Article 371-A of Civil Service Regulations (C.S.R.) started with a non obstante clause which meant that the said Article did not relate to the question entitlement or eligibility to receive pension. It was clearly and obviously restricted to counting the period of a minimum of five years which had been rendered by a temporary contractual employee to be taken into account with the object of calculating the quantum of his pension and not more. The non-obstante clause in Article 371-A of C.S.R. did not allow those who did not fulfil the requisite conditions for qualifying for pension to bypass such conditions and add up regular and contractual periods of employment for the purpose of meeting the eligibility criterion of ten years of service. Such an interpretation would create absurd situations and would render other provisions and Articles of C.S.R. redundant, unnecessary and surplus. Therefore, Article 371 of C.S.R. did not allow Government Servants rendering temporary service in a temporary establishment for more than 5 years to be entitled for grant of pension rather such period could be counted towards calculation of pension only if otherwise entitled to pension by meeting the criteria of qualifying service.

Chairman, Pakistan Railway, Government of Pakistan v. Shah Johan Shah PLD 2016 SC 534 ref.

Sohail Mehmood, Additional AGP, Khan Hafeez, JS, Fin. Div., Abdul Ghaffar, SO, Fin. Divi. and Sajid Javed, Legal Assistant Fin. Div. for Appellants.

M. Ramzan Khan, Advocate Supreme Court, Syed B.H. Shah, Advocate-on-Record along with Respondent No. 1 in person for Respondents.

2021 S C M R 1552

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

STATE through Director ANF---Petitioner

Versus

AURANGZEB and another---Respondents

Criminal Petitions Nos.26-P and 27-P of 2020, decided on 28th July, 2021.

(Against the order dated 14.11.2019 passed by the Peshawar High Court Peshawar passed in Cr. A. No.104-P of 2019)

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

----Ss. 9(a) & 9(c)---Constitution of Pakistan, Art. 185(3)---Possession of 18.6 kilograms of methamphetamine comprised of 34000 tablets---Petition for leave to appeal challenging conversion of conviction from S. 9(c) to S. 9(a) of Control of Narcotic Substances Act, 1997 and resulting reduction in sentence and fine---Contentions on behalf of prosecution that the High Court by considering the samples sent for forensic analysis as deficient in terms of the law declared in the case reported as Ameer Zaib v. The State (PLD 2012 SC 380) had misdirected itself by applying the principle laid down in the said case in disregard to the nature, shape and format of the contraband recovered, which was uniquely integrated into small tablet form, incapable of traditional sampling suggested in the said case; that the Control of Narcotic Substances Act, 1997 covered a wide range of "narcotic drugs, psychotropic substances or controlled substances" manufactured, marketed and administered through various mediums other than usual chunks of shaped pieces and, thus, in the peculiar circumstances of the present case, dispatch of 34 tablets (as samples), from each lot, squarely constituted representative samples, leaving no space for a contra hypothesis; that any other interpretation or approach would defeat the legislative intent---Supreme Court granted leave to consider the said contentions of the prosecution.

Ameer Zaib v. The State PLD 2012 SC 383 rel.

Muhammad Tariq, Special Prosecutor, ANF for Petitioner (in both cases).

Nemo for Respondents (in both cases).

2021 S C M R 1554

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Sayyed Mazahar Ali Akbar Naqvi, J

FEDERATION OF PAKISTAN through Secretary Establishment, Islamabad---Appellant

Versus

M. Y. LABIB-UR-REHMAN and others---Respondents

Civil Appeal No. 30-L of 2018, decided on 9th July, 2021.

(On appeal against the judgment dated 03.11.2017 passed by the Lahore High Court, Lahore in Writ Petition 26075 of 2014)

(a) Constitution of Pakistan---

----Arts. 199 & 212---Matter relating to terms and conditions of service---Exclusive jurisdiction of administrative tribunals and ouster of jurisdiction of High Court---Scope---Any petition relating to terms and conditions of service was to be dealt with by administrative courts and tribunals specifically established for its adjudication in pursuance of Art. 212 of the Constitution---As a general principle, the framers of the Constitution while inserting the said provision had ousted the jurisdiction of other courts including the High Court under Art. 199 of the Constitution---However there were certain exceptions depending upon the facts and circumstances of each case---Constitutional jurisdiction was always considered as extraordinary, which was to be exercised in extraordinary circumstances, if so warranted, hence, the Constitutional jurisdiction could not be curtailed stricto sensu, leaving some room for its application where safe administration of justice and fair play was required---Superior courts while exercising Constitutional jurisdiction must satisfy themselves that they may not interfere or infringe the jurisdiction of any other statutory forum in any manner when an equally efficacious/adequate remedy was available under the statute for the redressal of the grievances of the litigants.

(b) Civil service---

----Superseded civil servant---Antedated promotion---Scope---Civil servant who was consciously superseded after considering his service record by the departmental promotion committee could not regain his original seniority or subsequent promotions so long as the order of the Promotion Committee superseding him stood in the field and supersession of the civil servant in such a case was neither advertent nor same fell in the category of deferment, so as to entitle the civil servant, on subsequent promotion, to regain his original seniority.

Abdul Ghani Chaudhry v. Secretary, Establishment, Islamabad 1998 SCMR 2544 ref.

Sajid Ilyas Bhatti, Additional Attorney General and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Respondent No. 1 in person (via Video Link from Lahore).

2021 S C M R 1560

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

The CHIEF POSTMASTER GENERAL, POST OFFICE, MULTAN and others---Appellants

Versus

HAMEED-UD-DIN---Respondent

Civil Appeal No. 1010 of 2020, decided on 25th June, 2021.

(Against the order dated 20.02.2019 passed by the Federal Service Tribunal, Lahore Bench, Lahore in Review Petition No. 03 of 2019)

Civil service---

----Dismissal from service---Misappropriation and embezzlement---Service Tribunal converting penalty for dismissal from service into stoppage of increment for one year without cumulative effect---Propriety---Respondent-accused (postal clerk) was granted personal hearing---Sufficient material was available on the record which established that the respondent was granted various opportunities to defend himself---If in the opinion of the respondent his personal hearing was "meaningless", it could not be held that a hearing was not granted and the rule of audi alteram partem was violated---If the hearing was not up to the satisfaction of the respondent or he did not get the relief that he was expecting, the appellant-department could not be held to have condemned him unheard---Respondent was proceeded against under the law---Nowhere had the respondent during the pendency of the proceedings against him stated that they were biased or were being conducted improperly; he participated in the proceedings and was able to give his defence, which was left to the appellant-department to accept or not accept---Not only a regular inquiry but a preliminary inquiry was also held against the respondent---Admittedly appellant-department suffered a financial loss of Rs. 11,09,500, which could have been prevented but for the alleged loss of or inability of the respondent to account for the Postal Payment Order (PPO) Paid Vouchers---Postal Payment Orders (PPOs) were documents that were of fundamental importance and needed to be proved, or if they had been lost, independent evidence should have been produced to show that the payments were made against surrendered PPOs which had been cancelled, retained and relevant particulars thereof had been entered in the relevant records---Respondent was also required to present the vouchers against which PPO payments were made to authenticate such payments---No such evidence/material/documents were placed on record---Appellant-department gave several opportunities to the respondent to prove his innocence, but he failed to do the same---Respondent in return deposited an amount of Rs. 40,000, which, amounted to an admission on his part of the misappropriation---When the Service Tribunal, on one hand, held that the respondent was indeed responsible for the loss caused to the appellant-department, it could not assume the role of the competent authority and hold that embezzlement or misappropriation was not proved---Appeal was allowed, impugned judgment of Service Tribunal was set-aside and as a consequence departmental penalty of dismissal from service was restored.

Ayyaz Shaukat, DAG and Mehmood A. Sheikh, Advocate-on-Record for Appellants.

Mian Mahmood Hussain, Advocate Supreme Court for Respondent.

2021 S C M R 1569

[Supreme Court of Pakistan]

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

CIVIL APPEAL NO. 491 OF 2012

AND

(On appeal from the judgment/order dated 29.03.2012 passed by Islamabad High Court, Islamabad in W.P.1206/2011)

CIVIL APPEALS NOS. 536-546, 580/2012, 452, 453, 43/2013

AND

(On appeal from the judgment/order dated 29.03.2012 passed by Islamabad High Court, Islamabad in W.P. 1206, 1433, 1604,1981/2011 and judgment/dated 24.10.2012 passed by High ourt of Sindh, Karachi in Const.P.214-D/2011 and dated 13.09.2012 passed by Peshawar High Court, Abbottabad Bench, Abbottabad in W.P.813/2011)

CIVIL PETITIONS NOS. 150-151/2013

AND

(On appeal from the judgment/order dated 31.10.2012 passed by Peshawar High Court, Abbottabad Bench, Abbottabad in W.Ps. 368, 770/2012)

CIVIL APPEALS NOS. 1081, 1084/2011, 432/2013

AND

(On appeal from the judgment/order dated 16.05.2011 passed by High Court of Sindh, Karachi in C.Ps. 1107-D, 605-D/2010 judgment/order dated 22.11.2012 passed by Peshawar High Court, Bannu Bench, Bannu in W.P.150-B/2010)

CRIMINAL PETITIONS NOS. 138-140/2014

AND

(On appeal from the judgment/order dated 19.03.2014 passed by Islamabad High Court, Islamabad in I.C.As. 143-145/2014)

CIVIL APPEALS NOS.1151/2012, 1026-1027/2013

AND

(On appeal from the judgment/order dated 01.04.2011 passed by High Court of Sindh, Karachi in Const.P.3515-D/2010 and judgment/order dated 14.05.2013 passed by Peshawar High Court, Peshawar in W.P.2685/2011, W.P.363-P/2012)

CIVIL PETITIONS NOS. 677-P/2014,1567/2015

AND

(On appeal from the judgment/order dated 21.10.2014 passed by Peshawar High Court, Peshawar in W.P.3504/2012 and judgment/order dated 05.05.2015 passed by Federal Service Tribunal, Islamabad in A.3099(R)CS/2012)

CIVIL APPEALS NOS. 637-651, 660/2015

AND

(On appeal from the judgment/order dated 02.03.2015 passed by High Court of Sindh, Karachi in C.Ps. 298, 304-308,310-318/2014 and 10.12.2014 passed by High Court of Sindh, Sukkar Bench in W.P.2756/2012)

CIVIL PETITIONS NOS. 842/2015, 3612/2015

AND

(On appeal from the judgment/order dated 02.03.2015 passed by High Court of Sindh, Karachi in C.P.309/2014 and dated 14.10.2015 passed in Peshawar High Court, D.I Khan Bench, D.I. Khan in W.P.177/2015)

CIVIL APPEALS NOS.101/2016, 1106/2015

AND

(On appeal from the judgment/order dated 06.10.2015 passed Peshawar High Court, Peshawar in W.P.3848/2014 and dated 12.12.2014 passed by High Court of Sindh, Karachi in C.P.1905/2011)

CIVIL PETITION NO.3366/2015

AND

(On appeal from the judgment/order dated 12.12.2014 passed by High Court of Sindh, Karachi in C.P.1998/2011)

C.R.Ps. 231-236,256/2016 IN C.Ps. 405-411/2016

AND

(Review of the judgment/order of this Court dated 05.05.2016)

CIVIL APPEALS NOS. 4-K AND 5-K/2017

AND

(On appeal from the judgment/order dated 07.09.2016 passed by High Court of Sindh, Karachi in C.P.D-4078/2011 and C.P.D-2841/2012)

CIVIL PETITION NO.19-P/2016

AND

(On appeal from the judgment/order dated 29.10.2015 passed by Peshawar High Court, Peshawar in W.P.2758-P/2015)

CIVIL APPEAL NO.65-K/2013

AND

(On appeal from the judgment/order dated 24.10.2012 passed by High Court of Sindh, Karachi in C.P.214-D/2011)

CIVIL APPEALS NOS.518 AND 519/2018

AND

(On appeal from the judgment/order dated 27.10.2017 passed by High Court of Sindh, Karachi in C.P.6370-D/2016 and C.P.3411-D/2016)

CIVIL PETITIONS NOS.588-K, 589-K/2018

AND

(On appeal from the judgment/order dated 14.03.2018 passed by Federal Service Tribunal, Camp At Karachi in Appeals 4(K)CS and 5(K)CS /2017)

CIVIL APPEAL NO.1098/2018

AND

(On appeal from the judgment/order dated 25.05.2018 passed by Islamabad High Court, Islamabad in W.P.1479/2012)

CIVIL APPEALS NOS.1921-1923/2019

(On appeal from the judgment/order dated 30.01.2019 passed by Federal Service Tribunal, Islamabad in Appeals Nos. 156(R)CS to 158(R)CS /2017)

AND

C.M.A.4382/2016 in C.A.637/2015 AND C.M.A.7274/2017 in C.A.637/2015

AND

(Impleadment applications)

C.M.A.6842/2018 in C.A.1098/2018

(Stay)

MUHAMMAD AFZAL and others---Appellants/Petitioners

Versus

SECRETARY ESTABLISHMENT DIVISION ISLAMABAD and others---Respondents

Civil Appeal No. 491 of 2012 and Civil Appeals Nos. 536-546, 580/2012, 452, 453, 43/2013 and Civil Petitions Nos. 150-151/2013 and Civil Appeals Nos. 1081, 1084/2011, 432/2013 and Criminal Petitions Nos. 138-140/2014 and Civil Appeals Nos.1151/2012, 1026-1027/2013 and Civil Petitions Nos. 677-P/2014,1567/2015 and Civil Appeals Nos. 637-651, 660/2015 and Civil Petitions Nos. 842/2015, 3612/2015 and Civil Appeals Nos.101/2016, 1106/2015 and Civil Petition No.3366/2015 and C.R.Ps. 231-236,256/2016 In C.Ps. 405-411/2016 and Civil Appeals Nos. 4-K and 5-K/2017 and Civil Petition No.19-P/ 2016 and Civil Appeal No.65-K/2013 and Civil Appeals Nos.518 and 519/2018 and Civil Petitions Nos.588-K, 589-K/2018 and Civil Appeal No.1098/2018 and Civil Appeals Nos.1921-1923/2019 and C.M.A. 4382/2016 in C.A. 637/2015 and C.M.A. 7274/2017 in C.A. 637/2015 and C.M.A. 6842/2018 In C.A. 1098/2018, decided on 17th August, 2021.

(a) Sacked Employees (Re-instatement) Act (XXII of 2010)---

----S. 4---Constitution of Pakistan, Art. 240---Civil service---Non-obstante clause under S. 4 of the Sacked Employees (Re-instatement) Act, 2010, ('Act of 2010')---Constitutionality---Such clause could not over-ride the provisions of the Constitution---Given the fact that the legislature itself was subservient to the Constitution, a non-obstante clause could not be deemed to override the provisions of the Constitution itself---Section 4 of the Act of 2010 (non-obstante clause) also excludes the application of the judgments of the Supreme Court or any High Court---Effect of the non-obstante clause, was, in essence, to nullify a judgment of the Supreme Court, but a legislature could not destroy, annul, set aside, vacate, reverse, modify, or impair a final judgment of a Court of competent jurisdiction---Section 4 of the Act of 2010 (non-obstante clause) failed to provide unfettered protection to the said Act and was rendered ineffective through the very judicial pronouncement it sought to oust.

Contempt Proceedings Against Chief Secretary, Sindh and others 2013 SCMR 1752; Fazlul Quader Chowdhry v. Muhammad Abdul Haque PLD 1963 SC 486 and Contempt Proceedings Against Chief Secretary, Sindh and others 2013 SCMR 1257 ref.

(b) Sacked Employees (Re-instatement) Act (XXII of 2010)---

----S. 4 & Preamble---Constitution of Pakistan, Arts. 4, 9 & 25---Sacked Employees (Re-instatement) Act, 2010, ('Act of 2010'), vires of---Legislature had, through the operation of the Act of 2010, attempted to extend undue benefit to a limited class of employees---In terms of the Act of 2010 upon the 'reinstatement' of the 'sacked employees', the 'status' of the employees currently in service was violated as the reinstated employees were granted seniority over them---Legislature had, through legal fiction, deemed that employees from a certain time period were reinstated and regularized without due consideration of how the fundamental rights of the people currently serving would be affected---Rights of the employees who had completed codal formalities through which civil servants were inducted into service and complied with the mandatory requirements laid down by the regulatory framework could not be allowed to be placed at a disadvantageous position through no fault of their own---Act of 2010 was also in violation of the right enshrined under Art. 4 of the Constitution, that provided citizens equal protection before law, as backdated seniority was granted to the 'sacked employees' who, out of their own volition, did not challenge their termination or removal under their respective regulatory frameworks---Given that none of the 'sacked employees' opted for the remedy available under law upon termination during the limitation period, the transaction had essentially become one that was past and closed; they had foregone their right to challenge their orders of termination or removal---Sacked Employees (Reinstatement) Act, 2010 had extended undue advantage to a certain class of citizens thereby violating the fundamental rights (Articles 4, 9, and 25 of the Constitution) of the employees in the Service of Pakistan and was thus void and ultra vires the Constitution.

Contempt Proceedings Against Chief Secretary, Sindh and others 2013 SCMR 1752 ref.

(c) Constitution of Pakistan---

----Arts. 184(3) & 185(1)---Supreme Court, powers of---Vires of an enactment---Supreme Court, as protector and defender of the Constitution, had an inherent duty to ensure that the provisions of the Constitution were enforced in any case coming before the Court and declare any enactments invalid that abrogated the Constitution.

Zafar Ali Shah v. Pervaiz Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; PLD 1963 SC 486; PLD 1967 Lah. 227; 1989 PTD 42; PLD 1983 SC 457; PLD 1999 SC 54; 1999 SCMR 1402; 2002 SCMR 312; 2004 SCMR 1903 and PLD 2006 SC 602 ref.

(d) Sacked Employees (Re-instatement) Act (XXII of 2010)---

----Ss. 2(f), 4 & Preamble---Constitution of Pakistan, Arts. 240 & 242---Sacked Employees (Re-instatement) Act, 2010, ('Act of 2010'), vires of---Said Act circumvented the constitutional process envisioned under Art. 240 & Art. 242 of the Constitution---In terms of S. 2(f) of the Act of 2010 'sacked employees' fell into either the definition of a 'civil servant' or employees 'in the service of Pakistan'---Said two terms were not synonymous with each other---Legislature could not, by a deeming clause in the Act of 2010, confer the status of a 'civil servant' upon employees of a corporation, and overlook the relevant framework for employees in service of Pakistan in clear violation of Arts. 240 & 242 of the Constitution---Furthermore, Ss. 2(f)(i) & 2(f)(ii) of the Act of 2010 clearly envisioned that reinstatement and regularization should be extended to not only regular employees who were either dismissed, removed, or terminated, but also to ad-hoc and contract basis employees---When S. 2 of the Act of 2010 was read holistically, the overall effect of the enactment was that the overall recruitment process was overlooked and non-civil servants were 'reinstated' into civil service thereby deeming them to be members of civil service through a deeming clause---Legislature lacked the legislative competence to enact the Act of 2010 as it had attempted to circumvent the jurisprudence of the Supreme Court and Arts. 240 & 242 of the Constitution---Supreme Court declared that the Sacked Employees (Re-instatement) Act, 2010 was ultra vires of the Constitution; that no vested rights could be created or protected under the same; that any/all benefits accrued to the beneficiaries under the said Act were to be ceased with immediate effect; that cases of employees who had retired and/or passed away were past and closed transactions and it would not be appropriate to interfere in their cases; that beneficiaries of the Act of 2010, who were still in service, would go back to their previous positions, i.e. to the date when the operation of the Act of 2010 had taken effect, however, it would be inequitable to reverse any monetary benefits received by them under the Act of 2010 for the period they had served and those shall remain intact as they were granted against service, but the lump sum received by such 'sacked employees' upon reinstatement shall be reversed.

Registrar, Supreme Court of Pakistan v. Wali Muhammad 2013 SCMR 120; Mubeen-Us-Salam v. Federation of Pakistan PLD 2006 SC 602 and Federation of Pakistan v. Muhammad Azam Chattha 2013 SCMR 120 ref.

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

----S. 2(b)---Constitution of Pakistan, Art. 260---Terms 'civil servant' and person 'in the service of Pakistan'---Said terms were not synonymous.

Mubeen-Us-Salam v. Federation of Pakistan PLD 2006 SC 602; 2004 SCMR 1903; PLD 2006 SC 602 and Syed Abida Hussain v. Tribunal for N.A 69 PLD 1994 SC 60 ref.

M. Shoaib Shaheen, Advocate Supreme Court, M. Akram Sheikh, Senior Advocate Supreme Court, M. Asif Vardag, Advocate Supreme Court, Rai M. Nawaz Kharral, Advocate Supreme Court, M. Tariq Tanoli, Advocate Supreme Court, M. Munir Paracha, Advocate Supreme Court, Hafiz S. A. Rehman, Senior Advocate Supreme Court, Hafiz Hifzur Rehman, Advocate Supreme Court, Raja M. Ibrahim Satti, Senior Advocate Supreme Court, Haider Waheed, Advocate Supreme Court, Altaf Ahmed, Advocate Supreme Court, Sanaullah Noor Ghauri, Advocate Supreme Court, Raja Muqsat Nawaz Khan, Advocate Supreme Court, Mian Shafaqat Jan, Advocate Supreme Court, Zafar Iqbal Chaudhry, Advocate Supreme Court and Zahid Yousaf Qureshi, Additional A.G., Kkhyber Pakhtunkhwa for Appellants/Petitioners.

Sajid Ilyas Bhatti, Additional A.G.P., Ishrat Bhatti, Director IB and Amjad Iqbal, Asstt. Dir.(Lit.) for Federation.

Sohail Mehmood, DAG, for Respondents (in CAs 1081,1084/11,432/13).

Tariq Asad, Advocate Supreme Court, S. A. Mehmood Khan Sadozai, Advocate Supreme Court, Qari Abdul Rashid, Advocate Supreme Court/Advocate-on-Record, Pervaiz Rauf, Advocate Supreme Court, Syed Wusat-ul-Hassan Taqvi, Advocate Supreme Court, Fawad Saleh, Advocate Supreme Court, Mian M. Hanif, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record, M. Ilyas Siddiqui, Advocate Supreme Court, M. Yousaf Khan, Advocate Supreme Court, Kh. M. Arif, Advocate Supreme Court, Hazrat Said, Advocate Supreme Court, Asim Iqbal, Advocate Supreme Court, Fazal Shah Mohmand, Advocate Supreme Court, Wasim ud Din Khattak, Advocate Supreme Court and Khalid Rehman, Advocate Supreme Court for Respondents.

Kamran Murtaza, Senior Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record, Fawad Saleh, Advocate Supreme Court and Syed Zulfiqat Abbas Naqvi, Advocate Supreme Court for Intervenor.

Dr. Babar Awan, Senior Advocate Supreme Court, Khalil Javed, M. Nawaz Abbasi, Sari Had, Fazal Mehmood Methani, Arshad Khan, Waheed Ahmed and Ilyas in person.

2021 S C M R 1602

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Jamal Khan Mandokhail, JJ

SUO MOTU CASE NO. 4 OF 2021: In the matter of\

Suo Motu Case No. 4 of 2021, decided on 20th August, 2021.

Constitution of Pakistan---

----Arts. 9, 10, 11, 13, 14(1), 14(2), 15, 18, 19, 19A, 23, 24(1), 25A, 184(3) & 227---Suo motu case---Application submitted by journalists relating to independence of press and media---Harassment, intimidation and attack on journalists---Cases registered against journalists by the Federal Investigation Agency (FIA)---Media houses/television channels not allowing journalists to work freely and favoring a particular political narrative for getting advertisements from the Government---Observations and directions recorded by the Supreme Court in relation to issues faced by journalists and independence of press and media.

Present application was to be treated as one under Article 184(3) of the Constitution because it demonstrated that matters of public importance had been raised with reference to the enforcement of Fundamental Rights, including Articles 9, 11, 13, 14(1), 14(2), 15, 18, 19, 19A, 23, 24(1) and 25A of the Constitution and as such it met the stipulated criteria prescribed in Article 184(3) of the Constitution. Moreover, if the allegations which had been leveled were true then it would be a grave transgression of the Constitution requiring urgent redressal.

The applicants (working journalists) stated that journalists were harassed, intimidated, attacked and shot at and there were no consequences for the perpetrators and, it ws further alleged, that those who should be protecting journalists and ensuring the freedom of the press, guaranteed under Article 19 of the Constitution, were involved. Reference was also made to a 'Press Release', attached with the application, which was issued by the Federal Investigation Agency ('FIA') stating that criminal cases had been registered against some journalists because they reported against the judiciary.

The above-mentioned Press Release did not disclose what was said against the judiciary. Judges of the superior Courts were mandated by the Constitution to ensure that Fundamental Rights were at all times guaranteed and enforced. The said Press Release created an impression that criminal cases were registered at the behest of the judiciary, and in doing so it portrayed the judiciary to be inimical to the guaranteed Fundamental Right of a free press. The FIA appeared to have overstepped its legal mandate and to have undermined the peoples' confidence in the judiciary which was the guarantor of the Fundamental Rights. By such tactics, the respect, regard and confidence of the people in the judiciary may be undermined and the judiciary may also be disrespected and portrayed as standing with FIA. The Director General of FIA ('DG') without whose authorization the Press Release may not have been issued or who till date had not retracted it, be issued notice to disclose who authorized the issuance of the Press Release and to submit his personal written explanation why he permitted its issuance mentioning the judiciary and if it was not issued by him then why did he not withdraw it. The DG, FIA was also directed to be present in-person in Court along with the entire original record of the cases against journalists in respect of whom the Press Release was issued and was further directed to submit a complete list of cases filed against journalists, and such list should specify the actual content, that is transcript of the text, which FIA deemed to constitute an offence.

Present application also highlighted that journalists were not allowed to work freely and pursue their careers, which was a violation of Article 18 of the Constitution that guaranteed right to enter upon any lawful 'profession or occupation'. Therefore, if a media house/television channel was prevailed upon to sack any journalist because of his/her independent reporting it appeared to violate Article 18 of the Constitution. Therefore, notice be issued to the Pakistan Electronic Media Regulatory Authority ('PEMRA') through its Chairman, who was directed to submit his written response disclosing action taken against the media houses/television channels which resorted to such tactics. PEMRA should also disclose its role in ensuring that press freedom was ensured and that all political parties, both in the government and in opposition, received the same broadcast time.

The ever so frequent attacks on journalists and their abductions, including in the Federal Capital Territory, Islamabad, was another violation of Fundamental Rights which had been raised in the application. This matter became a matter of concern when the perpetrators were not arrested and, all the more so, when it happened under the cameras of the Safe City Project, Islamabad. Inability in such regard may suggest incompetence, which may constitute dereliction of duty, or far worse abetment, which was an offence. Therefore, notice be also issued to the Inspector General of Police (Islamabad Capital Territory) and the Ministry of Interior, through its Secretary to separately submit their written replies under their respective signatures listing the number of attacks on journalists, the progress made in the investigation of the FIRs, including identifying the attackers, and whether the recordings from the cameras of the Safe City Project were used to trace out the perpetrators. The amount spent on the Safe City Project be also disclosed.

Allegations had also been made that pliant media houses/ television channels which agreed to project a particular political narrative and suppress a contrary one benefitted financially by misusing public exchequer fund as they were given advertisements and other benefits while others were deprived. Therefore, notice be also issued to the Ministry of Information and Broadcasting, through its Secretary, who was directed to provide details of the amounts paid/disbursed on account of advertisements in the last financial year, till date, and the criteria, if any, used in determining the beneficiaries. Other benefits that may have been given, including foreign trips be also disclosed. The Secretary, Ministry of Information and Broadcasting, was further directed to disclose the Ministry's annual budget and the work that it did.

Reference in the present application was also made to Islam. Article 227 of the Constitution mandated abiding by the injunctions of Islam. Propagating the truth was an obligation stipulated in the Holy Quran. The Prophet (peace and blessing be upon him) stated that to speak against injustices and tyranny constituted jihad-e-akbar, the greater jihad. Therefore, let notice be also issued to the Ministry of Religious Affairs and Inter-faith Harmony, through its Secretary, who was directed to submit if the Ministry had done anything to ensure that the speaking and broadcasting of the truth is encouraged.

Since present matter also pertained to the work which the Ministry of Human Rights should be doing, let it, through its Secretary, submit what, if anything, it had done with regard to the matters complained of in the application and to state if the allegations which had been leveled were true and, if so, who in its opinion was violating the stated Fundamental Rights.

Supreme Court directed that notices be also issued to the representative bodies of the press, i.e. the Pakistan Broadcasters Association (PBA), the Council of Pakistan Newspaper Editors (CPNE), the All Pakistan Newspaper Society (APNS) and the Pakistan Federal Union of Journalists (PFUJ) to state whether the allegations made in the present application were correct or otherwise; that notices be also issued to the public sector Pakistan Television Corporation (PTC) and Pakistan Broadcasting Corporation (PBC) through their respective Managing Directors/Heads, who shall submit in writing whether they were abiding by the guaranteed Fundamental Right of a free press, and notices also be issued to the Attorney General and the Advocate Generals of the four provinces and the Islamabad Capital Territory; and that office shall number this petition and since the present Bench had taken notice pursuant to Article 184(3) of the Constitution and had heard the applications at some length, let the case be fixed before the same Bench.

In attendance:

Abdul Qayyum Siddiqui and Asad Toor, Journalists (Applicants).

2021 S C M R 1609

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, ACJ, Ijaz ul Ahsan, Munib Akhtar, Qazi Muhammad Amin Ahmed and Muhammad Ali Mazhar, JJ

SUO MOTU CASE NO.4 OF 2021: In the matter of

Suo Motu Case No. 4 of 2021, decided on 23rd August, 2021

(In re: order dated 20.08.2021 in SMC No.4 of 2021)

Constitution of Pakistan---

----Art. 184(3)---Suo motu powers of the Supreme Court---Scope---Order made by a two Member Bench of the Supreme Court ('the order dated 20-08-2021') on an application directly received and entertained in Court [reported as 2021 SCMR 1602]---Said Bench took suo motu notice of the grievance expressed in that application submitted by a number of journalists---Notices had been issued to several Federal Government authorities as well as to the Law Officers of the Federation and the Provinces---Next date of hearing in the matter had been fixed for 26-08-2021 before the same Bench that has passed the order dated 20-08-2021---Legality---Questions raised by the present case were as to what was the manner and procedure whereby the suomoto jurisdiction of the Supreme Court under Art. 184(3) of the Constitution was to be invoked and in particular whether, and if so how, such action may be initiated at the instance or on the recommendation of a Bench of the Supreme Court---In the light of the answer to said questions the propriety, manner and extent to which the order dated 20-08-2021 could be implemented by the office was another question that needed to be addressed---Supreme Court had a settled practice regarding the entertainment of suo motu actions on the recommendation made by Benches of the Court during judicial proceedings pending before them---Present case was different because no judicial proceeding was pending before the two Member Bench on 20-08-2021 regarding the grievances or concerns of journalists---Rather the order was passed on a fresh unregistered application handed over and entertained in Court---Furthermore the Supreme Court had a discernible settled practice regarding the procedural issue of how suo motu motions may be entertained by the Court---In contrast, however, the order dated 20-08-2021, prima facie, made a departure from the norms of the applicable procedural practice---Presently the order dated 20-08-2021 directing notice to and reports from several Federal Government authorities was in the field---On account of the question now before the present Bench which went to the root of the jurisdiction, it was inappropriate to implement the said order dated 20-08-2021 because that may obscure and unsettle the practice of the Court for invoking its suo motu jurisdiction resulting in needless uncertainty and controversy with attendant consequences---Supreme Court directed that the order of the two Member Bench dated 20-08-2021 [reported as 2021 SCMR 1602] shall remain in abeyance, and on the next date of hearing the Attorney General, the President of the Supreme Court Bar Association, the Vice Chairman of the Pakistan Bar Council, and counsel of the applicant journalists shall come prepared with their submissions---Order accordingly.

In attendance:

Khalid Javed Khan, Attorney General for Pakistan, M. Latif Afridi, President SCBAP and Amjad Nazir Bhatti (Applicant in SMC.4/2021).

2021 S C M R 1612

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, ACJ, Ijaz ul Ahsan, Munib Akhtar, Qazi Muhammad Amin Ahmed and Muhammad Ali Mazhar, JJ

SUO MOTU CASE NO.4 OF 2021: In the matter of

Suo Motu Case No. 4 of 2021, decided on 26th August, 2021.

(In re: order dated 20.08.2021 in SMC No.4 of 2021)

Constitution of Pakistan---

----Art. 184(3)---Assumption of suo motu jurisdiction by the Supreme Court under Art. 184(3) of the Constitution---Guiding principles stated.

Invocation/assumption of the suo motu jurisdiction of the Supreme Court under Article 184(3) of the Constitution was based on, and shall be guided by, the following principles:

(i) The Chief Justice of the Supreme Court was the sole authority by and through whom the suo motu jurisdiction under Article 184(3) of the Constitution could be, and was to be, invoked/ assumed;

(ii) The Chief Justice may invoke/assume the said jurisdiction in his discretion and shall do so if so requested or recommended by a Bench of the Court; and

(iii) No Bench may take any step or make any order (whether in any pending proceedings or otherwise) as would or could constitute exercise of the suo motu jurisdiction (such as, but not limited to, the issuance of any notice, making any enquiry or summoning any person or authority or any report) unless and until the Chief Justice had invoked/assumed the said jurisdiction.

All matters already pending in respect of, or involving, the suo motu jurisdiction of the Court shall, notwithstanding the principles stated above, continue to be heard and disposed of by such Benches as were constituted from time to time by the Chief Justice.

Supreme Court recalled the order of the two Member Bench of the Supreme Court dated 20-08-2021 reported as 2021 SCMR 1602 and directed that SMC No.4 of 2021 and all filings therein shall stand disposed of, and that substantive claims made by the Press Association of Supreme Court and others in the application presented in the Supreme Court on 20-08-2021 shall be placed before the Chief Justice for consideration.

In attendance:

Khalid Javed Khan, Attorney General for Pakistan, Aamir Rehman, Additional AGP, M. Latif Afridi, President SCBAP, Khushdil Khan, VC, PBC, Jehangir Khan Jadoon, Advocate Supreme Court, Amjad Nazir Bhatti, Journalist and Qayyum Siddiqui, Journalist.

2021 S C M R 1614

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

NASIR alias NASIREE and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 1149-L/2017 and Criminal Petition No. 905-L of 2016, decided on 29th January, 2021.

(Against the order dated 08.06.2016 of the Lahore High Court, Lahore passed in Cr.A. No.579/2012 with M.R. No.177 of 2012)

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Survival of complainant/witness unscathed during the assault, by itself, could not imply his absence from the scene and as such did not undermine his status as a witness worthy of credence---Complainant was a closely related resident of the locality, thus, his encounter with the deceased and the injured in the neighbourhood, did not raise eyebrows; steps taken by him after the incident were in consonance with the investigative details and, thus, confirmatory to his presence---Lengthy cross-examination of complainant failed to create doubts in his testimony, which was substantially in line with the ocular account furnished by two other witnesses that included an injured as well---Accounts furnished by the witnesses squarely constituted "proof beyond doubt", admitting no hypothesis other than accused's guilt whose absence from law for a period exceeding three years did not reflect well upon his unsupported plea of false implication---Regarding the issue of identification, the available source of light vividly shown in the site plan, in the given proximity inter se the parties, compromised of preponderance of overwhelming evidence, inescapably pointing to the culpability of the accused---Petition for leave to appeal was dismissed, leave was refused and conviction and sentences of accused were maintained.

Mian Muhammad Ismail Thaheem, Advocate Supreme Court for Petitioners (in Cr. P.1149-L/2017).

M. Safdar Shaheen Pirzada, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Cr. P.905-L/2016).

Mirza M. Usman, Deputy Prosecutor General Punjab for the State.

2021 S C M R 1617

[Supreme Court of Pakistan]

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

CIVIL PETITIONS NOS.1057, 1049, 1077, 1168, 1355, 1356, 1449, 1450, 1683, 1188-L, 1189-L, 1240-L, 1241-L, 1242-L AND 1243-L OF 2019 AND C.M.As.3081 OF 2019 IN C.P.1057 OF 2019, 3099 OF 2019 IN C.P.1077 OF 2019, 3172 OF 2019 IN C.P.1168 OF 2019 3357 OF 2019 IN C.P.1355 OF 2019, 3359 OF 2019 IN C.P.1356 OF 2019, 3569 OF 2019 IN C.P.1449 OF 2019 AND 3571 OF 2019 IN C.P.1450 OF 2019

(Stay applications)

AND C.M.AS.5090 AND 8488 OF 2019 IN C.P.1057 OF 2019 AND 4199 OF 2019 IN C.P.1450 OF 2019

(Impleadment applications)

JS BANK LIMITED, KARACHI and others---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary Food, Lahore and others---Respondents

Civil Petitions Nos.1057, 1049, 1077, 1168, 1355, 1356, 1449, 1450, 1683, 1188-L, 1189-L, 1240-L, 1241-L, 1242-L and 1243-L of 2019 and C.M.As.3081 of 2019 in C.P.1057 of 2019, 3099 of 2019 in C.P.1077 of 2019, 3172 of 2019 in C.P.1168 of 2019, 3357 of 2019 In C.P.1355 of 2019, 3359 of 2019 in C.P.1356 of 2019, 3569 of 2019 in C.P.1449 of 2019 and 3571 of 2019 in C.P.1450 of 2019 and C.M.As.5090 and 8488 of 2019 In C.P.1057 of 2019 and 4199 of 2019 in C.P.1450 of 2019, decided on 7th July, 2021.

Per Amin-ud-Din Khan, J; Mushir Alam and Qazi Muhammad Amin Ahmed, JJ agreeing with the conclusions with respect to jurisdiction of the cane-growers, however, with respect to the preferential right of the cane growers, arriving at the same conclusion, but for different reasons.

Per Amin-ud-Din Khan, J:

(a) Punjab Sugar Factories Control Rules, 1950---

----Rr. 9(3), 17(6) & Appendix II, Forms 7 & 8---Law Reforms Ordinance (XII of 1972), S. 3(2)---Intra-Court Appeal---Maintainability---Dispute between cane growers and sugar mills over payment of price of sugar cane provided to the mills---Cane Commissioner allowed the sugar mills to start crushing for fresh season but upon their undertaking and offer for sale of sugar stocks for paying the cane growers---Petitioner-banks filed Constitutional petitions before the High Court challenging the action of the Cane Commissioner whereby the refined sugar as per their contention, was pledged with the banks against the "Running Finance" facility extended to the Sugar Mills, and therefore the banks had a first charge being secured creditors upon the refined sugar---Constitutional petitions filed by the banks were dismissed, and Intra-Court Appeals filed there against were dismissed as being non-maintainable---Held, that for purchase of cane sugar cane growers and sugar factories entered into a mandatory agreement under R. 9(3) of the Punjab Sugar Factories Control Rules, 1950 ('the Rules')---In accordance with Forms 7 & 8 of Appendix II to the Rules any dispute pertaining to the agreement was to be referred to arbitration---Furthermore in accordance with the R. 17(6) of the Rules any party considering himself aggrieved by an award made during the arbitration may appeal to the Provincial Government within one month of the date of communication of the award and Government shall pass such order as it deemed fit---Admittedly, the matter in issue was a dispute regarding payment of price of sugarcane provided by the cane growers to the occupier of the sugar mills---As the applicable law for such dispute provided for an appeal, therefore, in terms of S. 3(2) of the Law Reforms Ordinance, 1972, the Intra-Court Appeals filed by the banks were not maintainable.

(b) Limitation Act (IX of 1908)---

----S. 5---Constitution of Pakistan, Arts. 185(3) & 199---Law Reforms Ordinance (XII of 1972), S. 3(2)---Civil petitions for leave to appeal challenging dismissal of Constitutional petitions by the High Court---Condonation of delay---Petitioners had filed Constitutional petitions before Single Judge of the High Court that were dismissed---Intra-Court Appeals (ICAs) filed there against before the Division Bench of the High Court were also dismissed as being not maintainable---Petitioners challenged orders of the Division Bench of the High Court by filing petitions for leave to appeal before the Supreme Court, and belatedly as a precautionary measure also challenged orders of the Single Judge of the High Court by filing petitions for leave to appeal before the Supreme Court, along with applications for condonation of delay---Applications for condonation of delay were filed with the contentions that petitioners considered that the ICAs were competent, but that that they were dismissed being not maintainable---Held, that it was petitioners' responsibility to be clear in their mind as regards to what remedy was available to them under the law---Even if more than one remedy was available to the petitioners against the impugned orders, they had to choose one remedy, and at a time all the available remedies could not be pressed by the petitioners---In the present case if it was the petitioners' stance that ICAs were competent and that they had wrongly been dismissed then their petition to challenge the order of Division Bench was to be filed only and if they admitted that the ICAs were not competent then they had a right to challenge the order of Single Judge dismissing their Constitutional petitions---Invoking the jurisdiction of the Supreme Court against the order of Single Judge directly through a petition for leave to appeal and simultaneously challenging the order of the Division Bench by filing leave to appeal petition were self-contradictory---Petitioners had chosen to avail both remedies, therefore, the ground taken for condonation of delay was not acceptable under the law---Civil petitions for leave to appeal were dismissed.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828 ref.

(c) Constitution of Pakistan---

----Pt. II, Chapt. 1---Pre-Constitutional legislation--- Presumption --- When a pre- Constitution legislation was held to be constitutional, the presumption included that it was consistent with the Fundamental Rights and other constitutional values.

Prof. A. Barak in his book proportionality: Constitutional Rights and their Limitations at page 72 ref.

(d) Interpretation of statutes---

----Purposive approach---Scope---Purposive rather than a literal approach to interpretation was to be adopted while interpreting statutes---Any interpretation which advanced the purpose of the Act was to be preferred rather than an interpretation which defeated its objects.

Saif-Ur-Rehman v. Additional District Judge, Tuba Tek Singh and 2 others 2018 SCMR 1885 and Rab Nawaz Dhadwana, Advocate and others v. Rana Muhammad Akram Advocate and others PLD 2014 Lah. 591 ref.

(e) Punjab Sugar Factories Control Rules, 1950---

---- Rr. 9(3), 12(3), 14(1) & 14(10)---Punjab Sugar Factories Control Act (XXII of 1950), Ss. 6(2), 6(3), 6(4), 11(4), 13, 14 & Preamble---Sale of Goods Act (III of 1930), Ss. 19 & 53(2)---Dispute between cane growers and sugar mills over payment of price of sugar cane provided to the mills---Unjust enrichment---Remedial constructive trust---Scope---Cane Commissioner allowed the sugar mills to start crushing for fresh season but upon their undertaking and offer for sale of refined sugar stocks to pay the cane growers---Petitioner-banks filed Constitutional petitions before the High Court challenging the action of the Cane Commissioner whereby the refined sugar as per their contention, was pledged with the banks against the "Running Finance" facility extended to the Sugar Mills, and therefore the banks had a first charge being secured creditors upon the refined sugar---Constitutional petitions filed by the banks were dismissed, and Intra-Court Appeal filed there against were also dismissed ---[Per Amin-ud-Din Khan, J; (Minority view): For purchase of cane sugar cane growers and sugar factories entered into a mandatory agreement under R. 9(3) of the Punjab Sugar Factories Control Rules, 1950 ('the Rules')---Grower was bound to supply the sugar cane to the Occupier (sugar mills) and entitled to receive the price within two weeks---Grower supplied cane to the occupier in view of such statutory assurance---Cane Commissioner acted as a statutory fiduciary for both the parties; he was the key person who ensured required amount of cane supply to the Occupier (sugar mills) and payment for the cane to the grower---If the occupier (sugar mills) purchased sugar cane from the grower under the statutory assurance and converted it for its own use without paying to the grower (without any legal justification), it would amount to unjust enrichment with the occupier and the same could not be allowed---In such like situations, the courts may apply the doctrine of "remedial constructive trust"---After the passing of legal title of sugar cane to the Occupier, the equitable title shall remain with the grower till the payment was made and the buyer/occupier of the mills could not pass on (to the bank) better title than his own---Court would be justified in imposing constructive trust upon the converted goods/sugar cane in the possession of the Occupier in favour of the grower---Since, the title of refined sugar to the extent of unpaid amount remained with the growers, there arose no occasion for the lien of the creditor banks to the "pledged stock"---Valid pledge could only be created against the goods owned by the occupier and not the third party---Creditor banks and the growers were strangers to each other and their respective rights were not dependent upon each other---[Per Mushir Alam, J (Majority view): Transaction regulated through Punjab Sugar Factories Control Act, 1950 ('the 1950 Act') was not a compulsory acquisition of property but, a valid agreement for the sale of goods; it was an enforceable contract under law; it did not lack free consent of the parties, and did not completely exclude mutual assent---Interest of the cane growers was not that of an unsecured creditor but, of a party carrying a Statutory First Charge granting them preference over all other creditors, unsecured or secured alike, of the sugar mills---Statutory First Charge clinched onto the goods and withstood any changes that may occur to the goods---Cane growers also had a statutory first charge through the operation of S. 53(2) of the Sale of Goods Act, 1930 ('the 1930 Act') that granted them preferential treatment over secured creditors of the sugar mill to recover the purchase price of unpaid goods---Furthermore the interest accrued under R. 14(10) of the Punjab Sugar Factories Rules, 1950 due to the delayed and defaulted payment of the sugar mills would also form part of the liability that carried a Statutory First Charge under S. 6(3) of the 1950 Act and shall be paid to the cane grower---Reference in S. 11(4) of the 1950 Act to the liability being collected as 'arrears of land revenue' was to enable the Cane Commissioner, access to an existing mechanism to protect the rights of the cane growers---Action not initiated by the Cane Commissioner, after the statutory period to collect the payment for the sugarcane had lapsed would result in the scrutiny of the court, as well as, warrant departmental proceedings against the Cane Commissioner, himself for abdicating to perform statutory duties casted upon him under the law---Supreme Court directed that the Cane Commissioner shall calculate the liability, including interest to be calculated from the date the sugar cane was delivered, owed by the sugar mills and to ensure all necessary legal means to fulfill the outstanding debts of the cane growers, and that the Deputy Registrar (Judicial) of the High Court shall release the collected amount to the cane commissioner for the disbursement to the sugar cane growers---Petitions for leave to appeal were dismissed and leave was refused.

Snell's Principles of Equity (28th edn, 1982 at p 193); Soulos v. Korkontzilas, [1997] 2 S.C.R. 217; Riddell v. Edwards, 76 P.3d 847, 852 (Alaska 2003); Swift v. Ball, No. CV010344047S 2005 Conn. Super. LEXIS 417 (Super. Ct. Feb. 22, 2005); Andhra Sugars Ltd. and others v. State of Andhra Pradesh and others AIR 1968 SC 599; Indian Steel Wire Products Ltd v. State of Madras [1968] 1 SCR 479; Jung Sugar Mills Ltd. v. State of Mysore [1972] 2 SCR 228; Vishnu Agencies v. Commercial Tax Officers [1978] 1 SCC 520; Sukhnandan Saran Dinesh Kumar v. Union of India [1982] 3 SCR 371 at Paragraph 22; U.P. Cooperative Cane Unions Federations v. West U.P. Sugar Mills Association and other AIR 2004 SC 3697; Maharashtra State Cooperative Bank Ltd. v. The Assistant Provident Fund Commissioner (2009) 10 SCC 123; UCO Bank v. Official Liquidator, High Court Bombay and another (1994) 5 SCC 1; State of M.P. v. State Bank of Indore (2002) 10 SCC 441; State Bank of Bikaner and Jaipur v. National Iron and Steel Rolling Corporation (1995) 2 SC 19; State of M.P. v. Jaora Sugar Mills Ltd, (1997) 9 SCC 207 at 213; State of Karnataka and others v. Chamundeswari Sugar Ltd. (2008) 7 SCC 469; State of M.P. v. Jaora Sugar Mills Ltd. and others (1997) 9 SCC 207 and U.P. Cooperative Cane Unions Federations v. West U.P. Sugar Mills Association and others (2004) 5 SCC 430 ref.

Re Weldtech Equipment Ltd. 1991 BCC 16 (Eng. Ch. 1990) and Tatung (U.K) Ltd v Galex Telesure Ltd. 1989 BCC 325 (Eng. Q.B. 1988) distinguished.

Per Mushir Alam, J; Qazi Muhammad Amin Ahmed, J agreeing (Majority view)

(f) Creditor and debtor---

----Creditors---Preference---Statutory First Charge, principle of---Scope---Statutory First Charge ('SFC') was created by the operation of a provision in a legislation that granted preference to the holder of the SFC over all other creditors, including secured creditors, holding any form of security---Such SFC's derived their authority through the statute which was the precise reason why the court could not interfere in granting secured creditors rights over parties holding SFC's---Furthermore it was inconsequential if the (statutory) first charge was created prior or subsequent to the mortgage or lien of the secured creditor; it was also immaterial if the nature in the goods were changed---Statutory First Charge persevered as it attached itself onto the goods, travelled with them, and remained enforceable in a preferential manner against other secured creditors irrespective of the manner in which the goods were processed, sold, or pledged---Therefore, the SFC remained unfazed by whatever processing the goods underwent; it took precedence over all contractual liens and mortgages that may be claimed and its creation remained independent from the requirement of registration.

Maharashtra State Co-operative Bank Ltd. v. The Assistant Provident Fund Commissioner (2009) 10 SCC 123; UCO Bank v. Official Liquidator, High Court Bombay and another (1994) 5 SCC 1; State of M.P. v. State Bank of Indore (2002) 10 SCC 441 and State Bank of Bikaner and Jaipur v. National Iron and Steel Rolling Corporation (1995) 2 SC 19 ref.

(g) Creditor and debtor---

----Statutory First Charge, principle of---Factors that could be considered by the court when considering the existence of a Statutory First Charge---When considering whether a statutory due carried with it a statutory first charge, the court could take into account the object and purpose of the legislation, the language of the provision conferring the statutory due, whether a statutory right was created through the operation of the act, and whether a priority was granted for the statutory due over other creditors---Each of said considerations served as indicative factors that the legislature intended to create a statutory first charge---However said factors were a non-exhaustive list of factors and each statutory due must be assessed subjectively.

Ahmed Pervaiz, Advocate Supreme Court, Chaudhry Akhtar Ali, Advocate-on-Record for Petitioners (in C.Ps. Nos. 1057, 1049, 1168 and 1683 of 2019).

Javed Imran Ranjha, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record along with M. Fawad, Executive Vice-President BoK for Petitioners (in C.P. 1077 of 2019), Imtiaz Rashid Siddiqui, Advocate Supreme Court (via video link at Lahore), Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in C.Ps. Nos. 1355 and 1356 of 2019).

Imran Aziz Khan, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1449 and 1450/19).

Syed Ali Zafar, Advocate Supreme Court and Zahid Nawaz Cheema, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1188-L, 1189L, 1240L to 1243-L/2019).

Nadeem Abbas Bhangoo for Cane Commissioner, Punjab, Adnan Badar, Assistant Commissioner Chunian and Adnan Nazir, Technical Officer for Cane Commissioner.

Ch. Faisal Fareed, Additional A.G., Pb. for Government of Punjab:

Ahsari Bhoon, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Brother Sugar Mill (Mian Nishat).

Imran ul Haq Khan, DPG, NAB for NAB: (on Court Notice).

Barrister Haris Azmat, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Brother Sugar Mill (Mian Furqan Idrees and others) (in C.M.A. No. 5090/2019).

Barrister Rafey Altaf, Advocate Supreme Court for Cane Growers (through Tariq Azam Khan) (Brother Mill).

Khawar Ikram Bhatti, Advocate Supreme Court for Commissioner Inland Revenue.

Ijaz Ahmed Awan, Advocate Supreme Court for Brother Sugar Mill (Mian Bashir).

2021 S C M R 1672

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD MAKKI and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos.1152 and 1153 of 2020, decided on 11th January, 2021.

(Against the judgment dated 07.07.2020 passed by the Islamabad High Court Islamabad in Crl. Appeal No.8 of 2011)

Penal Code (XLV of 1860)---

----Ss. 365 & 365-A---Kidnapping or abduction for ransom---Reappraisal of evidence---Evidence was furnished by natural witnesses, with no axe to grind with the accused persons---Incident started with a script that could not be viewed as suspect---Brother of the abductee , who was also a prosecution witness, rushed back from a foreign country to rescue his brother and it was in such backdrop that two of the accused persons emerged as alleged 'saviors'---Chain of circumstances, ultimately connected itself with the abductee, who was being kept at a flat under the surveillance of the accused persons---Consistent and confidence inspiring preponderance of evidence was halfheartedly met by the defence with bald denials alone---Prosecution's partial failure on the charge of section 365-A, P.P.C as well as acquittal of one of the accused persons on account of his absence from the scene at the time of raid, did not adversely reflect upon the integrity of the charge, firmly resting on the totality of chain of circumstances, ranging from abduction, surreptitious confinement of the abductee, ultimately leading to his recovery with accused persons on guard from a premise under their knowledge and occupation---High Court had rightly set-aside the acquittal of accused persons recorded by the Trial Court and convicted them under S. 365, P.P.C.---Petition for leave to appeal was dismissed and leave was declined.

Ch. Afrasiab Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Niazullah Khan Niazi, Advocate General, Islamabad for the State.

Rukhsana Kousar (sister of complainant) for the Respondents.

2021 S C M R 1675

[Supreme Court of Pakistan]

Present: Mushir Alam, Syed Mansoor Ali Shah and Munib Akhtar, JJ

Civil Appeals Nos. 1498 and 1499 of 2018

(On appeal under section 9(5) of the Election Act, 2017 against the order dated 1.10.2018 passed by the Commission of Pakistan in Cases Nos. 30(26)/2018-Leg and 1(19)/2018) And

Civil Petitions Nos. 972-L and 973-L of 2019

(On appeal from the judgment dated 26.2.2019 passed by the Lahore High Court, Multan Bench in W.Ps. Nos.14893/18 and 16234/18)

MUHAMMAD SALMAN---Petitioner

Versus

NAVEED ANJUM and others---Respondents

Civil Appeals Nos. 1498 and 1499 of 2018 and Civil Petitions Nos. 972-L and 973-L of 2019, decided on 17th August, 2021.

Per Munib Akhtar, J; Syed Mansoor Ali Shah, J. agreeing; Mushir Alam, J dissenting.

(a) Elections Act (XXXIII of 2017)---

----S. 9(1)---Representation of the People Act (LXXXV of 1976), S. 103AA [since repealed]---Powers and jurisdiction of the Election Commission ('the Commission') to declare a poll void under S. 9 of the Elections Act, 2017---Scope---Under S. 9 of the Elections Act, 2017 (the 2017 Act) the Commission could "call upon the voters in the concerned polling station or stations or in the whole constituency as the case may be to recast their votes in the manner provided for bye-elections"---Importantly there was a difference between the voters being asked simply to recast their votes on the one hand, and the election to be declared void on the other---Under S. 9 of the 2017 Act voters simply got another chance of choosing the person who was to represent them, but from the same slate as before, whereas under the repealed S. 103AA of the repealed Representation of the People Act, 1976 (the 1976 Act), which was the provision corresponding to S. 9 of the 2017 Act, the entire election was, as it were, scrapped and the whole exercise done afresh---However under the Explanation to S. 9(1) of the 2017 Act there was (only) one 'special case' when the Commission could declare polling at one or more polling stations or election in the whole constituency, void, i.e. if the turnout of women voters was less than ten percent of the total votes polled in a constituency, and the Commission concluded ('may presume') that the women voters had been restrained through an agreement from casting their votes---Under S. 9 of the 2017 Act for the most part, the Commission could only order a recasting of votes, and in only one special case, it could declare the election to be void---Parliament considered it expedient to set out a special case in this manner and repeat therein alone the language that had been used in the repealed S. 103AA(1) of the 1976 Act, while eschewing it in the main part of S. 9(1) of the 2017 Act, which made the legislative intent clear---By allowing the Commission power only to order a recasting of votes in the main part of the S. 9(1) of the 2017 Act, the Parliament intended to bring about a substantive change in the law compared to the 1976 Act---Jurisdiction to declare the poll void earlier conferred on the Commission (under S. 103AA of the 1976 Act) now applied only in respect of the special case, and not otherwise under S. 9(1) of the 2017 Act.

(b) Constitution of Pakistan---

----Arts. 62, 63 & 218(3)---Elections Act (XXXIII of 2017), S. 9(1) --- Representation of the People Act (LXXXV of 1976), S. 103AA [since repealed]---Qualification/disqualification/eligibility of a candidate or member of Parliament---Power of the Election Commission ('the Commission')---Scope---Commission had no power or inherent jurisdiction itself in terms of Art. 218(3) to consider the qualification/disqualification of a candidate/member, whether as an independent, standalone issue or as part of an election dispute---Furthermore Parliament did not confer any jurisdiction in terms of S. 103AA of the Representation of the People Act 1976 (since repealed) and/or S. 9 of the Elections Act, 2017 on the Commission to consider the qualification or disqualification, under Arts. 62 and/or 63 of the Constitution, of a candidate for election or a member of the legislature.

(c) Constitution of Pakistan---

----Art. 185(3)---Leave refusing order by the Supreme Court did not constitute a binding authority.

Per Mushir Alam, J. dissenting [Minority view]

(d) Elections Act (XXXIII of 2017)---

----S. 9(1)---Constitution of Pakistan, Art. 199---Post-election challenge to eligibility of returned candidate---Constitutional petition filed before High Court by a "voter" of the constituency challenging the eligibility of the returned candidate to contest elections---Maintainability---Voter/petitioner had an appropriate, alternate, and efficacious remedy available to him in terms of S. 9 of the Elections Act, 2017, but had not availed it without any justification---In such circumstances High Court has rightfully declined to exercise jurisdiction in terms of Art. 199 of the Constitution and remitted the matter to the Election Commission via a consent order. [Minority view]

Dr. Raja Aamer Zaman v. Omar Ayub Khan 2015 SCMR 1303; Election Commission of Pakistan through Secretary v. Javaid Hashmi PLD 1989 SC 396; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Lt. Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735; Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad PLD 2005 SC 52; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer 1994 SCMR 1299; Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 644; Rana Aftab Ahmad Khan v. Muhammad Ajmal PLD 2010 SC 1066 and The Presiding Officer v. Sadruddin Ansari and Lal Muhammad Bin Yousuf PLD 1967 SC 569 ref.

(e) Constitution of Pakistan---

--- Art. 175(2)---Jurisdiction of courts---Scope---Consent of parties---No jurisdiction could be conferred on the Court by the consent of the parties unless the jurisdiction was "conferred on it by the constitution or by or under any law."

PLD 2006 SC 328; Said alias Khurshid and others v. Deputy Commissioner, Settlement Department and others PLD 2003 Lah. 617; Syed Muhammad Hussain Shah v. Abdul Qayyum and others 2011 SCMR 743; Government of Sindh and others v. Saiful Haq Hashmi and others 1993 SCMR 956 and Ali Muhammad and others v. Muhammad Shafi and others PLD 1996 SC 292 ref.

(f) Jurisdiction---

----Court/tribunal---No legal impediment in the way of court or tribunal to decide its own jurisdiction.

Government of Punjab v. Sanosh Sultan PLD 1995 SC 541 and Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 ref.

(g) Ex debito justitiae, doctrine of---

----Scope---Power of court to convert one form of proceedings filed in a wrong forum and remit or transfer the same to a court or forum of competent jurisdiction---Scope---Power to convert and or treat one kind of proceeding into another was derived from the doctrine of "ex debito justitiae", wherein, the Court owed a debt to the litigant to correct an error in judicial dispensation---Such authority was inherently possessed and exercised by the Court not only to advance the cause of justice but also to prevent injustice---Superior Courts could not be barred or restrained to ascertain the true nature of proceedings, convert one type of proceeding into another and either proceed to decide the matter itself, provided the court itself had jurisdiction over the lis, or may remit the lis to the court/forum of competent jurisdiction for decision on its own merits.

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

(h) Elections Act (XXXIII of 2017)---

----Ss. 4(1), 9(1), 154(b) & Chapt. IX---Constitution of Pakistan, Arts. 218(3) & 222---Powers and jurisdiction of the Election Commission ('the Commission') to declare a poll void under S. 9 of the Elections Act, 2017---Scope---Petition filed before the Commission alleging that the returned candidate-appellant was underage (less than 25 years old) on the date of filing his nomination papers---Commission set-aside the election of the appellant by declaring it void under S. 9 of the Elections Act, 2017---Legality---Commission had the jurisdiction to embark to examine the inherent disqualification of a returned candidate post-elections---Section 9 of the Elections Act 2017 ('the 2017 Act'), was an enabling power emanating from the Constitutional mandate of Art. 218(3), together with concluding part of Art. 222 of the Constitution---Authority of Commission was not dependent on any formal complaint but the Commission was obligated to exercise its inherent powers to issue such declarations and order repolling when on the basis of any information before it, having conducted an enquiry through which it was satisfied that by reasons of grave illegalities or such violations of the provisions of Act of 2017 or the relevant Rules as had materially affected the result of the poll---Though the Commission was deemed to be an Election Tribunal by the operation of S. 9(4) of the Act of 2017, yet the independence of Commission was not compromised, and it was not enslaved to procedural trapping of Chapter IX of the Act of 2017, unlike the Election Tribunal---Commission may issue any one of the declarations provided for under S. 154(b) of the Act of 2017 respectively or issue orders accordingly in exercise of powers conferred through S. 4 of the same Act---In the present case, the Commission was adjudicating on a matter brought to its surveillance under the authority vested in it by virtue of Art. 218(3) read with Art. 222 of the Constitution and with S. 4 as well as S. 9 of the Act of 2017---Commission exercised the enabling power contained under S. 9 of the Act of 2017 backed by the Constitutional mandate, by enquiring into the matter through information laid before it by a voter, and on another complaint of similar nature in the form of Constitutional petition, transmitted to it by the High Court---Inquiry conducted into the allegation against the appellant regarding his qualifying age (i.e 25 years of age) was a alid ground for declaring election of a returned candidate void---Commission had exercised its constitutional function and declared the election void and the same could not be struck down unless it was demonstrated that the declaration made by the Commission, after holding enquiry into his age and obtaining CNIC card with different age to earn eligibility to contest election was nothing but, mala fide in law---Appeals were dismissed. [Minority view]

Muhammad Shahzad Shaukat, Advocate Supreme Court for Appellant/Petitioner (in call cases).

Tahir Munir Malik, Advocate Supreme Court, Kh. Waseem Abbas, Advocate Supreme Court and Imran Humayun Cheema, Advocate Supreme Court for Respondent No. 1 (in C.A. 1498/18).

Waqar Ahmed Rana, Advocate Supreme Court for Respondent No.4 (in C.A. 1498/18).

Hamid Khan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 1 (in C.A. 1499/18).

Sajeel Shehryar Swati, Advocate Supreme Court for Respondent No.5 (in C.Ps. 972-L and 973-L/18).

Ch. Aamir Rehman, Additional A.G.P. on Court's Notice on 28 and 29/1/2020.

2021 S C M R 1725

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

INHAF ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.60 of 2017, decided on 7th April, 2021.

(Against the judgment dated 20.12.2016 passed by the Peshawar High Court Peshawar in Cr. A. No.562-P/2015)

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

---S. 365-A---Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping or abduction for ransom---Reappraisal of evidence---No test identification parade was carried out to qualify the standard of proof within the contemplation of Art. 22 of the Qanun-e-Shahadat, 1984---Similarly, identification of accused, with handcuffs in the dock, through intervention of the Presiding Judge was something that could not be approved---Furthermore arrival of a massage at the abductee's house demanding ransom through an unknown person categorically claiming to have been dispatched by a friend of the abductee's father without any reaction or response, in such testing hours, failed to inspire confidence---Furthermore, without intervention of police, payment of ransom to the accused and immediate release of the child were circumstances no less intriguing either---Six out of seven accused persons, though assigned different roles, nonetheless, equally blamed to have aided the crime, had been acquitted---In such circumstances it would be unsafe to maintain conviction of accused---Petition for leave to appeal was converted into appeal and allowed, and accused was acquitted of the charge.

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

----Art. 161---Judge's power to put questions to witnesses---Scope---Trial Court was vested with ample authority to put questions to the witness, however, the power of such amplitude must be exercised with caution and circumspection, solely in aid of justice without disturbing equality in the scales---Court bore no responsibility either for the prosecution or the defence; it must maintain its neutrality to decide a case on the strength of evidence alone, essentially to be adduced by the prosecution itself to drive home the charge.

Astaghfarullah, Advocate Supreme Court for Petitioner.

Ms. Ayesha Tasneem, Advocate Supreme Court for the State.

2021 S C M R 1728

[Supreme Court of Pakistan]

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

ORIENT POWER COMPANY (PRIVATE) LIMITED through Authorized Officer---Petitioner

Versus

SUI NORTHERN GAS PIPELINES LIMITED through Managing Director---Respondent

Civil Appeal No.1547 of 2019, decided on 17th August, 2021.

(On Appeal from the judgment dated 01.08.2019 of the Lahore High Court, Lahore passed in I.C.A. 210640 of 2018)

(a) Contract---

----Inter-connected, inter-dependent, or multiple contracts forming an 'indivisible whole contract'---Scope---Gas Supply Agreement ('GSA') between a power generation facility and distributor of natural gas---Dispute over payment for gas---After determination by an expert ('expert determination') a separate "Payment Agreement" was executed between parties for payment of disputed amount---Question as to whether the GSA and the Payment Agreement were comprised of interconnected or inter-dependent contracts to be treated as "indivisible whole contract" or whether they were separate and independent from each other---Held, that the both the agreements i.e GSA and the Payment Agreement were by and between the same parties --- Obligations undertaken under the Payment Agreement were for the accomplishment of a single goal i.e. the fulfillment of the terms of the GSA---Both the contracts were economically interdependent and had a common origin.

Terms of the Payment Agreement established that the parties intended to remain within the confines of the Gas Supply Agreement ('GSA') as the purpose of the Payment Agreement was to give effect to the expert's determination. The expert determination itself was a result of a dispute arising out of the obligations of the GSA. Furthermore, the intention of the parties to give effect to the obligations under GSA was evident by the Recitals to the Payment Agreement, which made explicit mention of the GSA and the dispute arising under it. Moreover, Clause 1 of the Payment Agreement stated explicitly that the definitions set forth in the GSA would carry the same meanings under the Payment Agreement, and Clause 4 stated that after resolution of the issues under the Payment Agreement, the provisions of the GSA shall apply and prevail. Therefore, this was illustrative of the intention of the parties to, not only be bound by the GSA, but also to remain within its confines --- Such continuous reference to the GSA meant that the Payment Agreement was ultimately guided by, and dependent on the GSA for its existence; it was, undoubtedly a "part of an indivisible whole" and the transaction thus must be looked at in its entirety --- Appeal was dismissed.

Philippe Leboulanger 'Multi-Contract Arbitration' (1996) 13 (4) J In't Arb 43, 47 ref.

(b) Arbitration---

----Contract--- Inter-connected or inter-dependent contracts---Arbitration clause in one agreement deemed to be incorporated into another agreement---Scope---Gas Supply Agreement ('GSA') between a power generation facility and distributor of natural gas---Dispute over payment for gas---After determination by an expert ('expert determination') a separate "Payment Agreement" was executed between parties for payment of disputed amount---Plea of power generation facility that had the arbitration clause in the GSA did not cover the Payment Agreement, and thus the Sole Arbitrator exceeded his jurisdiction by deciding the issues arising out of the Payment Agreement---Held, that the arbitration clause in the GSA covered disputes, disagreements or default of the seller and buyer "in connection with or arising out of" the GSA---Dispute under the Payment Agreement was inarguably a dispute connected to the GSA, and also arose out of the obligations under the GSA---Controversy arising out of Payment Agreement was a progeny of the GSA and could not be divorced from the parent GSA---Arbitration clause contained in the GSA would therefore be the "centre of gravity" and would be deemed to be anchored in the Payment Agreement which itself was merely an implementation of the GSA---Disputes "arising out of" the GSA were thus wide enough to cover the Payment Agreement --- Neither was it commercially sensible nor realistic to hold that both the agreements were to be decided by separate forums--- Had this been the case, the parties, as rational businessmen, would have been prudent in expressly excluding the arbitration clause from the Payment Agreement---Appeal was dismissed.

Fiona Trust and Holding Corporation v. Privalov [2007] UKHL 40; AmTrust Europe Ltd v. Trust Risk Group SpA [2015] EWCA Civ 437; French Supreme Court on 14 May 1996 1st Civ. Chamber, 14 May 1996, 1997 Rev. Arb. 535; French Supreme Court decided on 5 March 1991 Commercial Ch., 1992 Rev. Arb. 66 and note by L. Aynès and Tjong Very Sumito and others v. Antig Investments Pte. Ltd; the Singapore Supreme Court [2009] 4 S.L.R.(R) 732, [2009] S.G.C.A. 41 ref.

(c) Arbitration---

----Arbitral tribunal---Jurisdiction---Doctrine of Kompetenz-kompetenz (competence-competence)---Scope---No legal impediment in the way of a court or tribunal to decide its own jurisdiction---Doctrine of Kompetenz-kompetenz essentially allowed the arbitral tribunal to determine its own jurisdiction.

Government of Punjab v. Sanosh Sultan PLD 1995 SC 541; Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 and SBP& Co. v. Patel Engineering Ltd. 8 SCC 618 = AIR 2006 SC 450 ref.

(d) Arbitration---

----Contract--- Inter-connected or inter-dependent contracts---Incorporation of an arbitration clause from one contract into another in international commercial arbitration---Survey of case law from the United Kingdom, Singapore, Hong Kong, India and Pakistan.

TW Thomas & Co. Ltd v. Portsea Steamship Co Ltd. [1912] A.C 1 HL; Aughton Limited v MF Kent Services Ltd. [1991] 57 B.L.R 1; Habaş Sinai ve Tibbi Gazlar Isthisal Endustri A.Ş. v. Sometal S.A.L. [2010] EWHC 29 (Comm); Trade Maritime Corp. v. Hellenic Mutual War Risks Association (Bermuda) [2006] 2 C.L.C 710; International Research Corp v. Lufthansa Systems Asia Pacific Pte Ltd. [2012] SGHC 226; R1 International Pte Ltd v. Lonstroff [2015] 1 S.L.R 521; Astel Peiniger Joint Venture v. Argos Engineering [1994] 3 HKC 328; Gay Constructions Pty v. Caledonian Techmore (Building) Ltd. [1995] 2 HKLR 35; Alimenta SA v. National Agriculture Co-op Marketing Federation of India (1987) 1 SCC 615; Dwarkadas & Co. v. Daluram Gaganmull AIR 1951 Cal 10; Atlas Export Industries v. Kotak Company (1999) 7 SCC 61; M.R. Engineers and Contractors (P) Ltd v. Som Datt Builders Ltd. (2009) 7 SCC 696 and Messrs MacDonald Layton v. Associated Electrical Enterprises PLD 1982 Karachi 786 ref.

(e) United Nations Commission on International Trade Law on International Commercial Arbitration ("UNCITRAL Model Law")---

----Art. 7(2)---Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011), Preamble---Arbitration Act (X of 1940), Preamble---Arbitration agreements---Incorporation of an arbitration clause by reference---Scope---Article 7(2) of the United Nations Commission on International Trade Law on International Commercial Arbitration ("UNCITRAL Model Law"), in furtherance of its pro arbitration aims, explicitly allowed for incorporation of arbitration clauses by reference---Supreme Court observed that in a commercially fast paced world, where the world was essentially a global village, it was regrettable that Pakistan, although a signatory to 'UNCITRAL Model Law', had till date not incorporated its provisions into its domestic law and the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 made no mention of incorporation of arbitration clauses by reference.

(f) Contract---

----Take or pay clause---Scope and significance.

Take or Pay provisions/clauses were a very familiar feature in gas and liquefied natural gas (LNG) sales contracts, power purchase contracts and many other common energy industry contracts, and provided an option for the buyer to take supply of gas, LNG or power, or to pay for it even if it did not take the commodity.

Take or pay clause tested in English Courts I.E.L.R. 2008, 3, 60-62 ref.

Take or Pay clauses were also widely utilized in the petroleum industry in Pakistan. Therefore, it could be seen that Take or Pay clauses were a common occurrence in energy contracts, and their significance in maintaining a regular income stream for the seller and a regular supply stream for the buyer was paramount.

There were two separate obligations in most take or pay contracts. First, there was the obligation on the seller to make the commodity available to the buyer. Secondly, there was the obligation on the buyer to pay for the commodity that had been made available (either as well as, or instead of, taking up the commodity). Furthermore, take or pay payments had been widely understood to be an amount due to the seller or transportation company as a debt for having made the commodity or transportation services available, and not as damages for failure on the other party to take the commodity. The rule of penalties in this case was not held to apply generally, because the seller or the transportation company was providing the service of making the commodity or transportation services available to the other party, in accordance with the Commodity Sale/Supply Agreement or the Commodity Transportation Agreement which created a debt owing to the seller or the transportation company for that service.

B. Holland 'Enforceability of take-or-pay provisions in English law contracts-resolved' 2016 Journal of Energy & Natural Law Resources; Amoco v. Teeside Gas [2001] 1 All ER (Comm) 865; Associated British Ports v. Ferryways and Another [2008] EWHC 1265 (Comm) and M & J Polymers Ltd v. Imerys Minerals Ltd. [2008] EWHC 344 (Comm) ref.

Take or pay payment should be viewed as being due on the performance of the seller's "specified obligation" in making the commodity available. There would not be any parallel breach by the buyer's failure to take the commodity as the buyer would have an option to take the commodity.

Cavendish Square Holdings BV v. Talal El Makdessi [2015] UKSC 67 ref.

(g) Interpretation of statutes---

----Words 'shall' and 'may'---Scope---Words "may" and "shall" in legal phraseology were interchangeable, depending on the context in which they were used, and were not to be interpreted with the rigidity which was attributed to them in ordinary parlance.

Muhammad Saleh v. Tim Chief Settlement Commissioner PLD 1972 SC 326 ref.

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

----S. 74---Compensation for breach of contract where penalty stipulated for---Reasonable compensation---Scope---In working out the amount for reasonable compensation, it would be relevant to consider whether any loss had or had not accrued to the party, which had suffered on account of the breach, and the extent of that loss---Award of compensation by the court under section 74 of the Contract Act, 1872 would depend upon a case by case factual and circumstantial analysis as to what would be reasonable compensation in each case subject to the limit of the amount mentioned in the contract.

Syed Sibte Raza v. Habib Bank Limited PLD 1971 SC 743 and Province of West Pakistan v Messrs Mistri Patel & Co. PLD 1969 SC 80 ref.

(i) Unjust enrichment---

----Scope---For a claim of unjust enrichment to succeed, there must be enrichment at the expense of the plaintiff and this enrichment must be unjust in such a way that there should be no lawful justification for the same.

Fecto Belarus Tractor Ltd v. Government of Pakistan PLD 2005 SC 605 at 636; Arabian Sea Enterprises v. Abid Amin Bhatti PLD 2013 Sindh 290; Sui Northern Gas Pipelines v. DCIR 2014 PTD 1939 and Garland v. Consumers' Gas Co. [2004] 1 S.C.R. 629 ref.

(j) Arbitration---

----Award---Unjust enrichment---'Juristic reason' for enrichment---Scope---Gas Supply Agreement ('GSA') between a power generation facility ('power company') and distributor of natural gas ('SNGPL')---Dispute over payment for gas after power company refused to take up gas from SNGPL---Question as to whether the award rendered by the Arbitrator in favour of SNGPL amounted to unjust enrichment---Held, that although SNGPL was receiving payment for the same amount of gas twice, it needed to be clarified that this was upon failure of the power company to take up the gas, and further, the SNGPL, in any case, was not recovering the same amount, due to the fact that it was redirecting transmission to its domestic consumers, which paid a lower tariff than Independent Power Producers (IPP) like the power company---Furthermore, to allow the power company's claim would mean overlooking the fact that SNGPL was still under an obligation to supply the Make-Up Gas to the power company at any time within the duration stipulated under the GSA, therefore, there was a 'juristic reason' for the enrichment---Further, the power company had failed to prove its deprivation as it was entitled to Make-Up Gas at a later date, which it failed to avail within the stipulated time frame---Furthermore the Arbitrator while dismissing the claim of unjust enrichment raised by the power company correctly explained that SNGPL expanded monies to construct the infrastructure to deliver gas to the power company; that SNGPL remained liable to its upstream suppliers even if the power company chose not to take the Take or Pay Quantity but opted to pay instead and to Make Up Gas later; that SNGPL had to bear the responsibility of cutting its losses and find an alternative buyer (even at a lower price) for the Gas not taken by the power company and the likely additional costs of its transmission, distribution and unaccounted for gas---Power company (appellant) had failed to make out a claim for unjust enrichment, and the award rendered by the Arbitrator was not disproportionate to the losses suffered by SNGPL---Appeal was dismissed.

(k) Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the "New York Convention")---

----Art. V(2)(b)--- Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011), S. 6 & Preamble---International commercial arbitration---Arbitral award---Recognition and enforcement of arbitral award may be refused if the award would be contrary to "public policy" of that country" --- Public policy exception---Scope---Public policy exception acted as a safeguard of fundamental notions of morality and justice, such that the enforcement of a foreign award may offend these fundamentals---Public policy exception was never meant to be given a wide scope of application---Most courts world over favoured a restrictive approach to public policy in international commercial arbitration---Public policy exception should not become a back door to review the merits of a foreign arbitral award or to create grounds which were not available under Art. V of the New York Convention as this would negate the obligation to recognize and enforce foreign arbitral awards---Such kind of interference would essentially nullify the need for arbitration clauses as parties would be encouraged to challenge foreign awards on the public policy ground knowing that there was room to have the Court set aside the award---Public policy defense was an exceptional one, which demanded heightened standards of proof that courts would normally require in order to refuse recognition and enforcement of a foreign arbitral award---Such heightened standard of proof was compatible with the exceptional nature of the public policy defense as well as with the fact that Art. V(2)(b) of the New York Convention provided a mere facility to the courts and not an obligation.

Parsons & Whittemore Overseas Inc. v. RAKTA 508 F.2d 969 (1974); Betamax Ltd (Appellant) v. State Trading Corporation (Respondent) (Mauritius) [2021] UKPC 14; Nan Fung Textiles Limited v. Sadiq Traders Limited PLD 1982 Kar. 619; Haji Abdul Karim and others v. Sh. Ali Muhammad PLD 1959 SC 167; Sardar Muhammad Yasin v. Raja Feroze Khan PLD 1972 AJ&K 46; Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt) in Oberlandesgericht [OLG] Frankfurt, Germany 26 Sch 13/08, 16 October 2008; Oberlandesgericht [OLG] Celle, Germany 8 Sch 06/05, 6 October 2005 and Renusagar Power Co. Ltd v. General Electric Co. 1994 SCC Supl. (1) 644 ref.

Salman Akram Raja, Advocate Supreme Court for Petitioner.

Kh. Ahmad Hosain, Advocate Supreme Court for Respondent.

2021 S C M R 1771

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya AFridi and Qazi Muhammad Amin Ahmed, JJ

NASEEM KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Petition No.14-Q of 2021, decided on 31st March, 2021.

(Against the order dated 31.12.2020 passed by the High Court of Balochistan in Crl. Appeal No.323 of 2020)

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

----Ss. 9(b) & 9(c)---Possession and transportation of 3 kilograms of cannabis---Reappraisal of evidence---Sentence, reduction in---Single consolidated sample from all packets sent for forensics---Prosecution's claim of possession of 3 kgs of cannabis wrapped in three different packets notwithstanding, the forensic report unambiguously refered to receipt of single sample of 5 grams---Prosecution's reliance upon a single consolidated sample instead of dispatching three separate samples from each bag brought accused's case within the purview of S. 9(b) of the Control of Narcotic Substances Act, 1997, and, thus, a corresponding reduction in his sentence was most conscionable in circumstances---Furthermore accused was in his youth with no past history to his discredit---Accused's sentence was reduced from 3 years rigorous imprisonment to that already undergone by him with reduction in fine to Rs.5000---Petition for leave to appeal was converted into appeal and partly allowed accordingly.

(b) Administration of justice---

----Purpose of administration of criminal justice was to ensure that majesty of law reigned supreme with peace and equilibrium in the society, it was not designed to wreck vengeance; it must provide opportunity to the errant to possibly reform himself so as to rejoin mainstream life as a useful member thereof.

Najeeb Ullah Kakai, Advocate Supreme Court for Petitioner.

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

2021 S C M R 1773

[Supreme Court of Pakistan]

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

AIJAZ ALI RAJPAR---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 147-K of 2020, decided on 9th September, 2021.

(Against the judgment dated .27.08.2020 passed by the High Court of Sindh, Circuit Bench at Hyderabad in Cr. A. No.46 of 2020)

Control of Narcotic Substances Act (XXV of 1997)

----S. 9(c)---Possession and transportation of 1920 grams of cannabis---Reappraisal of evidence---Accused relied upon a habeas corpus petition filed by his brother against the local police to raise the plea of his false implication in the case---Such petition had been dismissed by the court as a bailiff/Raid Commissioner deputed by the Court reported the accusation as factually incorrect---Accused did not opt to enter the witness box to disprove the charge against him---Furthermore considerable quantity of the contraband recovered from the accused ruled out false imposition---Both the recovery witnesses were not alleged to have any past animosity with the accused---Witnesses remained straightforward and consistent during their cross-examination---Safe custody and transmission of samples was established by the record and forensic report of the samples was positive---Preponderance of prosecution evidence, constituted a continuous chain of events that framed the accused with the charge---Trial Court, after twice appraising the evidence found the witnesses in a unison, which view was confirmed by the High Court---Petition for leave to appeal was dismissed, leave was refused and conviction and sentence of accused were maintained.

Mian Taj Muhammad, Advocate Supreme Court for Petitioner.

Hussain Khan Baloch, Additional Prosecutor General Sindh for the State.

2021 S C M R 1775

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Yahya Afridi, JJ

MUHAMMAD YOUSAF and others---Petitioners

Versus

NAZEER AHMED KHAN (DECEASED) through LRs and others---Respondents

Civil Petition No. 3772 of 2019, decided on 12th August, 2021.

(Against judgment dated 29.08.2019 of Lahore High Court, Multan Bench, Multan, passed in Civil Revision No. 1202-D of 2003)

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

----O. XXIII, R. 1(2)---Withdrawal of suit with permission to file fresh suit---Scope---Plaintiff who wished to withdraw his suit with permission to file a fresh suit must show that there was a formal defect in the suit which could result in failure of the same---Where a defect was removable or rectifiable by amendment of the plaint, permission to file a fresh suit could not be granted---Finally, where a defect which went to the root of the case and was not merely a formal defect, permission to file a fresh suit would amount to allowing the plaintiff to retrace his steps plug the loopholes in the earlier suit and file a different case with different/additional parties and a totally different relief---Such steps could by the stretch of the language be termed as removal of formal defect.

Muhammad Boota v. Member (Revenue), Board of Revenue PLD 2003 SC 979; Muhammad Kazim Ziauddin Durrani v. Muhammad Asim Fakharuddin Durrani 2001 SCMR 148; Amjad Rashid Khan Malik v. Shahida Naeem Malik 1992 SCMR 485 and All Muhammad v. Rahmatullah 1990 SCMR 913 ref.

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

----O. XXIII, R. 1(2)---Specific Relief Act (I of 1877), Ss. 9, 39 & 42--- Withdrawal of suit with permission to file fresh suit---Fatal defect in suit---Scope---In the present case, both parties had completed their evidence and the case had been decided on merits by the trial as well as the Appellate Court---Request for withdrawal was made by the plaintiffs after decades before the revisional Court (High Court) which appeared to be an attempt on the part of the plaintiffs to retrace their steps, plug gaps and loopholes in evidence and take a second shot at the relief that two Courts of fact had denied---In the facts and circumstance of the present case, non-joinder and mis-joinder of the parties could not be used as a ground for conditional withdrawal of the suit and failure to seek declaration and cancellation was an inherent and fatal defect which could not be allowed to be cured at such belated stage --- Suit of the plaintiffs suffered from a fatal defect---Suit for possession was filed without seeking a declaration of title, knowing that the property in question stood transferred on the basis of registered instrument---Such suit was stillborn from its very inception as it was not competent---Petition for leave to appeal was converted into appeal and allowed, impugned judgment of High Court (revisional Court) was set-aside and judgments and decrees passed by Trial Court and Appellate Court dismissing the suit of the plaintiffs (respondents) were restored.

Province of the Punjab v. Ghazanfar Ali Shah 2017 SCMR 172; Sultan Mehmood Shah v. Din Muhammad 2005 SCMR 1872 and Muhammad Aslam v. Ferozi PLD 2001 SC 213 ref.

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

----O. XXIII, R. 1(2)---Withdrawal of suit with permission to file fresh suit---'Formal defect' in suit---Meaning---Such defect should be only on the point of form of the suit---Formal defect connoted every kind of defect which did not affect the merits of the case---However, if the defect was material and substantial and affected the merits of the case or went to the root of the claim it could not be termed as a formal defect within the scope and meaning of sub-clause (a) of R. 1(2) of O. XXIII, C.P.C.

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

----O. XXIII, R. 1(2)---Withdrawal of suit with permission to file fresh suit---Limitation to file fresh suit---Scope---Order XXIII, R. 1(2), C.P.C. provided that the limitation for filing of the suit would start from the date when the original suit was instituted and it could not start from the date when the permission was granted (by the Court) for filing of the fresh suit.

Syed Muhammad Ali Gillani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Ch. Arshad Ali, Advocate Supreme Court/Advocate-on-Record for Respondents.

2021 S C M R 1783

[Supreme Court of Pakistan]

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

MUSHTAQUE HUSSAIN---Petitioner

Versus

The STATE through Prosecutor General Sindh---Respondent

Criminal Petition No. 101-K of 2021, decided on 7th September, 2021.

(Against the judgment dated 16.06.2021 passed by the High Court of Sindh, Circuit Court, Hyderabad in Cr. A. No.D-250 of 2011 with Confirmation Case No.D-14 of 2011)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Petition seeking enhancement of sentence from life imprisonment to death sentence, dismissal of---Imprisonment for life already served out by the convict---Effect---Accused was convicted under S. 302(b), P.P.C. by the Trial Court and sentenced to death---High Court altered the sentence into imprisonment for life---Plea of complainant that given the brutality inflicted upon the deceased, reflected by as many as eight entry wounds with corresponding exits, there was no occasion for the High Court to alter penalty of death into imprisonment for life---Validity---As per report submitted by the Superintendent Jail, accused had since been released after serving out his sentence, reckoned in prison role as 16-years 5-months 1-day, remissions included---After dismissal of his appeal before the High Court albeit with reduction in sentence, accused had contently retired to his fate Imprisonment for life was a legal sentence and has already been served out by the accused, and, thus, enormity of his crime notwithstanding, he could not be recalled so as to be dispatched to the gallows for the offence for which he had endured imprisonment for life---Petition for leave to appeal seeking enhancement of sentence of accused was dismissed.

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

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

2021 S C M R 1785

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

GETZ PHARMA (PVT.) LIMITED, KARACHI---Petitioner

Versus

MUHAMMAD NAFEES and others---Respondents

Civil Petitions Nos. 3587 to 3589 of 2020, decided on 24th March, 2021.

(Against the judgment dated 20.11.2020, passed by the Islamabad High Court, Islamabad in Writ Petitions Nos. 327, 340 and 342 of 2020)

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

----S. 15(1)--- Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i) & Sched., S.O.12(6) & 12(7)---Sales Managers employed on contractual basis on managerial positions dismissed from service---Gratuity and Provident Fund, entitlement to---Whether the dismissed sales managers were workmen, and thus qualified to receive benefit of Gratuity and Provident Fund---Held, that a salesman by very nature of his work was not a workman and did not fall within the ambit of the term workman---Position of a salesman did not predominantly involve manual or clerical work and as such was not considered to be a workman within the meaning of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968[ 'Ordinance of 1968']---In the present case, the respondents (employees) while filing their applications under S. 15 of the Payment of Wages Act, 1936 before the relevant Authority had not at all claimed themselves or pleaded in their applications that they were workmen performing manual or clerical work in terms of S. 2(i) of the Ordinance of 1968 , and they also did not record any evidence to such effect--- Claim of the respondents (employees) to the extent of payment of Gratuity and Provident Fund was dismissed---Petitions for leave to appeal were converted into appeals and allowed accordingly.

Aurangzaib v. Medipak (Put.) Ltd. and others 2018 SCMR 2027; Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company, Employees' Union, Dacca and others PLD 1961 SC 403; Chairman, Brooke Bond (Pakistan) Ltd. Karachi v. General Secretary Union Karkunane .Brooke Bond (Pakistan) Ltd., Rawalpindi PLD 1969 Lah. 717; Brooke Bond (Pakistan) Ltd. v. Conciliator and 6 others PLD 1977 SC 237 and Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore 1992 SCMR 227 ref.

Faisal Siddiqi, Advocate Supreme Court for Petitioner (in all cases).

Muhammad Bashir Khan, Advocate Supreme Court for Respondent No. 1 (in all cases).

2021 S C M R 1795

[Supreme Court of Pakistan]

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

FAHEEMULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 143-K of 2020, decided on 6th September, 2021.

(Against the judgment dated 07.07.2020 passed by the High Court of Sindh at Karachi in Cr. A. No.615 of 2019)

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

----S. 9(c)---Possession and transportation of 5080 grams of cannabis---Reappraisal of evidence---Accused was apprehended during a routine patrol and his arrest along with contraband were incorporated in the daily diary, entry whereof, was placed on record---Site plan and inspection note also coincided with the details, elaborated in the crime report; these were also consistent with the investigative details---Preponderance of prosecution evidence comprising safe custody of contraband, transmission of sample to the office of chemical examiner with a positive report supported by a unison account furnished by the official witnesses remained unscathed during cross-examination---Prosecution evidence was sufficient to successfully constitute "proof beyond doubt"---Petition for leave to appeal was dismissed and conviction and sentence imposed upon the accused were maintained. [p. 1797] A

Syed Shau-un-Nabi, Advocate Supreme Court and Ms. Abida Parveen Channar, Advocate-on-Record for Petitioner.

Hussain Bux, Additional Prosecutor General Sindh for the State.

2021 S C M R 1797

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

AHMED DIN (DECEASED) through LRs and another---Appellants

Versus

MUHAMMAD IQBAL (DECEASED) through Legal heirs and others---Respondents

Civil Appeal No. 5-L of 2010, decided on 23rd July, 2021.

(Against the judgment dated 09.10.2000 passed by the Lahore High Court, Lahore in R.S.A. No. 513 of 1980)

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

----Ss. 41 & 54---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of an agreement to sell immoveable property---Subsequent purchaser---Bonda fide purchaser---Scope---Knowledge of agreement to sell---Question as to whether the subsequent purchaser had no knowledge of agreement to sell in favour of the appellant/plaintiff when admittedly the appellant was in possession of the suit properly at the time of purchase of the suit property by the subsequent purchaser---Held, that subsequent purchaser was required to probe into the matter with regard to possession of the appellant over the suit land and non-production of any evidence and independent witness would not absolve the subsequent purchaser from the onus to discharge that he was having no knowledge of prior agreement to sell in favour of the appellant when appellant was in possession of the suit land---Statement of subsequent purchaser that he had strained relations with his brother-in-law who admittedly appeared in a previous litigation in a suit filed by the original owner against the appellant was clear knowledge of agreement to sell in favour of the appellant---Furthermore subsequent purchaser opted not to produce the sale deed in his favour on the basis of which he was claiming the transfer of suit property in his favour---Subsequent purchaser failed to prove that he was having no knowledge of the agreement and he purchased the suit property in good faith; this clearly established that subsequent purchaser was not a bona fide purchaser--- Appeal was allowed. [p. 1801] A, B & C

Muhammad Din v. Mst. Sakina Bibi and others 2003 SCMR 956; Muhammad Hayat and others v. Sarwar Khan and others PLD 2006 SC 775; Muhammad Anwar v. Muhammad Aslam and others 2012 SCMR 345 and Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others PLD 1974 Baghdad ul Jadeed 25 ref.

Imran Muhammad Sarwar, Advocate Supreme Court for Appellants.

Shuja ud Din Hashmi, Advocate Supreme Court and Ms. Tasneem Amin, Advocate-on-Record for Respondents Nos. 1(i-viii).

Ex parte for Respondents Nos. 2((1-viii), 3 and 4(i-viii).

2021 S C M R 1802

[Supreme Court of Pakistan]

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

GHULAM HYDER---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 96-K of 2021, decided on 10th September, 2021.

(Against the judgment dated .28.06.2021 passed by the High Court of Sindh in Cr. Bail Application No. S-203 of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)---Bail, grant of---Further inquiry---Accused along with four other persons was alleged to have held onto the accused, where after the co-accused fired on the deceased's forehead---Accused was assigned role of a facilitator by holding the deceased alongside four others---Question was whether in the facts and circumstances of the case as alleged by the complainant himself, such facilitation of holding onto the deceased was at all required, that too, without incurring fatal risk of being unintendedly hit by the shot fired by the co-accused in the darkness---As such accused's culpability required further probe within the contemplation of subsection (2) of S. 497, Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed, and accused was granted bail.

Mian Taj Muhammad, Advocate Supreme Court and Ms. Abida Parveen Channar, Advocate-on-Record for Petitioner.

Hussain Khan Baloch, Additional Prosecutor General Sindh along with Syed Jafar Shah, DSP Tando, Allah Yar, Javed Iqbal, SI and Idrees, SI for the State.

2021 S C M R 1804

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

GUL MANAN---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 265 of 2021, decided on 21st April, 2021.

(Against the order dated 19.02.2021 passed by the Peshawar High Court, Peshawar in Criminal Misc./B.A. No. 223-P of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession and trafficking of narcotics---Bail, grant of---Further inquiry---Conscious knowledge of narcotics---When the vehicle was stopped by the police, the accused was merely sitting in the vehicle and he was not driving it---Narcotics were allegedly recovered from the secret cavities of the vehicle---No connection was found between the said vehicle and the accused and nothing was recovered either form possession of accused or on his pointation---Question as to whether the accused, who was not the driver of the vehicle, had conscious knowledge of the narcotics concealed in the vehicle needed serious consideration, which shall be determined by the Trial Court after recording evidence---In the circumstances, case against the 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.

Noor Alam Khan, Advocate Supreme Court for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court for the State.

2021 S C M R 1805

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

MUHAMMAD RAFIQ and another---Appellants

Versus

ABDUL AZIZ---Respondent

Civil Appeals Nos. 471-L and 472-L of 2012, decided on 18th May, 2021.

(On appeal from the orders dated 28.05.2009 passed by the Lahore High Court, Lahore in Civil Revisions Nos. 1372 and 1373 of 1996)

(a) Act of Court---

----No one can be prejudiced by an act of the Court.

Habib Bank Ltd. v. Bashir Ahmad. 2019 SCMR 362; Malik Tariq Mahmood v. Ghulam Ahmed PLD 2017 SC 674 and Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872 ref.

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

----S. 15(1)(a)---Right of pre-emption based on relationship/Yak-jaddi---Conduct of pre-emptor---Significance---Suit for pre-emption was filed by plaintiff-son for suit property sold by his father-vendor---Question as to whether there was collusion between the father (vendor) and son(pre-emptor)---Held, that plaintiff-pre-emptor was the real son of the vendor and they lived in the same house---Just after the sale of the suit lands in favour of the appellant-vendee other land was purchased in another district in the name of the plaintiff/pre­-emptor and his brother, which the vendee claimed was purchased from the consideration amount of the suit land, showing collusion between the father and son (vendee and pre-emptor respectively)---Sarbrah Lumberdar appearing as witness for the vendee stated that suit property was sold with the consultation of the plaintiff/pre-emptor with his father-vendor---Another witness of the appellant-vendee stated that the bargain was struck with the vendor and the plaintiff and the money was paid to both of them---Said important portions of these statements were not cross-examined by the plaintiff-pre-emptor, hence, deemed to have been admitted---Furthermore when plaintiff appeared as his own witness he did not utter anything regarding his superior right of pre-emption qua the appellant-vendee, which was fatal to his case as he could not get a decree without claiming so---Pre-emptor had not come to the court with clean hands---Appeal was allowed with the consequence that suit for pre-emption filed by plaintiff was dismissed with costs throughout.

Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403; Baari and 4 others v. Salmon and 3 others PLD 1972 SC 133 and Subhanuddin and others v. Pir Ghulam PLD 2015 SC 69 ref.

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

----Art. 133---Material point of statement of a witness not cross-examined---Effect---Such point would be deemed to have been admitted by the other side.

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

----O. VI, R. 1---Pleadings---Scope---Pleadings could not be considered or equated with the evidence of the parties.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellants.

Faiz A. Sanghera, Advocate Supreme Court for Respondent.

2021 S C M R 1815

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

FAKHAR ZAMAN---Petitioner

Versus

The STATE through D.A.G. and another---Respondents

Criminal Petition No. 978 of 2021, decided on 17th September, 2021.

(Against the order dated 15.07.2021 of the Peshawar High Court, Peshawar passed in Cr. M(B.A.) No. 748-A of 2021)

Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 20, 21 & 24---Penal Code (XLV of 1860), S. 109---Constitution of Pakistan, Art. 185(3)---Sexual harassment of woman by posting her photographs on social media using a cellular device---Bail, grant of---Investigating officer collected photographs during the course of investigation---Perusal of said photographs showed that some of them could be termed as close to nudity but they were not recognizable --- Other photographs were in full attire without any question of immorality---Issue of said photographs could be resolved by the Trial Court after recording of evidence more authoritatively---Furthermore the accused was behind bars since more than 03 months---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

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

Syed Nayyab Hussain Gardezi, DAG and Syeda Pakeeza, SI/FIA for the State.

Muhammad Junaid Akhtar, Advocate Supreme Court for the Complainant.

2021 S C M R 1817

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, ACJ, Qazi Muhammad Amin Ahmed and

Muhammad Ali Mazhar, JJ

JAVED AHMED and others---Petitioners

Versus

The STATE---Respondent

Criminal Petition No.138-Q of 2020, decided on 23rd August, 2021.

(Against the judgment dated 21.10.2020 passed by the High Court of Balochistan in Cr. A. No. 168 of 2019)

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

----Ss. 337-E(3)(vi), 427 & 447---Ghayr-­jaifah-munaqqilah, mischief causing damage to the amount of fifty rupees, criminal trespass ---Reappraisal of evidence---On the common ground of bad blood in the close family, the complainant was beaten by the accused persons inside his shop, a position that went un-rebutted in the evidence furnished by the Investigating Officer---Although accused persons were acquitted under Ss. 447 & 427, P.P.C. nonetheless, the site plan showed broken pieces of glass, unmistakably suggesting a brawl inside the shop---Erroneous date of examination given by the police surgeon was not in line with the entry in the medico legal certificate that unambiguously confirmed the date of incident as claimed by the prosecution---Witnesses were in a comfortable unison with each other---Petition for leave to appeal was dismissed and convictions and sentences of accused persons were maintained.

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

---S. 337-E(3)(vi)--- Ghayr-­jaifah-munaqqilah--- Reappraisal of evidence---Convicted pensioner---Loss of pensionary benefits to the family of deceased pensioner---Not a ground to overturn conviction---Possible loss of pensionary benefits to the family of the deceased convict indivisibly linked with the co-convicts, being a conscionable consequence of the crime, hardly furnished a ground to separately overturn his conviction, which was based upon a judicial consensus --- Petition for leave to appeal was dismissed and conviction and sentence of deceased convict was maintained.

Kamran Murtaza, Senior Advocate Supreme Court (video link Quetta) for Petitioners.

Abdul Baqir Shah, Advocate Supreme Court for the State.

2021 S C M R 1819

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Munib Akhtar and Amin-ud-Din Khan, JJ

Messrs NISHAT MILLS LIMITED and another---Petitioners

Versus

The COMMISSIONER OF INCOME/WEALTH TAX, COMPANIES ZONE, FAISALABAD

(Now CIR, LTU, Lahore)---Respondent

Civil Petition No. 2256-L of 2015 and Civil Petition No. 2257-L of 2015 and Civil Petition No. 2283-L of 2015, decided on 30th June, 2021.

(On appeal from judgment dated 09.06.2015 passed by the Lahore High Court, Lahore in I.T.As. Nos.382-1999 and 383-1999 and PTR No.675 of 2007)

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

----S. 213---Income Tax Ordinance (XXXI of 1979), S. 7 [since repealed]---Guidance to Deputy Commissioner---Scope and meaning of S. 213 of the Income Tax Ordinance, 2001 and S. 7 of the Income Tax Ordinance, 1979 (since repealed).

Section 213 of the Income Tax Ordinance, 2001 ('the 2001 Ordinance') and section 7 of the Income Tax Ordinance, 1979 ('the 1979 Ordinance') [since repealed] were cast in virtually identical terms. In any organization (including a Government department) it was only to be expected that there would be, in the ordinary course and as part of the normal routine, an ongoing consultation and interaction among persons holding different posts in the hierarchy. Juniors would wish (and indeed, in most cases, be expected) to seek informal guidance from their seniors, or to be assisted and even instructed by them, and thereby benefit from their experience and the collective institutional wisdom. For example, fresh recruits and probationers were attached for some time to senior officers for this very purpose. But the process was not so narrow or limited. It continued throughout an officer's career, certainly at the junior or middle levels. Even seniors could benefit from what other seniors (or even junior officers) may have to offer. Such consultations, communications, interactions, assistance, guidance or instruction were part of the woof and warp of any organization, and that certainly included the bureaucracies of the State. There was nothing strange or exceptional about this. Indeed, it was the absence of such activity that would call for comment and be a matter of concern. It was also to be kept in mind that the informality of the process meant that the assistance, guidance or instruction (under sections 7 and 213 of the 1979 and 2001 Ordinances respectively) was not generally regarded as binding in a formal sense. They were, rather, a resource that was available, and one which inured especially to the benefit of those lower down the hierarchy. It was something that could be usefully and productively drawn upon, as and when needed.

Scope and intent of sections 7 and 213 of the 1979 and 2001 Ordinances respectively could be characterized as being concerned with administrative instructions meant for the internal consumption of the department. The said sections were, neither enabling or permissive in the technical sense but rather more akin to an explanation (i.e., meant for the avoidance or resolution of any doubt).

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

----Ss. 7, 62(2) & 66-A--- Assessments framed by the Deputy Commissioner of Income Tax ("ITO") under S. 62 of the Income Tax Ordinance, 1979 ('the 1979 Ordinance')---Powers of Inspecting Additional Commissioner ("IAC") under S. 66-A of the 1979 Ordinance to revise assessment framed by the Deputy Commissioner---Scope---In circumstances where the ITO framed the assessments with the approval and in consultation with the concerned IAC, whether the IAC was subsequently precluded from revising such assessment under S. 66-A of the 1979 Ordinance.

Section 62(2) of the Income tax Ordinance, 1979 ('the 1979 Ordinance') depending on the facts and circumstances of the case, resulted in two distinct types of outcome, one being a matter of law and the other being one of fact. As a matter of law section 62(2) of the 1979 Ordinance cast a statutory duty on the Deputy Commissioner of Income Tax ("ITO") to frame the assessment and make the necessary order. The officer, if any, authorized by the Board under section 62(2) was also under a statutory duty, to assist the ITO in the making of that assessment. The assisting officer was also under a statutory duty. Both had to separately apply their minds to the case. If the outcome was concurrence the assessment order followed accordingly. If there was discordance then the view of the officer under the primary duty (i.e., the ITO) prevailed, but he had to set out the point(s) of disagreement, and give reasons for coming to a conclusion contrary to that of the assisting officer under the collateral duty.

On its true construction section 62(2) of the 1979 Ordinance required the assisting officer, as a matter of law, to apply his mind to the case. It follows from the duty so cast that if the assisting officer was the Inspecting Additional Commissioner ("IAC") concerned then he would stand precluded from taking recourse to section 66-A. If the earlier application of mind resulted in an assessment order on which there was complete agreement then the IAC could not turn around and claim under section 66-A that there had been an error prejudicial to the interests of the revenue. And if there had been any point(s) of disagreement, which ended in the view of the ITO prevailing, it would still have been impermissible for the IAC to continue to press his view under the guise of invoking section 66-A. He could not, as it were, have two bites at the cherry. It also follows that if section 62(2) applied in the facts and circumstances of the case an irrebuttable presumption of law was raised. Since the subsection required the assisting officer, as a statutory duty, to apply his mind to the case it did not matter whether (and, more importantly, did not have to be shown that) he had in fact done so and if so to what degree. If therefore the assisting officer was the IAC concerned it would be sufficient, to preclude any exercise of powers under section 66-A, to show simply that he had been authorized by the Board under the subsection in respect of the case. Whether he had in fact provided any assistance, and if so to what degree of intensity or involvement, would be irrelevant as a matter of law. This was the first of the two possible outcomes.

Turning to the other possible outcome, which would be a matter of fact. Even if section 62(2) did not apply in the facts and circumstances of the case it could still have been that the ITO took assistance, guidance or instruction from a superior officer in terms of section 7. However, now it would be a question of fact whether any officer (and in particular the concerned IAC) had been so involved. An affirmative finding would not in itself be sufficient to preclude the IAC from invoking section 66-A in relation to a particular case. It would also further have to be shown, as a matter of fact, that the degree of involvement (of the IAC) was of such intensity that it would make subsequent recourse to section 66-A impermissible. For, it must be remembered, the nature of the assistance, guidance or instruction under section 7 was essentially general, informal and non-binding. Notwithstanding this, in a particular case the involvement could have been to such a degree, and of such intensity, that it would amount to the superior officer (here the IAC) having been materially involved in the very making of the assessment order. But all of this would raise questions of fact. Those questions would have to be answered in the usual manner, as appropriate for tax proceedings under the statute. Certainly, there would be no presumption of law. This was the second of the two possible outcomes.

H. M. Abdullah v. Income Tax Officer 1991 PTD 217 distinguished.

Muhammad Ajmal Khan, Advocate Supreme Court (Video-Link, Lahore) (in all cases) for Petitioners.

Muhammad Shakeel, Advocate Supreme Court for Respondent (Video-Link, Lahore) (in C.Ps. Nos. 2256-L and 2257-L of 2015).

Mian Yousaf Umer, Advocate Supreme Court for Respondent (Video-Link, Lahore) (in C.P. No. 2283-L of 2015).

2021 S C M R 1831

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah, Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

HAYAT MUHAMMAD---Petitioner

Versus

STATE through Additional Advocate General, Khyber Pakhtunkhwa and another---Respondents

Criminal Petition No. 566 of 2021, decided on 20th September, 2021.

(Against the judgment dated 03.05.2021 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat passed in Criminal Appeal No.44-M of 2021)

Penal Code (XLV of 1860)---

----Ss. 324 & 337-D--- Attempt to commit qatl-i-amd, jaifah---Reappraisal of evidence---Occurrence had taken place in a broad daylight and the parties were known to each other, therefore, there was absolutely no chance of mis-identification---Role ascribed to the accused by the injured prosecution witness, clearly reflected that the statement made by him was fully corroborated by the medical evidence---Medical evidence fully corroborated the statement of said injured witness so far as the time, locale and nature of injuries was concerned---After the occurrence, a pistol was snatched from the accused and was subsequently handed over to the Station House Officer---From the place of occurrence two empties were also taken into possession---Both the pistol and the empties were sent to Forensic Science Laboratory for examination and the report received was to the effect that the empties were fired from the pistol---Petition for leave to appeal challenging conviction of accused was dismissed, and leave was refused.

Asadullah Khan Chamkani, Advocate Supreme Court for Petitioner.

Mian Shafaqat Jan, Additional A.G. Khyber Pakhtunkhwa for the State.

2021 S C M R 1834

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. Ijaz ul Ahsan and Muhammad Ali Mazhar, JJ

MUHAMMAD SHAFIQUE---Appellant

Versus

The ADDITIONAL FINANCE SECRETARY (BUDGET) GOVERNMENT OF PAKISTAN, ISLAMABAD and another---Respondents

Civil Appeal No. 469 of 2021, decided on 10th September, 2021.

(Against the judgment dated 07.08.2019 passed by Federal Service Tribunal, Islamabad in A.525(P)CS/2016

(a) Government Servants (Efficiency and Discipline) Rules, 1973 [since repealed]---

----R. 4(1)(b)(i)---Constitution of Pakistan, Art. 10A---Malpractice, misconduct and misuse of official decision---Major penalty of reduction to lower post--- Whether employee (appellant) was provided a proper right of defence during inquiry proceedings---Held, that departmental proceeding against the appellant was initiated on issuing show cause notice with the statement of allegations, the appellant submitted reply to the show cause notice and since his reply was not found satisfactory, therefore, an impartial domestic inquiry was conducted against him---During the inquiry proceedings, ample opportunity was afforded to the appellant, his statement was also recorded and before taking disciplinary action, second show cause notice was also issued to him---Even in the departmental appeal, the right of audience was provided by the appellate authority to the appellant---Right to a fair hearing and or trial necessitated that a person should be afforded a fair opportunity to defend the inquiry or trial against him---In the present case, it was clearly manifesting from the record that proper right of defence was provided to the appellant in the inquiry proceedings before taking disciplinary action---No bias, unfairness or partiality was alleged or pointed out against the inquiry committee which might have any element to cause prejudice or setback to the case of appellant during inquiry---Appeal was dismissed and major penalty of reduction to lower post was maintained.

(b) Government Servants (Efficiency and Discipline) Rules, 1973 [since repealed]---

----R. 4(1)(b)(i)---Constitution of Pakistan, Art. 10A---Employee of National Saving Center---Unauthorized and illegal checking and retention of prize bonds---Major penalty of reduction to lower post---Plea that that no loss was caused to the government or the public exchequer as the prize bond, which won the prize was not encashed by the appellant---Held, that record showed that encashment was immediately stopped when the scam was disclosed to the higher management---Since present case was one of misconduct, the plea of non-encashment of prize bond with no loss to government did not endow any help or support to the appellant's case for dislodging or setting aside major penalty or exonerating him from the charge and guilt---Appellant was found guilty in an impartial inquiry and the competent authority had already taken a lenient view as instead of removal or dismissal from service, they only imposed penalty of reduction to a lower post---Appeal was dismissed and major penalty of reduction to lower post was maintained.

(c) Civil service---

----Employees of a Government financial institution---Public trust and confidence---Duties of employees of a Government financial institution explained.

All financial institutions had traditionally recognized their duty to act in a manner of public trust and confidence. Its reputation, goodwill and integrity was its most valuable virtue and asset which was indeed established by the demeanor of its employees and management who had a duty to perform their duties with utmost honesty, dedication, professional manner and commitment without any cause of complaint to its customers/clients. They were expected to act in a way that enhanced reputation of the institution and nurtured its client relationships and did not to give rise to a conflict of interests between their personal interests and their financial institution. They need to provide their customers transparency, reciprocal loyalty, and truly personal customer relationships. In the line of duty they should shun and avoid involvement in any act of misconduct, embezzlement or fraudulent activity which may destroy or shatter the confidence of public on the credibility and goodwill of the financial institutions which would obviously result in immediate disciplinary action without any leniency and imposition of penalty in accordance with law.

Assistant Director (Admin) National Savings Center and others v. Muhammad Anwar 1990 SCMR 1214; Divisional Superintendent, Postal Services, Gujranwala and another v. Muhammad Arif Butt 2021 SCMR 1033; Ghulam Mustafa Channa v Muslim Commercial Bank Ltd, 2008 SCMR 909 and Shaukat Ali and others. v. Allied Bank of Pakistan Ltd. and others 2007 PLC 55 ref.

(d) Civil Servants (Efficiency and Discipline) Rules, 2020---

----R. 4(3)(b)---Government Servants (Efficiency and Discipline) Rules, 1973, R. 4(1)(b)(i) [since repealed]---Fundamental Rules, F.R. 29---Major penalty of reduction to a lower post and pay scale from the substantive or regular post for a specific period---While passing an order, imposing the penalty of reduction to a lower post or time scale or to a lower stage in the time scale, the conditions laid down in F.R. 29 of the Fundamental Rules i.e. fixing the specific period of reduction to lower post, should be considered and followed.

Tanvir Ahmed v. Chief Secretary, Government of Punjab, Lahore 2004 SCMR 647; Government of Pakistan through Secretary Establishment Division, Islamabad and others v. Muhammad Umer Morio 2005 PLC (C.S.) 169 = 2005 SCMR 436; Member (A.C.E. & S.T.) Federal Board of Revenue, Islamabad and others v. Muhammad Ashraf and 3 others 2008 SCMR 1165; Muhammad Sidiq v. Superintendent of Police and others 2008 SCMR 1296; Secretary Kashmir Affairs and Northern Areas Division, Islamabad v. Saeed Akhtar PLD 2008 SC 392 and Mirza Aamer Hassan v. Commissioner of Income Tax and others 2020 SCMR 1218 ref.

Burhan Latif Khaisori, Advocate Supreme Court for Appellant.

Syed Nayab Hasan Gardezi, DAG and Muhammad Sultan, AD Legal for Respondents.

2021 S C M R 1844

[Supreme Court of Pakistan]

Present: Umar Ata Bandial,Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

ASIM MURTAZA KHAN---Petitioner

Versus

The STATE through Chairman NAB, Islamabad---Respondent

Civil Petition No. 4878 of 2021, decided on 6th September, 2021.

(On appeal against the judgment dated 26.07.2021 passed by the High Court of Sindh, Karachi in C.P. No. D-3045 of 2021)

Criminal Procedure Code (V of 1898)---

----S. 94---National Accountability Ordinance (XVIII of 1999), S. 9---State owned company ('the company')---Misappropriation, corruption and fraud---Documents produced during trial by an employee (prosecution witness) of the company---Admissibility of documents---Whether authorization from Board of Directors of the company was required for producing the documents---Plea on behalf of accused that the witness in question was not properly authorized by the company, therefore, the documents produced by him should not be exhibited and were inadmissible in evidence---In such regard accused filed an application under S. 94, Cr.P.C., but the same was dismissed by the trial Court and also by the High Court---Held, that in a criminal case, the production of evidence was to be considered on the touchstone of respective law pertaining to the collection and production of evidence in a criminal case for which S. 94 of Cr.P.C. was relevant---High Court had rightly held that there was no need for the investigators to seek any authorization for production and seizure of record even from a court if the collection and seizure was needed from a company other than a banking company and admittedly the company in question was nota banking company---Supreme Court directed that the trial Court shall decide the disputed question regarding authorization and admissibility of evidence; that trial Court shall hear the objections of the accused and the other side and decide the same in accordance with law, and shall proceed with the trial expeditiously.

Hayatullah v. State 2018 SCMR 2092 distinguished.

Abdul Shakoor Paracha, Advocate Supreme Court, Haseeb Shakoor Paracha, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2021 S C M R 1847

[Supreme Court of Pakistan]

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

ABDUL RAZZAQ---Petitioner

Versus

The STATE---Respondent

Criminal Petition No.73-P of 2021, decided on 17th September, 2021.

(On appeal against the judgment dated 19.03.2021 passed by the Peshawar High Court Peshawar in Cr. Misc. B.A. No.663-P of 2021)

Constitution of Pakistan---

----Art. 185(3)---Penal Code (XLV of 1860), S. 302(b)---Juvenile Justice System Act (XXII of 2018), S. 6---Bail, grant of---Juvenile accused---Allegation against the accused was that he borrowed a pistol from the witnesses and subsequently retuned it to them; the pistol was produced by the witnesses to the police and it was forensically found wedded with the casings secured from the scene of murder---Question as to whether the pistol presented to the police by the prosecution witnesses, shown to have ejected casings of the fatal shots could be attributed to the accused so as to conclusively saddle him with the culpability of crime in the absence of any other evidence was an issue that needed to be settled after recording of evidence---Furthermore date of birth of accused recorded in his school leaving certificate, brought his status within the remit of juvenility with concomitant concessions available to him under the law---Even otherwise, investigation being complete, accused's continuous detention was not likely to improve upon prosecution's case---Petition for leave to appeal was converted into appeal and allowed, and accused was released on bail.

Syed Abdul Fayaz, Advocate Supreme Court for Petitioner.

Shumail Aziz, Advocate General, Khyber Pakhtunkhwa with Zahid, I.O. for the State.

Complainant in person.

2021 S C M R 1849

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J.,Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

CONSTITUTIONAL PETITION NO.9 OF 2010

NIAMATULLAH KHAN ADVOCATE and others ---Petitioners/Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

AND

CRIMINAL ORIG. PETITION NO.7-K OF 2017

(Matter pertaining to allotment of alternate plot)

AND

C.M.A. NO.6206 OF 2013 IN CONST. P. NO.9 OF 2010

[Report of Additional Registrar of this Court)

AND

GUJJAR NALLAH

C.R.P. No. 61-K of 2021

(Matter regarding encroachment over Gujjar Nallah and Orangi Nallah)

AND

CRIMINAL ORIGINAL PETITION NO.9-K OF 2021

(Matter regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)

AND

C.M.A. NO. 441-K OF 2021

(Regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)

AND

C.M.A. No. 819-K OF 2021

(Matter pertainis to Gujjar Nallah)

AND

C.M.A. No.850-K OF 2021

(Matter pertains to Gujjar Nallah)

AND

NASLA TOWER

C.R.P. NO. 55-K OF 2021

(Matter regarding Nasla Tower)

AND

C.R.P. NO. 56-K OF 2021

(Matter pertains to Nasla Tower)

AND

CIVIL AVIATION AUTHORITY

C.M.A. No. 774-K OF 2021

(Matter regarding Land allotted to CDA in 1990)

AND

AMENITY PLOT USED FOR MARRIAGE HALLS

C.M.A. No. 522-K OF 2020 IN CONST. P. No. 9 OF 2010

(Plot No.SNPA-21-D and SNPA-23, both are public amenities plots and meant for "Park" and the same are used for marriage/ commercial activities)

AND

ZIA UDDIN HOSPITAL

CRL. M. A. No.59-K OF 2018

(Against encroachment made around Ziauddin Hospital, Clifton Karachi by its management and false cases registered against applicant)

AND

ENFORCEMENT IN JACOBABAD OF AMENITIES

C.M.A. NO. 941-K OF 2020

(Regarding encroachment in Jacobabad at various government lands i.e. amenities, parks etc. by influential persons)

AND

C.M.A. No.775-K OF 2021

(Applicant has prayed for the correction of order dated 16.06.2021 whereby he has requested to read name hotel mairaj instead of Hotel Hermain)

AND

ALADIN PARK

C.M.A. NO.698-K OF 2021

(Matter pertains to Aladin Park)

AND

C.M.A. No.1000-K OF 2021

(Matter regarding Aladin Park)

AND

PARKING ISSUES OF HIGH COURT OF SINDH AND FUTURE EXTENTION OF HIGH COURT OF SINDH

C.M.A. No.74-K OF 2020 IN CONST. P. No.9 OF 2010

(Regarding parking space at High Court of Sindh)

AND

COMM-3

C.M.A. NO.86-K OF 2020 IN CONST.P.NO.9 OF 2010

(Concise statement with regard to allotment of COMM-3)

AND

C.M.A. No.711-K OF 2020

(Objection filed on C.M.A. No. 86-K of 2020)

AND

YMCA GROUND

C.R.P. NO.57-K OF 2021

(Matter pertains to YMCA Ground)

AND

KIDNEY HILL LAND

CRL. ORG. P. NO. 8-K OF 2021

(Matter regarding Kidney Hill Land)

AND

C.M.A. NO.391-K OF 2020 IN CONST. P. NO. 9 OF 2010

(Regarding illegal constructions inside of Kidney Hill Land situated at Faran Society, Barrister Ahmed Road near Dhooraji Colony, Karachi)

AND

C.M.A. NO.714-K OF 2020 IN CONST. P. NO. 9 OF 2010

(Mater regarding Al-Fatah Masjid Admeasuring 1400 Sq. Yards at Kidney Hill Ahmed Ali Park, Faran Society, Karachi)]

AND

C.M.A. NO. 424-K of 2021

(Kidney Hill Park Land)

AND

C.M.A. NO. 437-K OF 2021

(Matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)

AND

C.M.A. NO. 438-K OF 2021

(Matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)

AND

C.M.A. NO. 515-K OF 2021

(Matter pertains to Kidney Hill Park)

AND

HILL PARK LAND

CRL. ORG. P. NO. 13-K OF 2021

AND

KDA OFFICERS CLUB

CRL. M.A. NO. 229-K OF 2018 IN CRL. ORG. P. NO. 7-K OF 2017

(Against illegal and unconstitutional partial demolition on the premises of the applicant at Plot No.ST-6, of Kashmir Road, Karachi)

AND

KARACHI CIRCULAR RAILWAY

C.M.A. NO. 621-K OF 2021

(Report regarding KCR, in compliance of order dated 08.04.2021 filed by D.G. FWO)

AND

C.M.A. NO. 167-K OF 2020

(The matter regarding KCR project and demolishing of illegal construction in Karachi)

AND

C.M.A. NO.367-K OF 2020 IN CONST. P. NO.9 OF 2010

(Regarding encroachment over railway land/Safari Park)

AND

C.M.A. NO. 177-K OF 2020

(The matter regarding 650 constructed Houses in Project No.7 (PRECHS) near Gillani Station Gulshan-e-Iqbal, Karachi)

AND

C.M.A. NO. 898-K OF 2020

(Matter regarding encroachment over Pakistan Railway Land and Revival of KCR)

AND

C.M.A. NO. 445-K OF 2021

(Matter regarding encroachment over Pakistan Railway Land and revival of KCR)

AND

C.M.A. NO. 446-K OF 2021

(Matter regarding encroachment over Pakistan Railway Land and revival of KCR)

AND

TEJORI HEIGHTS/TOWER ON RAILWAY'S LAND

CRP NO.15-K OF 2021 IN C.M.A. NO.906-K OF 2020 IN CONST.P.NO.9 OF 2010

(Matter regarding encroachment over Pakistan Railway Land and revival of KCR) (Tejori Heights/Tower)

AND

C.M.A. NO.277-K OF 2021 IN CRP NO.NIL-K OF 2021 IN C.M.A. NO.898-K OF 2020 IN CONST.P.NO.9 OF 2010

(Matter regarding encroachment over Pakistan Railway Land and revival of KCR) (Tejori Heights/Tower)

AND

CMA NO.278-K OF 2021

(Matter regarding encroachment over Pakistan Railway Land and revival of KCR) (Tejori Heights/Tower)

AND

RAILWAYS EMPLOYEES COOPERATIVE HOUSING SOCIETY

C.M.A. NO.541-K OF 2020

(Matter regarding Pakistan Railway Employees Cooperative Housing Society)

AND

C.M.A. NO.630-K OF 2020

(The matter pertains to encroachment over Railway Land on account of Railway Cooperative Housing Society)

AND

ROYAL PARK

C.M. APPEAL NO.37 OF 2021 IN CRP NO.7-K OF 2020 IN C.M.A. NO.690-K OF 2019 IN CONST.P.NO.9 OF 2010

(For grant of time to remove and take away the materials from building)

AND

NON-SUPPLY OF WATER

C.M.A. NO.770-K OF 2020

(Matter regarding non-supply of water through already decided water lines in DHA, Karachi)

AND

HIGH RISE BUILDING ON AMENITY PLOTS OR OTHERWISE (MULTI STOREIES BUILDING

CRL. M. A. NO. 52-K OF 2018

(Application for Intervener filed by Muhammad Asif Shafi against seeking direction for demolition of illegal construction on plot No.70-A, Sindh Muslim Cooperative Housing Society, Karachi (Multi-Storey Building)

AND

C.M.A. NO. 631-K OF 2019 IN CONST. P. NO.9 OF 2010

(Illegal construction is carried out by King Builders over Private Park/Amenity Plot)

AND

C.M.A. NO. 78-K OF 2020

(Regarding high rise building on amenity plot)

AND

KING COTTAGE/BAGH-E-QAMAR

C.M.A. NO. 523-K OF 2020 IN CONST. P. NO. 9 OF 2010

(Matter regarding King Cottage/Bagh-e-Qamar situated at Scheme No.36, Gulshan-e-Johar, Karachi)

AND

HYATT REGENCY HOTEL

C.M.A. NO. 83-K OF 2020 IN CONST. P. NO. 9 OF 2010

(Regarding Hyatt Regency Hotel)

AND

KARACHI GYMKHANA

C.M.A. NO. 512-K OF 2020 IN CONST. P. NO.9 OF 2010

(Regarding Karachi Gymkhana)

AND

PARSA CITY (ILLEGAL CONSTRUCTION OF 18 FLOOR BUILDING

C.M.A. NO. 594-K OF 2020 IN CONST. P. NO.9 OF 2010

(Matter regarding illegally constructed 18 floor building in a very sensitive area near Police Head Quarter at Garden Area)

AND

HYPER STYAR (RESIDENTIAL INTO COMMERCIAL LOCALS)

C.M.A. NO. 617-K OF 2019 IN CONST. P. NO.9 OF 2010

(Against illegal conversion of plot from residential into commercial locals at Block 4, Scheme-5, Clifton Karachi)

AND

P & T COLONY

C.M.A. NO. 889-K OF 2019 IN CONST. P. NO.9 OF 2010

(Regarding ownership of P & T Colony also declared as Katchi Abadi)

AND

K-ELECTRIC (CONNECTED WITH HRC NO.20883/2018, PENDING AT PRINCIPAL SEAT, ISLAMABAD

C.R.P. NO.28-K OF 2020 IN CONST. P. NO.9 OF 2010

(Matter regarding fatal incidents resulting from electrocution in the service territory of K-Electric)

AND

SMALL BUSINESS RUNNING I.E. SUGARCANE CRUSHING MACHINE AT FOOTPATHS/ROAD ETC.

C.M.A. NO.940-K OF 2020

(Regarding Sugarcane Crushing Machine situated at Hasrat Mohani Road, near Cafe Victory, Karachi)

AND

CHINA CUTTING OF AMENITY PLOTS

CRL. M.A. 121-K OF 2017 IN CRL. ORG. P. NO.7-K OF 2017

(60 Feets land reserved for Bus Stop divided into 80 Sq. Yd. Plots-China Cutting Plot)

AND

CRL. M.A. NO. 38-K OF 2018 IN CRL. ORG. P. NO.7-K OF 2017

(Against China Cutting of plots by manipulated documents of Plot No.R-160/4 and R-160/5, Sector 11, North Karachi. Fabricated against master plan, as these are amenity plots for Bus Stop/Car Parking/Green Belt etc.)

AND

C.M.A. NO.423-K OF 2019 IN CONST. P. NO.9 OF 2010

(Encroachment over public road in between St.6 to St.8, Gulshan-e-Iqbal, Block 4, KDA, Scheme-24, Karachi)

AND

ENCROACHMENT OVER GREEN BELT (SHARAH-E-QUAIDEEN)

C.M.A. NO. 179-K OF 2020

(Against demolishing/sealing order of Friends Petrol Pump (Shell) on plot No.PP-1, Survey No.35, Pakistan Employees Cooperative Housing Society, Shahrah-e-Quaideen, Karachi)

AND

CONVERSION OF PLOTS FROM RESIDENTIAL INTO COMMERCIAL

C.P. NO. 422-K OF 2020

(Petitioners have challenged the purported commercialization of the residential Plot No.A/216, Block C, Unit No.2, Latifabad, Hyderabad and its amalgamation with an amenity plot)

AND

C.M.A. NO.767-K OF 2020 IN CONST. P. NO.9 OF 2010

(Defence Officers Housing Authority has been and its illegally converting various plots to used other than its original use)

AND

C.P. NO.92-K OF 2010

(Conversion of residential land into commercial i.e. Plot No.79, Survey Street No.C-F 1-5, Old Clifton, KDA Scheme-5, Karachi(

AND

C.P. No. 93-K OF 2010

(Conversion of residential land into commercial i.e. Plot No.79, Survey Street No.C-F 1-5, Old Clifton, KDA Scheme-5, Karachi)

AND

VACATION OF 35,000 AMENITY PLOTS AT 112 SITES OF KDA SCHEME/TOWNSHIPS

CRL. ORG. P. NO.19-K OF 2017 IN CRL. ORG. P. NO.7 OF 2017

(Matter pertains to 35,000 plots at 112 sites of KDA Schemes/Townships will be got vacated and recovered and put to use for which they were originally meant in master plan)

AND

CRL. M.A. NO.124-K OF 2017 IN CRL. ORG. P. NO.7-K OF 2017

(Regarding lands illegally occupied by land grabbers in Karachi)

AND

CRL. M.A. NO. 132-K OF 2017 IN CRL. ORG. P. NO.7-K OF 2017

(Amenity plot allotted for Kalayana Community Centre at North Karachi as illegally demolished by respondent)

AND

CRL.MA NO.111-K OF 2018 IN CRL. M.A. NO.132-K OF 2017 IN CRL.ORG.P.NO.7-K OF 2017

(Application for withdrawal filed by in person namely Anjuman-e-Kalayana through its President)

AND

CRL.MA NO.243-K OF 2018 IN CRL.MA NO.8-K OF 2018 IN CRL. ORG. P. NO.7-K OF 2017

(Application for withdrawal filed by in person, namely, Anjuman-e-Sadat-e-Amroha through its President)

AND

CRL. M.A. NO. 8-K OF 2018 IN CRL. ORG. P. NO.7-K OF 2017

(For restraining from demolishing further construction on the applicant plot which was allotted by KDA to Anjuman on 06.08.1974)

AND

CRL. M.A. NO. 19-K OF 2018 IN CRL. ORG. P. NO.7-K OF 2017

(For removal of encroachment and unauthorized illegal construction around Saddar and Katrak Road Karachi and has also requested that order dated 29.11.2017 be enlarged and stretch to encompass the Cantonment Area)

AND

CRL. M.A. NO.20-K OF 2018 IN CRL.ORG. P. NO.7-K OF 2017

(Regarding encroachment on applicant's plot by construction boundary wall thereon by Mr. Hussain Rajpar, Land Grabber)

AND

CRL. M.A. NO. 72-K OF 2018 IN CRL. ORG. P. NO.7-K OF 2017

(Seeking direction to restrain KDA and SBCA not to demolish Girls College, Girls School, Coaching Centre and Medical Centre established on amenity plot)

AND

ENCROACHMENT OVER AMENITY PLOTS

C.M.A. NO.59-K OF 2019 IN CONST. P. NO.9 OF 2010

(Encroachment on amenity plot allotted at Orangi for establishing Muslim Missionary College and Allied Institutions)

AND

C.M.A. NO.349-K OF 2019

(For seeking direction of this Court to have Amenity Plots of Karachi developed with parks and playground with the coordination of the relevant authorities)

AND

C.M.A. NO. 875-K OF 2019 IN CONST. P. NO.9 OF 2010

(Regarding cancellation of false and fabricated lease granted on amenity plot at Bihar Colony, Layari)

AND

C.M.A. NO.933-K OF 2019 IN CONST. P. NO.9 OF 2010

(Regarding demolishing of all illegal construction and usage of public property on main Korangi service road)

AND

C.M. APPEAL NO.139 OF 2020 IN CMA NO.NIL OF 2020 IN C.M.A. NO.933-K OF 2019 IN CONST. P. NO.9 OF 2010

(For correction of order dated 13.08.2020)

AND

C.M.A. NO.202-K OF 2020 IN CONST. P. NO.9 OF 2010

(Regarding allotment of Plot No.9B, GKI, Ghulam Hussain Kasim Quarters Karachi)

AND

C.M.A. NO.281-K OF 2020 IN CONST. P. NO.9 OF 2010

(Regarding allotment of that Plot No.J.M.I/79. Jamshed Quarters, M.A. Jinnah Road, Karachi)

AND

CRL. M.A. NO.32-K OF 2018 IN CRLORG. P. NO.7-K OF 2017

(For issuance of allotment order and lease deed in favour of applicant)

AND

CRL. M.A. NO.1-K OF 2019 IN CRL. ORG. P. NO.7-K OF 2017

(Seeking direction for removal of encroachment from the plot of applicant society)

AND

CRL. M.A. No.34-K/2020 IN CRL. ORG. P. NO.7-K OF 2017

(Matter pertains to non-profitable educational institution/trust on plot No.AM/1/B at Bhittai Colony "Amenity Plot")

AND

C.M.A. No.761-K OF 2020 IN CONST. P. No.9 of 2010

(Matter regarding encroached overstate property situated at Sindh Muslim Society Karachi)

AND

C.M.A. No.808-K of 2020 IN C.M.A. No.459-K of 2020

IN

CONST. P. No.9 of 2010

(Encroachment over 2000 million road at North Karachi)

AND

C.M. APPEAL NO.16 OF 2021 IN CONST. P. NO.9 OF 2010

(Regarding enforcement over Amenity Plot at PECHS)

AND

C.M.A. NO.782-K OF 2021

(Matter regarding Custom Preventive Service Cooperative Housing Society and removal of encroachment from green belt)

AND

C.P. NO.599-K OF 2021

(Matter pertains to encroachment upon the gardens/parts, amenity plots playground and Footpath in the city of Nawabshah/Shaheed Benazirabad)

AND

C.M.A. NO.966-K OF 2021 IN C.R.P. NO.NIL-K OF 2021 IN CONST. P. NO.9 OF 2010

(Matter regarding encroachment over Plot No.ST-14)

AND

C.M.A. NO.971-K OF 2021 IN C.R.P. NO.NIL-K OF 2021 IN CONST. P. NO.9 OF 2010

(Matter regarding encroachment over Plot No.ST-14)

AND

CRL. ORG. P. NO.10-K OF 2021

(Matter regarding encroachment over 51 Plots of Gulistan-e-Johar)

AND

ILLEGAL ENCROACHMENT OVER PLOT OF INDIVIDUALS

CRL. M.A. NO.71-K OF 2018 IN CRL. ORG. P. NO.7-K OF 2017

(Against encroachment by the land grabber on 51 Plots of the applicant at Sector 51-C, Korangi Township, Karachi)

AND

CRL. M.A. NO.95-K OF 2018 IN CRL. ORG. P. NO.7-K OF 2017

(Against notice issued by the KDA for demolition/vacating of the house of applicant i.e, House No.318, Sector 6-B, Mehran Town, Korangi Industrial Area, Karachi)

AND

CLR. M.A. NO.214-K OF 2018 IN CRL. ORG. P. NO.7-K OF 2017

(For seeking directions to stop Anti-encroachment operation against the poor villagers Gulshan-e-Saiful Mance, Sector 8, Scheme 41, Surjani Town, Karachi)

AND

CRL. M.A. NO.2-K OF 2019 IN CRL. ORG. P. NO.7-K OF 2017

(Against illegal demolition of the lawful construction on the plot owned by applicant, as it was offered by KDA illegally in compensation to Mst.Sabiha Parveen)

AND

C.M.A. NO.521-K OF 2019 IN CONST. P. NO.9 OF 2010

(Regarding illegal encroachment on Plots Nos. 33 and 34, PR-II, Preedy Quarters, Karachi)

AND

C.M.A. NO. 527-K OF 2019 IN CONST. P. NO.9 OF 2010

(Illegal construction of Masjid on Plot No.R-07, Longlife Bungalows Block-17, Gulistan-e-Johar)

AND

C.M.A. NO.162-K OF 2020

(Against illegal encroachment over plots bearing Nos.46-F and 46-G, situated at Bihar Colony, Shah Abdul Latif Bhittai Road, Karachi)

AND

C.M.A. NO.193-K OF 2020 IN CONST. P. NO.9 OF 2010

(Regarding encroachment of Plots No.B-100 and B-113, Block-10, Gulistan-e-Johar, Karachi)

AND

C.M.A. NO.762-K OF 2020 IN CONST. P. NO.9 OF 2010

(Matter pertains to encroached land situated in Aligarh Muslim University Old Boys Cooperative Housing Society Ltd., Gulzar-e-Hijri Scheme No.33)

AND

DISCRIMINATION/GRIEVANCE WITH REGARD TO ENCROACHMENT DRIVE

C.M.A. NO.425-K OF 2019 IN CONST. P. NO.9 OF 2010

(Matter regarding discrimination and grievances with regard to anti-encroachment operation in Karachi)

AND

CRL. ORG. P. NO.5-K OF 2020 IN CONST. P. NO. 9 OF 210

(Matter pertains to resettlement and rehabilitation plan for the affectees who have been disposed or dislocated due to the anti-encroachment drive)

AND

C.M.A. NO.809-K OF 2020 IN C.M.A. NO.460-K OF 2019 IN CONST. P. NO.9 OF 2010

(Regarding grievances of people of Salman Brohi Goth as they apprehend to be disposed/vacated from the land in question)

AND

ALLEGATIONS LEVELLED AGAISNT GOVERNMENT OFFICIALS

C.M.A. NO.82-K OF 2020 IN CONST.P.NO.9 OF 2010

(Regarding corruption allegations against mentioned officials of SBCA and highlighted the illegal construction and encroachment in certain areas of Karachi)

AND

C.M.A. NO.336-K OF 2020 IN CONST. P. NO.9 OF 2010

(Issue regarding title documents the people living at Allah Bux Goth registered as Kachiabadi)

AND

CRL. ORG. P. NO.1-K OF 2020 IN CONST. P. NO.9 OF 2010

AND

C.M.A. NO.510-K of 2021

(Applicant has pointed out various issues i.e, corruption, violation of fundamental rights etc.)

AND

MISCELLANEOUS

C.M.A. NO.300-K OF 2020 IN CONST. P. NO.9 OF 2010

(Statement of the amicus curiae from "Salahuddin Ahmed, ASC)

AND

C.M.A. NO.414-K OF 2020 IN CONST. P. NO.9 OF 2010

(For extension of time for compliance of orders)

AND

REPORT NO.7-K OF 2021

Decided on 22nd September, 2021.

(a) Constitution of Pakistan---

----Art. 184(3)---Matter regarding encroachment over Gujjar Nallah, Orangi Nallah and Mehmoodabad Nallah (rain water drainage streams)---Removal of encroachments in and around the Nallahs on the directions of the Supreme Court---Compensation and rehabilitation of affectees---Funding for such rehabilitation was the responsibility of the Provincial Government, in that, it had to provide funding from its available resources and the Provincial Government could not be obliviated of its responsibility---Supreme Court directed that the Provincial Chief Minister shall ensure that the affectees of the Nallahs were rehabilitated by providing them all sorts of amenities, required for present day living; that the Chief Minister shall ensure that funding was arranged for such purpose and the affectees were rehabilitated preferably within a period of one year, and that an initial report under the hands of the Chief Minister shall be submitted before the Supreme Court within a period of two weeks.

(b) Constitution of Pakistan---

----Art. 184(3)---Matter regarding construction of illegal commercial buildings on land reserved for Aladin Amusement Park ('the Park')--- On the directions of the Supreme Court the Commissioner of the city had filed a report mentioning that all the (illegal) constructions which were made on the Park had been demolished and substantial rubble (malba) had also been removed, but some still remained in the area---Commissioner further stated that for restoring the park, he had written a letter to the Provincial Government for providing funds and that as soon as the funds were made available, he would take all necessary steps for establishing the Park on the land---Supreme Court directed that the Commissioner shall take expeditious steps in such regard; that he shall ensure that no encroacher or trespasser was allowed to occupy any portion of the land of the Park; that proper security in such regard shall be ensured by the Commissioner, and he shall also ensure that a park was developed on the land without delay.

For the Petitioners/Appellants:

Faisal Siddiqui, Advocate Supreme Court (in C.R.P. 61-K/2011 and C.M.As.698-K/2011, 515-K/2021, 630-K/2020, 525-K/2019, Crl.MA.229-K/2018 and Crl. O.P.5-K/2019).

Munir A. Malik, Senior Advocate Supreme Court along with K.A. Wahab, Advocate-on-Record (in C.R.P. 56-K/2021 and C.M.A.541-K/2020).

Abid S. Zubari, Advocate Supreme Court with K.A. Wahab, Advocate-on-Record (in C.R.P..55-K/2020 and C.M.As.86-K/2020, 277-K/2021, 278-K/2021 and 28-K/2020).

Anwar Mansoor Khan, Senior Advocate Supreme Court, Ms. Umaimah Anwar Khan, Advocate Supreme Court (in Crl. M.A. 59-K/2018, C.M.A. 1003-K/2021, Crl. O.P. 13-K/2021 and Crl. M.A. 34-K/2020)

Syed Ashikue Raza, Advocate Supreme Court with Ms. Abida Parveen Channar, Advocate-on-Record for Petitioners/Appellants (in C.M.A.367-K/2020).

Mian Raza Rabbani, Advocate Supreme Court with Ms. Abida Parveen Channar, Advocate-on-Record (in C.R.P.15-K/2021).

Raja Qasit Nawaz, Advocate Supreme Court with Abdul Qadir Khan, Advocate-on-Record (in C.M.As.898-K/2020 and 83-K/2020).

Khawaja Shamsh-ul-Islam, Advocate Supreme Court (in C.M.A.714-K/2019, C.Ps.92-K and 93-K/2020).

Syed Abdul Waheed, Advocate Supreme Court (in C.M.A.594-K of 2020).

Sanaullah Noor Ghouri, Advocate Supreme Court (in C.M.As.808-K/2020 and 809-K/2020).

Muhammad Ashraf Samoo, Advocate Supreme Court (in C.M.A.510-K/2021).

Zakir Hussain Khaskhali, Advocate Supreme Court (in Crl. M.A.132-K/2017).

Salahuddin Ahmed, Advocate Supreme Court (in Crl. M.A..59-K/2018).

Badar Alam, Senior Advocate Supreme Court (in C.M.A.941-K/2020).

Muhammad Sohail Hayat Khan, Advocate Supreme Court (in Crl. M.A.34-K/2020).

Khawaja Naveed Ahmed, Advocate Supreme Court (in C.M.A.782-K/2021).

Saalim Saleem Ansari, Advocate Supreme Court (in C.M.A..898-K/2020).

Ms. Abida Parveen Channar, Advocate-on-Record (in C.M.A.391-K/2020 and Crl. O.P. 8-K/2021).

Dr. Raana Khan, Advocate-on-Record (in C.M.As.441-K/2021 and 527-K/2019).

Mst. Sabiha Parveen (in Crl. O.P.7-K/2017).

Syeda Maria Raza (in Crl. O.P. 9-K/2021).

Mrs. Amber Ali Bhai and Dr. Sadia Virk (in Crl. M.A.59-K/2018).

Ms. Maliha Malik (in C.M.A.941-K/2020).

Muhammad Akram Abro (in C.M.A.775-K/2021).

Akbar Hussain (in Crl. M.A.38-K/2018).

Syed Arif Shah (in C.M.A.59-K/2019).

Malik Jameel Ali (in C.M.A.782-K/2021).

Muhammad Irfan (in Crl. O.P.10-K/2021).

Murtaza Ali (in C.M.A.521-K/2019).

Ijaz Hussain Jakharani and Sajjad Hussain Jakharani (in C.M.A.941-K/2020).

On Court's Notice:

Khalid Javed Khan, Attorney General for Pakistan and Kashif Sarwar Paracha, Additional AGP for the Federation.

Salman Talib ud Din, Advocate General, Sindh, Sahulat Rizvi, Additional A.G., Sindh, Naveed Ahmed Sheikh, Commissioner Karachi, G. Mohiuddin Asim, Additional Secretary P&D, Shariq Ahmed, Secretary Transport, Asif Jan Siddiqui, DC East and Dr. Saeed Ahmed Qureshi, Focal Person to Chief Secretary for the Government of Sindh.

Brig. Waqar Abbasi, PD, Brig. Muhammad Qasim, PD and Abdul Basit Khan Tanoli, Legal Advisor for F.W.O.

Habib ur Rehman Gillani, Secretary Railways, Nisar Ahmed Memon, Sr. GM, Ameer Muhammad Daudpota, D.G., M. Hanif Gul, DS and Rao Moinuddin ADLA for Pakistan Railways.

Syed Jameel Ahmed, Advocate Supreme Court, Dr. Raana Khan, Advocate-on-Record, Muhammad Salim Raza, DG, Abdul Waqar Memon, Sr. Director and Muhammad Saleem Raza, Chief Controller for SBCA.

Assad Ullah Khan, M.D. for KWSB.

M. Idrees Mahsud, Member and Akbar Bacha, Deputy Director for NDMA.

Shafique Mehasar, Commissioner, Dr. Hafeez Sial, DC, Shumail Riaz, SSP and Mazhar Hussain Alvi, AIGP for Jacobabad Administration.

Aamir Mughal, CE/PD, K-IV for WAPDA.

Iqbal Dara, DIG and Ghulam Navi, SSP (South) for Traffic Police.

Liaqat Ali, Law Officer for Provincial Assembly.

Karam Din Junejo, Nazir for High Court of Sindh.

Umar Lakhani, Advocate Supreme Court, Murtaza Wahab, Administrator, Azra Muqeem, Legal Advisor, Afzal Zaidi, M/C and Azhar Muqeem, Legal Advisor for KMC.

Adil Rafi, Director, Military Land and Cantonment, Karachi, M. Saleem Hassan, CEO, Clifton Cantonment, M. Farque, Military Estate Officer, Karachi, Omer Masoom Wazir, CEO, Korangi Cantonment, Barrister M. Omer Riaz, Advocate Supreme Court on behalf of Cantonment Board, Rana Khawar Iftikhar, CEO, Faisal, Haider Ali Sial, CEO, Malir, Qazi Rizwan Ahmed,, CEO, Karachi, Cantonment and Umar Mehboob, CEO for Cantonments.

2021 S C M R 1871

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Public Health Engineering, Peshawar and others---Appellants

Versus

ABDUL MANAN and others---Respondents

Civil Appeals Nos. 239, 274 and 283 of 2020, decided on 14th July, 2021.

(Against the judgment dated 27.09.2016, 17.07.2018 and 14.11.2018 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos. 767-P, 1674-P of 2016 and 3108-P of 2018)

(a) Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----Ss. 2(1)(b) & 3---Contract/ad hoc employees---Regularization in service---Scope---To be regularized under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act') the employee in question may be an ad hoc or a contract employee who must be appointed by the Government---Three categories of employees cannot take benefit of S. 3 of the 2009 Act and claim regularization; first, project employees, that is, employees who were appointed against a project post---Whenever the said project came to an end unless otherwise provided, the posts in the said project too came to an end and all appointees stood relieved; second, employees appointed on a work charge basis, and third, those employees who were paid out of contingencies---Last proviso was perhaps there because funds for contingencies were limited and mostly time-bound, as such, whenever the contingent funds ran out, employees may be relieved, by following the proper procedure.

(b) Interpretation of statutes---

----When the intent of the legislature was manifestly clear from the wording of the statute, the rules of interpretation required that such law be interpreted as it is by assigning the ordinary English language and usage to the words used, unless it caused grave injustice which may beirremediable or led to absurd situations which could not have been intended by the legislature --- Only then, the Court may see the mischief which the legislature sought to remedy and interpret the law in a manner that met the intent of the legislature.

(c) Interpretation of statutes---

----Prospective effect of an Act---Scope---When the law itself provided a date for the application of an Act, the Court cannot, on any ground, amend the said date and extend the application of the Act to the extent that those who were not covered under it, gain its benefit.

Shumail Ahmed Butt, A.G. Khyber Pakhtunkhwa, Atif Ali Khan, Additional A.G. Khyber Pakhtunkhwa, Barrister Qasim Wadood, Additional A.G., Khyber Pakhtunkhwa, Irum Shaheen, DD, HED, Asif Khan, Litigation Officer, HED, Amin Jan, A.D. Fisheries, Khyber Pakhtunkhwa, Gulzar Mahmood, A.D. Fisheries Khyber Pakhtunkhwa, Engineer Falak Niaz, A.D. (Dost), Rajbar Khan, SDO, PHE, Khyber Pakhtunkhwa, Saadullah, Assistant Secretary, BOR, Khyber Pakhtunkhwa, Faheem Ullah Khan, Senior Law Officer, KPPSC, Assad Ullah Khan, SO, P&D Department, Amanatullah Qureshi, Deputy Secretary Finance Department, Khyber Pakhtunkhwa for Appellants.

Khaled Rahman, Advocate Supreme Court for Respondents (in C.A. No. 274 of 2020).

M. Ijaz Khan Sabi, Advocate Supreme Court for Respondents (in C.A. No. 283 of 2020).

Nemo for Respondents (in C.A. No. 239 of 2020).

2021 S C M R 1880

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD USMAN SHAKIR---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 715 of 2021, decided on 9th September, 2021.

(On appeal against the order dated 21.06.2021 passed by the Lahore High Court, Lahore in Criminal Misc. No.18050-B of 2021)

Penal Code (XLV of 1860)---

----S. 408---Constitution of Pakistan, Art. 185(3)---Criminal breach of trust by clerk or servant---Bail, grant of---Rule of consistency---Case of further inquiry---Accused was working as Accounts Assistant in a paint manufacturing company---Said company ran a scheme under which after opening a paint box, a token of certain amount would come out and on its return, the company would re-pay the amount to the holder of the token---Pursuant to an audit report, it was found that the accused instead of entering the tokens in the computer system sent them back for redemption in the market due to which a loss of about forty million rupees was caused to the company---Allegedly, the tokens amounting to Rs.11,00,000/- and a cash amount of Rs.200,000/- was recovered from the petitioner---Held, that unless and until the nexus between the amount recovered from the accused and loss occurred was established with exactitude especially when the contents of the crime report did not disclose the denomination/value and number of tokens utilized for causing loss to the company, the accused could not be held guilty and kept behind the bars---To substantiate the allegation, the prosecution had recorded the statements of three shopkeepers, however, mere statements of the shopkeepers prima facie did not seem sufficient to curtail the liberty of a person for an indefinite period especially when the co-accused of the accused from whom tokens of Rs.12,00,000/- were recovered had been granted bail by the High Court---Accused was also entitled for the same relief following the rule of consistency--- Furthermore offence alleged called for further inquiry into guilt of accused, and it also did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was in jail for more than six months and no useful purpose would be served by keeping him behind the bars for an indefinite period till conclusion of a lengthy trial---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

Muhammad Fazal alias Bodi v. The State 1979 SCMR 9 ref.

Javed Imran Ranjha, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, DPG and Tariq, Inspector for the State.

Nemo for the Complainant.

2021 S C M R 1883

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Muhammad Ali Mazhar, JJ

MUHAMMAD IMRAN and others---Petitioners

Versus

MUHAMMAD SAJAN PANHWAR and others---Respondents

Civil Petitions Nos. 3431 and 3633 of 2021, decided on 8th September, 2021.

(Against the judgment dated 18.05.2021, passed by the High Court of Sindh, Circuit Court, Hyderabad in C.P. No. D-1104 of 2020)

Pakistan Engineering Council Act, 1975 (V of 1976)---

----S. 27(5A)---Chief Executive Officer (CEO) of Public Sector Generation Holding Company Limited (GHCL) --- Qualification for appointment---High Court ordered removal of CEO of GHCL ('the petitioner') on the grounds that he was holding the post of a professional engineer while being a Chartered Accountant---Contentions raised on behalf of petitioner that neither in the Public Sector Companies (Corporate Governance) Rules, 2013 nor in the Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015, there was any provision for the Chief Executive Officer to hold a degree in the field of Electrical or Mechanical Engineering and such had been wrongly construed by the High Court; that the petitioner was qualified to be appointed as the Chief Executive Officer of GHCL and there was no illegality in the same and the High Court was not justified in setting aside his appointment as such---Supreme Court granted leave to appeal to consider the contentions raised by the counsel for the petitioner and suspended the operation of the impugned judgment of the High Court.

Afnan Karim Kundi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No. 3431 of 2021).

Ch. Aamir Rehman, Additional Attorney General for Pakistan and Shams ul Haq, Section Officer, Law for Petitioner (in C.P. No. 3633 of 2021).

Zulfiqar Ahmed Bhatti, Advocate Supreme Court for Respondent No.1 (in C.P. No. 3431 of 2021).

Muhammad Yasin Hatif, Advocate Supreme Court for Respondent No.2 (in C.P. No. 3431 of 2021).

Nemo for Respondents (in C.P. No. 3633 of 2021).

2021 S C M R 1886

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

DEPUTY INSPECTOR GENERAL OF POLICE, LAHORE and others---Appellants

Versus

SARFRAZ AHMED---Respondent

Civil Appeal No. 648 of 2021, decided on 4th October, 2021.

(On appeal against the judgment dated 14.05.2019 passed by the Punjab Service Tribunal, Lahore in Appeal No. 2887 of 2017)

(a) Civil service---

----Police constable---Willful absence from duty, involvement in criminal cases and maintaining relations with criminals---Dismissal from service---Department had conducted a regular inquiry against the respondent-police constable in which it was found that he had close relations with criminals operating in the city against whom as many as 37 FIRs had been registered for the offences of robbery, kidnapping for ransom, dacoity etc.---Department had followed all the legal formalities while awarding penalty of dismissal to the respondent and he was given full opportunity to defend himself---Furthermore respondent remained absent (from duty) for a long period of about 55 days without taking prior leave or without informing his higher ups---Respondent being a member of a highly disciplined force was required to maintain strict discipline having regard to nature of duties enjoined to such forces and his attitude could not be excused and tolerated---Appeal was allowed, impugned judgment of Provincial Service Tribunal was set-aside, and major penalty of dismissal from service imposed upon respondent was maintained.

WAPDA v. Shan Elahi 1998 SCMR 1890 and NAB v. Muhammad Shafique 2020 SCMR 425 ref.

(b) Punjab Service Tribunals Act (IX of 1974)---

----S. 5---Power of Provincial Service Tribunal to confirm, set aside, vary or modify a punishment imposed by the department/competent authority---Scope---Such power was not to be exercised arbitrarily or capriciously or on the basis of wrong premises or misconception of law.

WAPDA v. Shan Elahi 1998 SCMR 1890 ref.

Zafar Hussain Ahmed, Additional A.G. and H. Majid, DSP for Appellants.

Umer Farooq, Advocate Supreme Court for Respondent.

2021 S C M R 1890

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Sayyed Mazahar Ali Akbar Naqvi, JJ

RAB NAWAZ KHAN---Appellant

Versus

JAVED KHAN SWATI---Respondent

Civil Appeal No. 889 of 2014, decided on 12th November, 2020.

(On appeal from the judgment/order dated 06.12.2013 of the High Court of Peshawar Abbottabad Bench passed in R.F.A. No. 72 of 2006)

Negotiable Instruments Act (XXVI of 1881)---

---- Ss. 6, 22 & 118---Civil Procedure Code (V of 1908), O. XXXVII---Summary suit--- Cheque, issuance of---Whether cheque was issued by respondent for consideration or merely as an acknowledgment/receipt for investment made by him---Held, that it was a well-established principle that a cheque was intended to be for immediate payment---In ordinary circumstances cheques were exchanged between the parties for the purpose of immediate payment---Cheque was not even entitled to days of grace, as in the case of promissory notes and bills of exchange---Presumption that every negotiable instrument was made/drawn for consideration was however rebuttable---Burden to rebut said presumption laid upon the party arguing that the negotiable instrument had not been made/drawn for consideration---Such presumption was not rebutted by a bare denial of the passing of the consideration----To disprove the presumption the defendant (person who had issued the cheque/negotiable instrument) had to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist---In the present case the respondent (who had issued the cheque) provided a bare denial as his defence, and produced no independent evidence to support his plea that cheque was issued by him merely as a receipt---Furthermore no protest was lodged by the respondent when the appellant presented the cheque for encashment to a bank, which returned the cheque with the remark 'refer to drawer'---Respondent re-validated the cheque but it was again declined by the bank with the same remark---If respondent's plea that cheque was issued merely as a receipt was accepted, then question was as to what was the purpose behind revalidating the cheque---Only reasonable explanation for this was that cheque was issued and revalidated by the respondent so that appellant could recover his amount owed to him by the respondent---Appeal was allowed and summary suit filed by appellant for recovery of his amount was decreed.

Haji Karim v. Zikar Abdullah 1973 SCMR 100; Bharat Barrel and Drum Manufacturing Company v. Amin Chand Payrelal [1999] 1 SCR 704 and Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 ref.

Ch. Akhtar Ali, Advocate-on-Record for Appellant and Appellant in person.

Riaz Hanif Rahi, Advocate Supreme Court, Syed Rifqat Hussain Shah, Advocate-on-Record, Asif Ali, Advocate Supreme Court and Qari Rasheed, Advocate Supreme Court for Respondent.

2021 S C M R 1895

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and

Muhammad Ali Mazhar, JJ

FIDA MUHAMMAD---Appellant

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Education, Peshawar and others---Respondents

Civil Appeal No. 465 of 2021, decided on 28th September, 2021.

(Against the judgment dated 13.09.2018 passed by Peshawar Court, Peshawar in W.P. 2370-P/2018)

(a) Civil service---

----Upgradation of post---Scope---Upgradation could not be claimed as a matter of right but was in fact based on a policy decision of the competent authority jotted down in a scheme/notification for its implementation across the board for particular categories of employees who fulfilled the required qualification which was normally a particular length of service in a particular pay scale.

(b) Civil service---

----'Upgradation of post' and 'promotion'---Distinction---Promotion involved advancement in rank, grade or a footstep en route for advancement to higher position whereas the facility or benefit of upgradation simply conferred some monetary benefits by granting a higher pay scale to ventilate stagnation---Up-gradation was carried out under a policy and specified scheme---In an upgradation, the candidate continued to hold the same post without any change in his duties but he was accorded a higher pay scale---Benefit of upgradation was normally granted to persons stuck-up in one pay-scale for considerable period of their length of service either having no venue for promotion or progression---Up-gradation under a scheme was personal to the incumbents of the posts---In order to minimize the anguish or suffering of being stuck-up in particular pay scale for a sizeable period, the mechanism of up-gradation as a policy decision was used for redressal.

Regional Commissioner Income Tax v. Syed Munawar Ali 2016 SCMR 859 and Federal Public Service Commission through Secretary v. Anwar-ul-Haq (Private Secretary) Islamabad and others 2017 SCMR 890 ref.

Naeem Jan, Advocate Supreme Court for Appellant.

Shumail Aziz, Additional A.G. Khyber Pakhtunkhwa, Abdul Samad, Dy. Dire. E&S Education Khyber Pakhtunkhwa and Shakirullah Khan, SO (Lit) Finance, Khyber Pakhtunkhwa for Respondents.

2021 S C M R 1899

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Sayyed Mazahar Ali Akbar Naqvi, JJ

WAQAS UR REHMAN alias MOON---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 796-L of 2021, decided on 13th October, 2021.

(On appeal against the order dated 01.06.2021 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 22073-B of 2021)

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

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Pre-arrest bail, refusal of---Habitual offender---Presenting fake sickness certificate before the court---Accused was involved in a case where a woman had been deprived of valuable money under the disguise of handing over a house against a consideration of Rs.500,000/- in cash and Rs.50,000/- as commission---Admittedly the accused was one of the signatory of the agreement document which reflected that he in connivance with other co-accused had managed to defraud a household lady --- Accusation against the accused was otherwise found correct during the course of investigation and as such a definite finding of guilt had been given by the Investigating Officer against the accused---During the pendency of the second bail petition of the accused before the High Court, a certificate regarding his sickness was produced wherein it was specifically mentioned that he was suffering from COVID-19---However, the said certificate on inquiry was found to be bogus one---Furthermore accused was otherwise involved in three other cases of similar nature, which further lent support to the fact that the accused was prone to criminal activities---Petition for leave to appeal was dismissed, leave was refused and accused was declined pre-arrest bail.

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

----S. 173---Constitution of Pakistan, Art. 185(3)---Bail---Police opinion---Ipsi dixit of the police was not binding on the Courts but it had persuasive value.

(c) Constitution of Pakistan---

----Art. 185(3)---Pre-arrest bail---Scope---Grant of pre-arrest bail was an extraordinary relief, which had to be exercised sparingly with an intent to save the innocent persons from trumped-up charges.

Mian Muhammad Aslam, Advocate Supreme Court along with petitioner for Petitioner.

Respondent No. 22 in person.

Muhammad Jaffer, Additional P.G. and Bashir Ahmed, ASI for the State.

2021 S C M R 1902

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

JABAR ALI---Petitioner

Versus

The STATE---Respondent

Jail Petition No.417 of 2019, decided on 29th September, 2021.

(Against the judgment dated 14.05.2019 passed by the Lahore High Court Lahore in Criminal A. No.1532/2016 and Criminal Revision No.1646 of 2016)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused, the deceased and the witnesses, related to one another, were present inside a house during a wedding function; the invitees included a number of females, and it is in this backdrop that accused's presence amongst the ladies was objected to by the deceased---Shortly thereafter the accused targeted the deceased in front of the house where the function was taking place, a point vividly depicted in the unrebutted site plan---Graphic details of the incident furnished by both the witnesses were found to be straightforward and confidence inspiring---Considerable distance between the venue and the respective abodes of the witnesses, highlighted in the cross-examination, given the wedding occasion, satisfactorily explained their presence at the scene---Both the witnesses comfortably withstood an otherwise inconsequential cross-examination---Durations recorded by the medical officer were consistent with the prosecution case and so were confirmatory the forensic report as well as recovery of weapon---Defence plea that the deceased was done to death by unknown assailants in a dacoity was a position belatedly introduced for the first time during the trial---Formidable prosecution evidence singularly pointed towards accused's culpability, and did not admit any space to entertain such hypothesis of dacoity in the absence of any foundational basis---Petition for leave to appeal was dismissed, leave was declined, and conviction and sentence recorded against the accused were maintained.

Nemo for Petitioner.

Ch. Muhammad Sarwar Sidhu, Additional A.G. Punjab for the State.

2021 S C M R 1904

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

CIVIL APPEAL NO. 1486 OF 2017

(Against the judgment dated 29.03.2016 passed by Peshawar High Court, Peshawar in W.P.1457-P/2013)

AND C.M.A.498-P/2016 in C.A.1486/2017

(Stay application)

PROVINCIAL SELECTION BOARD,GOVERNMENT OF KHYBER PAKHTUNKHWA through Chairman/Chief Secretary, Khyber Pakhtunkhwa---Appellant

Versus

HIDAYAT ULLAH KHAN GANDAPUR---Respondent

Civil Appeal No. 1486 of 2017 and C.M.A. No. 498-P in C.A. No. 1486 of 2017, decided on 1st October, 2021.

(a) Removal from Service (Special Powers) Ordinance (V of 2000) [since repealed]---

----S. 3(1)---National Accountability Ordinance (XVIII of 1999), Ss. 9, 10, 15 & 25---Pro-forma promotion---Scope---Civil servant released after plea bargain with National Accountability Bureau (NAB) dismissed from service by his department---Whether upon retirement such civil servant could seek pro-forma promotion having admitted to his guilt---Held, that respondent-civil servant was arrested by NAB for his involvement in corruption and corrupt practices; he confessed to his guilt and put forward an application for plea bargain; he also surrendered Rs.17.5 million which he gained on account of corruption or corrupt practices---Respondent was a civil servant and once he availed the benefits of plea bargain and his request was accepted by the court, he would be deemed to have been convicted of the offence of corruption and corrupt practices---Section 15 of the National Accountability Ordinance, 1999 ('the Ordinance') stipulated that if an accused person was convicted under S. 9, he shall forthwith cease to hold public office if any held by him and further he shall be disqualified for a period of ten years to be reckoned from the date of his release---Proviso attached to said section provided that any accused person who had availed the benefit of subsection (b) of S. 25 (plea bargain) shall also be deemed to have been convicted for offence under the Ordinance and shall forthwith cease to hold public office --- In such circumstances the respondent was not entitled to claim pro-forma promotion as a vested right---Direction issued by the High Court to grant pro-forma promotion to the respondent was not based on correct exposition and elucidation of law and facts---Appeal was allowed and impugned judgment of High Court was set aside.

State through Chairman NAB v. Hanif Hyder and another 2016 SCMR 2031; Muhammad Aslam, Ex-Deputy Director (Audit) District Govt. Lahore v. Auditor-General of Pakistan, Islamabad 2013 SCMR 1904 and Suo Motu Case No. 17/2016. (Unreported Order dated 24.10.2016) ref.

(b) Constitution of Pakistan---

----Art. 25---Civil service---Wrong benefit/order passed in favour of a civil servant---Such benefit/order could not be used as a foundation (by another civil servant) for avowing equality or equal opportunity for enforcement of treatment alike, rather such right should be founded on a legitimate and legally implementable right---Wrong order could not be allowed to carry on which hardly conferred any right to claim parity or equality.

Mian Shafaqat Jan, Additional A.G., Khyber Pakhtunkhwa for Appellant.

Respondent in person.

2021 S C M R 1909

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

ZAFAR IQBAL, MAZHAR HUSSAIN AND MUHAMMAD SALEH---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No. 1145-L of 2020, decided 11th October, 2021.

(On appeal against the order dated 04.11.2020 passed by the Lahore High Court, Lahore in Crl. Misc. No. 39399-BC/2020)

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

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Cancellation/ recalling of bail---Grounds for cancelling/recalling bail enunciated by the Supreme Court stated.

Following are the grounds for cancelling/recalling bail enunciated by the Supreme Court:

(i) If the bail granting order was patently illegal, erroneous, factually incorrect and had resulted into 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 absconsion 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 which tended to establish guilt of the accused.

Samiullah v. Laiq Zada 2020 SCMR 1115 ref.

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

----S. 497--Constitution of Pakistan, Art. 185(3)---Bail---"Benefit of reasonable doubt"---Scope---For the sake of safe administration of criminal justice concept of "benefit of reasonable doubt" could be extended even at bail stage.

Samiullah v. Laiq Zada 2020 SCMR 1115 ref.

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

----Ss. 337-F(i), 337-F(v), 337-A(i), 147 & 149---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail, grant of---Trespassing and causing injuries to inmates of a house---Belatedly recorded cross-version FIR---Accused persons had been nominated in a cross-version FIR---Trial Court while granting bail to the accused persons mainly took note of the facts that the cross-version was recorded after a delay of about 8 days after the occurrence, without any satisfactorily explanation; that in the first medical examination of the injured, no bone fracture was observed but in the second report it came on record, which called for further probe into the guilt of the accused persons, and that during the investigation the narration of the injuries by the complainant was found to be false---High Court while recalling bail granted to accused persons did not discuss such aspects of the matter at all, and hence fell into error---Petition for leave to appeal was converted into appeal and allowed, impugned order of High Court was set aside, and accused persons were admitted to pre-arrest bail.

Abdul Khaliq Safrani, Advocate Supreme Court along with petitioners for Petitioners.

Ahmed Khan Gondal, Advocate Supreme Court for Respondent No.2.

Muhammad Jaffar, Additional P.G. along with Mr. Qamar Abbas, ASI for the State.

2021 S C M R 1914

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Muhammad Ali Mazhar, JJ

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 952 of 2021, decided on 8th October, 2021.

(Against the order of Lahore High Court, Multan Bench dated 12.7.2021 passed in Cr. Misc. No.2824-B of 2021)

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

----Ss. 161 & 172---Examination of witnesses by the police---Statement of witness recorded in case diary (zimni) prepared under S. 172, Cr.P.C. instead of being recorded separately---Whether such statement constituted a witness statement under S. 161, Cr.P.C.---Held, that under S. 161(3), Cr.P.C. the police officer was to reduce in writing any statement made to him in the course of examination of any person supposed to be acquainted with the facts and circumstances of the case---Police officer was to make a separate record of the statement of each such person but in case the statement of such a person, recorded by the Investigating Officer (IO), was embodied in the case diary instead of being recorded separately, it was at best a procedural lapse on the part of the IO but the statement itself did not lose its character as a statement under S. 161, Cr.P.C.---Distinction between Ss. 161 & 172, Cr.P.C. was that while one dealt with the recording of the statement of witnesses / persons acquainted with the facts and circumstances of the case, the other was the information or opinion of the IO which he gathered and formed during the course of the investigation --- So if while recording his opinion in the case diary, the IO also recorded the statement of a witness, any such statement continued to pass for a statement under S. 161, Cr.P.C. and did not become a part of the case diary under S. 172, Cr.P.C.

Zulfikar Ali Bhutto v. State PLD 1979 SC 53; Nasrullah v. State 1980 PCr.LJ 5; Muhammad Akbar v. State 1985 PCr.LJ 338; Muhammad Tahir v. State 1986 PCr.LJ 3025; Khalid Pervez v. The State 1989 PCr.LJ 1824; Nazar Muhammad v. Mushtaq Ahmad PLD 1996 Lah. 277; Muhammad Riaz v. State PLD 2003 Lah. 290 and Muhktiar Hussain v. State and others - Criminal Miscellaneous No.7627-B/2020 and vide Order dated 29.03.2021 in Ghulam Murtaza v. State and others - Criminal Miscellaneous No. 659-B of 2021 ref.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Pre-arrest bail, grant of---Further inquiry--- Investigating Officer (IO) categorically stated before the Court that on the basis of the statements of eight independent witnesses recorded by him, the accused, even though present at the site of the occurrence, was neither involved in the commission of the offence nor was he carrying any weapon---Two of the co-accused had a specific role in the crime report but were granted bail by the High Court on similar statement of the IO that they while present at the site of occurrence were not involved in the commission of the offence and were not armed with any weapon---In view of the statement of the IO supported by the statement of the witnesses there were sufficient grounds for further inquiry into the guilt of the accused---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to post-arrest bail.

James Joseph, Advocate Supreme Court for Petitioner.

Ch. Muhammad Sarwar Sandhu, Additional P.G., Farhat, SHO, Jalil and Ghulam Yasin, I.Os. for the State.

2021 S C M R 1979

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J.,Sayyed Mazahar Ali Akbar Naqvi and Jamal Khan Mandokhail, JJ

ATTAULLAH KHAN---Petitioner

Versus

ALI AZAM AFRIDI and others---Respondents

Civil Petition No. 3 of 2019, decided on 11th August, 2021.

(On appeal against the judgment dated 13.11.2018 passed by the Peshawar High Court, Peshawar in Writ Petition No. 3101-P of 2018)

(a) Civil service---

----Upgradation of post from BPS-20 to BPS-21 against policy of the Provincial Government---Petitioner was thrice upgraded, firstly when the post of LAN Administrator, Provincial Assembly was upgraded from BPS-18 to BPS-19 and the same was re-designated as Director Automation and IT; secondly when the post of Director Automation and IT was upgraded from BPS-19 to BPS-20 and the petitioner was promoted to the upgraded post; lastly, the nomenclature of the said post was substituted as Special Secretary/Director IT and the same was upgraded to BPS-21 and the petitioner for the third time was upgraded to BPS-21---Provincial Assembly had promulgated the Upgradation Policy (vide notification dated 29-08-2011) for its employees---Said Policy specifically stated that "personal upgradation shall be made once during the whole service periods', and that "no such upgradation shall be made infavour of such employees or individual whose posts have once personally (been) upgraded either before or after promulgation of the policy"---Three consecutive upgradations given to the petitioner were clearly in violation of the said Policy---High Court had rightly declared the upgradation of post of the petitioner from BPS-20 to BPS-21 as void, coram non-judice and without any lawful authority---Petition for leave to appeal was dismissed and leave was refused.

(b) Administration of justice---

----When a statute/law described or required a thing to be done in a particular manner, it should be done in that manner or not at all.

Taylor v. Taylor (1876) Ch.D. 426 ref.

(c) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Writ of quo warranto---Scope and purpose---Writ of quo warranto was issued by the courts to judicially review situations against a person when he assumed an office for which he had no entitlement---Writ of quo warranto was an effective measure to prevent people from taking over public offences when they did not qualify for the same.

(d) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Writ of quo warranto---Scope---No prohibition existed in law as to who could file a writ of quo warranto, however, the power to issue such writ was discretionary and nobody could claim that the court was bound to issue this writ.

Muhammad Asif Yousafzai, Advocate Supreme Court for Petitioner.

Respondent No. 1 in person.

2021 S C M R 1983

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

Haji SHAH BEHRAM---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 893 of 2020, decided on 3rd February, 2021.

(Against the order dated 07.07.2020 passed by the Peshawar High Court, Bannu Bench in Crl. Misc. B.A. No.307-B of 2020)

(a) Constitution of Pakistan---

----Art. 185(3)---Bail---Further inquiry---Scope---Expression "further inquiry" was a concept far from being confounded in subjectivity or to be founded upon denials or parallel stories by the defence; it required a clear finding deducible from the record so as to be structured upon a visible/verifiable void, necessitating a future probe on the basis of material previously unavailable.

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

----Ss. 324 & 337-F(ii)---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, cancellation of---Available statement of the injured victim was supported by the eye-witnesses, who could not be stamped as false witnesses at bail stage---Statement of injured victim was also confirmed by medical evidence---In such circumstances High Court had clearly misdirected itself in holding that accused's culpability warranted further inquiry---Petition for leave to appeal was converted into appeal and allowed, impugned order of High Court was set aside and post-arrest bail granted to accused was cancelled.

Mian Muhammad Zafar Iqbal, Advocate Supreme Court for Petitioner.

Salauddin Malik, Advocate Supreme Court for the Complainant.

Arshad Hussain Yousafzai, Advocate Supreme Court for the State.

2021 S C M R 1986

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Yahya Afridi, JJ

KHALID HUSSAIN and others---Petitioners/Appellants

Versus

NAZIR AHMAD and others---Respondents

Civil Petition No. 2144-L of 2011 and Civil Appeal No. 1-L of 2012 decided on 29th July, 2021.

(Against the judgment dated 15.11.2011 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Civil Revision No. 763 of 2001)

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

----Ss. 39 & 42---'Suit for declaration of a document' and 'suit for cancellation of a document'---Distinction between both remedies---Marked yet subtle distinction existed between a suit for cancellation of a document under S. 39 of the Specific Relief Act, 1877 ('Act of 1877'), and a suit for declaration of a document under S. 42 of the Act of 1877---Crucial feature determining which remedy the aggrieved person was to adopt, was: whether the document was void or voidable---In case of a voidable document, for instance, where the document was admitted to have been executed by the executant, but was challenged for his consent having been obtained by coercion, fraud, misrepresentation or undue influence, then the person aggrieved only had the remedy of instituting a suit for cancellation of that document under S. 39 of the Act of 1877, and a suit for declaration regarding the said document under S. 42 was not maintainable---On the other hand, in respect of a void document, for instance, when the execution of the document was denied as being forged or procured through deceit about the very nature of the document, then the person aggrieved had the option to institute a suit, either for cancellation of that instrument under S. 39 of the Act of 1877, or for declaration of his right not to be affected by that document under S. 42 of the Act of 1877; it was not necessary for him to file a suit for cancellation of the void document.

Muhammad Akbar v. Muhammad Yusuf PLD 1964 SC 329; Hamida Begum v. Murad Begum PLD 1975 SC 624; Abdul Hamid v. Sadeque Ali PLD 1969 Dacca 357 and Muppudathi Pillai v. Krishnaswami Pillai AIR 1960 Mad 1 ref.

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

----Ss. 39, 42 & 54---Gift deed---Suit for declaration and permanent injunction challenging the gift deed---Maintainability---High Court had dismissed the suit on the basis that as the gift deed was a registered document, only a suit for cancellation of the gift deed under S. 39 of the Specific Relief Act, 1877 was competent; and second, a suit for simple declaration without seeking any consequential relief, in particular possession of the disputed property, was not legally competent---Legality---Petitioners (plaintiffs) had not only challenged the gift deed to be void, but had also sought consequential injunctive relief---Thus, the finding of the High Court on the maintainability of the suit was factually unfounded, and legally incorrect---As far as not seeking possession of the disputed property was concerned, the record was clear that no reliable evidence was adduced by the respondents (defendants) to prove their exclusive possession thereof---No independent evidence was produced by the respondents to prove the factum of transfer of possession of the disputed property to them under the gift deed---In fact, there was a clear finding of the trial court that the possession of the disputed property remained under the control of the purported donor till his death, and further that the same was being cultivated by the tenants---Even otherwise, the petitioners claim themselves to be the co-owners of the disputed property with the respondents, having inherited the same from their father---Possession of one co-owner was considered, in law, to be the possession for and on behalf of all the co-owners---Thus, the suit of the petitioners in its form and content was maintainable and competent under the law---Petition for leave to appeal was converted into appeal and allowed, impugned judgment of High Court was set-aside.

Aswar Muhammad v. Sharif Din 1983 SCMR 626; Jan Muhammad v. Abdur Rashid 1993 SCMR 1463 and Shahro v. Fatima PLD 1998 SC 1512 ref.

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

----Arts. 117 & 188---Onus of proof---Onus to prove the claim was ordinarily on the person moving the court to seek his relief, as he was the one who was to fail if no evidence at all was given on either side---However, when the contesting party took up a defence and desired the court to pronounce judgment as to his legal right dependent on the existence of facts which he asserted, then the onus to prove those facts laid on him---After the parties had produced their respective evidence, the court was to consider and evaluate the evidence, in civil cases, on the touchstone of preponderance of evidence---On whoever's side the scale of evidence tilted would emerge as the victor, and be awarded the positive verdict.

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

----Art. 129(e)---Registered gift deed---Proof---Presumption of truth---Factum of registration of a document was essentially a notice to the public regarding its existence and validity, and having been registered by the Sub-Registrar in the performance of his official act there was a presumption of truth attached thereto under the law---However the moment the said document was challenged by the alleged executant or his successor-in-interest, that presumption stood rebutted, and the beneficiary thereof had to prove not only the execution thereof, but also the original transaction embodied therein---In the present case the alleged donees (respondents) were unable to prove the factum of due execution and valid registration of the gift deed---No attesting witness of the gift deed had been examined to prove execution---Competent officer of the Sub-Registrar Office of the concerned District, where the gift deed was claimed to have been registered, would have been the competent and relevant witness to prove the factum of registration of the gift deed---Failure on the part of the alleged donees to produce the said witness would surely go against them---No independent witness was produced to prove that the purported donor had made declaration of gift of the disputed property, in his presence to the purported donees---Only evidence in such regard was the oral testimony of one of the purported donees which, in the present case, did not cross the threshold of veracity and sufficiency required in such a contested transaction---Similarly, the factum of transfer of possession was also not very clear---Khasra Gardawari produced by the alleged donees was not of the relevant period---Petition for leave to appeal was converted into appeal and allowed, impugned judgment of High Court was set aside and suit filed by petitioners was decreed.

(e) Islamic law---

----Gift---Conditions for a valid gift---Under Islamic law the conditions of a valid gift, were, first, a declaration of gift by the donor; second, acceptance of gift expressly or impliedly by or on behalf of the donee, and third, delivery of possession of the subject-matter by the donor to the donee---If these three conditions were fulfilled, the gift was complete---Registration of the gift deed would not be of much legal usefulness, if any of the said conditions was missing.

Maulvi Abdullah v. Abdul Aziz 1987 SCMR 1403 and Muhammad Ejaz v. Khalida Awan 2010 SCMR 342 ref.

M. Amer Tauseef, Advocate Supreme Court for Petitioners.

Ms. Shaista Qaiser, Advocate Supreme Court for Appellants.

Shahid Azeem, Advocate Supreme Court and Ms. Tasneem Amin, Advocate-on-Record for Respondents (in both cases).

Akhtar Javed, Additional A.G. for the Government of Punjab.

2021 S C M R 1995

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

VICE-CHANCELLOR, BACHA KHAN UNIVERSITY CHARSADDA, KHYBER PAKHTUNKHWA and others---Petitioners/Appellants

Versus

TANVEER AHMAD and others---Respondents

Civil Appeals Nos. 670 to 671 of 2020, Criminal Appeal No. 45 of 2021 and Civil Petitions Nos. 131 to 133 of 2021, decided on 6th July, 2021.

(Against the order dated 12.03.2020 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos. 2123-P etc of 2019)

(a) Civil service---

----Contractual employees---Such employees had no vested right of regularization in service---By mere efflux of time, an employee could not claim regularization and knock on the door of the Court for the same.

Khushal Khan Khattak University through Vice Chancellor and others v. Jabran Ali Khan and others 2021 SCMR 977 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Master-servant relationship---Contractual terms of employment---Matters such as how and when and on what terms and conditions an employee was to be hired by the employer, were not to be decided by the courts; it was the prerogative of the employer to decide such matters and the terms and conditions of employment were such as were incorporated in the employment contract---Where relationship was governed by the principle of master and servant, then except in exceptional circumstances, disputes arising therefrom were beyond the jurisdiction and parameters of the (High) Courts under Art. 199 of the Constitution---Forcing an institution/employer to act as per the whims and wishes of certain employees was not only burdensome, but was also a transgression of the powers vested with the High Court under Art. 199 of the Constitution---Even otherwise, contractual terms and conditions could neither be enforced, nor a contract be extended or renewed under Art. 199 of the Constitution.

Khushal Khan Khattak University through Vice Chancellor and others v. Jabran Ali Khan and others 2021 SCMR 977 ref.

Syed Haziq Ali Shah, Advocate Supreme Court and Muhammad Ashfaq, AR(Legal for Appellants.

Syed Javed Akbar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent (in C.A. No. 670 and C.M.A. No. 7485 of 2020).

Rana Ali Ahmed, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondents (in C.M.As.. Nos. 671, 5023 of 2020 and C.M.A. No. 5094 of 2021).

Fazal Shah, Advocate Supreme Court for Respondents (in Criminal Appeal No. 45 of 2021).

2021 S C M R 2002

[Supreme Court of Pakistan]

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

MANZOOR AHMED and others---Petitioners

Versus

The STATE---Respondent

Criminal Petitions Nos.92-K and 100-K of 2021, decided on 12th October, 2021.

(Against the order dated 9.3.2021 passed by the High Court of Sindh at Sukkur in Cr. As. Nos.4 and 79 of 2015)

Penal Code (XLV of 1860)---

----Ss. 376(2), 363, 337-A(ii), 337-L(2), 147, 148 & 149---Gang rape, abduction---Reappraisal of evidence---Five members of the victim's family who were injured during the occurrence unanimously blamed the accused and co-accused persons for having intruded into their dwelling to abduct the victim---Victim was recovered by the police after almost four months from the house of a co-accused---Medical evidence confirmed carnal assault with a fetus in its aftermath, leaving no space to entertain any hypothesis other than sexual assault---Witnesses were in a comfortable unison with each other---Victim also provided graphic details of abduction and subsequent treatment meted out during her captivity---Statement of the victim did not admit of the slightest doubt and as such by itself constituted formidable evidence to independently drive home the charge with the support of irrefutable clinical evidence, preponderance whereof did not require a confirmatory D.N.A. profile generation, a facility otherwise scarcely available in the year 2012, when the incident took place---Furthermore in a rural neighbourhood, it was hard to believe that a family would join hands to level a false accusation at the cost of a perennial stigma, that too, without any motive or reason---Even investigative conclusions did not admit the hypothesis of a false case---Petition for leave to appeal was dismissed, leave was refused, and conviction and sentences recorded against the accused were maintained.

Raja Jawad Ali Saahar, Advocate Supreme Court for Petitioners (in Cr. P. No. 92-K of 2021).

Ejaz Ahmed Awan, Advocate Supreme Court for Petitioner (in Cr. P. No. 100-K of 2021).

Zafar Ahmed Khan, Additional Prosecutor General Sindh for the State (in both cases)

2021 S C M R 2005

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

SHAFA ULLAH KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 592 of 2019, decided on 17th September, 2021.

(Against the judgment dated 18.03.2019 of the Lahore High Court, Lahore passed in Criminal A. No. 198603 of 2018)

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

----S. 9(c)---Possession of 2880 grams of charas and 270 grams of heroin---Reappraisal of evidence---Accused was apprehended red-handed and the narcotics were recovered from his exclusive possession---Recovery witnesses and the complainant, who were police officials, remained consistent on the point that it was accused in whose exclusive possession the narcotic was recovered---Both the witnesses had no animosity against the accused and they remained firm during cross-examination; they had no reason to falsely implicate the accused, and both the courts below found their testimonies to be reliable and truthful---Recovered narcotics were sent to the Forensic Science Agency (FSA) and Agency tested positive through its report---Safe transmission of the narcotics to FSA was also established by the prosecution by producing Moharrar whereas complainant himself took the parcel from the Moharrar and transmitted it to the FSA---Case property was exhibited in the court---Prosecution proved its case against the accused through trustworthy evidence and other circumstances of the case---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) ---Criminal Procedure Code (V of 1898), S. 510, proviso---Possession of narcotics--- Report of Government Analyst---Protocols/procedure used---Non-mentioning of the detail of the protocols---Effect---In the present case in the report of Forensic Science Agency (FSA), the details of the protocol were not mentioned, however the test applied, protocol and result of the test had been mentioned---If there was any ambiguity in such a report the same may (also) be resolved by the trial court by exercising its powers under proviso to S. 510, Cr.P.C.---No ambiguity was found in the FSA's report and there was no infirmity in the impugned judgment and the conclusion drawn by the courts below regarding guilt of the accused---Appeal was dismissed.

Qaiser Javed Khau v. The State through Prosecutor General Punjab, Lahore and another PLD 2020 SC 57 ref.

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

Mirza Abid Majeed, D.P.G. Punjab, Zafarullah, ASI/IO and Complainant for the State.

2021 S C M R 2009

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

ASFANDIYAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1001 of 2016, decided on 1st February, 2021.

(Against the judgment dated 11.05.2016 passed by the Peshawar High Court Peshawar in J. Cr.A. 224-P of 2013)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Father of deceased furnished ocular account about the incident, a daylight affair within a thick locality, reported promptly to the police within one hour---Fact that a father would substitute the assassin of his son with an innocent without rhyme or reason was inconceivable---Formal FIR was recorded at 1:45 p.m. whereas autopsy followed at 2:30 p.m---Such brief interregnum did not admit possibility of deliberations or consultations, particularly in the face of nomination of single accused---Durations between injuries and death as well as death and postmortem were synchronized with the time of occurrence mentioned in the crime report---Droppage of real brother of the deceased as a witness, sans any apparent explanation, was unnecessary, but such fact by itself, did not militate against the testimony of his deceased's father, which was found to be consistent, straightforward and confidence inspiring---Petition for leave to appeal was dismissed, leave was refused and conviction and sentence recorded against the accused were maintained.

(b) Criminal trial---

----Witness---Statement of solitary witness---Conviction---Scope---Law did not require a particular number of witnesses to prove a criminal charge and statement of a solitary witness with a ring of truth was more than sufficient to drive home the charge.

Muhammad Ilyas Siddiqi, Advocate Supreme Court for Petitioner.

Anis M. Shahzad, Advocate Supreme Court for the State.

2021 S C M R 2011

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Muhammad Ali Mazhar, JJ

RESHAM KHAN and another---Petitioners

Versus

The STATE through Prosecutor General Punjab, Lahore and another---Respondents

Criminal Petition No. 950 of 2021, decided on 7th October, 2021.

Against the Order dated 29.07.2021 passed by Lahore High Court, Rawalpindi Bench, in Crl. Misc. No.1339-B of 2021

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

----Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Discrepancy in location and nature of injuries---Complainant reached at the scene of crime when the accused persons were escaping from the spot which explicated that complainant was himself not the eye-witness of the incident but he was informed by two other witnesses, who were allegedly present at the scene of offence---In the FIR the complainant claimed that the firearm injuries were shot on the front side of abdomen of deceased, but the postmortem report did not show any wound of entry on abdomen from front side but showed exits---According to the challan submitted by the Investigation Officer (I.O), the names of accused persons were mentioned in Column No.2 and they were not sent for trial and for such reason the complainant had already filed a private complaint---Locale of injury in the FIR were pointed out by the complainant on the front of abdomen and left side of deceased's body, whereas in the private complaint the complainant had mentioned that the accused persons had caused firearm injuries on different parts of body of deceased and did not point out any specific locale of injuries---Investigation had been completed; report under S. 173, Cr.P.C. had been already filed---Case emanating from FIR and private complaint were proceeding in the Trial Court---No tangible evidence or incriminating material had been found or collected by the I.O against the accused persons, hence, there shall be no useful purpose achieved or attained to hold him behind bars---Sufficient grounds were available for further inquiry---Petition for leave to appeal was converted into appeal and allowed, and accused persons were granted post arrest bail.

(b) Constitution of Pakistan---

----Art. 185(3)--- Bail--- Appreciation of evidence--- Scope--- Further inquiry---At bail stage deeper appreciation of evidence couldn't be made out but the court had to get the picture through tentative assessment of prosecution story---In order to reach even a tentative assessment, whether the accused had made out a case of further inquiry or not, the court had to glean and congregate the composite effect of incriminating material brought on record by the prosecution, inconsistency or contradiction if any in the statement made in the FIR vis-à-vis postmortem report and or the situation where ocular evidence was not supported by the medical evidence.

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

----S. 173--- Constitution of Pakistan, Art. 185(3)--- Bail--- Police opinion---Scope---Opinion expressed by Investigation agency was neither binding on court nor could be taken as gospel truth but it depended on the circumstances of each case to be considered---Court could not get rid of or brush aside such opinion unless some other cogent reasons or extenuating circumstances were available to discard and dislodge such opinion to come to another judicious and sagacious conclusion.

(d) Constitution of Pakistan---

----Art. 185(3)---Bail---Further inquiry---Scope---Insight and astuteness of further inquiry was a question which must have some nexus with the result of the case for which a tentative assessment of the material on record was to be considered for reaching just conclusion---Case of further inquiry pre-supposed the tentative assessment which may create doubt with respect to the involvement of accused in the crime.

(e) Constitution of Pakistan---

----Art. 185(3)---Bail---Benefit of doubt---Benefit of doubt could be extended to the accused even at bail stage if the facts of the case so warrant.

Azam Nazeer Tarar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Ch. M. Sarwar Sandhu, Additional P.G. and Abdul Rehman, SI for the State.

Malik Ghulam Mustafa Kandwal, Advocate Supreme Court for Respondent No. 2.

2021 S C M R 2017

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD KHAN---Petitioner

Versus

IQBAL KHAN and another---Respondents

Criminal Petition No.687 of 2020, decided on 8th February, 2021.

(Against the judgment dated 20.05.2020 passed by the Peshawar High Court Bannu Bench in Crl. Misc. B.A. No. 205-B of 2020)

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

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Bail, cancellation of---High Court granted bail to accused on the ground that given the joint role of accused and co-accused, it was far from being clear as to whose shot hit the deceased---Held, that totality of circumstances did not admit space to hypothetically absolve the accused from the indivisibility of his role of being in the community of intention with the allegation of active participation in the crime---Both the accused and co-accused remained away from the law---Accused was arrested after almost four years of the incident, while the co-accused was still at large---In the absence of any investigative analysis or conclusion, there was no occasion for the High Court to itself presumptuously extricate the accused from the web, woven by the identity of circumstances jointly hovering upon both the accused and co-accused---Petition for leave to appeal was converted into appeal and allowed, impugned order of High Court was set-aside and post-arrest bail granted to accused was set aside.

(b) Constitution of Pakistan---

----Art. 185(3)---Bail---Abscondment---Though absconsion by itself was not proof of guilt nor insurmountably stood in impediment to release of an offender if otherwise a case for grant of bail was made out, nonetheless, it was a circumstance which could not be invariably ignored without having regard to peculiarity of circumstances in each case as there were situations that possibly entailed consequences.

Salah-ud-Din Malik, Advocate Supreme Court/Advocate-on-record for Petitioner.

Ms. Aisha Tasneem, Advocate Supreme Court with Ghousullah, SI/I.O. P.S. Pezu Lakki Marwat for the State.

Saleem Ullah Khan Ranazai, Advocate Supreme Court with Respondent No.1 in person and Mahmood Ahmed Sheikh, Advocate-on-Record for Respondent.

2021 S C M R 2082

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SHAHID ABBAS---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 656-L of 2021, decided on 12th October, 2021.

(On appeal against the order dated 28.04.2021 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 21377-B of 2021)

Penal Code (XLV of 1860)---

----Ss. 452, 337-A(ii), 337-A(i), 337-F(i), 448, 511, 148 & 149---Constitution of Pakistan, Art. 185(3)---House trespass, causing injuries to inmate of house---Ad interim pre-arrest bail, confirmation of---First Information Report (FIR) of the occurrence was recorded after an inordinate delay of about 23 days for which no plausible explanation had been given---Time and date mentioned on the medico legal report of injured complainant showed that he was examined about 7/8 hours prior to the occurrence---As per the contents of the crime report, the accused gave a 'sota' blow on the left side of complainant's head, however, the complainant was examined by a medical board and regarding the head injury it was mentioned that the possibility of fabrication could not be ruled out---Admittedly civil litigation was also pending between the parties---In such circumstances, the possibility of false implication of the accused could not be ruled out---Prima facie there were sufficient grounds to take into consideration that the case of the accused called for further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed, and ad interim pre-arrest bail granted to the accused was confirmed.

Hamayun Rashid Ch., Advocate Supreme Court for Petitioner along with Petitioner.

Muhammad Jaffer, Additional P.G. and Ejaz Ahmed, SI for the State.

2021 S C M R 2084

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

ZAKIR JAFFER and another---Petitioners

Versus

The STATE through A.G. Islamabad and another---Respondents

Criminal Petitions Nos. 1109 and 1110 of 2021, decided on 18th October, 2021.

(On appeal from the judgment/order dated 29.09.2021 of the Islamabad High Court passed in Crl. Misc. 884-B, 884-B of 2021).

Penal Code (XLV of 1860)---

----Ss. 109, 201, 511, 176 & 118--- Constitution of Pakistan, Art. 185(3)---Criminal Procedure Code (V of 1898), S. 497(1), first proviso---Abetment, causing disappearance of evidence of offence, or giving false information to screen offender, omission to give information to police---Bail, grant of---Female accused---High Court while denying post-arrest bail to accused-lady failed to deal with the prosecution case against her and the pleas advanced by her counsel for grant of bail--- Furthermore accused being a woman may be granted bail under the first proviso to S. 497(1), Cr.P.C. in absence of any circumstances that may justify declining such relief to her---Prosecution had not been able to point out any such circumstance---Petition for leave to appeal was converted into appeal and allowed, the accused was granted bail subject to her name being retained on the Exit Control List (ECL)---Supreme Court observed that concession of bail may be withdrawn if the accused misused it in any manner, including causing delay in the expeditious conclusion of the trial or influencing the prosecution witnesses.

Kh. Haris Ahmad, Senior Advocate Supreme Court for Petitioners.

Niazullah Khan Niazi, AG ICT along with Abdul Sattar, Inspector and Shabbir Tanoli, SHO for the State.

Shah Khawar, Advocate Supreme Court for the Complainant.

2021 S C M R 2086

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

KAZIM ALI and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No. 507-L of 2021, decided on 11th October, 2021.

(On appeal against the order dated 02.04.2021 passed by the Lahore High Court, Lahore in Criminal Miscellaneous Application No. 15372-B of 2021)

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

----Ss. 337- F(v), 337-F(i), 337-F(ii), 337-A(i), 337-H(2), 354, 452, 427, 148 & 149---Constitution of Pakistan, Art. 185(3)---House trespass, causing injuries to inmates of house, beating womenfolk and children, setting personal property on fire---Pre-arrest bail, grant of----Delay of four days in lodging the FIR was not explained plausibly by the prosecution---As per the contents of the crime report, seventeen persons were nominated in the crime report, out of which four co-accused persons, whose roles could not be distinguished from present accused persons, were granted post-arrest bail, and the complainant did not challenge such grant of bail---Furthermore there was a counter version of the occurrence which was recorded by the local police regarding the same occurrence---In such circumstances Trial Court after recording of evidence would decide about the guilt or otherwise of the accused persons---Prima facie, there were sufficient grounds to take into consideration that the case of the accused persons called for further inquiry into their guilt---Petition for leave to appeal was converted into appeal and allowed, and accused persons were admitted to pre-arrest bail.

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

----Ss.337-F(v), 337-F(i), 337-F(ii), 337-A(i), 337-H(2), 354, 452, 427, 148 & 149---Constitution of Pakistan, Art. 185(3)---House trespass, causing injuries to inmates of house, beating womenfolk and children, setting personal property on fire---Pre-arrest bail, grant of---Rule of consistency---Seventeen persons were nominated in the crime report, out of which four co-accused persons, whose roles could not be distinguished from present accused persons, were granted post-arrest bail, and the complainant did not challenge such grant of bail---When it was an admitted fact that the role ascribed to a large number of accused was of general nature which could not be distinguished from each other, and if four out of seventeen persons had already been granted post-arrest bail, any order by the Supreme Court on any technical ground that the consideration for pre-arrest bail and post-arrest bail were entirely on different footing, would be only limited up to the arrest of the accused persons because of the reason that soon after their arrest they would be entitled for the concession of post-arrest bail on the plea of consistency---Petition for leave to appeal was converted into appeal and allowed, and accused persons were admitted to pre-arrest bail.

Muhammad Ramzan v. Zafarullah 1986 SCMR 1380 ref.

Rana Muhammad Shahid Mahmood, Advocate Supreme Court for Petitioner along with Petitioners.

Muhammad Jaffer, Additional P.G. and Tahir Bashir, SI for the State.

2021 S C M R 2090

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

MUHAMMAD IRFAN SHABBIR---Petitioner

Versus

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

Criminal Petition No. 1307-L of 2021, decided on 12th October, 2021.

(Against the order dated 14.09.2021 passed by the Lahore High Court, Lahore in Criminal Misc. No. 47024-B of 2021)

Penal Code (XLV of 1860)---

----S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Bail, grant of---Statutory delay in conclusion of trial---Accused was behind bars for about one year and four months and his case had not been decided---Order sheets appended indicated that on many dates the complainant was absent, or the witnesses did not appear---Witnesses were even summoned through bailable warrants---Offence alleged against the accused was punishable for three years out of which the accused had already been incarcerated for one year and four months---Petition for leave to appeal was converted into appeal and allowed, and accused was allowed bail.

Malik Matee Ullah, Advocate Supreme Court for Petitioners.

Mirza Abid Majeed, DPG, Punjab along with Amjad Ali, S.I. and Asif Ali, S.I. for the State.

Muhammad Jawad Zafar, Advocate Supreme Court (Through video link from Lahore) for the Complainant.

2021 S C M R 2092

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah, Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD NASIR SHAFIQUE---Petitioner

Versus

The STATE through Prosecutor General Punjab and another---Respondents

Criminal Petition No.957 of 2021, decided on 23rd September, 2021.

(Against the order dated 03.08.2021 of the Lahore High Court, Lahore passed in Crl. Misc. No. 45363-B of 2021)

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

----S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Bail, grant of---During the course of proceedings, the complainant categorically stated that the amount paid to the accused was in fact in cash and the same was neither paid in lieu of any agreement nor any receipt in such regard could be furnished---Furthermore accused was behind bars for the last 05 months and the maximum punishment provided under the statute for the offence alleged was 03 years---As the amount was allegedly paid by the complainant to the accused in installments which was not satisfactorily disclosed by the complainant, therefore, it was best to leave the matter to be decided by the Trial Court after recording of evidence --- Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Offences which did not fall within the prohibitory clause of S. 497, Cr.P.C.---For such offences grant of bail was a rule while its refusal was an exception.

Asghar Ali Gill, Advocate Supreme Court and Syeda B. H. Shah, Advocate-on-Record for Petitioner.

Mirza Muhammad Usman, D.P.G. and Muhammad Aslam, S.I. for the State.

Respondent No.2 in person

2021 S C M R 2094

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

GENERAL MANAGER, SNGPL, PESHAWAR---Petitioner

Versus

QAMAR ZAMAN and others---Respondents

Civil Petition No. 509-P of 2012, decided on 7th July, 2021.

(Against the judgment dated 14.09.2012 passed by the Peshawar High Court, Peshawar in C.R. No. 156-P of 2012)

(a) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 6(2)(q), 11, 12 & 43---Complaint against Sui Northern Gas Pipelines Limited (SNGPL) for contravention of provisions of the Oil and Gas Regulatory Authority Ordinance, 2002---Suit filed against SNGPL in civil court---Maintainability---Bar over jurisdiction of Civil Court---Oil and Gas Regulatory Authority Ordinance, 2002 ('the Ordinance') was a special law which explained the powers and jurisdiction of the Oil and Gas Regulatory Authority ('the Authority') and redressal of the disputes with overriding effect, therefore, no other forum, Tribunal shall have the jurisdiction to step in for resolving the disputes---Although there was no specific bar provided in the Ordinance over the jurisdiction of Civil Court but exclusive jurisdiction had been conferred on the Authority for determining the disputes referred to in the Ordinance which reflected the intent of the legislature---In such like situation, the jurisdiction of Authority was exclusive and the jurisdiction of Civil Court was barred but this would be an implied bar, very much permissible under the settled law and it would be equivalent to the specific bar provided in any statute.

(b) Jurisdiction---

----Any judgment/decree/order passed/rendered by a Court having no jurisdiction would be no judgment/decree/order in the eyes of law and would have no binding force attached to it.

Asad Jan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2021 S C M R 2100

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Mazhar Alam Khan Miankhel, J

CHIEF EXECUTIVE, PESCO DEPARTMENT, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and others---Appellants

Versus

AFNAN KHAN and another---Respondents

Civil Appeal No. 443 of 2021, decided on 14th October, 2021.

(On appeal from the judgment dated 14.09.2020 passed by the Peshawar High Court, Bannu Bench in C.R. No. 44-B of 2018)

(a) Limitation Act (IX of 1908)---

----S. 5---High Court (Lahore) Rules and Orders, Vol. V, Chapt. 1, Pt. A, R. 9-A---Civil Procedure Code (V of 1908), S. 115---Civil revision before the High Court re-submitted after Office objection---Limitation and procedure---Civil revision was filed in the High Court within time but was returned by the Office with certain objections to be complied with and to be re-submitted within the time allowed by the Office---Civil revision was submitted beyond the period allowed by the Office---Held, that Office had to follow R. 9-A of Part A, Chapter 1, Volume V of the High Court (Lahore) Rules and Orders, however the same was not done in the present case, in that, notice was not affixed on the notice board and further, the case was not fixed for hearing as a motion case about which the appellant may have been put on notice---Civil revision came up for hearing before a Bench of the High Court and it proceeded to pass the impugned judgment dismissing the same without adverting at all to the question as to what has transpired in filing of the civil revision and how the Office of the Court and the Court acted and dealt with the same for which provision had been made in the High Court (Lahore) Rules and Orders---Impugned judgment of High Court was set-aside and the matter was remanded to the High Court for deciding the civil revision afresh in accordance with law --- Appeal was allowed accordingly.

Hafeez Ahmed and others v. Civil Judge, Lahore and others PLD 2012 SC 400 and Farman Ali v. Muhammad Ishaq and others PLD 2013 SC 392 ref.

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

----O. XXIX, R. 1 & S. 115---Civil revision, filing of---Resolution of Board of Directors of company---Whether required---Held, that in the present case civil revision was not filed by the Company rather it was filed by the Chairman, WAPDA and Chief Executive, PESCO and these were the two authorities who were also impleaded by the respondent as defendants in the suit---Once the respondent himself had chosen to make a specific designation in the organization/company as party to the suit and not the organization/company, the objection with regard to filing of the resolution by the Company could not be justifiably raised or on that basis the civil revision filed by the appellant could not have been dismissed---Impugned judgment of High Court was set-aside and the matter was remanded to the High Court for deciding the civil revision afresh in accordance with law---Appeal was allowed accordingly.

Sabit Ullah Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Imad Anjum Durrani, Advocate Supreme Court for Respondent No. 1.

2021 S C M R 2019

[Supreme Court of Canada]\

Present: Wagner C.J., Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

CITY OF TORONTO---Appellant

Versus

ATTORNEY GENERAL OF ONTARIO---Respondent

and

ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF BRITISH COLUMBIA, TORONTO DISTRICT SCHOOL BOARD, CITY PLACE RESIDENTS' ASSOCIATION, CANADIAN CONSTITUTION FOUNDATION, INTERNATIONAL COMMISSION OF JURISTS (CANADA), FEDERATION OF CANADIAN MUNICIPALITIES, DURHAM COMMUNITY LEGAL CLINIC, CENTRE FOR FREE EXPRESSION AT RYERSON UNIVERSITY, CANADIAN CIVIL LIBERTIES ASSOCIATION, ART EGGLETON, BARBARA HALL, DAVID MILLER, JOHN SEWELL, DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS, PROGRESS TORONTO, MÉTIS NATION OF ONTARIO, MÉTIS NATION OF ALBERTA AND FAIR VOTING BRITISH COLUMBIA---Interveners

Decided on 1st October, 2021.

(Appeal from a judgment of the Ontario Court of Appeal)

Per Wagner C.J. and Brown JJ.; Moldaver, Côté and Rowe JJ., concurring; Abella, Karakatsanis, Martin and Kasirer JJ., dissenting.

Per Wagner C.J. and Brown JJ (Majority view)

(a) Fundamental Rights---

----Purposive interpretation---Purposive interpretation of Fundamental rights must begin with, and be rooted in, the text and not overshoot the purpose of the right but place it in its appropriate linguistic, philosophic and historical contexts.

Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, at paras. 8-10 and R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344 ref.

(b) Fundamental Rights---

----Freedom of expression---Scope and limitations---Right of freedom of expression was not recognized as being without internal limits---Activities may fall outside the scope of such right where the method of the activity itself-such as violence-or the location of that activity was not consonant with protection offered by Fundamental rights.

Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at paras. 60 and 62 ref.

(c) Fundamental Rights---

----Negative and positive claim of right--- Distinction--- Many constitutional rights had both positive and negative dimensions---Distinction between those positive and negative dimensions remained important when considering the nature of the obligation that the claim sought to impose upon the state: a right's positive dimensions required government to act in certain ways, whereas its negative dimensions required government to refrain from acting in other ways.

P. Macklem, "Aboriginal Rights and State Obligations" (1997), 36 Alta. L. Rev. 97, at p. 101 and The Idea of Justice (2009), at p. 282 ref.

(d) Fundamental Rights---

----Freedom of expression---Scope---Substantial interference with freedom of expression---Where a claimant could demonstrate that, by denying access to a statutory platform, the government had substantially interfered with freedom of expression or acted with the purpose of doing so, the claim may proceed---Substantial interference with freedom of expression occurred where lack of access to a statutory platform had the effect of radically frustrating expression to such an extent that meaningful expression was effectively precluded---While meaningful expression need not be rendered absolutely impossible, effective preclusion represented an exceedingly high bar that would be met only in extreme and rare cases.

Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 33 ref.

(e) Interpretation of Constitution---

----Unwritten constitutional principles---Scope---Democracy---Whether unwritten constitutional principles, such as principle of democracy, could be used as a device for invalidating otherwise valid legislation.

Constitution (of Canada) described an architecture of the institutions of state and of their relationship to citizens that connoted certain underlying principles These principles, such as democracy and the rule of law, infused the Constitution. These principles were foundational without which it would be impossible to conceive of the constitutional structure. These principles had full legal force and may give rise to substantive legal obligations. Like all principles of political morality, they could guide and constrain the decision-making of the executive and legislative branches. Unwritten principles were therefore part of the law of the Constitution (of Canada), in the sense that they formed part of the context and backdrop to the Constitution's written terms.

Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at para. 93; Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 50-51; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, at p. 845 and British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at para. 52 ref.

The unwritten constitutional principle of democracy could not be used as a device for invalidating otherwise valid legislation. Unwritten constitutional principles were not provisions of the Constitution. Their legal force laid in their representation of general principles within which the constitutional order operated and, therefore, by which the Constitution's written terms - its provisions- were to be given effect. In practical terms, this meant that unwritten constitutional principles may assist courts in only two distinct but related ways. First, they may be used in the interpretation of constitutional provisions. Where the constitutional text was not itself sufficiently definitive or comprehensive to furnish the answer to a constitutional question, a court may use unwritten constitutional principles as interpretive aids. When applied to Fundamental rights (in the Constitution), unwritten principles assisted with purposive interpretation, informing the character and the larger objects of the Fundamental rights itself, the language chosen to articulate the specific right or freedom, and the historical origins of the concepts enshrined. Where unwritten constitutional principles were used as interpretive aids, their substantive legal force must arise by necessary implication from the Constitution's text. Secondly, and relatedly, unwritten principles could be used to develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecture. Structural doctrines could fill gaps and address important questions on which the text of the Constitution was silent.

Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077; Hunt v. T&N plc, [1993] 4 S.C.R. 289; Huson v. The Township of South Norwich (1895), 24 S.C.R. 145 and Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 ref.

Neither of the two above mentioned functions supported the proposition that the force of unwritten principles extended to invalidating legislation. On the contrary, unwritten constitutional principles, such as democracy, a principle by which the Constitution was to be understood and interpreted, strongly favoured upholding the validity of legislation that conformed to the text of the Constitution. Attempts to apply unwritten constitutional principles in such a manner as an independent basis to invalidate legislation, whether alone or in combination, suffered from a normative and a practical deficiency, each related to the other, and each fatal on its own. Such attempts trespassed into legislative authority to amend the Constitution, thereby raising fundamental concerns about the legitimacy of judicial review and distorting the separation of powers. Furthermore, unwritten constitutional principles were highly abstract and unlike the Fundamental rights - rights whose textual formulations were debated, refined and ultimately resolved by the committees and legislative assemblies entrusted with constitution-making authority - the concept of democracy had no canonical formulation. Unlike the written text of the Constitution, then, which promoted legal certainty and predictability in the exercise of judicial review, the nebulous nature of the unwritten principles made them susceptible to be interpreted so as to render many of the written constitutional rights redundant and, in doing so, undermine the delimitation of those rights chosen by the constitutional framers.

(f) Interpretation of Constitution---

----Unwritten constitutional principle of democracy--- Scope---Democracy was principle by which the Constitution is to be understood and interpreted---Though not explicitly identified in the text, the basic structure of the Constitution (of Canada) connoted certain freely elected, representative, and democratic political institutions---Democratic principle had both individual and institutional dimensions; it embraced not only the process of representative and responsible government and the right of citizens to participate in that process at the provincial and federal levels, but also substantive goals including the promotion of self-government---Democratic principle sat alongside and indeed overlapped with other unwritten constitutional principles that, including federalism and the rule of law.

Per Abella, J., dissenting (Minority view)

(g) Election---

----Democracy---Significance of free and fair electoral process---Elections were to democracy what breathing was to life, and fair elections were what breathed life into healthy democracies; they gave the public a voice into the laws and policies they were governed by, and a chance to choose who would make those laws and policies---Elections was a process of reciprocal political discourse---Rules of an election, including the electoral boundaries and the timelines for campaigns, structure the process of reciprocal dialogue between candidates and voters in their electoral districts---Final act of voting, itself a form of political expression, was the culmination of the process of deliberative engagement throughout an election period---Stability of the electoral process was therefore crucial not only to political legitimacy, but also to the rights of candidates and voters to meaningfully engage in the political discourse necessary for voters to cast an informed vote, and for those elected to govern in response to the expressed views of the electorate.

(h) Fundamental Rights---

----Freedom of expression---Scope---Electoral fairness and meaningful political discourse---When a democratic election took place, freedom of expression protected the rights of candidates and voters to meaningfully express their views and engage in reciprocal political discourse on the path to voting day; that was at the core of political expression---Right to disseminate and receive information connected with elections was recognized as integral to the democratic principles underlying freedom of expression, and as a result, attracted robust protection---Stable election period was crucial to electoral fairness and meaningful political discourse---As such, state interference with individual and collective political expression in the context of an election struck at the heart of the democratic values that freedom of expression sought to protect, including participation in social and political decision-making.

Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Bryan, [2007] 1 S.C.R. 527; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), [2017] 1 S.C.R. 93; K. Roach and D. Schneiderman, "Freedom of Expression in Canada" (2013), 61 S.C.L.R. (2d) 429 and J. Weinrib, "What is the Purpose of Freedom of Expression?" (2009), 67 U.T. Fac. L. Rev. 165 ref.

(i) Interpretation of Constitution---

----Unwritten constitutional principles---Scope---Whether unwritten constitutional principles could be used for invalidating otherwise valid legislation.

Unwritten constitutional principles may be used to invalidate legislation. Constitution (of Canada), embraced unwritten as well as written rules. Unwritten constitutional principles were the lifeblood of the Constitution and the vital unstated assumptions upon which the text was based. They are not merely "context" or "backdrop" to the text. On the contrary, they were the Constitution's most basic normative commitments from which specific textual provisions derive. The specific written provisions were elaborations of the underlying, unwritten, and organizing principles found in the Preamble to the Constitution. Constitutional text emanated from underlying principles, but it would not always be exhaustive of those principles.

Apart from written provisions of the Constitution, principles deriving from the Constitution's basic structure may constrain government action. The legislative bodies must conform to these basic structural imperatives and could in no way override them. Accordingly, unwritten principles may be used to invalidate legislation if a case arose where legislation elided the reach of any express constitutional provision but was fundamentally at odds with the Constitution's internal architecture or basic constitutional structure. This would undoubtedly be a rare case; however, to foreclose the possibility that unwritten principles could be used to invalidate legislation in all circumstances was imprudent. It not only contradicted the jurisprudence (in Canada), it was fundamentally inconsistent with the case law confirming that unwritten constitutional principles could be used to review legislation for constitutional compliance. Reviewing legislation for constitutional compliance meant upholding, revising or rejecting it.

Reference re Alberta Statutes, per Duff C.J.; Switzman, at pp. 327-28, per Abbott J. and OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 57 ref.

Unwritten constitutional principles were the foundational organizing principles of the Constitution and had full legal force. They served to give effect to the structure of the Constitution and functioned as independent bases upon which to attack the validity of legislation since they had the same legal status as the text. Unwritten constitutional principles not only gave meaning and effect to constitutional text and informed the language chosen to articulate the specific right or freedom, they assisted in developing an evolutionary understanding of the rights and freedoms guaranteed in the Constitution, which had long been described as a living tree capable of growth and expansion. Unwritten constitutional principles were a key part of what made the tree grow. They were also substantive legal rules in their own right. In appropriate cases, they may well continue to serve, as they had done in the past, as the basis for declaring legislation unconstitutional.

R. (on the application of Miller) v. Prime Minister, [2019] UKSC 41, [2020] A.C. 373 (parliamentary sovereignty and accountability); R. (on the application of Jackson) v. Attorney General, [2005] UKHL 56, [2006] 1 A.C. 262, at para. 102, per Lord Steyn (judicial independence); R. (Privacy International) v. Investigatory Powers Tribunal, [2019] UKSC 22, [2020] A.C. 491, at paras. 100 and 144, per Lord Carnwath (judicial independence and rule of law); AXA General Insurance Ltd. v. HM Advocate, [2011] UKSC 46, [2012] 1 A.C. 868, at para. 51, per Lord Hope (judicial independence and rule of law)); Australia (Brandy v. Human Rights and Equal Opportunity Commission (1995), 183 C.L.R. 245 (H.C.) (judicial independence); Kable v. Director of Public Prosecutions (NSW) (1996), 189 C.L.R. 51 (H.C.) (federalism); Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997), 190 C.L.R. 410 (H.C.) (federalism); Lange v. Australian Broadcasting Corporation (1997), 189 C.L.R. 520 (H.C.) (freedom of political communication); Roach v. Electoral Commissioner, [2007] HCA 43, 233 C.L.R. 162 (the right to vote)); South Africa (South African Association of Personal Injury Lawyers v. Heath, [2000] ZACC 22, 2001 (1) S.A. 883 (separation of powers); Fedsure Life Assurance Ltd. v. Greater Johannesburg Transitional Metropolitan Council, [1998] ZACC 17, 1999 (1) S.A. 374, at para. 58 (legality)); Germany (Elfes Case, BVerfG, 1 BvR 253/56, Decision of January 16, 1957 (rule of law and social welfare state)); and India (Kesavananda v. State of Kerala, A.I.R. 1973 S.C. 1461, at pp. 1899-1900 (secularism, democracy and individual freedom)); Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 ("Patriation Reference"); Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3, at para. 54; Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, at p. 229; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 23; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, at para. 3; Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103, at para. 42; Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para. 16; Manitoba Language Rights, [1985] 1 S.C.R. 721; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), [2014] 3 S.C.R. 31; "References, Structural Argumentation and the Organizing Principles of Canada's Constitution" (2001), 80 Can. Bar Rev. 67, at p. 95; H.-R. Zhou, "Legal Principles, Constitutional Principles, and Judicial Review" (2019), 67 Am. J. Comp. L. 889, at p. 924; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 156 and Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136 ref.

Glenn K. L. Chu and Diana W. Dimmer for the appellant.

Robin K. Basu and Yashoda Ranganathan for the respondent.

Michael H. Morris, for the intervener the Attorney General of Canada.

Mark Witten, for the intervener the Attorney General of British Columbia.

Paul Koven, for the intervener the Toronto District School Board.

Selwyn A. Pieters, for the intervener the Cityplace Residents' Association.

Adam Goldenberg, for the intervener the Canadian Constitution Foundation.

Guy Régimbald, for the intervener the International Commission of Jurists (Canada).

Stéphane Émard-Chabot, for the intervener the Federation of Canadian Municipalities.

Omar Ha-Redeye, for the intervener the Durham Community Legal Clinic.

Jamie Cameron, for the intervener the Centre for Free Expression at Ryerson University.

Geetha Philipupillai, for the intervener the Canadian Civil Liberties Association.

Christine Davies, for the interveners Art Eggleton, Barbara Hall, David Miller and John Sewell.

Alexi N. Wood, for the intervener the David Asper Centre for Constitutional Rights.

Donald K. Eady, for the intervener Progress Toronto.

Jason Madden, for the interveners the Métis Nation of Ontario and the Métis Nation of Alberta.

Nicolas M. Rouleau, for the intervener Fair Voting British Columbia.

2021 S C M R 1917

[Supreme Court of UK]\

Present: Lord Reed, President, Lord Hodge, Deputy President, Lord Lloyd-Jones, Lord Kitchin and Lord Burrows

TIMES TRAVEL (UK) LTD---Appellant

Versus

PAKISTAN INTERNATIONAL AIRLINE CORPORATION---Respondent

Interveners

(1) UKRAINE (2) THE LAW DEBENTURE TRUST CORPORATION PLC (3) ALL PARTY PARLIAMENTARY GROUP ON FAIR BUSINESS BANKING

Decided on 18th August, 2021.

(On appeal from: [2019] EWCA Civ 828)

Per Lord Hodge, JSC; Lord Reed, Lord Lloyd-Jones and Lord Kitchin, JJSC agreeing; Lord Burrows, JSC concurring with his own reasons.

(a) Contract---

----Economic duress---Lawful act economic duress---Contract entered into following use of lawful pressure or threat by one party in good faith---Whether such contract was voidable on grounds of duress---Circumstances in which a lawful threat or pressure is sufficient to constitute duress.

In 2006, Pakistan International Airlines Corporation ("PIAC") appointed Times Travel (UK) Limited ("TT"), a travel agent specialising in flights from the United Kingdom (UK) to Pakistan, as agent to sell tickets on its flights to Pakistan from the UK. At the time, PIAC was the only airline operating direct flights from the UK to Pakistan. A dispute arose between the two parties concerning TT's entitlement to commission on past ticket sales. The appellant-TT asserted that PIAC had failed to make certain commission payments. The PIAC threatened TT by stating it would not enter into a new contract with the travel agent unless it agreed to waive its claim for unpaid commission. The PIAC served notice under the contract to terminate the contract with TT. In the meantime, the parties agreed the terms of a new agency agreement, predicated on the basis that TT would waive its earlier claims to commission. The appellant-TT subsequently issued proceedings for the unpaid commission against PIAC, contending that it was entitled to rescind the new agreement, which included a waiver of the earlier commission claim, on the basis of economic duress.

Per Lord Hodge, JSC (Majority view):

There are two circumstances in which the English courts had recognised lawful act duress. The first was where a defendant used their knowledge of the claimant's criminal activity, or that of a person close to the claimant, to threaten the claimant. Though originally viewed as an example of the equitable doctrine of undue influence, this was now seen as lawful act duress. The second was where the defendant, having exposed himself to a civil claim by the claimant, used reprehensible means to manoeuvre the claimant into a position of vulnerability to force him to waive his claim. In both circumstances, the courts have been influenced by the role of equity.

Williams v Bayley (1866) LR 1 HL 200; Kaufman v Gerson [1904] 1 KB 591; Mutual Finance Ltd v John Wetton and Sons Ltd [1937] 2 KB 389; CTN Cash and Carry Ltd v Gallaher Ltd [1994] 4 All ER 714, 718; Progress Bulk Carriers Ltd v Tube City IMS LLC (The Cenk Kaptanoglu) [2012] EWHC 273 (Comm); [2012] 2 All ER (Comm) 855, 864; Borrelli v Ting [2010] UKPC 21; [2010] Bus LR 1718 and Barton v Armstrong [1976] AC 104, 121 ref.

What constitutes an illegitimate threat or pressure was therefore closely aligned with the equitable concept of unconscionability. The place of lawful act economic duress in English law needs to be seen against the backdrop of the remedies which equity already provides. Unconscionability was not an overarching criterion to be applied across the board without regard to context. Were it so, judges would become arbiters of what was morally and socially acceptable. Equity took account of the factual and legal context of a case and had identified specific contexts which called for judicial intervention to protect the weaker party. In English lawin the absence of a doctrine of inequality of bargaining power or a general principle of good faith in contracting, it would be rare that a court would find lawful act economic duress in the context of commercial negotiation. Lawful act economic duress should not depend on whether the defendant genuinely believed that it had a defence to the claimant's claim.

Universe Tankships Inc of Monrovia v International Transport Workers Federation (The Universe Sentinel) [1983] 1 AC 366; Huyton S A v Peter Cremer GmbH & Co [1999] 1 Lloyd's Law Rep 620 Mance J at p 637; Crescendo Management Pty Ltd v Westpac Banking Corpn (1988) 19 NSWLR 40, 46; Dimskal Shipping Co SA v International Transport Workers Federation (The Evia Luck) [1992] 2 AC 152 and Royal Bank of Scotland Plc v Etridge (No 2) [2002] 2 AC 773, paras 6-8 ref.

Economic lawful act duress must be narrowly confined, so as not to undermine English law's reputation for certainty in commercial contracts. However, the extent of lawful act duress was not fixed - it was fluid - and courts should approach any extension of its scope with caution.

On the facts of the present case TT could not rescind its new agreement with PIAC. Act of PIAC in giving notice that the previous contract would be terminated and cutting TT's ticket allocation was not reprehensible conduct. There were also no findings that PIAC acted in bad faith in making the demands which it did. PIAC's genuine belief that it was not liable to pay the disputed commission further supported the view that its behaviour was not reprehensible. Appeal was dismissed.

(b) Contract---

----Economic duress---Lawful act duress in commercial negotiations---Approach towards economic duress adopted by the Courts in jurisdictions of Australia, New Zealand, Canada, Singapore and United States stated.

Per Lord Burrows, JSC; Lord Hodge, JSC agreeing (Majority view):

Doctrine of lawful act duress does and should exist as a ground for rescinding a contract (or for the restitution of non-contractual payments) in English law. There were three reasons for this; first the case law referred to 'illegitimate' rather than 'unlawful' acts; second, the crime of blackmail included threats of lawful action, and third, there have been several cases in which it has been accepted that threats of lawful action entitle a threatened party to rescind a contract (or to have the restitution of non-contractual payments).

Williams v Bayley (1866) LR 1 HL 200; Mutual Finance Ltd v John Wetton and Sons Ltd [1937] 2 KB 389; Kaufman v Gerson [1904] 1 KB 591; Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; [2002] 2 AC 773, para 8; CTN Cash and Carry Ltd v Gallaher Ltd [1994] 4 All ER 714; Alf Vaughan & Co Ltd v Royscot Trust Plc [1999] 1 All ER (Comm) 856; Borrelli v Ting [2010] UKPC 21; [2010] Bus LR 1718; Progress Bulk Carriers Ltd v Tube City IMS LLC (The Cenk Kaptanoglu) [2012] EWHC 273 (Comm), [2012] 1 Lloyd's Rep 501; Marsden v Barclays Bank Plc [2016] EWHC 1601 (QB); [2016] 2 Lloyd's Rep 420; The Flying Music Co Ltd v Theater Entertainment SA [2017] EWHC 3192 (QB) and Al Nehayan v Kent [2018] EWHC 333 (Comm); [2018] 1 CLC 216 ref.

Where it was alleged that one contracting party (the defendant) had induced the other contracting party (the claimant) to enter into the contract between them by duress, there were three essential elements that a claimant needed to establish in order to succeed in a claim for rescission of the contract;

(i) a threat or pressure that was illegitimate;

(ii) the threat or pressure in question caused the party to enter into a contract; and

(iii) the party had no reasonable alternative but to give in to the threat or pressure.

Dimskal Shipping Co SA v International Transport Workers' Federation (The Evia Luck) (No 2) [1992] 2 AC 152, 165; DSND Subsea Ltd (formerly DSND Oceantech Ltd) v Petroleum Geo-Services ASA [2000] BLR 530, para 131 and Borrelli v Ting [2010] UKPC 21; [2010] Bus LR 1718, para 35 ref.

In the present case the second and third limbs of the above mentioned test were satisfied, as the threat by PIAC induced TT to waive its claim and TT had no reasonable alternative but to succumb to the waiver in order to enter into a new contract with PIAC, which was important for its business. Therefore, present case solely concerned the first limb: whether PIAC's threat was illegitimate.

With regard to lawful act duress, the courts have stressed that, because the threat was of a lawful act, the question of whether it was illegitimate should focus on the nature and justification of the demand rather than the nature of the threat.

In thinking about the justification of the demand, in the context of lawful act economic duress, in general, a demand motivated by commercial self-interest was justified. If that were not the case, normal commercial bargaining would be seriously disrupted. As a demand made in commercial self-interest was justified, therefore, the doctrine of lawful act economic duress was essentially concerned with identifying rare exceptional cases where a demand motivated by commercial self-interest was nevertheless unjustified.

DSND Subsea Ltd (formerly DSND Oceantech Ltd) v Petroleum Geo-Services ASA [2000] BLR 530, para 131 and New Zealand of Dold v Murphy [2020] NZCA 313 ref.

Per Lord Burrows, JSC; Lord Hodge, JSC not agreeing (Minority view):

When considering whether the threat or pressure of a lawful act was illegitimate in relation to economic duress, the focus should be on the justification of the demand. In relation to a demand for a waiver by the threatened party of a claim against the threatening party, the demand was unjustified, and hence the lawful act economic threat was illegitimate where: first, the threatening party had deliberately created, or increased, the threatened party's vulnerability to the demand; and, secondly, the "bad faith demand" requirement was satisfied (i.e. the threatening party did not genuinely believe that it had a defence, and there was no defence, to the claim being waived).

Borrelli v Ting; Progress Bulk Carriers Ltd v Tube City IMS LLC and Progress Bulk Carriers Ltd v Tube City IMS LLC [2012] EWHC 273 (Comm); [2012] 1 Lloyd's Rep 501 ref.

Applying the above test to the facts of the present case, although it could be argued that PIAC had increased TT's vulnerability by reducing its ticket allocation, a 'bad faith demand' would have required that PIAC sincerely did not believe that it had a defence to the commission claims, which it was pressurizing TT to waive. Lawful act economic duress was not made out on the facts of the present case because the threatened lawful act was not coupled with a bad faith demand. On the facts TT failed to establish bad faith by PIAC in the specific sense relating to PIAC's genuine belief as to its not being contractually liable for the unpaid commission. Appeal was dismissed. [p. 1978] H2

Philip Shepherd QC and Heather Murphy (instructed by Charles Morgan Lawyers) for Appellant.

Nigel Jones QC, Thomas Bell and Professor Paul Davies (instructed by City Solicitors Ltd t/a Farani Taylor Solicitors) for Respondent.

Bankim Thanki QC, Ben Jaffey QC and Simon Atrill (instructed by Quinn Emanuel Urquhart and Sullivan UK LLP) for 1st Intervener.

Oliver Jones (instructed by Norton Rose Fulbright LLP) for 2nd Intervener.

Thomas Roe QC, Richard Samuel, Simon Reevell, Daniel Black, Hannah Fry (instructed by Hausfeld & Co LLP (London)) for 3rd Intervener.