SCMR 2022 Judgments

2022 S C M R 1

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Muhammad Ali Mazhar, JJ

SHAKEEL SHAH---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1072 of 2021, decided on 4th October, 2021.

(Against the order of Islamabad High Court, Islamabad dated 08.12.2020 passed in Criminal M. No. 677-B of 2021)

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

----S. 497(1), third & fourth provisos---Offence not punishable with death---Bail---Delay in conclusion of the trial---Extent and scope of the right of an accused to bail on the statutory ground of delay in conclusion of the trial under the third proviso to S. 497(1), Cr.P.C. and the exceptions to such right provided under the fourth proviso, stated.

Part (a) of third proviso to section 497(1), Cr.P.C. envisaged that in an offence not punishable with death, the trial of the accused was to be concluded within a period of one year from the date of detention of the accused, and in case the trial was not so concluded, the law mandated the release of the accused on bail. The accused, thus, had a statutory right to be released on bail if his trial for such offence was not concluded within a period of one year from the date of his detention. Period of one year for the conclusion of the trial began from the date of the arrest/detention of the accused and it was of little importance as to when the charge was framed and the trial commenced. The purpose and objective of the provision was to ensure that the trial of an accused was conducted expeditiously and the pre-conviction detention of an accused did not extend beyond the period of one year, in cases involving offences not punishable with death. In such cases, if the trial of an accused was not concluded within a year of his detention, the statutory right to be released on bail ripened in his favour.

This statutory right to be released on bail was, however, subject to two exceptions: one was embodied in the third proviso itself and the second was provided in the fourth proviso to section 497, Cr.P.C. As per these exceptions, the right to be released on bail on the ground of delay in conclusion of the trial was not available to an accused if: (i) the delay in conclusion of the trial was occasioned by an act or omission of the accused or by any other person acting on his behalf, or (ii) the accused was a convicted offender for an offence punishable with death or imprisonment for life or was in the opinion of the court a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life.

With respect to the first exception the act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel of the accused could not be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments were sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments were repetitive, reflecting a design or pattern to consciously delay the conclusion of the trial. Thus, mere mathematical counting of all the dates of adjournments sought for on behalf of the accused was not sufficient to deprive the accused of his right to bail under the third proviso.

The second exception to the right of the accused to be released on bail on the ground of delay in conclusion of the trial was provided in the fourth proviso to section 497, Cr.P.C. According to which the provisions of the third proviso did not apply to the accused who was: (i) a convicted offender for an offence punishable with death or imprisonment for life; or (ii) a hardened, desperate or dangerous criminal, in the opinion of the Court; or (iii) an accused of an act of terrorism punishable with death or imprisonment for life.

Conditions (i) and (iii) above were self-explanatory and must be borne out from the record. Under condition (i), the accused must have been earlier convicted by a court of law for an offence punishable with death or imprisonment for life. Under condition (iii), the accused must be accused of an act of terrorism punishable with death or imprisonment for life. It was condition (ii) which required the Court to apply its judicious mind to the facts and circumstances of the case and make an opinion as to whether or not the accused was a hardened, desperate or dangerous criminal. The words hardened, desperate or dangerous had been couched in between conditions (i) and (iii) and therefore signified the same sense of gravity and seriousness as to the nature of the offence and character of the accused. "Dangerous" meant harmful, perilous, hazardous or unsafe - someone who could cause physical harm or injury or death. "Hardened" was someone who was pitiless, hardhearted, callous or unfeeling and set in his bad ways and no longer likely to change, having a tendency of repeating the offence and was, thus, dangerous to the society. "Desperate" was someone who was reckless, violent and ready to risk or do anything; such person was, therefore, also dangerous to society. All the three words painted a picture of a person, who was likely to seriously injure and hurt others without caring for the consequences of his violent act. Therefore, for this exception to apply, there had to be material to show that the accused was such a person who would pose a serious threat to the society if set free on bail. In the absence of any such material, bail could not be denied to an accused on the statutory ground of delay in conclusion of the trial. Moundar v. State PLD 1990 SC 934 rel.

(b) Interpretation of statutes---

----Maxim "noscitur a sociis"---Scope---Word or phrase in an enactment must always be construed in the light of the surrounding text, and their colour and meaning must be derived from their context.

Bennion on Statutory Interpretation. 7th edition. p. 459 ref.

(c) Interpretation of statutes---

----Ejusdem generis, principle of---Scope---Ejusdem generis principle was a principle of constriction whereby wide words associated in the text with more limited words were taken to be restricted by implication to matters of the same limited character---For the said principle to apply, there must be sufficient indication of the category or word that could be properly described as the class or genus, which was to control the general words---Genus must be narrower than the general words it was to regulate.

Bennion on Statutory Interpretation. 7th edition. pp. 554 and 557 ref.

Raja Ikram Ameen Minhas, Advocate Supreme Court for Petitioner.

Israr-ul-Haq, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Complainant.

Sub-Inspector Mehboob Hasan and ASI, Ishaq for the State.

2022 S C M R 9

[Supreme Court of Pakistan]

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

INSPECTOR GENERAL OF POLICE, BALOCHISTAN, QUETTA and others---Appellants

Versus

MOHIBULLAH---Respondent

Civil Appeal No. 579 of 2021, decided on 2nd November, 2021.

(Against judgment dated 28.01.2021 of Balochistan Service Tribunal, Quetta passed in Service Appeal No.132 of 2020.

Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 11---Police official---Change in date of birth---At the time of joining service when the character and service roll of the respondent was prepared, his date of birth was mentioned as 20-01-1960 and it was for the first time in a letter of November, 2019 that the respondent came up with a plea that his date of birth as mentioned on his CNIC was 1961, without providing any exact date of his birth---Rule 11 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 clearly provided that date of birth once entered in the service record would not be altered and if any alteration was to be sought, the same had to be done within a period of two years of joining the service and not thereafter---Appeal was allowed and impugned judgment of Service Tribunal allowing change of date of birth of respondent was set aside.

Muhammad Ayaz Khan Swati, Additional AG, Balochistan for Appellants.

Raja Jawad Hassan Khan, Advocate Supreme Court (Via Video Link Quetta) for Respondent.

2022 S C M R 13

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Mst. HAYAT BIBI and others---Appellants

Versus

ALAMZEB and others---Respondents

Civil Appeal No. 438 of 2021, decided on 26th October, 2021.

(On appeal from the order dated 18.01.2016 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat passed in Civil Revision No. 271-M/15)

(a) Islamic law---

----Inheritance---Legal heir or a third party laying exclusive claim to property---Burden of proof---On the death of a Muslim his/her property devolved on his/her legal heirs in accordance with the shares prescribed by Islamic Shari'ah and possession by any legal heir was deemed to be possession by all---If someone laid exclusive claim to the property, or to any part thereof, which was contrary to the shares as determined by Shari'ah, the burden to establish such claim rested on the one alleging it.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Inheritance---Step mother depriving her daughters from the estate of their father through a purported Meharnama (dower deed) and a Razinama (compromise)---Held, that since the step mother claimed that her husband 'H' had given away all his property to her as mehr (dower) and she and her two children based this claim on a Meharnama, they had to prove that the Meharnama was executed by 'H'---Admittedly, the two persons shown to be the attesting witnesses to the Meharnama purportedly did so when they were minors, and no explanation was offered why one was only 7 years old, and the other 16 years were called to attest it---Such fact raised serious doubts about the authenticity of the Meharnama and it appeared that it was manufactured to deprive the legal heirs of 'H' from their inheritance---Significantly, the Meharnama only surfaced after the filing of the suit---Meharnama also did not find mention in the subsequent Razinama which was purportedly prepared after a Jirgah was held---If the Meharnama did exist it would have been natural to show it to the members of the Jirgah who would have mentioned it in the Razinama---Burden to establish the execution by 'H' of the Meharnama lay upon the step mother and her children (respondents), who had failed to establish its execution, therefore, the Meharnama could not be relied upon and used to deprive 'H's' heirs from their inheritance---Furthermore out of the 20 signatories to the Razinama only one of them was produced to testify and his testimony did not accord with the contents of the Razinama---Razinama purported to be a compromise amongst the heirs of the 'H' but it was not signed by even a single one of his heirs---Even if for arguments sake it was accepted that a Jirgah was convened and decided matters relating to inheritance a Jirgah could not substitute its decision to what was prescribed in the Holy Qur'an---Since execution of the Meharnama and Razinama was not established, consequently, the suit filed by the appellants (daughters), who had been deprived of their inheritance, was decreed by holding that the entire estate of 'H' shall be distributed amongst his legal heirs in accordance with the shares as determined by Islamic Shari'ah---Appeal was allowed accordingly.

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

Dil Muhammad Khan Alizai, Advocate Supreme Court, Nazir Ahmad Bhutta, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos. 1-6, 9-10, 12-13, 15-18, 20-22 and 24.

Muhammad Sharif Janjua, Advocate-on-Record for Respondents Nos. 27, 31, 33-36 and 38.

Nemo for other Respondents.

2022 S C M R 18

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD AKRAM---Appellant/Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Applications Nos. 365-L of 2020 and 96-L of 2021 in/and Jail Petition No. 491 of 2017, decided on 8th November, 2021.

(Compromise - Against the judgment dated 17.05.2017 of the Lahore High Court, Lahore passed in Capital Sentence Reference No.29-T/2014 and Criminal Appeal No.1506 of 2014)

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

----Ss. 302(b), 324, 337-D & 353---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Murder of wife committed under the impulse of 'ghairat'---As per the crime report accused shot and murdered his wife, while she was being taken to court in a police vehicle, and during the incident a police constable also received firearm injury---Question as to whether provisions of Anti-Terrorism Act, 1997 were attracted---Held, that the accused had committed the crime due to a very specific reason; it was nowhere mentioned that he was a person of desperate character having any previous antecedents of criminal activities, rather the offence was committed under the impulses of 'ghairat'---Possibility could not be ruled out that the accused could not afford the insult incurred because of the act of his wife and he had lost control and under the impulses of disgrace and humiliation he opted to commit the crime---Injury caused to the police personnel was not due to direct conflict with the law enforcing agencies, rather as wife of accused was in custody of the police constable the injury caused to the constable could be result of misdirected shot due to heat of passion---Even otherwise the trial Court had convicted the accused under Ss. 337-D & 324, P.P.C. for causing injury on the person of the police personnel and the said injured had also affected a compromise with the accused and had forgiven him and also waived his right to collect Arsh---Provisions of S. 6 of the Anti-Terrorism Act, 1997 were not attracted in the present case, therefore, the conviction and sentence recorded under S. 7 of the said Act was set aside---Furthermore when the parties had compromised the offence under Ss. 302(b), 337-D & 324, P.P.C. the only punishment left for the accused was under S. 353, P.P.C., which was not compoundable---However, since the accused had already undergone the period of his sentence of 2 years imprisonment, Supreme Court gave directions for his release, and acquitted him of the charge of murder and causing injury on the person of the police constable --- Jail petition was converted into appeal and partly allowed accordingly.

Ghulam Hussain v. The State PLD 2020 SC 61; Farooq Ahmed v. The State 2020 SCMR 78 and Dilawar Mehmood v. The State 2018 SCMR 593 ref.

(b) Criminal trial---

----Diminished responsibility, doctrine of---Applicability---Said doctrine absolved an accused person of part of the liability for his criminal act if he suffered from such abnormality of mind as to substantially impair his responsibility in committing or being a party to an alleged violation, which was committed due to love and affection and injury to reputation---Doctrine of diminished responsibility provided a mitigating defence in cases in which the mental disease or defect was not of such magnitude as to exclude criminal responsibility altogether---Said doctrine was most frequently asserted in connection with murder cases requiring proof of a particular mental state on the part of the accused.

Qamar Pervaiz Zia, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for Appellant/Petitioner.

Muhammad Jaffar, Additional P.G. Punjab for the State.

2022 S C M R 25

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

GOVERNMENT OF THE PUNJAB through Secretary, Schools Education Department, Lahore and others---Appellants

Versus

ABDUR REHMAN and others---Respondents

Civil Appeals Nos. 414 and 817 of 2021, decided on 18th November, 2021.

(Against the judgment dated 10.02.2021 and 24.11.2020 passed by Lahore High Court, Lahore in W.Ps. Nos.6661 and 14121/2019)

(a) Words and phrases---

----'Quasi-judicial' power---Meaning and scope---Term "quasi-judicial" was employed to expound and spell out the persons or authorities, though not part of judiciary but under the bounds of given powers, exercising the functions and tasks of judicial nature---Further, this term was used to describe functions of governmental officers, boards and agencies which performed functions of a judicial character, although they were not part of the judiciary---Quasi-judicial power was one involving judgment and discretion and which may be conferred upon an executive or administrative board as an incident to its duties---Quasi-judicial power was a duty conferred by words or by implication on an officer to look into facts and to act on them in the exercise of discretion and it laid in the judgment and discretion of an officer other than a judicial officer---Quasi-judicial power was not necessarily judicial, but one in the discharge of which there was an element of judgment and discretion; more specifically, a power conferred or imposed on an officer or an authority involving the exercise of discretion, and as incidental to the administration of matters assigned or entrusted to such officer or authority.

Adolph v. Elastic Stop Nut Corp. of America, 87 A.2d 736, 737, 18 N.J Super, 543; U.S. Steel Corp. v.. Stokes, 76 S.E.2d ,474, 477, 478, 138 W.Va. 506; Hoyt v. Hughes County, 142 N.W.471, 473. 32 S.D.117; Words and Phrases (Permanent edition), Volume 35A. (West Pub. Co.) and Dr. Zahid Javed.v. Dr. Tahir Riaz Chaudhary and others PLD 2016 SC 637 ref.

(b) Government of Punjab School Education Department Recruitment Policy (2016-2017) for School Specific Educators and SSE (Assistant Education Officers)---

----Cls. 21(c) & 22---Recruitment process---Order passed by the Complaints Redressal Cell (CRC)---District Education Authority aggrieved of the order passed by CRC filing direct appeal filed before the Secretary, School Education instead of a review petition before the CRC---Maintainability---Before invoking appellate remedy before the Secretary, School Education, filing of review petition was mandatory before the Complaints Redressal Cell (CRC) --- Unless the review petition was filed and CRC arrived at decision, no appeal could be filed before the Secretary, School Education.

Before invoking appellate remedy before the Secretary, School Education, filing of review petition was mandatory before the Complaints Redressal Cell (CRC). The right of filing of review petition was in fact allowed before the CRC for expeditious disposal of the matter and if some wrong recommendations were made by them, an opportunity was provided by way of review petition before CRC to revisit the decision as the matter pertained to the Recruitment of educators which could not be left unattended, dragged or uncompleted for an unlimited period of time. Unless the review petition was filed and CRC arrived at decision, no appeal could be filed before the Secretary, School Education. The remedy of appeal before the Secretary was not provided against each and every order but for all intents and purposes, this right was available to invoke only to challenge the decision of review petition which could have been filed by the District Education Authority if in its understanding, some errors were apparent on the face of the record or the recommendations of CRC were beyond the scope of Recruitment Policy but it failed to fulfill the elementary requirement of the Policy.

(c) Maxim---

----"Ubi jus ibi remedium"---Meaning and scope---Alternate and efficacious remedy---Where there was a right, there was a remedy---In the command of jurisdictive prudence, the courts generally showed restraint directing the parties to first take recourse of an alternate and or equally efficacious mechanism and framework of remedy provided rather than to take departure in order to surpass or circumvent such remedy.

(d) Interpretation of statutes---

----'Plain meaning rule'---Scope---Said rule verbalized interpretation using the ordinary meaning of the language and the starting point was the language itself, and if the words were not statutorily defined, the ordinary meanings may be derived from the dictionary---When the words were clear nothing remained to be seen, but if the words were ambiguous or uncertain then other aids could be used---While applying the rule of plain meaning, hardship or inconvenience, if any, could not become the foundation to modify or alter the meaning.

(e) Appeal---

----Right of appeal---Scope---Right of appeal could not be availed unless it was conferred in a clear manner by some enactment or statute or rules having the sanctity of some law, therefore, it was not to be assumed that there was right of appeal in every matter brought before a Court for its consideration---Must be specified in clear terms that the appeal against an order was competent, as such right could not be supplemented by implications---No extraneous consideration or matter could be imported in the relevant statute so as to abridge or enlarge scope of an appeal.

Ibrahim v. Muhammad Hussain PLD 1975 SC 457; Habib Bank Ltd. v. The State and 6 others 1993 SCMR 1853; Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another 1999 SCMR 819 and Syed Masroor Shah and others v. The State PLD 2005 SC 173 ref.

(f) "Ex debito justitiae", doctrine of---

----Meaning and scope---Power of court to convert and or treat one kind of proceeding into another---Doctrine of "ex debito justitiae" applied to the remedies that the court was bound to give when they were claimed as distinct from those that it had discretion to grant --- Power of a court to act ex-debito justitiae was an inherent power of courts to fix the procedural errors if arising from courts own omission or oversight which resulted in violation of the principles of natural justice or due process, provided the conduct of the party applying had not been such as to disentitle him to the relief---While applying the doctrine of ex debito justitiae, the conduct of the parties was also very relevant and significant which could not be ignored lightly.

Muhammad Salman v. Naveed Anjum and others 2021 SCMR 1675 ref.

Shaukat Rauf Siddique, Additional A.G. Punjab for Appellants (in both appeals).

Naveed Ahmed Khawaja, Advocate Supreme Court (Via video link at Lahore) for Respondents Nos.1-3 and 5-7 (in C.A. No. 414/2021).

Nemo for Respondent No.4 (in C.A. No. 414/2021).

Muhammad Ozair Chughtai, Advocate-on-Record/Advocate Supreme Court (Via video link at Lahore) for Respondent along with Respondent in person at Islamabad (in C.A. No. 817/2021)

2022 S C M R 36

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

REHMAN MEDICAL COLLEGE and others---Appellants

Versus

WAFA GUL and others---Respondents

Civil Appeals Nos. 540 to 542 of 2021, decided on 9th November, 2021.

(Against the judgment dated 04.02.2021 passed by the Peshawar High Court Peshawar in W.Ps. Nos.2835-P/2020, 856-A/2020, 2971-P of 2020)

(a) Pakistan Medical Commission Act (XXXIII of 2020)---

----S. 27(2)---MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018 (since lapsed), para. 21---Constitution of Pakistan, Arts. 3 & 25---Graduates/internees from private medical colleges doing house jobs---Stipend or salary, quantum of---Discrimination---High Court ordered appellant-private medical colleges to pay the internees stipend in accordance with para. 21 of the MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018 (the Regulations) [since lapsed] that mandatorily required the amount of stipend to be not less than the highest amount paid in any public sector of the province---Legality---Completion of house job was a sine qua non for a medical graduate to embark upon his/her career---After payment of hefty fees in a long drawn academic session spanning over half a decade; a medical student legitimately aspired for his/her hard work to bear fruit---Reasonable stipend, commensurate to the nature/status of assignment was an equitable due, denial whereof contravened the command provided under Art. 3 of the Constitution---Similarly, disparity in payment of stipend to the graduates/internees of private medical colleges constituted discrimination as it could not be classified either reasonable or sustainable on the touchstone of any intelligible differentia---Appeal filed by private medical colleges was dismissed.

(b) Interpretation of contract---

----Mutually settled agreement between two private parties---Such agreement could not override statutory arrangements extending benefit to one of the parties.

Qazi Jawad Ehsanullah, Advocate Supreme Court for Appellants (in C.As. Nos. 540 and 541 of 2021).

Syed Haziq Ali Shah, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Appellants (in C.A. No. 542 of 2021).

Faisal Fareed, Advocate Supreme Court for Respondent No.76.

Syed Rifaqat Hussain Shah for Respondent No. 32 (in C.As. Nos. 540-542 of 2021).

Muhammad Ijaz Khan Sabi, Advocate Supreme Court for Respondents Nos.1, 8, 9 36 and 69 (in C.As. Nos. 540-542 of 2021).

Nemo for remaining Respondents.

Zia Ullah, Deputy Secretary Health, Khyber Pakhtunkhwa for the Department.

2022 S C M R 39

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Mazhar Alam Khan Miankhel JJ

The CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, QUETTA and others---Petitioners

Versus

HIDAYAT ULLAH KHAN---Respondent

Civil Petition No. 22-Q of 2020, decided on 14th October, 2021.

(Against the judgment dated 31.10.2019 passed by the Balochistan Service Tribunal, Quetta in S.A. No.606/17)

Civil service---

----Creation of a new post in a department---Such post could not be filled by transferring or borrowing an employee from another department having a different cadre---Such post was to be filled through advertisement.

Initially the respondent was an employee of the Health Department of Federal Government and was employed in the Cadre of Field Programme Officer-in BPS-17. He was transferred and posted as Law Officer in the Provincial Health. Department, and in 2016, he was assigned additional charge of Deputy Secretary (Judicial) in P&D Department. The P&D Department itself created the post of Law Officer after the approval of the Finance Department. Post of Law Officer created in P&D Department was person specific i.e. for the respondent in fulfillment of his will and desire, but it appeared to have not materialized.

Being appointed as Field Programme Officer in the Health Department, the respondent could not have been transferred or absorbed at all in the P&D Department as Law Officer for that the Field Programme Officer was totally a different cadre in the Health Department from the one that of a Law Officer.

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

When P&D Department had created a new post of Law Officer, such post had to be filled in not by transferring or borrowing an employee from another department rather such post was to be filled in by following the law, in that, it had to be advertised. If the respondent was interested in joining such post he may apply for the same as a result of advertisement but the respondent could not be allowed the change of his cadre by jumping from the Health Department to P&D Department on creation of a new post by the P&D Department. Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of Provincial Service Tribunal was set-aside. [p. 42] C

Ayaz Khan Swati, Additional A.G. Balochistan for Petitioners.

Muhammad Akram Shah, Advocate Supreme Court for Respondent.

2022 S C M R 42

[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 Elections Act, 2017 against the order dated 1.10.2018 passed by the Election 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 Syed Mansoor Ali Shah, J; agreeing with Munib Akhtar, J. but with a different view on the scope of Explanation to section 9(1) of the Elections Act, 2017.

(a) Constitution of Pakistan---

----Arts. 62, 63 & 218(3)---Elections Act (XXXIII of 2017), S. 9(1)---Qualification/disqualification/eligibility of a candidate or member of Parliament---Power of the Election Commission ('the Commission')---Scope---Commission had no jurisdiction, either under Art. 218(3) of the Constitution or under S. 9(1) of the Election Act, 2017, to deal with and decide the matter of alleged pre-election qualification or disqualification of a returned candidate.

(b) 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 ('the 2017 Act')---Scope---Power of the Commission to declare the poll at one or more polling stations or in the whole constituency void, being ancillary and incidental, was implied in the power conferred on the Commission by S. 9(1) of the 2017 Act to declare that grave illegalities or violations of the provisions of the 2017 Act or the Rules had materially affected the result of the poll and in its power to call upon the voters in the polling station or stations concerned or in the whole constituency, as the case may be, to recast their votes---Such was also the mandate of S. 103AA of the erstwhile law, i.e., the Representation of the People Act, 1976---Without declaring the result of the earlier poll(s) void (i.e., cancelled) the Commission could not call upon the voters to recast their votes, as results of two polls could not co-exist---Therefore, it was inevitable for the Commission to declare the result of the earlier poll(s) void before calling upon the voters to recast their votes.

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

----S. 9(1), Explanation ---Representation of the People Act (LXXXV of 1976), S. 103AA(1) [since repealed]---Conditions under which the Election Commission ('the Commission') could declare a poll void under S. 9 of the Elections Act, 2017 ('the 2017 Act')---Scope---Section 9(1) of the 2017 Act read with its "Explanation" specified two conditions in which the Commission could exercise its jurisdiction under that section, namely; (i) grave illegalities and (ii) violation of the provisions of the 2017 Act or the Rules --- Implementation of an agreement restraining women from casting their votes as provided in S. 9(1) of the 2017 Act, was not, an independent third condition rather was part of the first two conditions.

(d) Interpretation of statutes---

----Explanation provided after a section/provision of the statute---Scope---Ordinary purpose that an Explanation was supposed to serve was to facilitate the proper understanding of a provision---Meaning of an Explanation could not generally go beyond the controlling main provision.

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

----S. 9(1), Explanation---Representation of the People Act (LXXXV of 1976), S. 103AA(1) [since repealed]---Conditions under which the Election Commission ('the Commission') could declare a poll void under S. 9 of the Elections Act, 2017 ('the 2017 Act')---Scope---Implementation of an agreement restraining women from casting their votes in the constituency---Explanation to S. 9(1) of the 2017 Act simply added a presumption in the context of the ground of "implementation of an agreement restraining women from casting their votes" and provided that if the turnout of women voters was less than ten percent of the total votes polled in a constituency, the Commission may presume that the women voters had been restrained through an agreement from casting their votes---In pith and substance, this was all what the Explanation explained---Word "election" used in the Explanation was though somewhat confusing, but in order to harmonize and balance the meaning and import of the "Explanation" and also to keep it within the fold of the main provision, the word "election" may be read to mean "poll"---Explanation to S. 9(1), did not attract any "special case," where the "election" instead of the "poll" in the whole constituency may be declared void.

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.

2022 S C M R 47

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

Moulvi DIN MUHAMMAD---Appellant

Versus

Bibi SHAKIRA and others---Respondents

Civil Appeal No. 273 of 2015, decided on 2nd November, 2021.

(Against the order dated 11.07.2014 passed by the High Court of Baluchistan, in Civil Revision No. 281 of 2006)

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Fresh written statement, filing of---Grounds---Remand of case to Trial Court---Legality---Suit for declaration filed by plaintiffs was rejected by the Trial Court---Appeal there against was also dismissed by the Appellate Court---Plaintiffs then filed revision petition before the High Court---During the pendency of the revision petition, the defendant, who was the original owner of the suit property passed away, therefore, his legal heirs were impleaded as respondents in the revision petition---Respondents submitted an. application for submission of a fresh written statement before the Trial Court---High Court, considering their defence, remanded the case to the trial Court permitting them to file a fresh written statement---Held, that when the plaintiffs' plaint had been rejected by the Trial Court on the ground that it did not disclose cause of action, the filing of an application by the legal heirs of the defendant i.e. the respondents for permission to file afresh written statement was not a valid ground with the High Court for setting aside the order of rejection of plaint and dismissal of appeal---High Court had no reason to dilate upon the application filed by the legal heirs of the defendant for permission to file afresh written statement as well as on the application of the plaintiffs for amendment of the plaint when the plaintiffs were fighting for survival of their lis and were under obligation to convince the revisional court/High Court in that their plaint did disclose a cause of action, and it had wrongly been rejected by the Trial Court---Appeal was allowed, impugned remand order was set-aside and it was directed that the revision petition would be deemed to be pending before the High Court, which shall decide the same on its own merits.

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

Liaquat Ali Tareen, Advocate Supreme Court for Respondent No.3.

Nemo for Respondents Nos. 1 and 2.

2022 S C M R 50

[Supreme Court of Pakistan]

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

ZAHID---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 75-Q of 2021, decided on 21st October, 2021.

(On appeal against the judgment dated 01.07.2021 passed by the High Court of Balochistan, Quetta in Criminal Appeal No. 31 of 2020)

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

----Ss. 377-B & 354---Sexually abusing a child---Reappraisal of evidence---Accused was investigated at length and was found involved as per accusation levelled in the crime report---Whole prosecution case qua ocular account hinged upon the testimonies of the victim and her mother i.e. the complainant---While making her statement in Court, the victim had narrated the whole occurrence in a very mature and natural manner touching the contents of the crime report on all aspects without any disconnection---Although the victim was of tender age, however, her statement depicted maturity of the highest level, which was in consonance with the statement of the other witness, who happened to be her mother---Victim has directly charged the accused for sexually abusing her while detailing the acts committed by him on the day of occurrence; she had further alleged that the accused was in the habit of sexually abusing her even earlier to the present incident---As far as the identity of the accused was concerned, there was not an iota of doubt about his identity because he being the neighbor of the victim was conversant with her---No previous enmity existed between the parties, which could lead to false implication of the accused in the present case---Mere non-availability of any sign of injury on the victim in the medical evidence was of no help to the accused, as the prosecution case was that the accused undressed the victim and touched his genital organ on the victim's body---Petition for leave to appeal was dismissed, leave was refused and convictions and sentences recorded against the accused were upheld.

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

----S. 377-B---Cases of sexual abuse---Solitary statement of victim---Such statement in isolation was sufficient for conviction if the same reflected that it was independent, unbiased and straight forward to establish the accusation against the accused.

Atif Zareef v. State PLD 2021 SC 550 ref.

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

----S. 377-B---Cases of sexual abuse---Delay in lodging FIR---Such delay in reporting the matter to the police was not material in cases of sexual abuse as the victims or their families were reluctant to come forward to promptly report the crime because of the trauma that had been suffered and they may have a perception of shame or dishonour in having the victim invasively examined by a doctor.

Zahid v. State 2020 SCMR 590 ref.

Kamran Murtaza, Senior Advocate Supreme Court for Petitioner.

Baqir Shah, State counsel.

2022 S C M R 55

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Jamal Khan Mandokhail, JJ

MUSHTAQ UL AARIFIN and others---Appellants

versus

MUMTAZ MUHAMMAD and others---Respondents

Civil Appeal No. 42-P of 2016, decided on 20th October, 2021.

(On appeal from the judgment of the Peshawar High Court Mingora Bench Dar ul Qaza Swat dated 30.03.2016 passed in C.R. No. 163-­M of 2014)

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

----Ss. 9, 42 & 54---Suit for declaration, permanent injunction and possession---Rival claimants to ownership of property---Plaintiffs/ respondents claimed that suit property was owned by their grandfather, therefore they were entitled to their share in the same, whereas the defendants claimed that suit property was gifted to them by a tribe in respect of their religious service---Held, that it was always the prime responsibility of the plaintiff to discharge initial burden of proof with regard to his/her claim as per the plaint---Perusal of the record of present case revealed that the statement of the attorney for the plaintiffs and their witnesses did not confirm the contents of the plaint--- Plaintiffs were claiming to be the grandchildren of the purported owner of the property but undisputedly, the immediate legal heirs of their grandfather did not claim their right of inheritance in respect of suit property in their life time---No documentary or oral evidence had been produced to prove the ownership of the plaintiffs' grandfather with regard to the property in question---Alleged pedigree table produced and relied upon by the plaintiffs was not an evidence to establish right of ownership---To the contrary, the defendants claimed that the property in question had been gifted to them by the inhabitants of a tribe in lieu of religious services rendered by them---Such fact had been admitted by the witnesses of the plaintiffs and such contention was further supported from the statements of witnesses produced by the defendants---By comparing the statements of witnesses produced by the parties, the quality of the evidence produced by the defendants was much higher than the evidence of the plaintiffs---Under such circumstances, the defendants had been able to substantiate their stance which they had taken in their written statement---Appeal was allowed and suit filed by plaintiffs was dismissed.

(b) Administration of justice---

----Plaintiffs cannot get benefit from the weaknesses of the defendants alone, rather they have to prove their case on their own strength.

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

----S. 96 & O. XLI, R. 31---Appeals from original decrees---Powers of Appellate Court---Scope---Failing to challenge the decision of Trial Court upon issue of law before the Appellate Court through cross objection---Effect---Section 96 of the C.P.C. assigned power to the superior court for judging soundness of the decision of the court subordinate to it---While exercising such power, the Appellate Court ought to call for the original record of the Trial Court for reconsideration---After entertaining the appeal, the Appellate Court was required to frame points for determination on the basis of the record of the trial Court to consider and rehear the controversy afresh, both as regards to facts and law, as provided by R. 31 of O. XLI of the C.P.C.---Besides, the issue of law was a substantial issue which was required to be considered by the trial Court as well as the Appellate Court---Failing to challenge the decision of Trial Court upon issue of law before the Appellate Forum through cross objection did not preclude a party to argue the matter to such extent before the Appellate Court nor the Appellate Court lost its jurisdiction, to decide the question of law accordingly---Thus, in the sense, an appeal was a continuation of the original proceedings, that was why, the Appellate Court may uphold, modify or substitute its own judgment for that of the subordinate court; it may also pass an order in favour of a party, not appealing or failing to file cross objections, to secure the ends of justice.

Abdul Sattar Khan, Advocate Supreme Court for Appellants.

Altaf Ahmed, Advocate Supreme Court, Pervez Rauf, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

2022 S C M R 61

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Mazhar Alam Khan Miankhel, J

REGARDING POOR CONDITIONS OF RCD HIGHWAY: In the matter of

C.M.A. No.46 of 2021 in H.R.C. No.12726-B of 2020, decided on 13th October, 2021.

Constitution of Pakistan---

----Art. 184(3)---Human rights case---Matter regarding dilapidated condition of National Highways---Regional Cooperation for Development Highway (RCD Highway)--- Hub-Khuzdar-Quetta-Chamman National Highway (N-25)---National Highway/Strategic Road from Chitral to Gilgit and onward (N-140)---Lack of facilities and police on highways---Inefficiency of the National Highways Authrity (NHA)---Harassment of highway travellers by Frontier Constabulary (FC) and Coast Guard (CG)---Observations and directions recorded by the Supreme Court in the matter stated.

Despite spending of billion of rupees on maintenance of N-25 Highway, the only portion that was being shown in good condition by the National Highway Authority (NHA) itself in its report was 8.24%. This was a very serious state of affairs regarding maintenance of N-25 by NHA. Reflectors and road signs installed on the highway did not reflect at all because they were only painted and could only be seen in day time. Road lines were painted in a manner that they washed away after one rain although they were required to have a certain life. Besides, other road signs which were required to be installed for the safety of the public, were also not provided on the highway and all the highways were apparently, shorn of trees, as no trees were planted/grown on the sides of the highway. Supreme Court directed Chairman of NHA to ensure that N-25 should be in 100% good condition with all the facilities of a highway, and to file a comprehensive report regarding all the highways in the country.

The overall condition of the N-25 highway and non-existence of the highway between Chitral and Gilgit cities, although shown in the map of the highway, reflected the (in)efficiency of the NHA, in that, its work was pathetic, non-conforming to the rules and the building codes, and the highways were in dangerous condition, where life of the people was at constant risk, and except for doing certain routinework on the highways, NHA seemed to be doing no major work to ensure safe travel of the people.

Although the National Highway and Safety Ordinance, 2000 had been promulgated but no Highway Police had been established for ensuring safe road travel and control of traffic on N-25 highway. Supreme Court directed that let a report be called from the Inspector General, National Highways and Motorways Police as to why police force had not been deployed on N-25 and if deployed why so many accidents were taking place on the highway.

It was also brought to the notice of the Court that that Frontier Constabulary (FC) and Coast Guard (CG) on N-25 constantly harass the travellers, in that, their vehicles were stopped at various places and they were made to wait for hours altogether for checking purposes. Supreme Court directed the Additional Attorney General to seek instructions on such conduct of the FC and CG and provide comprehensive report to the Court, and observed that the FC and CG had to conduct themselves in a manner, where they did not cause humiliation and insult to people.

In Attendance

Sohail Mehmood, Additional Attorney General for Pakistan.

Ayaz Khan Swati, Additional Advocate General, Balochistan.

Kamran Murtaza, Senior Advocate Supreme Court, Shehzad Ata Elahi, Advocate Supreme Court and Capt. (R) Muhammad Khurram Agha, Chairman, NHA for NHA.

Syed Nazir Ahmed Agha, Advocate Supreme Court (applicant in person via video link from Quetta).

2022 S C M R 64

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Mst. PARVEEN (DECEASED) through LRs.---Petitioners

Versus

MUHAMMAD PERVAIZ and others---Respondents

Civil Petition No. 4349 of 2018 and C.M.A. No.10079 of 2018, decided on 4th November, 2021.

(On appeal against the judgment dated 13.09.2018 passed by the Lahore High Court, Lahore, in C. R. No. 1724 of 2016)

(a) Supreme Court Rules, 1980---

----O. XII, R. 1 & O. XIII, R. 1---Constitution of Pakistan, Arts. 184(2)(d) & 185(3)---Suit for cancellation of a gift deed---Gift deed not mentioning any value therein---Where High Court had over turned the judgment in appeal and consequently dismissed the suit, whether the petitioners (plaintiffs) should have filed an appeal under Art. 185(2)(d) of the Constitution or a petition for leave to appeal under Article 185(3) of the Constitution---Held, that the plaint, which sought the cancellation of the gift mutation, it was stated that the suit was valued at two hundred rupees for the purposes of court fee---No specific mention of valuation was made therein in terms of the Suits Valuation Act, 1887---Gift mutation did not mention any amount or value, therefore, the plaintiffs were entitled to value the suit as they deemed appropriate and they valued it at two hundred rupees for purposes of court fee and three courts (below) accepted this --- In such circumstances a petition under Art. 185(3) of the Constitution had to be filed; Art. 185(2)(d) of the Constitution, which was in respect of appeals, was not applicable---Petition for leave to appeal was converted into appeal and allowed.

Gul Jan v. Naik Muhammad PLD 2012 SC 421; Muhammad Inayat v. Fateh Muhammad 2003 SCMR 875; Zafar Iqbal Hameed Khan v. Ashiq Hussain 2005 SCMR 1371; Taza Gul v. Fazal Subhan 2006 SCMR 504; Muhammad Nawaz v. Sardara 2008 SCMR 1593 and Mahmood Hussain Larik v. Muslim Commercial Bank Ltd. 2009 SCMR 857 distinguished.

(b) Supreme Court Rules, 1980---

----O. XII, R. 1 & O. XIII, R. 1---Constitution of Pakistan, Arts. 185(2) & 185(3)---'Appeal to Supreme Court' and 'Petition for leave to appeal before the Supreme Court'---Limitation period for filing---Discrepancy---Supreme Court Rules, 1980 ('the Rules') prescribed 30 days period for filing of an appeal under Art. 185(2), whereas a period of 60 days was provided for a petition for leave to appeal in terms of Art. 185(3) of the Constitution---Supreme Court observed that the Rules prescribed double the period for the filing of a petition to that for filing an appeal which was surprising because an appeal was filed as of right; that to attend to such discrepancy it may be appropriate to amend the Rules; that one simple way of doing this, without adversely affecting the accrued rights of any party, could be by amending O. XII, R. 1 of the Rules by substituting the stated period of 30 days mentioned therein for filing an appeal and bring it at par with the period in which a petition may be filed, that is, 60 days---Supreme Court directed the Registrar to bring the said issue to the attention of the Chief Justice who may place it for consideration in the next Full-Court meeting.

(c) Islamic law---

----Inheritance---Legal heir relying on a gift deed to exclude other heirs from their share in the inheritance---Proof---On the death of a Muslim his/her property devolved upon his/her legal heirs---However, if any heir sought to exclude the other legal heirs, by relying on a purported gift the beneficiary of such gift must prove it.

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

----S. 42(7)---Gift---Proof---Male heirs (brothers) resorting to a purported gift deed to deprive female heirs (sisters) from their share of inheritance---Held, that in the present case the gift was stated to have been witnessed by three persons, and even if it be accepted that two of the said witnesses had died by the time the evidence was recorded, the third witness, was alive but he was not brought to testify as a witness in support of the gift, therefore, an adverse presumption may be drawn that if he did come to testify he would not have supported the gift---Furthermore only one of the two donees (sons) testified in support of the gift and the other donee, did not do so nor did he execute a power of attorney in favour of his brother, authorizing him to give evidence on his behalf---Purported donor of the gift was also not identified as required by S. 42(7) of the Punjab Land Revenue Act, 1967, therefore, it could not be said that the person who was presented before the Revenue authorities was the donor---Purported gift also suffered from the defect of non-acceptance by donees and the further defect of not mentioning that the possession of the land allegedly gifted was handed over to the donees---Resultantly, gift mutation in favour of the brothers, was set aside and declared to be of no legal effect---Supreme Court directed that the estate in question shall be distributed amongst all the legal heirs in accordance with the applicable Muslim laws of inheritance; that the concerned Revenue authority shall incorporate the names of the legal heirs in the revenue record and if the brothers had sold/transferred any portion of the land to any third party the sisters' shares shall be adjusted from their brothers' available shares.

(e) Islamic law---

----Inheritance---Frequent practice of male heirs resorting to fraud and other tactics to deprive female heirs from their share of inheritance---Supreme Court observed that while such deprivation caused suffering to those deprived, it also unnecessarily taxed the judicial system of the country, resulting in a needless waste of resources; that each and every day that a male heir deprived a female heir was also an abomination because it contravened what has been ordained by Almighty Allah.

Munawar Iqbal Duggal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Respondents.

2022 S C M R 72

[Supreme Court of Pakistan]

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

C.M.A.5777/2021 IN C.P.NIL/2021

(Against the order of Lahore High Court, Lahore dated 26.01.2021, passed in I.C.A. No.5251/2021)

and

Civil Petition No.4944 of 2021

(Against the order of Islamabad High Court, Islamabad dated 02.8.2021, passed in W.P No.2391/2021)

MAMOON WAZIR and others---Petitioners

Versus

ABWA KNOWLEDGE VILLAGE (PVT) LIMITED FAISALABAD and others.---Respondents

C.M.A. No. 5777/2021 in C.P. NIL/2021 and Civil Petition No.4944 of 2021, decided on 27th September, 2020.

Pakistan Medical Commission Act, 2020---

----Ss. 8(1), 8(2), 8(3) & 18---Pakistan Medical Commission Admission Regulations 2020-2021, Reglns. 13 & 14---Medical and dental undergraduate programs for the academic year 2021---Admission---"Medical and dental colleges admissions test" ("MDCAT")---MDCAT was the basic minimum mandatory requirement, across the board, for admission to all medical and dental colleges, both public or private, in the country---Said requirement had been made applicable to students who had enrolled in the medical and dental undergraduate program for the year 2021 and onwards---While the private colleges enjoyed the flexibility of setting their own admission criteria including an entrance test (detailed in their prospectus) any such criteria or entrance test were over and above the basic statutory minimum requirement of MDCAT, which was mandatory for admission to both the private or public medical and dental colleges - Regulation 14 of the Pakistan Medical Commission Admission Regulations 2020-2021 ('the Regulations') did not in any manner dispense with the requirement of MDCAT and therefore had no bearing on the issue of MDCAT, which stood regulated under S. 18 of the Pakistan Medical Commission Act, 2020 ('the Act')---Even otherwise, Regulations, being subordinate to the Act, could not dilute or dispense with the statutory requirement provided under the Act---Regulations 13 & 14 of the Regulations, neither authorized the private colleges to dispense with the requirement of MDCAT nor were they inconsistent with S. 18 of the Act.

Muhammad Akram Ch. Senior Advocate Supreme Court, Noor Alam Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Ch. Muhammad Umar, Advocate Supreme Court for Respondents.

2022 S C M R 77

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SECRETARY, MINISTRY OF FINANCE, ISLAMABAD-and others--Appellants/Petitioners

Versus

TAYYABA HALIM SUBHANI and others---Respondents

Civil Appeal No. 1546 of 2019 and Civil Petitions Nos.2503 to 2519 and 2660 of 2019, decided on 27th January, 2021.

(Against judgments dated 25.02.2018 and 23.04.2019 of Federal Service Tribunal, Islamabad, passed in Appeals Nos.3622(R)CS of 2017 and 3192 (R)CS of 2012) etc.)

(a) Civil Service Regulations (CSR)---

----Art. 361---Constitution of Pakistan, Art. 25---Teachers/lecturers employed on daily wage basis before being regularized---Pensionary benefits, calculation of---Whether service period rendered by teachers/lecturers on daily wage basis was to be counted towards calculation of pensionary benefits and pay---Held, that respondents (lecturers/teachers) were working in institutions that were admittedly being managed by the Federal Directorate of Education ('the Directorate'), which had itself issued the Education Code, 2006 which such schools were required to follow to regulate their affairs---Paragraph 30 of said Code provided that the Directorate had empowered heads of institutions to manage pays and salaries of daily wage staff---Services of the respondents were utilized by the Directorate/Government for years on end to their satisfaction until the time the respondents asked for pay protection and pension; their services were substantive and permanent which were paid for on behalf of and with the consent or approval of the Government---Although employment of the respondents was not permanent within the meaning of Article 361 of Civil Service Regulations, the establishment under which they were working was permanent and the fact that they rendered services for years showed that they were not employed on temporary basis as a stop-gap arrangement for short periods of time---Offering respondents new contracts from time to time after expiry of previous contract, were artificial breaks, which could not render their services to be purely temporary---Moreover the Federal Public Service Commission was approached to test the qualifications and antecedents of respondents and make its recommendations by itself, which showed that these posts were permanent in nature---Further an order/memorandum dated 25-01-2006 was passed by Ministry of Education whereby it was stated that service rendered by lecturers on an ad hoc basis could be counted towards their pay and pensionary benefits---If this was so, it was hard to understand why the same benefit was not extended to respondents, who were initially appointed on daily wage basis---Service Tribunal had rightly ordered the Directorate/Government to provide pay protection to the respondents by counting the service they had rendered on daily wage basis for pensionary benefits and pay---Appeal and petitions for leave to appeal were dismissed with the observation that employing teachers on daily wages basis was not only detrimental to the education sector of the country but was also a discouraging factor for future teachers who in turn were demotivated and discouraged a profession which was pivotal in the lives of future generations.

Ikram Bari and 524 others v. National Bank of Pakistan 2005 SCMR 100 and Board of Intermediate and Secondary Education, Multan v. Muhammad Sajid 2019 SCMR 233 ref.

(b) Civil service---

----'Temporary' and 'permanent posts'---Distinction---Employees working on 'stop-gap arrangement'---Meaning---Stop-gap arrangement was one where a temporary arrangement was made for a limited time for a few months at the most until something better or more suitable could be found---Such an arrangement was typically made until someone could be hired permanently through the process provided in the law, rules or regulations---Where employees were continuously employed for long periods of time running into years and their contracts were renewed/extended from time to time, through artificial breaks, it could not convert their employment into a stop-gap arrangement.

Chairman Evacuee Trust Property Board and others v. Khawaja Shahid Nazir 2006 PLC (C.S.) 1261 ref.

Sajid Ilyas Bhatti, Additional AGP, M. Rehan, AD Legal and M. Ahmed, AD Legal for Appellants/Petitioners.

Respondent-in-person (in C.A. No. 1546 of 2019).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No. 1 and M. Sharif Janjua, Advocate-on-Record (in all C.Ps.).

2022 S C M R 88

[Supreme Court of Pakistan]

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

MUHAMMAD AJMAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 506 of 2020, decided on 7th October, 2021.

(Against the judgment dated 10.02.2017 of the Lahore High Court, Lahore passed in Criminal Appeal No. 1362 of 2013 and M.R. No. 303 of 2013)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)--- Qatl-i-amd--- Reappraisal of evidence---Sentence, reduction in---Conviction under S. 302(b), P.P.C. converted to one under S. 302(c)---Admittedly, in the present case, parties were not inimical to each other and there was no previous ill will between the deceased and the accused---In the FIR it was specifically mentioned that during repairing the tractor of the deceased, altercation took place between the deceased and accused due to dispute of money---So at the spur of moment:, suddenly altercation took place and according to prosecution's own case, there were exchange of abuses between both of them and then accused picked up a hatchet lying in the shop and gave a solitary blow to the deceased---Accused did not repeat the blow although deceased was lying at his mercy; he did not take undue advantage nor acted in a cruel or unusual manner---So all the ingredients of S. 302(c), P.P.C. were made out and present case fell within said provision and not S. 302(b), P.P.C.---Appeal was partly allowed, and conviction of accused was converted from S. 302(b), P.P.C. to S. 302(c), P.P.C. and his sentence was reduced from imprisonment for life to seventeen years imprisonment.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 and Azmat Ullah v. The State 2014 SCMR 1178 ref.

Raja Rizwan Ibrahim Satti, Advocate Supreme Court for Appellant.

Muhammad Usman, Additional P.G., Punjab for the State.

Raja Shafqat Abbasi, Advocate Supreme Court for the Complainant.

2022 S C M R 92

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, ACJ and Muhammad Ali Mazhar, J

COMMISSIONER INLAND REVENUE and others---Petitioners

Versus

JAHANGIR KHAN TAREEN and others---Respondents

Civil Petition No.349-L of 2017, decided on 15th September, 2021.

(Against the Judgment of Lahore High Court, Lahore dated 30.12.2016 passed in W.P. 27535 of 2016)

(a) Income tax---

----Show cause notice---Scope and purpose---Show cause notice was delivered to a person by an authority in order to get the reply back with a reasonable cause as to why a particular action should not be taken against him with regard to the defaulting act---By and large, it was a well-defined and well structured process to provide the alleged defaulter with a fair chance to respond the allegation and explain his position within reasonable timeframe.

(b) Constitution of Pakistan---

----Art. 199---Show cause notice issued by tax authorities---Show cause notice challenged in Constitutional jurisdiction of the High Court---Maintainability---Court may take up writs to challenge the show cause notice if it was found to be barred by law or abuse of process of the court or was coram non judice---Where a special law provided legal remedy for the resolution of a dispute, the intention of the legislature in creating such remedy was that the disputes falling within the ambit of such forum be taken only before it for resolution---Bypassing the proper forum was contrary to the intention of the provisions of Art. 199(1) of the Constitution which conferred jurisdiction on the High Court only and only when there was no adequate remedy was available under any law---Where adequate forum was fully functional, the High Court must deprecate such tendency at the very initial stage and relegate the parties to seek remedy before the special forum created under the special law to which the controversy related---Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the concerned authorities must be the normal rule--- Challenge to show cause notices in writ jurisdiction at premature stages and tendency to bypass the remedy provided under the relevant statute was by and large deprecated and disapproved in many dictums laid down in local and foreign judgments in which courts had considered the interference as an act of denouncing and fettering the rights conferred on the statutory functionaries specially constituted for the purpose to initially decide the matter.

Indus Trading and Contracting Company v.. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Messrs.' Chaudhri Wire Rope Industries Ltd. v. Sales Tax Officer, Special Circle-I, Lahore 1988 SCMR 1934; Messrs Ocean Pakistan Ltd. v. Federal Board of Revenue, Islamabad and others 2012 PTD 1374; Deputy Commissioner of Income Tax/Wealth Tax, Faisalabad and Others v. Messrs.' Punjab Beverage Company (Pvt.) Ltd. 2007 PTD 1347 = 2008 SCMR 308; Messrs.' Amin Textile Mills (Pvt.) Ltd. v. Commissioner of Income- Tax and 2 others 2000 SCMR 201; Shagufta Begum v. The Income-Tax Officer, Circle-XI, Zone-B, Lahore PLD 1989 SC 360; Khalid Mahmood Ch. and others v. Government of the Punjab through Secretary, Livestock and Dairy Development 2002 SCMR 805; Union of India (UOI) and others v. Vicco Laboratories (Equivalent Citation: 2008 (3) ALLMR (SC) 453; State of Uttar Pradesh v. Brahma Datt Sharma (Equivalent Citation: AIR 1987 SC 943; The Special Director and others v. Muhammad Ghulam Ghouse and others (Equivalent Citation: 2004 (2) ACR 1844 (SC), AIR 2004 SC 1467 and Union of India and others v. Kunisetty Satyanarayana (Equivalent Citation: AIR 2007 SC 906 ref.

(c) Right of Access to Information Act (XXXIV of 2017)---

----Ss. 2(a)(xii) & 5---General Clauses Act (X of 1897), S. 20-A---Constitution of Pakistan, Art. 19-A--- Notifications/Rules/Orders/ Regulations/Circulars issued by the Federal Board of Revenue (FBR)---Publication in Official Gazette---Scope---Incumbent upon the FBR to monitor and ensure that all notifications issued under the law or having force of law should be published in the official Gazette and timely posted at FBR website/portal also---Non-publication of certain notifications in the official gazette bred and nurtured unnecessary litigation keeping aside the main controversy or nucleus of the case---Supreme Court directed that in future the FBR shall ensure that all such notifications should be published in the official gazette and simultaneously posted at their website also for general public information and taxpayers.

Sarfraz Ahmad Cheema, Advocate Supreme Court along with Naeem Hassan, Secretary Litigation of FBR for Petitioners.

Shahzad Ata Elahi, Advocate Supreme Court for Respondents.

2022 S C M R 105

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

NIAMATULLAH KHAN ADVOCATE and others---Petitioners/Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

CONST. PETITION NO. 9 OF 2010, [Niamatullah Khan Advocate v. Federation of Pakistan and others] AND CRIMINAL ORIG. PETITION NO. 7-K OF 2017, [Mst. Sahiba Parveen v. Syed Nasir Abbas, Director General, KDA and others (Matter pertaining to allotment of alternate plot)] AND CMA NO.6206 OF 2013 IN CONST. P. NO.9 OF 2010, [Report of Additional Registrar of this Court] AND CMA No.627-K OF 2020 IN CONST. P. No.9 of 2010, [Muhammad Imtiaz v. Province of Sindh through Chief Secretary and others (regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)] AND CMA No.671-K OF 2020 IN CONST. P. No.9 of 2010, [Muhammad Ayoub Gabol v. Province of Sindh through Chief Secretary and others (regarding illegal encroachment over drainage

river of Haji Limo Village at Gulshan-e-Iqbal)] AND CMA No.672-K OF 2020 IN CONST. P. No.9 of 2010. [Faiz Muhammad v. Province of Sindh through Chief Secretary and others (regarding illegal encroachment over drainage river of Haji Limo village at Gulshan-e-Iqbal)] AND CMA No.441-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others (Regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)] AND CMA NO. 549-K OF 2021, [Shehri - Citizens for a Better Environment and others v. Federation of Pakistan and others (Matter regarding encroachment over Gujjar Nallah and Orangi Nallah) AND CMA No.586-K OF 2021, (Abdul Khaliq Gabol v. The Province of Sindh through Chief Secretary, Government of Sindh and others (Regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan- e-Iqbal) AND CMA No.625-K OF 2021, (Feroza and others v. Federation of Pakistan and others (Matter regarding Nasla Tower) AND CMA No.576-K OF 2021, (Abdul Qadir v. Federation of Pakistan (Matter regarding Nasla Tower) AND CMA NO.964-K OF 2019 IN CONST. P. No.9 OF 2010, [Application for intervener filed by Mrs. Mahamadi (regarding removal of illegal parking areas and street parking at DHA)] AND CMA No.74-K OF 2020 IN CONST. P. No.9 OF 2010, [Application for intervener filed on behalf of Sindh High Court Bar Association through its Honourary Secretary (regarding parking space at High Court of Sindh)] AND Crl.M.A. No.199-K of 2018 in CRL. ORG. P. No.7-K of 2017, [Application for Intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record, on behalf of Arif Hussain and others (For seeking direction to stop demolition of National Museum Building at Burns Garden, Karachi)] AND CMA No.86-K OF 2020 IN CONST. P. No.9 of 2010, [M/s Ishaq Enterprises v. Federation of Pakistan and others (Concise Statement with regard to allotment/mutation of COM-3)] AND CMA No.711-K of 2020 IN CONST. P. No.9 of 2010, [M/S Ishaq Enterprises v. Federation of Pakistan and others (Objection filed on CMA No.86-K/2020)] AND CRIMINAL ORIG. PETITION NO.8-K OF 2021, (Abu Turab v. Syed Mumtaz Ali Shah and others (Matter regarding Kidney Hill Land) AND CMA No.391-K of 2020 IN CONST. P. No.9 OF 2010, [Abu Turab v. Federation of Pakistan and others (regarding Illegal constructions in side of Kidney Hill Land situated at Faran Society, Barrister Ahmed Board, near Dhooraji Colony, Karachi)] AND CMA No.714-K OF 2020 IN CONST. P. No.9 OF 2010, [Niamatullah Khan v. Federation of Pakistan and others (matter regarding Al-Fatah Masjid Admeasuring 1400 Sq. Yards at Kidney Hill Ahmed Ali Park, Faran Society, Karachi)] AND CMA No.424-K OF 2021, [Mr. Ibrahim Younus and others v. Federation of Pakistan and others (kidney Hill Park Land)] AND CMA No.437-K OF 2021, [Naimatullah Khan v. Federation of Pakistan and others (Matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park] AND CMA No.438-K OF 2021, [Naimatullah Khan v. Federation of Pakistan and others (Matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park] AND CMA NO.515-K of 2621, [Abrar Hasan v. Federation of Pakistan and others (Matter pertains to Kidney Hill Park) AND CRL. M.A. No.229-K/2018 IN CRL. ORG.P. No.7-K/2017, [Application for Intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record on behalf of KDA Officers Club (Against Illegal and unconstitutional partial demolition on the premises of the applicant at Plot, St.6, Off. Kashmir Road, Karachi)] AND CRL. M.A. No.185-K/2020, [Javed Hanif Rajput v. Syed Nasir Abbas, Director General (KDA) and others (Applicant is aggrieved by the demolishing of club and lawn)] AND CMA No.423-K of 2021, [Muhammad Siddique and others v. Federation of Pakistan and others (Removal of Encroachment from Marriage Halls of Korangi Township)] AND Civil Review Petition No.15-K of 2021 IN CMA No.906-K of 2020 IN CONST. P. No.9 OF 2010, [Naeemuddin v. Pakistan Railway (Regarding Encroachment over Pakistan Railway Land and Revival of KCR) (Tejori Hights/Tower)] AND CMA No.167-K OF 2020 IN CONST. P. No.9 OF 2010, [Application for intervener filed by Syed Muhammad Iqbal Kazmi (The matter regarding KCR project and demolishing of illegal construction in Karachi)] AND CMA No.177-K OF 2020, [Application for intervener filed by Farhad Younus Memon (The matter regarding 650 constructed Houses in Project No.7 (PRECHS) Near Gillani Station, Gulshan-e-Iqbal Karachi)] AND CMA No.367-K OF 2020 IN CONST.P. NO.9 OF 2010, [Shamim Ahmed Siddiqui v. Federation of Pakistan and others (regarding encroachment over Railway Land/Safari Park)] AND CMA No.541-K OF 2020, [Muhammad Ahmed Khan and others v. Federation of Pakistan and others (Matter regarding Pakistan Railway employees Co-operative Housing Society)] AND CMA No.630-K of 2020, [Pakistan Railway Employees Co-operative Housing Society Limited v. Federation of Pakistan and others (The matter pertains to encroachment over Railway Land on account of Railway Co- operative Housing Society)] AND CMA No.898-K of 2020, [Pakistan Railways through Divisional Superintendent v. Federation of Pakistan and others (regarding encroachment over Pakistan Railway Land and Revival of KCR)] AND CMA No.277-K of 2021 in Civil Review Petition No.Nil-K OF 2021 IN CMA No.898-K OF 2020 IN CONST.P. No.9 of 2010[ [Messrs Karachi Town Builders v. Pakistan Railways (Regarding Encroachment over Pakistan Railway Land and Revival of KCR) (Tejori Hights/Tower)] AND CMA NO.278-K OF 2021, [Messrs Karachi Town Builders v. Pakistan Railways (Regarding Encroachment over Pakistan Railway Land and Revival of KCR) (Tejori Heights/Tower)] AND CMA NO.445-K OF 2021, [Nabiha Qureshi v. Federation of Pakistan and others (Regarding encroachment over Pakistan Railway Land and revival of KCR)] AND CMA NO.446-K OF 2021, [Messrs Karachi Town Builders and Developers v. Federation of Pakistan and others (Regarding encroachment over Pakistan Railway Land and revival of KCR)] AND CMA NO.621-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan, etc. (report regarding KCR, in compliance of order dated 8.4.2021 filed by DG, FWO)] AND CM APPEAL NO.37 OF 2021 IN C.R.P. NO.7-K OF 2020 IN CMA NO.690-K OF 2019 IN CONST. P. NO.9 OF 2010, [Messrs Quality Builders v. Federation of Pakistan and others (for grant of time to remove and take away the materials from building)] AND CM APPEAL NO.38 OF 2021 IN CMA NO.NIL OF 2021 IN CONST. P. NO.9 OF 2010, [Zeba Bakhtiar v. The Registrar, Supreme Court of Pakistan (matter pertains to KPT Officers Cooperative Society)] AND CMA NO.770-K OF 2020, [Matter regarding non-supply of water through already decided Water lines in DHA Karachi] AND CRL. M.A. NO.52-K OF 2018 IN CRL.O.P. NO.7-K OF 2017, [Application for Intervener filed by Muhammad Asif Shafi (Against seeking direction for demolition of illegal construction on Plot 70-A, Sindhi Muslim. Cooperative Housing Society, Karachi)] AND CMA No.631-K OF 2019 IN CONST. P. No.9 OF 2010, [Application for Intervener filed by Mrs. Nelofar Abbasey (Illegal construction is carried out by King Builders over Private Park/ Amenity Plot11 AND CMA NO.78-K OF 2020 IN CONST.P. NO.9 OF 2010, [Application for intervener filed on behalf of Muhammad Talha and Mansoor Sharif Hamid (regarding high rise building on amenity plot)] AND CMA No.83-K OF 2020 IN CONST. P. No.9 OF 2010, [Application for intervener filed on behalf of Pakistan Mercantile Exchange Ltd. and NCEL Building Management Ltd. (regarding Hyatt Regency Hotel)] AND CMA No.512-K OF 2020 IN CONST. P. No.9 of 2010, [Application for Intervener filed by Mst. Yasmeen Lari (Regarding Karachi Gymkhana)] AND CMA No.523-K of 2020 in CONST. P. No.9 of 2010, [Muhammad Waseem Samoo v. Federation of Pakistan and others (matter regarding King Cottage/Bagh-e-Qamar Situated at Scheme 36, Gulistan-e-Johar, Karachi] AND CMA No.594-K OF 2020 IN CONST. P. No.9-K OF 2010, [Messrs Madrasa Tahfeezul Quran Al Karim v. Federation of Pakistan and others (matter regarding Illegally constructed 18 floor building in a very sensitive area near Police Head Quarter at Garden Area)] AND CMA No.617-K of 2019 IN CONST. P. No.9 OF 2010, [Application for Intervener filed by Venu G. Advani (Against illegal conversion of plot from residential into commercial locals at Block 4, Scheme-5, Clifton, Karachi)] AND CMA No.889-K OF 2019 IN CONST. P. No.9 of 2010, [Application for intervener filed on behalf of Pakistan Post through Postmaster General, Karachi regarding ownership of P&T Colony, also declared as katchi abadi)] AND CRP No.28-K of 2020 IN CONST. P. No.9 of 2010, [K-Electric Ltd. v. Federation of Pakistan and others (matter regarding fatal incidents resulting from electrocution in the service territory of K-Electric)] AND CMA No.940-K of 2020, [Muhammad Yousaf v. Federation of Pakistan and others (Regarding Sugarcane Crushing Machines Situated at Hasrat Mohani Road, Near Café Victory, Karachi)] AND CRL. M.A. No.121-K OF 2017 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Muhammad Essa (60 feets land reserved for Bus Stop divided into 80 Sq. Yd. Plots - China Cutting Plots)] AND CRL. M.A. No.38-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by applicant namely Akbar Hussain (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 re amenity plots for Bus Stop/Car Parking/Green Belt, etc.)] AND CRL. M.A. No.59-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of applicant namely Shah Muhammad (against encroachment made around Ziauddin Hospital, Clifton Karachi by its management and false cases registered against applicant)] AND CMA No.423-K OF 2019 IN CONST. P. No.9 of 2010, [Application for intervener filed by Prof. Dr. Muhammad Shahid Hussain (encroachment over public road in between St. 6 to St. 8, Gulshan-e-Iqbal Block 4, KDA Scheme-24, Karachi)] AND CRL. M.A. No.71-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Muhammad Hussain, in person (against encroachment by the land grabber on 51 plots of the applicant and sector 51-C, Korangi Township, Karachi)] AND CMA No.179-K OF 2020 IN CONST. P. No.9 of 2010, [Application for intervener filed on behalf of Rashid Ali (Demolishing of petrol pump on plot No.PP- Shahrah-e-Quaideen, Karachi)] AND C.P. No.422-K OF 2020, [Mst. Zahida Naz v. Province of Sindh and others (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 CMA No.767-K OF 2020 IN CONST. P. No.9 of 2010, [Syed Masood Ahmed and others v. Federation of Pakistan and others (Defence Officers Housing Authority has been and is illegally converting various plots to use other than its original use)] AND C.P. No.92-K OF 2020, [Karachi Chamber of Commerce and Industry v. Karachi Metropolitan Corporation and others (conversion of residential land into commercial i.e. plot No.79, Service Street No.C-F 1-5, Old Clifton, KDA Scheme-5, Karachi)] AND C.P. No.93-K OF 2020, [Karachi Chamber of Commerce and Industry v. Province of Sindh and others (conversion of residential land into commercial i.e. plot No.79, Service Street No.C-F 1-5, Old Clifton, KDA Scheme-5, Karachi)] AND CRL. ORG. P. NO.19-K OF 2017 IN CRL. ORG. P. No.7-K OF 2017, [Ghulam Muhiyuddin v. Province of Sndh through Secy: Local Govt. and others (matter pertains to 35000 plots at 112 sites of KDA Schemes/Township 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, [Application for intervener filed by Muhammad Ismail Shaheedi (regarding lands Illegally occupied by land grabber in Karachi] AND CRL. M.A. No.132-K/2017 IN CRL. ORG. P. 7-K OF 2017, [Application for intervener filed by Advocate-on-Record for the applicant Anjuman- e-Kalyana (Amenity plot allotted for Kalayana Community Centre at North Karachi as illegally demolished by respondent)] AND CRL. M.A. 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. M.A. NO.243-K OF 2018 IN CRL. M.A. 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, [Application for intervener on behalf of Anjuman-e-Sadat-e-Amroha (for restraining from demolishing further construction on the applicant plot which was allotted by KDA to Anjuman on 6.8.1974] AND CRL. M.A. No.19-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017 [Application for intervener filed by Mr. A.S.K. Ghori, Advocate-on-Record on behalf of applicant namely Muhammad Jaffar (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 stretched to encompass the cantonment area)] AND CRL. M.A. No.20-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Muhammad Races (regarding encroachment on applicant's plot by constructing 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. [Application for intervener filed by Mr. Mazhar Ali B. Chohan, Advocate-on-Record on behalf of Aunjuman-e-Muslman-e-Kalyana (seeking direction to restrain KDA and SBCA to not to demolish Girls College, Girls School, Coaching Centre and Medical Centre established on amenity plot)] AND CMA No.59-K OF 2019 IN CONST. P. No.9 OF 2010, [Application for intervener filed by Syed Arif Shah (Encroachment on amenity plot allotted at Orangi for establishing Muslim Missionary College and Allied Institutions)] AND CMA No.349-K of 2019 in C.P. No.815-K of 2016, [Application for intervener filed on behalf of Public Interest Law Association of Pakistan (for seeking direction of this Court to have empty plots of Karachi developed with parks and playground with the coordination of the relevant authorities)] AND CMA No.875-K of 2019 IN CONST. P. No.9 of 2010, [Application for intervener filed by Muhammad Saleem Qureshi (regarding cancellation of false and fabricated lease granted on amenity plot at Bihar Colony Layari)] AND CMA No.933-K of 2019 IN CONST. P. No.9 of 2010, [Application for intervener filed by Mrs. Mahamadi (regarding demolishing of all illegal construction and usage of public property on main Korangi service road)] AND CM. APPEAL No.139 OF 2020 IN CMA NIL/2020 IN CMA No.933-K OF 2019 IN CONST. P. No.9 of 2010, [Samira Mahanadi v. The Registrar Supreme Court of Pakistan (for correction of order dated 13.8.2020) AND CMA No.202-K OF 2020 IN CONST. P. No.9 of 2010, (Application for intervener filed on behalf of AVA Ardeshir Cowasjee (regarding allotment of Plot No.9B, GK 1, Ghulam Hussain Kasim Quarters Karachi)] AND CMA No.281-K of 2020 IN CONST. P. No.9 of 2010, [Application for intervener filed on behalf of the Karachi Goan Association (regarding allotment of plot No.J.M.1/79, Jamshed Quarters, M.A. Jinnah Road, Karachi)] AND CMA No.522-K of 2020 IN CONST. P. No.9 of 2010, [Waleed Ahmed and others v. Federation of Pakistan and others (Plot No.SNPA-21D AND SNPA-23, both are public amenities and meant for "Park" and the same are used for arriage/commercial activities)] AND CRL. M.A. NO.32-K OF 2018 IN CRL. ORG. P. NO.7-K OF 2017, [Application for intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record (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, [Application for intervener filed by Mr. Mazhar Ali B. Chohan, Advocate-on-Record on behalf of Moulana Muhammad Ali Johar Memorial Cooperative Housing Society (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, [Application for intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of Messes Fatima Jinnah Dental College and Hospital Trust (matter pertains to non-profitable educational institution/trust on plot No.AM/ 1/B at Bhittai Colony "Amenity Plot")] AND CMA No.761-K OF 2020 IN CONST. P. No.9 of 2010, [Abdul Haq Abbasi v. Federation of Pakistan, etc. (matter regarding encroached overstate property situated at Sindh Muslim Society Karachi)] AND CMA No.808-K of 2020 IN CMA No.459-K of 2020 IN CONST. P. No.9 of 2010, [Muhammad Ameer Shah v. Federation of Pakistan and others (encroachment over 2000 million road at North Karachi)] AND CMA No.941-K of 2020, [Niamatullah Khan Advocate v. Federation of Pakistan and others (Regarding encroachment in Jacobabad at various governmental lands (i.e. amenities parks, etc) by influential persons)] AND C.M. Appeal No.16 of 2021 in Const.P. No.9 of 2010. [Haji Abdul Razziq Khan (Regarding Encroachment over Amenity Plot at PECHS) v. Federation of Pakistan, etc] AND CRL. M.A. No.95-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Imdad Hussain Applicant in person (against notice issued by the KDA for demolition/vacating of the house of applicant i.e. House # 318, sector 6-B, Mehran Town Korangi Industrial Area Karachi)] AND CRL. M.A. No.214-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Salman Muhammad (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, [Application for intervener filed by Muhammad Farhan (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 CMA No.521-K of 2019 IN CONST. P. No.9 of 2010, [Application for intervener filed by Murtaza Ali (regarding illegal encroachment on Plot Nos.33 and 34, PR-II, Preedy Quarters Karachi)] AND CMA No.527-K of 2019 IN CONST. P. No.9 of 2010, (Application for intervener filed by Advocate Aqeel Hassan Khan (Illegal construction of Masjid on Plot # R-07 Longlife Banglows Block 17, Gulistan-e-Johar)] AND CMA No.162-K OF 2020 IN CONST. P. No.9 of 2010, [Application for intervener filed on behalf of Ms. Muneera Khatoon (against illegal encroachment over plot bearing Nos.46-F and 46-G situated at Bihar Colony, Shah Abdul Latif Bhittai Road, Karachi)] AND CMA No.193-K OF 2020 IN CONST. P. No.9 of 2010, [Application for intervener filed by Khawaja Muhammad Asghar (regarding encroachment of Plot No.B-100 and B-113 Block 10 Gulistan-e-Johar, Karachi)] AND CMA No.762-K OF 2020 IN CONST. P. No.9 of 2010, [Syed Khurram Iqbal v. Federation of Pakistan, etc. (matter pertains to encroached land situated in Aligarh Muslim University Old Boys Cooperative Housing Society Ltd. Gulzar-e-Hijri Scheme No.33)] AND CMA No.425-K OF 2019 IN CONST. P. No.9 of 2010, (Application for intervener filed on behalf of Muhammad Jibran Nasir and others (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 2010, [Muhammad Jibran Nasir and others v. Mr. Habib ur Rehman Ghiani and others (matter pertains to resettlement and rehabilitation plan for the affectees who have been dispossessed or dislocated due to the anti-encroachment drive)] AND CMA No.809-K OF 2020 IN CMA No.460-K OF 2019 IN CONST. P. No.9 of 2010, [Yousaf Masih v. Federation of Pakistan and others (regarding grievances of people of Salman Brohi Goth as they apprehend to be dispossessed/vacated from the land in question)] AND CMA No.82-K OF 2020 IN CONST. P. No.9 of 2010, [Application for intervener filed by Syed Mehmood Akhtar Naqvi (regarding corruption allegations against mentioned officials SBCA and highlighted the illegal construction and encroachment in certain arrears of Karachi)] AND CMA No.336-K OF 2020 IN CONST. P. No.9 of 2010, [Mr. Imran Ayub Khan Advocate v. Federation of Pakistan and others (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, [Syed Mehmood Akhtar Naqvi v. Qazi Shahid Pervaiz, Senior Member, Board of Revenue, Govt. of Sindh and others] AND CMA No.510-K OF 2021, [Muhammad Ashraf Samoo v. The Province of Sindh and others (applicant has pointed out various issues i.e. corruption, violation of Fundamental Rights, etc.)] AND CMA No.300-K OF 2020 IN CONST. P. No.9 of 2010, [Niamatullah Khan Advocate v. Federation of Pakistan (Statement of the Amicus Curiae from "Salahuddin Ahmed, Advocate Supreme Court") AND CMA No.414-K OF 2020 IN CONST. P. No.9 of 2010, [Niamatullah Khan Advocate v. The Province of Sindh and another (for extension of time for compliance of orders)] AND Report No.7-K of 2021, [Report filed on behalf of Chief Minister, Sindh through Advocate-on-Record, in compliance of Court Order dated 09-05-2019 v. Federation of Pakistan and others], decided on 14th June, 2021.

Constitution of Pakistan---

----Art. 184(3)---Matters relating to encroachments over Gujjar Nallah and Orangi Nallah (rain water drainage streams); issue of lack of availability of parking for Advocates and litigants appearing before the Sindh High Court; illegal allotment of plots on land retrieved from the sea near Boat Basin; removal of encroachments from Kidney Hill park; clearing all buildings and building material from KMC playground situated at Kashmir Road; illegal conversion of Aladdin Water Park into Pavilion Club and shopping center; encroachment and construction on amenity plots; illegal sale of land belong to Pakistan Railways to private developers; poor condition of railway tracks from Khanpur to Kotri and from Sukkur Division to Karachi making them unserviceable and dangerous for the operation of Railways; lack of water supply for residents of Karachi city and its citizens left at the mercy of water tankers mafia---Supreme Court gave directions to relevant functionaries, vacated certain interim injunctions granted by fora below and sought reports from concerned authorities/functionaries to be made available on next date of hearing, to address the issues highlighted. [pp. 115, 116, 117, 118, 119, 120, 121] A, B, C, D, E, F, G, H, I, J, K & L

Khalid Javed Khan, Attorney General for Pakistan and Kashif Sarwar Paracha, Additional AGP for the Federation.

Salman Talib ud Din, Advocate General, Sindh, Sibtain Mehmood, Additional A.G. Sindh, Naveed Ahmed Sheikh, Commissioner Karachi, Dr. Saeed Ahmed Qureshi, Focal Person of Chief Secretary, Asad Ali Khan, Additional Commissioner-I Karachi, M.D. Dharejo, DC Central and Irfan Saleem Meerani DC Korangi for the Government of Sindh.

In Attendance:

Umar Lakhani, Advocate Supreme Court for KMC (in C.M.A. 441-K of 2021).

Dr. Raana Khan, Advocate-on-Record (in Criminal M.A.185- K of 2020).

Faisal Siddiqui, Advocate Supreme Court (in C.M.A. 549-K of 2021, Criminal M.As. 199-K, 229-­K of 2018).

Nemo (in C.M.A. No.627-K of 2020).

In person (in C.M.As. Nos. 671-K, 672-K of 2020, C,M,A, Nos. 586-K, 941-K of 2021, 946-K of 2019).

In Civil Misc.Appeal 38 of 2021.

Abid S. Zuberi, Advocate Supreme Court (in C.M.As. Nos.625-K of 2021, 86-K of 2020, 277-K, 278- K and 446-K of 2021).

Salahuddin Ahmed, Advocate Supreme Court (in C.M.As. 74-K of 2020, 576-K of 2021).

Mrs. Abida Perveen Channar, Advocate Supreme Court (in Criminal Org. P. No.8-K of 2021).

Badar Alam, Senior Advocate Supreme Court, Syed Ashiq Raza, Advocate Supreme Court, Yawar Farooqi, Advocate Supreme Court, Muhammad Haseeb Jamali, Advocate Supreme Court, K.A. Wahab, Advocate-on-Record, Mazhar Ali B. Chohan, Advocate-on-Record, Kamal Azfar, Senior Advocate Supreme Court and Raja Qasit Nawaz, Advocate Supreme Court.

Col. Badar Naveed Ahmed, Dy./Acting Commander 494, Group FWO and Abdul Basit Khan Tanoli, Legal Advisor for F.W.O.

Habib ur Rehman, Secretary Railways, M. Hanif Gul, D.S. Railways, Amir Muhammad Daud Pota, D.G., KCR, Rao Moiuddin, ADLA, Karachi and Salman Kazmi, Legal Consultant for Pakistan Railways.

Dr. Raana Khan, Advocate-on-Record and Syed Jameel Ahmed, Advocate Supreme Court for SBCA.

Assad Ullah Khan, M.D. for KWSB.

M. Idrees Mahsud, Member, Islamabad for NDMA.

Nasir Abbas Soomro, D.G. and Mirza Sarfraz, Advocate Supreme Court for KDA.

Laeeq Ahmed, Administrator, Azra Muqeem, Legal Advisor and Bashir Siddiqui Director, Anti-Encroachment for KMC.

Syed Amjad Ali Shah, DPG for NAB.

Khaqan Murtaza, DG and Nadir Shafi Dar, Deputy D.G. for CAA.

Ambar Ali Bhai, Shehri for CBE.

Adil Rafi, Director, Military Land and Cantonment, Karachi M. Saleem Hassan, CEO, Clifton Cantonment M. Farooqu, Military Estate Officer, Karachi, Omer Masoom Wazir, CEO, Korangi Cantonment, M. Umer Riaz, Advisor/Advocate Supreme Court on behalf of Cantonment Board, Karachi Region via Video Link Lahore, Rana Khawar Iftikhar, CEO, Faisal Haider Ali Sial, CEO, Malir, Qazi Rizwan Ahmed, CEO, Karachi, Cantonment and Umar Mehboob, CEO for Cantonments.

2022 S C M R 121

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

NIAMATULLAH KHAN ADVOCATE and others---Petitioners/Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

CONST. PETITION NO.9 OF 2010, [Niamatullah Khan Advocate v. Federation of Pakistan and others] AND CRIMINAL ORIG. PETITION NO.7-K OF 2017, [Mst. Sahiba Parveen v. Syed Nasir Abbas, Director General, KDA and others (Matter pertaining to allotment of alternate plot)] AND CMA NO.6206 OF 2013 IN CONST. P. NO.9 OF 2010, [Report of Additional Registrar of this Court] AND Cr. O.P. No.9-K OF 2021, [Syeda Maria Raza v. Government of Sindh through Chief Secretary Sindh and others] AND CMA No.441-K OF 2021, Niamat ullah Khan Advocate v. Federation of Pakistan and others (Regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal) AND CMA No.625-K OF 2021, Feroza and others v. Federation of Pakistan and others (Matter regarding Nasla Tower) AND CMA No.576-K OF 2021, Abdul Qadir v. Federation of Pakistan (Matter regarding Nasla Tower) AND CMA No.86-K OF 2020 IN CONST. P. No.9 of 2010, [Messrs Ishaq Enterprises v. Federation of Pakistan and others (Concise Statement with regard to allotment/mutation of COM-3)] AND CMA No.711-K of 2020 IN CONST. P. No.9 of 2010, [Messrs Ishaq Enterprises v. Federation of Pakistan and others (Objection filed on CMA No.86-K/2020)] AND CRIMINAL ORIG. PETITION NO.8-K OF 2021, Abu Turab v. Syed Mumtaz Ali Shah and others (Matter regarding Kidney Hill Land) AND CMA No.391-K of 2020 IN CONST. P. No.9 OF 2010, [Abu Turab v. Federation of Pakistan and others (regarding Illegal constructions in side of Kidney Hill Land situated at Faran Society, Barrister Ahmed Road, Near Dhooraji Colony, Karachi)] AND CMA No.714-K OF 2020 IN CONST. P. No.9 OF 2010, [Niamatullah Khan v. Federation of Pakistan and others (matter regarding Al-Fatah Masjid Admeasuring 1400 Sq. Yards at Kidney Hill Ahmed Ali Park, Faran Society, Karachi)] AND CMA No.424-K OF 2021, [Ibrahim Younus and others v. Federation of Pakistan and others (Kidney Hill Park Land)] AND CMA No.437-K OF 2021, [Naimatullah Khan v. Federation of Pakistan and others (Matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND CMA No.438-K OF 2021, [Naimatullah Khan v. Federation of Pakistan and others (Matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND CMA NO.515-K of 2021, [Abrar Hasan v. Federation of Pakistan and others (Matter pertaining to Kidney Hill Park)] AND CRL. M.A. No.229-K/2018 IN CRL. ORG.P. No.7-K/2017, [Application for Intervener filed by Mr.Ghulam Qadir Jatoi, AO R on behalf of KDA Officers Club (Against Illegal and unconstitutional partial demolition on the premises of the applicant at Plo , St.6, Off. Kashmir Road, Karachi)] AND Civil Review Petition No.15-K of 2021 IN CMA No.906-K of 2020 IN CONST. P. No.9 OF 2010, [Naeem-ud Din v. Pakistan Railway (Regarding Encroachment over Pakistan Railway Land and Revival of KCR) (Trijon Heights/Tower)] AND CMA No.167-K OF 2020 IN CONST. P. No.9 OF 2010, [Application for intervener filed by Syed Muhammad Iqbal Kazmi (The matter regarding KCR project and demolishing of illegal construction in Karachi)] AND CMA No.177-K OF 2020, [Application for intervener filed by Farhad Younus Memon (The matter regarding 650 constructed Houses in Project No.7 (PRECHS) Near Gillani Station, Gulshan-e-Iqbal Karachi)] AND CMA No.367-K OF 2020 IN CONST.P. NO.9 OF 2010, [Shamim Ahmed Siddiqui v. Federation of Pakistan and others (regarding encroachment over Railway Land/Safari Park)] AND CMA No.541-K OF 2020, [Muhammad Ahmed Khan and others v. Federation of Pakistan and others (Matter regarding Pakistan Railway employees Co-operative Housing Society)] AND CMA No.630-K of 2020, [Pakistan Railway Employees Co-operative Housing Society Limited v. Federation of Pakistan and others (The matter pertains to encroachment over Railway Land on account of Railway Co-operative Housing Society)] AND CMA No.898-K of 2020, [Pakistan Railways through Divisional Superintendent v. Federation of Pakistan and others (regarding encroachment over Pakistan Railway Land and Revival of KCR)] AND CMA No.277-K of 2021 in Civil Review Petition No.Nil-K OF 2021 IN CMA No.898-K OF 2020 IN CONST.P. No.9 of 2010, [Messrs Karachi Town Builders v. Pakistan Railways (Regarding Encroachment over Pakistan Railway Land and Revival of KCR (Tejori Hights/Tower)] AND CMA NO.278-K OF 2021, [Messrs Karachi Town Builders v. Pakistan Railways (Regarding Encroachment over Pakistan Railway Land and Revival of KCR). (Tejori Heights/Tower)] AND CMA NO.445-K OF 2021, [Nabiha Qureshi v. Federation of Pakistan and others (Regarding encroachment over Pakistan Railway Land and revival of KCR)] AND CMA NO.446-K OF 2021, [Messrs Karachi Town Builders and Developers v. Federation of Pakistan and others (Regarding encroachment over Pakistan Railway Land and revival of KCR)] AND CMA NO.621-K OF 2021, [Niamat ullah Khan Advocate v. Federation of Pakistan, etc. (report regarding KCR, in compliance of order dated 8.4.2021 filed by DG, FWO)] AND C.M. APPEAL NO.37 OF 2021 IN C.R.P. NO.7-K OF 2020 IN CMA NO.690-K OF 2019 IN CONST. P. NO.9 OF 2010, [Messrs Quality Builders v. Federation of Pakistan and others (for grant of time to remove and take away the materials from building)] AND CMA NO.770-K OF 2020, [Matter regarding non-supply of water through already decided Water lines in DHA Karachi] AND CRL. M.A. NO.52-K OF 2018 IN CRL.O.P. NO.7-K OF 2017, [Application for Intervener filed by Muhammad Asif Shafi (Against seeking direction for demolition of illegal construction on Plot 70-A, Sindhi Muslim Cooperative Housing Society, Karachi)] AND CMA No.631-K OF 2019 IN CONST. P. No.9 OF 2010, [Application for Intervener filed by Mrs. Nelofar Abbasey (Illegal construction is carried out by King Builders over Private Park/ Amenity Plot)] AND CMA NO.78-K OF 2020 IN CONST.P. NO.9 OF 2010, [Application for intervener filed on behalf of Muhammad Talha and Mansoor Sharif Hamid (regarding high rise building on amenity plot)] AND CMA No.83-K OF 2020 IN CONST. P. No.9 OF 2010, [Application for intervener filed on behalf of Pakistan Mercantile Exchange Ltd. and NCEL Building Management Ltd. (regarding Hyatt Regency Hotel)] AND CMA No.512-K OF 2020 IN CONST. P. No.9 of 2010, [Application for Intervener filed by Mst. Yasmeen Lari (Regarding Karachi Gymkhana)] AND CMA No.523-K of 2020 in CONST. P. No.9 of 2010, [Muhammad Waseem Samoo v. Federation of Pakistan and others (matter regarding King Cottage/Bagh-e-Qamar Situated at Scheme 36, Gulistan-e-Johar, Karachi] AND CMA No.594-K OF 2020 IN CONST. P. No.9-K OF 2010, [Messrs Madrasa Tahfeezul Quran Al Karim v. Federation of Pakistan and others (matter regarding Illegally constructed 18 floor building in a very sensitive area near Police Head Quarter at Garden Area)] AND CMA No.617-K of 2019 IN CONST. P. No.9 OF 2010, [Application for Intervener filed by Venu G. Advani (Against illegal conversion of plot from residential into commercial locals at Block 4, Scheme-5, Clifton, Karachi)] AND CMA No.889-K OF 2019 IN CONST. P. No.9 of 2010, [Application for intervener filed on behalf of Pakistan Post through Postmaster General, Karachi (regarding ownership of P and T Colony, also declared as katchi abadi)] AND CRP No. 28-K of 2020 IN CONST. P. No.9 of 2010, [K-Electric Ltd. v. Federation of Pakistan and others (matter regarding fatal incidents resulting from electrocution in the service territory of K-Electric)] AND CMA No.940-K of 2020, [Muhammad Yousaf v. Federation of Pakistan and others (Regarding Sugarcane Crushing Machines Situated at Hasrat Mohani Road, Near Café Victory, Karachi)] AND CRL. M.A. No.121-K OF 2017 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Muhammad Essa (60 feet land reserved for Bus Stop divided into 80 Sq. Yd. Plots - China Cutting Plots)] AND CRL. M.A. No.38-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by applicant namely Akbar Hussain (against China Cutting of plots by manipulated documents of plot Nos.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 CRL. M.A. No.59-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Mr.Ghulam Rasool Mangi, Advocate-on-Record on behalf of applicant namely Shah Muhammad (against encroachment made around Ziauddin Hospital, Clifton Karachi by its management and false cases registered against applicant)] AND CMA No.423-K OF 2019 IN CONST. P. No.9 of 2010, [Application for intervener filed by Prof. Dr. Muhammad Shahid Hussain (encroachment over public road in between St. 6 to St. 8, Gulshan-e-Iqbal Block 4, KDA Scheme-24, Karachi)] AND CRL. M.A. No.71-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Muhammad Hussain, in person (against encroachment by the land grabber on 51 plots of the. applicant and sector 51-C, Korangi Township, Karachi)] AND CMA No.179-K OF 2020 IN CONST. P. No.9 of 2010, [Application for intervener filed on behalf of Rashid Ali (Demolishing of petrol pump on plot No.PP- Shahrah-e-Quaid, Karachi)] AND C.P. No.422-K OF 2020, [Mst. Zahida# Naz v. Province of Sindh and others (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 CMA No.767-K OF 2020 IN CONST. P. No.9 of 2010, [Syed Masood Ahmed and others v. Federation of Pakistan and others (Defence Officers Housing Authority has been and is illegally converting various plots to use other than its original use)] AND C.P. No.92-K OF 2020, [Karachi Chamber of Commerce and Industry v. Karachi Metropolitan Corporation and others (conversion of residential land into commercial i.e. plot No.79, Service Street No.C-F 1-5, Old Clifton, KDA Scheme-5, Karachi)] AND C.P. No.93-K OF 2020, [Karachi Chamber of Commerce and Industry v. Province of Sindh and others (conversion of residential land into commercial i.e. plot No.79, Service Street No.C-F 1-5, Old Clifton, KDA Scheme-5, Karachi)] AND CRL. ORG. P. NO.19-K OF 2017 IN CRL. ORG. P. No.7-K OF 2017, [Ghulam Muhiy ud Din v. Province of Sindh through Secy: Local Govt. and others (matter pertains to 35000 plots at 112 sites of KDA Schemes/Township 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, [Application for intervener filed by Muhammad Ismail Shaheedi (regarding lands Illegally occupied by land grabber in Karachi] AND CRL. M.A. No.132-K/2017 IN CRL. ORG. P. 7-K OF 2017, [Application for intervener filed by Advocate-on-Record for the applicant Anjuman-e-Kalyana (Amenity plot allotted for Kalayana Community Centre at North Karachi as illegally demolished by respondent)] AND CRL. M.A. 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. M.A. NO.243-K OF 2018 IN CRL. M.A. 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, [Application for intervener on behalf of Anjuman-e-Sadat-e-Amroha (for restraining from demolishing further construction on the applicant plot which was allotted by KDA to Anjuman on 6.8.1974] AND CRL. M.A. No.19-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Mr. A.S.K. Ghori, Advocate-on-Record on behalf of applicant namely Muhammad Jaffar (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 stretched to encompass the cantonment area)] AND CRL. M.A. No.20-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Muhammad Raees (regarding encroachment on applicant's plot by constructing boundary wall ittant thereon by Mr. ussain Rajpar, Land Grabber)] AND CRL. M.A. NO.72-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Mr.Mazhar Ali B. Chohan, Advocate-on-Record on behalf of Aunjuman-e-Muslman-e-Kalyana (seeking direction to restrain KDA and SBCA to not to demolish Girls College, Girls School, Coaching Centre and Medical Centre established on amenity plot)] AND CMA No.59-K OF 2019 IN CONST. P. No.9 OF 2010, [Application for intervener filed by Syed Arif Shah (Encroachment on amenity plot allotted at Orangi for establishing Muslim Missionary College and Allied Institutions) AND CMA No.349-K of 2019 in C.P. No.815-K of 2016, [Application for intervener filed on behalf of Public Interest Law Association of Pakistan (for seeking direction of this Court to have empty plots of Karachi developed with parks and playground with the coordination of the relevant authorities)] AND CMA No.875-K of 2019 IN CONST. P. No.9 of 2010, [Application for intervener filed by Muhammad Saleem#Qureshi (regarding cancellation of false and fabricated lease granted on amenity plot at Bihar Colony Layari)] AND CMA No.933-K of 2019 IN CONST. P. No.9 of 2010, [Application for intervener filed by Mrs. Mahamadi (regarding demolishing of all illegal construction and usage of public property on main Korangi service road)] AND CM. APPEAL No.139 OF 2020 IN CMA NIL/2020 IN CMA No.933-K OF 2019 IN CONST. P. No.9 of 2010, [Samira Mahmadi v. The Registrar Supreme Court of Pakistan (for correction of order dated 13.8.2020) AND CMA No.202-K OF 2020 IN CONST. P. No.9 of 2010, (Application for intervener filed on behalf of AVA Ardeshir Cowas jee (regarding allotment of Plot No.9B, GK 1, Ghulam Hussain Kasim Quarters Karachi)] AND CMA No.281-K of 2020 IN CONST. P. No.9 of 2010, [Application for intervener filed on behalf of the Karachi Goan Association (regarding allotment of plot No.J.M.1/79, Jarnshed Quarters, M.A. Jinnah Road, Karachi)] AND CMA No.522-K of 2020 IN CONST. P. No.9 of 2010, [Waleed Ahmed and others v. Federation of Pakistan and others (Plot No.SNPA-21D and SNPA-23, both are public amenities and meant for "Park" and the same are used for marriage/ commercial activities)] AND CRL. M.A. NO.32-K OF 2018 IN CRL. ORG. P. NO.7-K OF 2017, [Application for intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record (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, [Application for intervener filed by Mr.Mazhar Ali B. Chohan, Advocate-on-Record on behalf of Moulana Muhammad Ali Johar Memorial Cooperative Housing Society (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, [Application for intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of Messrs Fatima Jinnah Dental College and Hospital Trust (matter pertains to non-profitable educational institution/trust on plot No.AM/ 1/B at Bhittai Colony "Amenity Plot")] AND CMA No.761-K OF 2020 IN CONST. P. No.9 of 2010, [Abdul Haq Abbasi v. Federation of Pakistan, etc. (matter regarding encroached overstate property situated at Sindh Muslim Society Karachi)] AND CMA No.808-K of 2020 IN CMA No.459-K of 2020 IN CONST. P. No.9 of 2010, [Muhammad Ameer Shah v. Federation of Pakistan and others. (encroachment over 2000 million road at North Karachi)] AND CMA No.941-K of 2020, [Niarnatullah Khan Advocate v. Federation of Pakistan and others (Regarding encroachment in Jacobabad at various governmental lands (i.e. amenities parks, etc) by influential persons)] AND C.M. Appeal No.16 of 2021 in Const.P. No.9 of 2010, [Haji Abdul Razziq Khan (Regarding Encroachment over Amenity Plot at PECHS) v. Federation of Pakistan, etc] AND CRL. M.A. No.95-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Imdad Hussain Applicant in person (against notice issued by the KDA for demolition/vacating of the house of applicant i.e. House 318, sector 6-B, Mehran Town Korangi Industrial Area Karachi)] AND CRL. M.A. No.214-K OF 2018 IN CRL. ORG. P. No.7-K OF 2017, [Application for intervener filed by Salman Muhammad (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, [Application for intervener filed by Muhammad Farhan (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 CMA No.521-K of 2019 IN CONST. P. No.9 of 2010, [Application for intervener filed by Murtaza Ali (regarding illegal encroachment on Plot Nos.33 and 34, PR-II, Preedy Quarters Karachi)] AND CMA No.527-K of 2019 IN CONST. P. No.9 of 2010, [Application for intervener filed by Advocate Aqeel Hassan Khan (Illegal construction of Masjid on Plot # R-07 Longlife Banglows Block 17, Gulistan-e-Johar)] AND CMA No.162-K OF 2020 IN CONST. P. No.9 of 2010, [Application for intervener filed on behalf of Ms. Muneera Khatoon (against illegal encroachment over plot bearing Nos.46-F and 46-G situated at Bihar Colony, Shah Abdul Latif Bhittai Road, Karachi)] AND CMA No.193-K OF 2020 IN CONST. P. No.9 of 2010, [Application for intervener filed by Khawaja Muhammad Asghar (regarding encroachment of Plot Nos.B-100 and B-113 Block 10 Gulistan-e-Johar, Karachi)] AND CMA No.762-K OF 2020 IN CONST. P. No.9 of 2010, [Syed Khurram#lqbal v. Federation of Pakistan, etc. (matter pertains to encroached land situated in Aligarh Muslim University Old Boys Cooperative Housing Society Ltd. Gulzar-e-Hijri Scheme No.33)] AND CMA No.425-K OF 2019 IN CONST. P. No.9 of 2010, (Application for intervener filed on behalf of Muhammad Jibran Nasir and others (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 2010, [Muhammad Jibran Nasir and others v. Mr.Habibur Rehman Ghiani and others (matter pertains to resettlement and rehabilitation plan for the affectees who have been dispossessed or dislocated due to the anti-encroachment drive)] AND CMA No.809-K OF 2020 IN CMA No.460-K OF 2019 IN CONST. P. No.9 of 2010, [Yousaf Masih v. Federation of Pakistan and others (regarding grievances of people of Salman Brohi Goth as they apprehend to be dispossessed/vacated from the land in question)] AND CMA No.82-K OF 2020 IN CONST. P. No.9 of 2010, [Application for intervener filed by Syed Mehmood Akhtar Naqvi#(regarding corruption allegations against mentioned officials SBCA and highlighted the illegal construction and encroachment in certain arrears of Karachi)] AND CMA No.336-K OF 2020 IN CONST. P. No.9 of 2010, [Mr. Imran Ayub Khan Advocate v. Federation of Pakistan and others (issue regarding title documents the people living at Allah Bux Goth registered as Kachi abadi)] AND CRL. ORG. P. No.1-K OF 2020 IN CONST. P. No.9 of 2010, [Syed Mehmood Akhtar Naqvi v. Qazi Shahid Pervaiz, Senior Member, Board of Revenue, Goverment. of Sindh and others] AND CMA No.510-K OF 2021, [Muhammad Ashraf Samoo v. The Province of Sindh and others (applicant has pointed out various issues i.e. corruption, violation of Fundamental Rights, etc.)] AND CMA No.300-K OF 2020 IN CONST. P. No.9 of 2010, [Niamatullah Khan Advocate v. Federation of Pakistan (Statement of the Amicus Curiae from "Salahuddin Ahmed, Advocate Supreme Court") AND CMA No.414-K OF 2020 IN CONST. P. No.9 of 2010, [Niamatullah Khan Advocate v. The Province of Sindh and another (for extension of time for compliance of orders)] AND Report No.7-K of 2021, [Report filed on behalf of Chief Minister, Sindh through Advocate-on-Record, in compliance of Court Order dated 09-05-2019 v. Federation of Pakistan and others], decided on 16th June, 2021.

Constitution of Pakistan---

----Art. 184(3)---Matters relating to rehabilitation of people removed from encroachments over Gujjar Nallah and Orangi Nallah (rain water drainage streams); private hospitals (Zia-ud-Din Hospital and South City Hospital) built and operating illegally upon amenity plots; illegal allotment of amenity plots; demolition of shops and Pavilion Club built without authorization on land belonging to Aladin Water Park; lack of water supply for residents of Karachi city and progress on K-IV project for supply of additional water to the city; government land in Jacobabad city encroached by government officials and politicians---Supreme Court gave directions to relevant functionaries and sought reports from concerned authorities/functionaries to be made available on next date of hearing, to address the issues highlighted.

Khalid Javed Khan, Attorney General for Pakistan and Kashif Sarwar Paracha, Additional AGP for the Federation.

Salman Talibud Din, Advocate General, Sindh, Sibtain Mehmood, Additional A.G. Sindh Naveed Ahmed Sheikh, Commissioner Karachi and Dr.Saeed Ahmed Qureshi, Focal Person of Chief Secretary for the Government of Sindh.

In Attendance

, Dr. Raana Khan, Advocate-on-Record, Faisal Siddiqui, Advocate Supreme Court, Abid S. Zuberi, Advocate Supreme Court, Salahuddin Ahmed, Advocate Supreme Court, Mrs. Abida Perveen Channar, Advocate Supreme Court, Badar Alam, Senior Advocate Supreme Court, Syed Ashiq Raza, Advocate Supreme Court, Yawar Farooqi, Advocate Supreme Court, K.A. Wahab, Advocate-on-Record, Mazhar Ali B. Chohan, Advocate-on-Record, Kamal Azfar, Senior Advocate Supreme Court, Zakir Hussain Khashkheli, Advocate Supreme Court, Ms. Sana Akram Minhas, Advocate Supreme Court, Ms. Razia Danish, Advocate Supreme Court and Syed Ali Zafar, Advocate Supreme Court (via video link, Islamabad).

Brigadier Waqar Commander 494, Group FWO and Abdul Basit Khan Tanoli, Legal Advisor for F.W.O.

Habibur Rehman, Secretary Railways, Raja Qasit Nawaz, Advocate Supreme Court, M. Hanif Gul, D.S. Railways, Amir Muhammad Daud Pota, D.G., KCR, Rao Moiuddin, ADLA, Karachi, Salman Kazmi, Legal Consultant, Nisar Ahmed Memon, Sr. G.M. and Hafeez Ullah, Director Land Lahore for Pakistan Railways.

Dr.Raana Khan, Advocate-On-Record and Syed Jameel Ahmed, Advocate Supreme Court for SBCA.

: Assad Ullah Khan, M.D. for KWSB.

: Messrs Idrees Mahsud, Member, Islamabad for NDMA.

Nadir Abbas Soomro, D.G.and Mirza Sarfraz Advocate Supreme Court for KDA.

Laeeq Ahmed, Administrator Azra Muqeem, Legal Advisor and Bashir Siddiqui Director Anti Encroachment for KMC.

Khaqan Murtaza, DG and, Nadir Shafi Dar, Deputy D.G. for CAA.

Ambar Ali Bhai, Shehri for CBE.

Moonis Abdullah Alvi, CEO for K-Electric.

Adil Rafi, Director,, Military Land and Cantonment, Karachi, M. Saleem Hassan,, CEO, Clifton Cantonment, M. Farooqu, Military Estate Officer, Karachi Omer Masoom Wazir, CEO, Korangi Cantonment, M.Umer Riaz, Advisor/Advocate Supreme Court, on behalf of Cantonment Board, Karachi Region, Rana Khawar Iftikhar, CEO, Faisal Haider Ali Sial, CEO, Malir, Qazi Rizwan Ahmed, CEO, Karachi, Cantonment and Umar Mehboob, CEO for Cantonments.

2022 S C M R 133

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

NIAMATULLAH KHAN ADVOCATE and others---Petitioners/Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

CONST. PETITION NO.9 OF 2010, [Niamatullah Khan Advocate v. Federation of Pakistan and others] AND CRIMINAL ORIG. PETITION NO. 7-K OF 2017, [Mst. Sahiba Parveen v. Syed Nasir Abbas, Director General, KDA and others (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, [Shehri Citizen for a better Environment and others (matter regarding encroachment over Gujjar Nallah Orangi Nallah v. Niamatullah Khan Advocate and others)] AND CRIMINAL ORIGINAL PETITION NO.9-K OF 2021, [Syeda Maria Raza v. Government of Sindh through Secretary Sindh and others (matter regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)] AND C.M.A. NO. 441-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others [Faiz Muhammad v. Province of Sindh through Chief Secretary and others (regarding illegal encroachment over drainage river of Haji Limo village at Gulshan-e-Iqbal)] AND C.M.A. No. 819-K OF 2021, [Mrs. Almas Rizwan and others v. Federation of Pakistan and others (matter pertains to Gujjar Nallah)] AND C.M.A. No.850-K OF 2021, [Khalil ur Rehman v. Federation of Pakistan and others (matter pertains to Gujjar Nallah)] AND NASLA TOWER, C.R.P. NO. 55-K OF 2021, [Feroza and others v. Federation of Pakistan and others (Matter regarding Nasla Tower)] AND C.R.P. NO. 56-K OF 2021, [Abdul Qadir v. Niamatullah Khan Advocate and others (matter pertains to Nasla Tower)] AND CIVIL AVIATION AUTHORITY, C.M.A. No.774-K OF 2021, [Civil Aviation Authority v. Federation of Pakistan and others (matter regarding Land allotted to CDA in 1990)] AND AMENITY PLOT USED FOR MARRIAGE HALL, C.M.A. No.522-K OF 2020 IN CONST. P. No.9 OF 2010, [Waleed Ahmed and others v. Federation of Pakistan and others (Plots Nos.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, [Application for Intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of applicant namely, Shah Mohammad (against encroachment made around Ziauddin Hospital, Clifton .Karachi by its management and false cases registered against applicant)] AND SOUTH CITY HOSPITAL, C.M.A. No.1062-K of 2021, [Dr. Sadia Rasool Virk v. Federation of Pakistan as others to show cause notice on behalf of South City Hospital)] AND C.MA. NO.1064-K OF 2021, [Messrs South City Hospital (Pvt.) Ltd. v. Federation of Pakistan and others (reply to Show cause notice on behalf of South City Hospital)] AND ENFORCEMENT IN JACOBABAD OF AMENITIES, C.M.A. NO.941-K OF 2020, [Niamatullah Khan Advocate v. Federation of Pakistan and others (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, [Muhammad Akram Abro v. Federation of Pakistan and others (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, [Messrs A.A. Joy Land (Pvt.) Ltd. v. Federation of Pakistan and others (matter pertains to Aladin Park)] AND C.M.A. No.1000-K OF 2021, [Niamatullah Khan and others v. Federation of Pakistan and others (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, [Application for intervener filed on behalf of Sindh High Court Bar Association through its Honourary Secretary (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, [Messrs Ishaq Enterprises v. Federation of Pakistan and others (concise statement with regard to allotment of COMM-3)] AND C.M.A. No.711-K OF 2020, [Messrs Ishaq Enterprises v. Federation of Pakistan and others (objection filed on C.M.A. No. 86-K of 2020)] AND YMCA GROUND, C.R.P. NO.57-K OF 2021, [Asian Pacific Alliance of YMCAs v. Federation of Pakistan and others (matter pertains to YMCA Ground)] AND KIDNEY HILL LAND, CRL. ORG. P. NO. 8-K OF 2021, [Abu Turab v. Syed Mumtaz Ah Shah and others (matter regarding Kidney Hill Land)] AND C.M.A. NO.391-K OF 2020 IN CONST. P. NO. 9 OF 2010 [Abu Turab v. Federation of Pakistan and others (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, [Niamatullah Khan v. Federation of Pakistan and others (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, [Mr. Ibrahim Younus and others v. Federation of Pakistan and others (Kidney Hill Park Land)] AND C.M.A. NO. 437-K OF 2021, [Niamatullah Khan v. Federation of Pakistan and others (matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND C.M.A. NO. 438-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others (matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND C.M.A. NO. 515-K OF 2021, [Abrar Hassan v. Federation of Pakistan and others (matter pertains to Kidney Hill Park)], AND HILL PARK LAND, CRL.ORG.P.NO.13-K OF 2021, [Mrs. Gul Nilofer and another v. Major (R) Naveed Ahmed Khan and others] AND KDA OFFICERS CLUB, CRL. M.A. NO. 229-K OF 2018 IN CRL. ORG. P. NO. 7-K OF 2017, [Application for intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record on behalf of KDA Officer Club (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, [Niamatullah Khan Advocate v. Federation of Pakistan and others. (report regarding KCR, in compliance of order dated 08.04.2021 filed by DG/FWO)] AND C.M.A. NO. 167-K OF 2020, [Application for intervener filed by Syed Muhammad Iqbal Kazmi (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, [Shamim Ahmed Siddiqui v. Federation of Pakistan and others (regarding encroachment over railway land/Safari Park)] AND C.M.A. NO. 177-K OF 2020, [Application for intervener filed by Farhad Younus Memon. (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, [Pakistan Railways through Divisional Superintendent v. Federation of Pakistan and others (matter regarding encroachment over Pakistan Railway Land and Revival of KCR)] AND C.M.A. NO. 445-K OF 2021, [Nabiha Qureshi v. Federation of Pakistan and others (matter regarding encroachment over Pakistan Railway Land and revival of KCR)] AND C.M.A. NO. 446-K OF 2021, [Messrs Karachi Town Builders and Developers v. Federation of Pakistan and others (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, [Naeemuddin v. Pakistan Railway (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, [Messrs Karachi Town Builders v. Pakistan Railways Nala regarding encroachment over Pakistan Railway Land and revival of KCR) (Tejori Heights/Tower)] AND C.M.A. NO.278-K OF 2021, [Messrs Karachi Town Builders v. Pakistan Railways (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, [Muhammad Ahmed Khan and others v. Federation of Pakistan and others (matter regarding Pakistan Railway Employees Cooperative Housing Society)] AND C.M.A. NO.630-K OF 2020, [Pakistan Railway Employees Cooperative Housing Society Limited v. Federation of Pakistan and others (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, [Messrs Quality Builders v. Federation of Pakistan and others (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 STOREYS 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, [Application for intervener filed by Mrs.Nelofar Abbasey v. (illegal construction is carried out by King Builders over Private Park/Amenity Plot)] AND C.M.A. NO. 78-K OF 2020, [Application for intervener filed on behalf of Muhammad Talha and Mansoor Sharif Hamid v. (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, [Muhammad Waseem Samoo v. Federation of Pakistan and others (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, [Application for intervener filed on behalf of Pakistan Mercantile Exchange Ltd. And NCEL Building Management Ltd. v. (regarding Hyatt Regency Hotel)] AND KARACHI GYMKHANA, C.M.A. NO. 512-K OF 2020 IN CONST. P. NO.9 OF 2010, [Application for intervener filed by Mst. Yasmeen Lari (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, [Messrs Madrasa Tahfeezul Quraan Al Karim v. Federation of Pakistan and others (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, [Application for intervener filed by Venu G. Advani v. (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, [Application for intervener filed on behalf of Pakistan Post through Postmaster General, Karachi v. (regarding ownership of P and 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, [K-Electric Limited v. Federation of Pakistan and others. (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, [Muhammad Yousaf v. Federation of Pakistan and others (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, [Application for intervener filed by Muhammad Essa v. (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, [Application for intervener filed by applicant namely, Akbar Hussain v. (against China Cutting of plots by manipulated documents of Plot No.R-160/4 and-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, [Application for intervener filed by Porf. Dr. Muhammad Shahid. Hussain v. (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, [Application for intervener filed on behalf of Rashid Ali v. (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, [Mst.. Zahida Naz v. Province of Sindh and others (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, [Syed Masood Ahmed and others v. Federation of Pakistan and others . (Defence Officers Housing Authority has been and its illegally converting various plots to used others than its original use)] AND C.P. NO.92-K OF 2010, [Karachi Chamber of Commerce 'and Industry v. Karachi Metropolitan Corporation and others (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, [Karachi Chamber of Commerce and Industry v. Karachi Metropolitan Corporation and others (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, [Ghulam Muhiyuddin v. Province of Sindh through Secretary Local Governmemt and others (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, [Application for intervener filed by Muhammad Ismail Shaheedi v. {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, [Application for intervener filed by Advocate-on-Record for the applicant Anjuman-e-Kalayana (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, [Application for intervener filed on behalf of Arijuman Sadat-e-Amroha v. (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, [Application for intervener filed by Mr. A.S.K. Ghori, Advocate-on-Record on behalf of applicant namely, Muhammad Jaffar v. (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, [Application for intervener filed by Muhammad Races v. (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, [Application for intervener filed by Mr. Mazhar Ali B.Chohan, on behalf of Anjuman-e-Musalman-e-Kalayana v. (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, [Application for intervener filed by Syed Arif Shah v. (encroachment on amenity plot allotted at Orarigi for establishing Muslim Missionary College and Allied Institutions)] AND C.M.A. NO.349-K OF 2019, [Application for intervener filed on behalf of Public Interest Law Association of Pakistan v. (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, [Application for intervener filed by Muhammad Saleem Qureshi (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, [Application for intervener filed by Mrs. Mahamadi v. (regarding demolishing of all illegal construction and usage of public prop-erty on main Korangi service road)] AND C.M. APPEAL NO.139 OF 2020 IN C.M.A. NO.NIL OF 2020 IN C.M.A. NO.933-K OF 2019 IN CONST. P. NO.9 OF 2010, (Samira Mahamadi v. The Registrar, Supreme Court of Pakistan (for correction of order dated 13.08.2020)] AND C.M.A. NO.202-K OF 2020 IN CONST. P. NO.9 OF 2010, [Application for intervener filed on behalf of AVA Ardeshir Cowasjee v. (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, [Application for intervener filed on behalf of the Karachi Goan Association v. (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, [Application for intervener filed by Mr. Ghulam Qadir, Advocate-on-Record v. (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, [Application for intervener filed by Mr. Mazhar Ali B. Chohan, Advocate-on-Record on behalf of Moulana Muhammad Ali Johar Memorial Cooperative Housing Society (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, [Application for intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of Messrs Fatima Jinnah Dental College and Hospital Trust (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, [Abdul Haq Abbasi v. Federation of Pakistan and others (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, [Muhammad Ameer Shah v. Federation of Pakistan and others (encroachment over 2000 million road at North Karachi)] AND C.M. APPEAL NO.16 OF 2021 IN CONST. P. NO.9 OF 2010, [Haji Abdul Razziq Khan v. Federation of Pakistan and others (regarding enforcement over Amenity Plot at PECHS)] AND C.M.A. NO.782-K OF 2021, [Malik Jameel Ali v. Federation of Pakistan and others (matter regarding Custom Preventive Service Cooperative Housing Society and removal of encroachment from green belt)] AND C.P. NO.599-K OF 2021, [Mumtaz A. Qureshi v. The Province of Sindh and others (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, [Azhar Ahsan Thanvi v. Federation of Pakistan and others. (natter taa 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, [Muhammad Khan Parhar and others v. Federation of Pakistan and others (Matter regarding encroachment over Plot No.ST-14)] AND CRL. ORG. P. NO.10-K OF 2021, [Muhammad Irfan v. Federation of Pakistan and others (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, [Application for intervener filed by Muhammad Hussain in person (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, [Application for intervener filed by Imdad Hussain applicant in person (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, [Application for intervener filed by Salman Muhammad (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, (Application for intervener filed by Muhammad Farhan (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, [Application for intervener filed by Murtaza Ali (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, [Application for intervener filed by Advocate Aqeel Hassan Khan 'illegal, construction of Masjid-on Plot No.R-07, Longlife Block-17, Gulistan-e-Johar)] AND C.M.A. NO.162-K OF 2020, [Application for intervener filed on behalf of Ms. Muneera Khatoon (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, [Application for intervener filed by Khawaja Muhammad Asgar (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, [Syed Khurram Iqbal v. Federation of Pakistan and others (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, [Application for intervener filed on behalf of Muhammad Jibran Nasir and others (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 2010, [Mohammad Jibran Nasir and others v. Mr. Habib ur Rehm an Gillani and others (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, [Yousuf Masih v. Federation of Pakistan and others. (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, [Application for intervener filed by Syed Mehmood Akhtar Naqvi, (regarding corruption allegations against mentioned SBCA and highlighted the illegal construction and certain areas of Karachi)] AND C.M.A. NO.336-K OF 2020 IN CONST. P. NO.9 OF 2010, [Mr. Imrari. Ayub Khan Advocate v. Federation of Pakistan and others (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, [Syed Mehmood Akhtar Naqvi v. Qazi Shahid Pervaiz, Sr. Member Board of Revenue, Government of Sindh and others)] AND C.M.A. NO.510-K of 2021, [Muhammad Ashraf Samoo v. Province of Sindh and others (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, [Niamatullah Khan Advocate v. Federation of Pakistan and others (statement of the amicus curiae from "Salahuddin Ahmed, Advocate Supreme Court)] AND C.M.A. NO.414-K OF 2020 IN CONST. P. NO.9 OF 2010, [Niamatullah Khan Advocate v. The Province of Sindh and another (for extension of time for compliance of orders)] AND REPORT NO.7-K OF 2021, [Report filed on behalf of Chief Minister, Sindh through Advocate-on-Record in compliance of Court order dated 09.05.2019 v. Federation of Pakistan and others)], decided on 25th October, 2021.

(a) Supreme Court Rules, 1980---

----O. XVII---Constitution of Pakistan, Art. 188---Review petition before the Supreme Court---Adjournment sought by counsel for personal reasons---Whether a ground for seeking adjournments---Held, that matters fixed before the Court were to be attended and personal reasons were not to be assigned for seeking adjournments---Even otherwise a lawyer's duty was to attend court work first and then he may attend to his personal work---No reason except for bare personal matter had been stated in the adjournment application, which was no ground for seeking adjournment of a case fixed before the Court--- Consequently review petition was dismissed for non- prosecution.

(b) Constitution of Pakistan---

----Art. 184(3)---Matter regarding encroachment over Gujjar Nallah, Orangi Nallah and Mehmoodabad Nallah (rain water drainage streams)---Stay orders/interim injunctions against demolition of such encroachments issued by the High Court on the ground that the occupants had obtained leases over the land---Held, that the Supreme Court in its previous orders had already given directions for all encroachments in and around all the Nallahs of the city (Karachi) to be removed, and the purported leases were found to be not in accordance with law, in that, nothing was shown as to how the plots of land came to be leased out by the purported authorities---In any case the lands of all the Nallahs in the city including Gujjar Nallah, Orangi Nallah and Mehmoodabad Nallah were meant for the purpose of Nallahs only and not for construction of houses, commercial buildings or for industrial use---Encroachments and all sort of constructions made on the Nallahs had to be removed so that the flow of Nallahs could be made possible without any hindrance and the city could be saved from being submerged or flooded during storms and heavy rains---Supreme Court issued notices to all the petitioners and plaintiffs of the petitions and suits who had obtained stay orders/interim injunctions from the High Court, and directed that in the meantime all interim orders passed by the High Court in respect of construction on the lands of Gujjar Nallah, Orangi Nallah and Mehmoodabad Nallah stood suspended.

(c) Constitution of Pakistan---

----Art. 184(3)---Matter regarding encroachment over public properties in Karachi city---Mushroom growth of encroachments on public properties, namely, open spaces, parks; playgrounds, roads, footpaths and other amenity lands could be observed all over the city---Supreme Court issued notices to all the District Administrators, Municipal Corporations/ District Municipal Commissioners of Karachi with the directions they shall be present in Court on the next date of hearing; that they shall also file reports concerning removal of encroachments from all roads, footpaths, streets, lanes and gallies (alleys) and also remove all encroachments from parks and playgrounds within their respective areas; that all roads, footpaths, streets, lanes and gallies on which any encroachment was found, those shall be removed immediately and the roads, footpaths, streets, Ianes and gallies shall be cleared up and restored; that they shall also ensure that proper lights on the roads, footpaths, streets, lanes and gallies were provided; that if there was any garbage or unhealthy elements in the parks and playgrounds, those shall immediately be removed and greenery work shall be started by laying green grass, plants and trees in the parks and playgrounds; that proper furniture shall also be provided; that facilities of electric lights, drinking water, toilets for men and women and other recreation areas shall also be arranged; that the land of parks and playgrounds shall be secured by installation of iron grills around them; that all dilapidated and unconstructed road, service lanes and gallies shall immediately be constructed and if any repair work was required, such work shall also be immediately made; and that all Administrators/ Municipal Commissioners shall put up their respective reports before the Supreme Court on the next date of hearing.

(d) Constitution of Pakistan---

----Art. 184(3)---Matter relating to construction of fifteen storey "Nasla Tower" built illegally on encroached land meant for a service road---Demolition of said tower on the directions of the Supreme Court---Supreme Court directed that the city Commissioner shall have the building demolished through controlled modern device of detonation, ensuring no loss or damage to any property or person around the tower; that the Commissioner shall ensure that the demolition work was completed within one week's time, and the whole land was levelled and its demolition waste removed; that the cost of demolition of the tower shall be paid by its owner and if the owner did not pay such costs to the Commissioner, the Commissioner, could recover the same from the land owned by the owner by having it attached and sold, and that a report in such regard shall be submitted before the Court by the Commissioner on next date of hearing.

Munir A. Malik, Senior Advocate Supreme Court along with K.A. Wahab, Advocate-on-Record, Abid S. Zubari, Advocate Supreme Court, Anwar Mansoor Khan, Senior Advocate Supreme Court, Ms. Umaimah Anwar Khan, Advocate Supreme Court, Syed Ashikue Raza, Advocate Supreme Court, Ms. Abida Parveen Channar, Advocate-on-Record, Mian Raza Rabbani, Advocate Supreme Court, Raja Qasit Nawaz, Advocate Supreme Court, Khawaja Shamsh-ul-Islam, Advocate Supreme Court, Syed Abdul Waheed, Advocate Supreme Court, Muhammad Ashraf Samoo, Advocate Supreme Court, Zakir Hussain Khaskhali, Advocate Supreme Court, Badar Alam, Senior Advocate Supreme Court, Khalid Mehmood Siddiqui, Advocate Supreme Court and Dr. Raana Khan, Advocate-on-Record for Petitioners/Appellants.

Mst. Sabiha Parveen for Petitioners (in Crl. O. P.7-K of 2017).

Syeda Maria Raza for Petitioners (in Crl. O. P.9-K of 2021).

Mrs. Amber Ali Bhai and Dr. Sadia Virk for Petitioners (in Crl. M. A.59-K of 2018).

Muhammad Akram Abro for Appellants (in C.M.A..775-K of 2021).

Akbar Hussain for Appellants (in Crl. MA.38-K of 2018).

Syed Arif Shah for Appellants (in C.M.A..59-K of 2019).

Muhammad Irfan for Petitioners (in Crl. O. P.10-K of 2021).

Murtaza Ali for Appellants (in C.M.A. 521-K of 2019).

Ijaz Hussain Jakharani and Sajjad Hussain Jakharani for Appellants (in C.M.A. 941-K of 2020).

Khalid Javed Khan, Attorney General for Pakistan and Kashif Sarwar Paracha, Additional AGP for the Federation on Court's Notice.

Murad Ali Shah, C.M. Sindh, Salman Talib -ud Din, Advocate General, Sindh, Sahulat Rizvi, Additional A.G. Sindh, Sibtain Mehmood, Additional A.G. Sindh, Muhammad Iqbal Memon, Commissioner Karachi, Shariq Ahmed, Secretary Transport, Dr. Saeed Ahmed Qureshi, Focal Person to Chief Secretary, Yaar Muhammad Legal Consultant Transport, Ghulam Nabi Kerijo, SP Traffic South and Mazhar Hussain Alvi, AIG Police for the Government of Sindh.

Asif Ali Memon, DG KDA for KDA.

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 Gill, DS and Rao Moinuddin ADLA for Pakistan Railways.

Syed Jameel Ahmed, Advocate Supreme Court for SBCA.

Assad Ullah Khan, M.D. for KWSB.

Shumail Riaz, SSP for Jacobbabad Administration.

Aamir Mughal, CE/PD, K-IV for WAPDA.

Karam Din Junejo and Nazir for High Court of Sindh.

Umar Lakhani, Advocate Supreme Court, Murtaza Wahab, Administrator Azra Muqeem, Legal Advisor Afzal Zaidi, M/C for KMC.

Adil Rafi, Director, Military Land and Cantonment, M. Saleem Hassan, CEO, Clifton Cantonment, M. Faroque, Military Estate Officer, Karachi, Omer Masoom Wa.zir, 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 and Qazi Rizwan Ahmed, CEO, Karachi, Cantonment for Cantonments.

Nadir Shafi Dar, Dy. DG CAA for CAA.

2022 S C M R 152

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

NIAMATULLAH KHAN ADVOCATE and others---Petitioners/Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

CONST. PETITION NO.9 OF 2010, [Niamatullah Khan Advocate v. Federation of Pakistan and others] AND CRIMINAL ORIG. PETITION NO.7-K OF 2017, [Mst. Sahiba Parveen v. Syed Nasir Abbas, Director General, KDA and others (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 CRIMINAL ORIGINAL PETITION NO. 9-K OF 2021, [Syeda Maria Raza v. Government of Sindh through Chief Secretary Sindh and others (regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)] AND C.M.A. NO.441-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others (matter regarding illegal Faiz Muhammad v. Province of Sindh through Chief Secretary and others (regarding illegal encroachment over, drainage river of Haji Limo Village at Gulshan-e-Iqbaf.)] AND C.M.A. No.1083-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others (For seeking direction for removal of encroachment on Gujjar Nalla and Orangi Nala)] AND C.M.A. No.1112-K OF 2021 IN C.R.P. NO.61-K OF 2021. [Shehri and others v. Niamatuliah Khan and others (Matter regarding encroachment over Gujjar Nalla and Orngi Nalla)] AND C.M.A. No.774-K OF 2021, [Civil Aviation Authority v. Federation of Pakistan and others (Applicant has alleged that Government of Sindh has allotted 209 acres land in 1990 to CAA for construction of new Airport but some officials of GOS are illegally allotting and creating Surveys Nos. from said land)] AND C.M.A. No.522-K OF 2020 IN CONST. P. No.9 OF 2010, [Waleed Ahmed and others v. Federation of Pakistan and others (Plot Nos.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 CRL.M.A. No.59-K OF 2018, [Application for Intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of applicant namely, Shah Mohammad (against encroachment made around Ziauddin Hospital, Clifton Karachi by its management and false cases registered against applicant)] AND C.M.A. No.1062-K OF 2021, [Dr. Sadia Rasool Virk v. Federation of Pakistan and others (Reply to Show Cuase Notice on behalf of South City Hospital)] AND C.M.A. No.1064-K OF 2021, [Messrs SouthCityHospital (Pvt.) Limited v. Federation of Pakistan and others (Reply to Show Cause Notice on behalf of South City Hospital)] AND C.M.A. NO.941-K OF 2020, [Niamatullah Khan Advocate v. ederation of Pakistan and others (regarding encroachment in Jacobabad at various government lands i.e. amenities, parks etc. by influential persons)] AND C.M.A. NO.NO.1114-K OF 2021, [Ms. Maliha Malik v. Federation of Pakistan (statement of Mr. Aijaz Hussain Jakhrani and Sajjad Hussain Jakhrani)] AND C.M.A. No.775-K OF 2021, [Muhammad Akram Abro v. Federation of Pakistan and others (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 C.M.A. NO.698-K OF 2021, [Messrs A.A. Joy Land (Pvt.) Ltd. v. Federation of Pakistan and others (matter pertains to Aladin Park)] AND C.M.A. No.1000-K OF 2021, [Niamatullah Khan and others. v. Federation of Pakistan and others (matter regarding Aladin Park)] AND C.M.A. No.74-K OF 2020 IN CONST. P. No.9 OF 2010, [Application for intervener filed on behalf of Sindh High Court Bar Association through its Honourary Secretary (regarding parking space at High Court of Sindh)] AND C.M.A. NO.86-K OF 2020 IN CONST.P.NO.9 OF 2010, [Messrs Ishaq Enterprises v. Federation of Pakistan and others (concise statement with regard to allotment of COMM-3)] AND C.M.A. No.711-K OF 2020 IN CONST.P. NO.9 OF 2010, [Messrs Ishaq Enterprises v. Federation of Pakistan and others (objecti filed on C.M.A. No.86-K of 2020)] AND CRP NO.57-K OF 2021, [Asian Pacific Alliance of YMCAs v. Federation of Pakistan and othe (matter pertains to YMCA Ground)] AND CRL.ORG.P.NO.8-K OF 2021, [Abu Turab v. Syed Mumtaz Ali Shah and others (matter regarding Kidney Hill Land)] AND C.M.A. NO.391-K OF 2020 IN CONST.P.NO.9 OF 2010, [Abu Turab v. Federation of Pakistan and others (regarding illegal consttuctions 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, [Niamatullah Khan v. Federation of Pakistan and others (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, [Mr. Ibrahim Younus and other:;. v. Federation of Pakistan and others (Kidney Hill Park Land)] AND C.M.A. NO.437-K OF 2021, [Niamatullah Khan v. Federation of Pakistan and others (matter , regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND C.M.A. NO.438-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others (matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND C.M.A. NO.515-K OF 2021, (Ibrar Hassan v. Federation of Pakistan and others (matter pertains to Kidney Hill Park)] AND CRL.ORG.P.NO.13-K OF 2021, [Mrs: Gul Nilofer and another v. Major (R) Naveed Ahmed Khan and others] AND CRL.ORG.P.NO.14-K OF 2021, [Mrs. Shabnum Humayun v. Federation of Pakistan and others (matter regarding Hill Park)] AND CRL.MA NO.229-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record on behalf of KDA Officer Club (Against illegal and unconstitutional partial demolition on the premises of the applicant at Plot No.ST-6, Of Kashmir Road, Karachi)] AND C.M.A. NO.621-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others. (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, [Application for intervener IV ed by Syed Muhammad Iqbai. Kazmi. (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, [Shamim Ahmed Siddiqui `s. Federation of Pakistan and others (regarding encroachment over railway land/Safari Pazk)] AND C.M.A. NO.177-K OF 2020, ---rnpplication for intervener filed by Farhad Younus Memon. (The matter regarding 650 cciistructed Houses in Project No.7 (PRECHS) near Gillani Station Gulshan-e-Iqbal, Karachi] AND C.M.A.. NO.898-K OF 2020, [Pakistan Railways through Divisional Superintendent v.Federation of Pakistan and others (matter regarding encroachment over Pakistan Railway Land and Revival of KCR)] AND C.M.A. NO.1124-K OF 2021 IN C.R.P. NIL-K OF 2021 IN C.M.A. NO.277-K OF 2021 IN C.R.P. NIL-K OF 2021 IN C.M.A. NO.898-K OF 2021, [Federation of Pakistan through Secretary/ Chairman Railways v. Messrs Karachi Town Builders (regarding encroachment over PakistanRailwayLand and revival of KCR) (Tejori Heights/Tower)] AND C.M.A. NO.541-K OF 2020, [Muhammad Ahmed Khan and others. v. Federation of Pakistan and others (matter regarding Pakistan Railway Employees Cooperative Housing Society))] AND C.M.A. NO.630-K OF 2020, [Pakistan Railway Employees Cooperative Housing Society Limited v. Federation of Pakistan and others (the matter pertains to encroachment over RailwayLand on account of Railway Cooperative Housing Society)] AND C.M.A. NO.1110-K OF 2021, [Application on behalf of Divisional Superintendent through Deputy Director Railways against Messrs Labaik CNG Station Hyderabad and others (matter regarding encroachment over Railway's land at Hyderabad)] AND C.M. APPEAL NO.37 OF 2021 IN CRP NO.7-K OF 2020 IN C.M.A. NO.690-K OF 201,9 IN CONST.P.NO.9 OF 2010, [Messrs Quality Builders v. Federation of Pakistan and others (for grant of time to remove and take away the materials from building)] AND C.M.A. NO.1004-K OF 2021, [Muhammad Zohaib Ather v. Federation of Pakistan and others (Matter regarding Royal Pak Project)] AND C.M.A. NO.770-K OF 2020, [Matter regarding non-supply of water through already decided water lines in DHA, Karachi] AND 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, [Application for intervener filed by Mrs. Nelofar Abbasey v. (illegal construction is carried out by King Builders over Private Park/Amenity Plot] AND C.M.A. NO.78-K OF 2020 IN CONST. P. NO.9 OF 2010, [Application for intervener filed on behalf of Muhammad Talha and Mansoor Sharif Hamid v. (regarding high rise building on amenity plot)] AND C.M.A. NO.523-K OF 2020 IN CONST.P.NO.9 OF 2010, [Muhammad Waseem Samoo v. Federation of Pakistan and others (matter regarding King Cottage Bagh-e-Qamar situated at Scheme No.36, Gulshan-e-Johar, Karachi)] AND C.M.A. NO.83-K OF 2020 IN CONST.P.NO.9 OF 2010, [Application for intervener filed on behalf of Pakistan Mercantile Exchange Ltd. And NCEL Building Management Ltd. v. (regarding Hyatt Pegency Hotel)] AND C.M.A. NO.512-K OF 2020 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Mst.Yasmeen Lari (regarding Karachi Gymkhana)] AND C.M.A. NO.594 K OF 2020 IN CONST.P.NO.9 OF 2010, [Messrs Madrasa Tahfeezul Quraan Al Karim v. Federation of Pakistan and others (matter regarding illegally constructed 18 floor building in a very sensitive area near Police Head Quarter at Garden Area)] AND C.M.A. NO.617-K OF 2019 IN CONST.P.NO.9 OF 2010 [Application for intervener filed bv Venu G. Advani (illegal conversion of plot from residential into commercial locals Block 4, Scheme-5, Clifton Karachi)] AND C.M.A. NO.889-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed on behalf of Pakistan Post through Postmaster General, Karachi v. (regarding ownership of P and T Colony also declared as Katchi Abadi)] AND CRP NO.28-K OF 2020 IN CONST.P.NO.9 OF 2010, [K-Electric Limited v. Federation of Pakistan and others (matter regarding fatal incidents resulting from electrocution in the service territory of K-Electric)] AND C.M.A. NO.1037-K OF 2021, [Naveed Ahmed Khan v. Federation of Pakistan and others (illegal usage of land of Askari Park for Commercial Activities and Marriage Hall)] AND C.M.A. NO.1095-K OF 2021, [Muhammad Imran v. Federation of Pakistan and others (matter regarding Food Street at Burns Road)] AND C.M.A. 140.1123-K OF 2021, [Kelash Kumar v. Federation of Pakistan and others (matter regarding encroachment over Hindu Temples/ Mandirs)] AND C.M.A. NO.940-K OF 2020, [Muhammad Yousaf v. Federation of Pakistan and others (regarding ntSugarcane Crushing MachiJ.,e situated at Hasrat Mohani Road, near Cafe Victory, Karachi)] AND CRL. M.A.121-K OF 2017 IN CRL.ORG,P.NO.7-K OF 2017, [Application for intervener filed by Muhammad Essa v. (60 Feets land reserved for Bus Stop divided into 80 Sq. Yd. Plots-China Cutting Plot)] AND CRL.MA NO.38-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by applicant namely, Akbar Hussain v. (against China Cutting of plots by manipulated documents of Plot No.R-160/4 86R-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, [Application for intervener filed by Porf. Dr. Muhammad Shahid Hussain v. (encroachment over public road in between St.6 to St.8, Gulshan-e-Iqbal, Block 4, KDA, Scheme-24, Karachi)] AND C.M.A. NO.179-K OF 2020, [Application for intervener filed on behalf of Rashid Ali v. (against demolishing/ sealing order of Friends Petrol Pump (Shell) on plot No.PP-1, Survey No.35, Pakistan Employees Cooperative Housing Society, Shahrah--Quaideen, Karachi)] AND C.P.NO.422-K OF 2020, [Mst. Zahida Naz v. Province of Sindh and others (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, [Syed Masood Ahmed and others v. Federation of Pakistan and others (Defence Officers Housing Authority has been and its illegally converting various plots to used others than its original use)] AND C.P. NO.92-K OF 2010, [Karachi Chamber of Commerce and Industry v. Karachi Metropolitan Corporation and others (Conversion of residential land it 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, [Karachi Chamber of Commerce and Industry v. Karachi. Metropolitan Corporation and others (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 CRL.ORG. P.NO.19-K OF 2017 IN CRL.ORG.P.NO.7 OF 2017, [Ghulam Muhiyuddin v. Province of Sindh through Secretary Local Governmnet and others (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.MA NO.124-K OF 2017 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Muhammad Ismail Shaheedi v. (regarding lands illegally occupied by land grabbers in Karachi)] AND CRL. MA NO.132-K OF 2017 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Advocate-on-Record for the applicant Anjuman-e-Kalayna v. (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.MA 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 201g TN CRL.ORC.P.NO.7-K OF 2017, [Application for withdrawal filed by in person, namely, Anjuman-e- Sadat-e-Amroha through its President] AND CRL.MA NO.8-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed on behalf of Anjuman Sadat-e-­Amroha v. (for restraining from demolishing further construction stanton the applicant plot which was allotted by KDA to Anjuman on AND CRL.MA NO.19-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Mr. A.S.K. Ghori, Advocate-nn-Recordon behalf of applicant namely, Muhammad Jaffar v. (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, [Application for intervener filed by Muhammad Races v. (regarding encroachment on applicant's plot by construction boundary wall thereon by Mr. Hussain Rajpar, Land Grabber)] AND CRL.MA NO.72-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Mr. Mazhar Ali B.Chohan, Advocate-on-Record on behalf of Anjuman-e-Musalman-e-Kalayana v. (seeking direction to restrain KDA and SBCA not to demolish Girls College, Girls School, Coaching Centre and Medical Centre established on amenity plot)] AND C.M.A. NO.59-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Syed Arif Shah v. (encroachment on amenity plot allotted at Orangi for establishing Muslim Missionary College and Allied Institutions)] AND C.M.A. NO.349-K OF 2019, [Application for intervener filed on behalf of Public Interest Law Association of Pakistan v. (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, [Application for intervener filed by Muhammad Saleem Qureshi v. (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, [Application for intervener filed by Mrs. Mahamadi v. (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 C.M.A. NO.NIL OF 2020 IN C.M.A. NO.933-K OF 2019 IN CONST.P.NO.9 OF 2010, (Samira Mahamadi v. The Registrar, Supreme Court of Pakistan (for correction of order dated 13.08.2020)] AND C.M.A. NO.202-K OF 2020, [Application for intervener filed on behalf of AVA Aildeshir Cowasjee (regarding allotment of Plot No.9B, GKI, Ghulam Hussain Kasim Quarters Karachi, which was designated for the purpose of ejector sump pump by KW8&SB)] AND C.M.A. NO.281-K OF 2020, [Application for intervener filed on behalf of the Karachi Goan Association (Applicant has alleged that Plot No.J.M.1 /79, Jamshect Quarters, was allotted for Establishment of Gymkhana, but KIDCL has issued a letter for possession of said property for establishment of camp office for Green Line BRTS)] AND CRL.MA NO.32-K OF 2018, [Application for intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record (Applicant has paid all dues on account of a plot in new Malir Housing Scheme No.1, instead of issuing allotment order a notice recived to him for payment of Rs.40000, on objection he was intimated that said amount is required for grid station)] AND CRL. MA NO.1-K OF 2019, [Application for intervener filed by Mr. Mazhar Ali B. Chohan, Advocate-on-Record on behalf of Moulana Muhammad Ali Johar Memorial Cooperative Housing Society (seeking direction for removal of encroachment from the plot of applicant seciety i.e. Mollana Muhammad Ali Johar Memorial Cooperative Housing Society)] AND CRL. M.A. No.34-K/2020, [Application for intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of Messrs Fatima Jinnah Dental College and Hospital Trust (matter pertains to non-profitable educational institution/trust for ,Dental Collage/ Medical and Dispensary p-w-pose on plot No.AM/ 1 /B at Bhittai Colony "Amenity Plot"] AND C.M.A. No.761-K OF 2020, [Abdul Haq Abbasi v. Federation of Pakistan, etc. (matter regarding encroached over state property (i.e. Street/Road) situated at Sindh GOR-II, Muslim Society Karachi)] AND C.M.A. No.808-K of 2020 IN C.M.A. No.459-K of 2020, [Muhammad Ameer Shah v. Federation of Pakistaki and others (Applicant alleged that illegal occupants have encroached over 2000 million road at North Karachi which cause inconvenience to the peoples of said areas)] AND C.M. APPEAL NO.16 OF 2021 IN CONST.P.NO.9 OF 2010, [Haji Abdul Razziq Khan v. Federation of Pakistan and others (Applicant has alleged that some persons along with Society Member have encroached upon park and Club Land "Amenity Plot at PECHS")] AND C.M.A. NO.782-K OF 2021, [Malik Jameel Ali v. Federation of Pakistan and others (matter regarding Custom Preventive Service Cooperative Housing Society and removal of encroachment from Green Belt from parking area and service road)] AND C.P. NO.599-K OF 2021, [Mumtaz A. Qureshi v. The Province of Sindh and others (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.1014-K OF 2021, [Muhammad Kabeer Malik and others v. Province of Sindh and others (matter pertains to encroachment upon the gardens/parks, amenity plots, playground and Footpath in the city of Nawabshah/Sheheed Benazirabad)] AND VIA NO.966-K OF 2021 IN CRP NO.NIL-K OF 2021 IN CONST.P.NO.9 K OF 2010, it [Azhar Ahsan Thanvi v. Federation of Pakistan as others (matter regarding encroachment over Plot No.ST-14)] AND C.M.A. NO.1006-K OF 2021, [Azhar Ahsan Thanvi v. Federation of Pakistan and others (mattn- regarding encroachment over Plot No.ST-14)] AND C.M.A. NO.1040-K OF 2021, (Application for withdrawal of earlier) AND C.M.A. No.1006-K OF 2021, [Azhar Ahsan Thanvi v. Federation of Pakistan and others (matter regarding encroachment over Plot No.ST-14)] AND C.M.A. NO.971-K OF 2021 IN CRP NO.NIL-K OF 2021 IN CONST.P.NO.9 OF 2010, [Muhammad Khan Parhar and others. v. Federation of Pakistan and others (matter regarding encroachment over Plot No.ST-14)] AND CRL.ORG.P. NO.10-K OF 2021, [Muhammad Irfan v. Federation of Pakistan and others (matter regarding encroachment over 51 Plots of Gulistan-e-Johar)] AND C.M.A. NO.1097-K OF 2021, [Ideal (Private) Limited v. Federation of Pakistan (matter regarding encroachment over Amenity Plots and ST-13 on account of Sanad with respect of some Haji Ibrahim Panhwar Goth) (Korangi Industrial Area)] AND CRL.MA NO.71-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Muhammad Hussain, in person (against encroachment by the land grabber on 51 Plots of the applicant at Sector 51-C, Korangi Township, Karachi)] AND CRL.MA NO.95-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Imdad Hussain, applicant in person (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.MA NO.214-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, Application for intervener filed oy Salman Muhammad (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, (Application for intervener filed by Muhammad Farhan (against illegal demolition of the lawful construction on the plot owned by applicant, as it was offered by KDA illegally in compensation to Mst.Sabtha Parveen)] AND C.M.A. NO.521-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Murtaza Ali (regarding illegal encroachment on Plots No.33 and 34, PR-II, Preedy Quarters, Karachi)] AND C.M.A. NO.527-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Advocate Aqeel Hassan Khan (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, [Application for intervener filed on behalf of Ms.Muneera Khatoon (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, [Application for intervener filed by Khawaja Muhammad Asghar (regarding encroachment of Plots No.B-100 86B-113, Block-JO, Gulistan-e-Johar, Karachi)] AND C.M.A. NO.762-K OF 2020, [Syed Khurram Iqbal v. Federation of Pakistan and others (matter pertains to encroached land situated in Aligarh Muslim University Old Boys Cooperative Housing Society Ltd., Gulzar-e-Hijri Scheme No.33)] AND C.M.A. NO.425-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed on behalf of Muhammad Jibran Nasir and others (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 2010, [Mohammad Jibran Nasir 8; others. v. Mr. Habib ur Rehmari. Gillani and others (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.AP.NO.9 OF 2010, [Yousuf Masih v. Federation of Pakistan and others (regarding grievances of people of Salman Brohi Goth as they apprehend to be disposed/vacated from the land in question)] AND C.M.A. NO.82-K OF 2020, [Application for intervener filed by Syed Mehmood Akhtar Naqvi (regarding corruption allegations against mentioned officials of SBCA and highlighted the illegal construction. and encroachment certain areas of Karachi)] AND C.M.A. NO.336-K OF 2020 IN CONST.P.NO.9 OF 2010, [Mr. Imran Ayub Khan Advocate v. Federation of Pakistan others (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. [Syed Mehmood Akhtar Naqvi v. Qazi Shahid Pervaiz, Sr. Member Board of Revenue, Government of Sindh and others)] AND C.M.A. NO.510-K of 2021, [Muhammad Ashraf Samoo. v. Province of Sindh and others (applicant has pointed out various issues i.e, corruption, violation of fundamental rights etc.)] AND C.M.A. NO.300-K OF 2020 IN CONST.P.NO.9 OF 2010, [Niamatullah Khan Advocate v. Federation of Pakistan and others (statement of the amicus curiae from "Salahuddin Ahmed, Advocate Supreme Court)] AND C.M.A. NO.414-K OF 2020 IN CONST.P.NO.9 OF 2010, [Niamatullah Khan Advocate v. The Province of Sindh and another (for extension of time for compliance of orders)] AND REPORT NO.7-K OF 2021, [Report filed on behalf of Chief Minister, Sindh through Advocate-on-Record in compliance of Court order dated 09.05.2019 v. Federation of Pakistan and others)] AND REPORT NO.76-K OF 2021, [Report filed by on behalf of Chief Minister, Sindh through Advocate-on-Record, Shehri. and others v. Naimatullah Khan and others], decided on 24th November, 2021.

(a) Constitution of Pakistan---

----Art. 184(3)---Matter relating to construction of fifteen storey "Nasla Tower" built illegally on encroached land meant for a service road---Demolition of said tower on the directions of the Supreme Court---Concerned Commissioner had been directed to immediately commence the demolition work of the tower and achieve the total demolition thereof and clearance of debris as soon as possible---Commissioner submitted a report in court regarding demolition of the tower---Supreme Court observed that the said report was altogether unsatisfactory and was rejected; that the Commissioner had not complied with the one weeks' time line given by the Supreme Court for demolition of the building, which merited action against the Commissioner for defiance of the Court's orders---Supreme Court directed that the Commissioner shall ensure that compliance of the Court's orders regarding demolition of the building was made.

(b) Constitution of Pakistan---

----Art. 184(3)---Matter relating demolition of a multi-storey building "Tejori Heights" built on land ownership for which could not prove by its builders---Demolition of said building on the directions of the Supreme Court---Although the concerned Commissioner stated that the building had been demolished but no report had been submitted by the Commissioner nor the requisite record pertaining to taking away of the files by the builder from its office premises located at Tejori Heights, had been filed before the Court---Supreme Court directed that the Commissioner shall submit the report and shall also be present in Court on the next date of hearing; that the photographs showing that Tejori Heights had been demolished shall be attached by the Commissioner.

(c) Constitution of Pakistan---

----Art. 184(3)---Matters relating to a private club built on Civil Aviation's Authority's land; encroachment upon different lands in Karachi city meant for parks and playgrounds; plots belonging to Karachi Cooperative Housing Societies Union shown as amenity plots in the original layout plan allotted/leased out by the Union to private persons for commercial exploitation; construction of a multi-storey building "Al-Bari Towers on land meant for parks/playgrounds; amenity plot by the name of 'Gutter Baghiacha" meant for building a park illegally allotted/transferred to KMC Cooperative Housing Society for making a housing society; restoration of four lakes in Karachi city including two in Jheel park---Supreme Court issued relevant directions to the concerned authorities and officials to file their reports with regard to the matters highlighted and also directed some officials to appear before the Court on the next date of hearing to address the matters.

(d) Cantonments Act (II of 1924)---

----S. 3(1)---Cantonment Land Administration Rules, 1937, Chapt. V---Cantonment land---Purpose---Cantonments' lands, which were allotted or leased by the Federal Government or the Provincial Government were meant to be used as strategic lands for defence purposes and its activities---Nature of land and its title, apparently, could not be changed and given a private status---Conversion of cantonment land into private land, seemed contrary to the very mandate of the Cantonments Act, 1924 and the Land Administration Control Rules, 1937 and was also in violation of the Constitutional provisions---If any law or rule was made contrary to such mandate, the same would be ultra vires the Cantonments Act, 1924 and the Constitution.

In attendance:

Muhammad Iqbal Memon, Commissioner Karachi, Khaqan Murtaaza, DG CAA, Shakeel Ahmed Durrani, Addl.D.G.FIA Karachi South, Khalid Mehmood Siddiqi, Advocate Supreme Court, Ms. Ambar Alibhai and Sheri Citizen. Murtaza Wahab, Adminstrator KMC.

Haji Abdul Raziq, (Applicant in C.M.A.-21 16/21).

Raja Qasit Nawaz Khan Advocate Supreme Court for Messrs Bahaduryar for Jang Cooperative Housing Society.

Abdul Sattar Pirzada Advocate Supreme Court (in C.M.A. 522-K/ 2020).

Asif Ali Memon, DG KDA, Adil Rafi, Director Military Lands, Abdul Haleem Jagrani, Administrator DMC West, Muhammad Waseem Soomro, MC Commissioner West, Rehmat Ali Shaikh, Administrator DMC East, M. Faheem Khan, MC Commissioner East, Dr. Afsheen Rubab, Administrator DMC South and Akhtar Ali Shaikh, MC Commissioner South.

Abid S. Zubari, Advocate Supreme Court with K.A. Wahab, Advocate-on-Record, Anwar Mansoor Khan, Senior Advocate Supreme Court, Ms. Umaimah Anwar Khan, Advocate Supreme Court, Syed Ashikue Raza, Advocate Supreme Court with Ms. Abida Parveen Channar, Advocate-on-Record, Raja Qasit Nawaz Khan Advocate Supreme Court with Abdul Qadir Khan, Advocate-on-Record, Khawaja Shams-ul-Islam, Advocate Supreme Court, Mazhar Ali B. Chohan, Advocate-on-Record/Advocate Supreme Court, Syed Abdul Waheed, Advocate Supreme Court, Muhammad Ashraf Samoo, Advocate Supreme Court, Badar Alam, Senior Advocate Supreme Court, Khalid Mehmood Siddiqui, Advocate Supreme Court, Dr. Raana Khan, Advocate-on-Record, Mst. Sabiha Parveen, Syeda Maria Raza, Ijaz Hussain Jakhrani, Sajjad Hussain Jakhrani, Abdul Sattar Pirzada, Advocate Supreme Court, Muhammad Sohail Hayat Khan, Advocate Supreme Court, Khawaja Naveed Ahmed, Advocate Supreme Court, Ms. Maliha Malik, Muhammad Saleem Mangrio, Advocate Supreme Court, Salahuddin Ahmed, Advocate Supreme Court, Asim Iqbal Advocate Supreme Court along with Akhtar Hussain, Advocate Supreme Court, Mukesh Kumar G. Karara, Advocate Supreme Court, Khalid Javed, Advocate Supreme Court along with Aslam Abro, Arshad M. Tayyabali, Advocate Supreme Court, Ms. Razia Danish, Advocate Supreme Court, Ghulam Rasool Mangi, Advocate-on-REcord and Syed Ali Zafar, Advocate Supreme Court VL Lahore for Petitioners/Appellants.

Kashif Sarwar Paracha, Additiona A.G.P. on Court's Notice for the Federations.

Salman Talib ud Din, Advocate General, Sindh, Saulat Rizvi, Additional A.G. Sindh, Dr. Saeed Ahmed Qureshi, Focal Person to Chief Secretary, Mazhar Hussain Alvi, AIG Legal and Najam Ahmed Shah, Secretary Local Government for the Government of Sindh.

Babar Ali, Advocate Supreme Court for F.W.O.

Habib ur Rehman Gillani, Secretary Railways, Ameer Muhammad Da.udpota, D.G. Rao Waqar Ahmed, DS for Pakistan Railways.

Assad Ullah Khan, M.D. for KWSB.

M. Idrees Mahsud, Member for NDMA.

Faizsan Haidar Shah Director Tech. for WAPDA.

Ghulam Nabi Karejo, SSP (South) for Traffic Police.

Karam Din Junejo, Nazir, 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 and Faisal Qazi Rizwan Ahmed, CEO, Karachi, Cantonment for Cantonments.

2022 S C M R 171

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

NIAMATULLAH KHAN ADVOCATE and others---Petitioners/Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

CONST. PETITION NO.9 OF 2010, [Niamatullah Khan Advocate v. Federation of Pakistan and others] AND CRIMINAL ORIG. PETITION NO.7-K OF 2017, [Mst. Sahiba Parveen v. Syed Nasir Abbas, Director General, KDA and others (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 CRIMINAL ORIGINAL PETITION NO. 9-K OF 2021, [Syeda Maria Raza v. Government of Sindh through Chief Secretary Sindh and others (regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)] AND C.M.A. NO.441-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others (matter regarding illegal Faiz Muhammad v. Province of Sindh through Chief Secretary and others (regarding illegal encroachment over, drainage river of Haji Limo Village at Gulshan-e-Iqbaf.)] AND C.M.A. No.1083-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others (For seeking direction for removal of encroachment on Gujjar Nalla and Orangi Nala)] AND C.M.A. No.1112-K OF 2021 IN C.R.P. NO.61-K OF 2021. [Shehri and others v. Niamatuliah Khan and others (Matter regarding encroachment over Gujjar Nalla and Orngi Nalla)] AND C.M.A. No.774-K OF 2021, [Civil Aviation Authority v. Federation of Pakistan and others (Applicant has alleged that Government of Sindh has allotted 209 acres land in 1990 to CAA for construction of new Airport but some officials of GOS are illegally allotting and creating Surveys Nos. from said land)] AND C.M.A. No.522-K OF 2020 IN CONST. P. No.9 OF 2010, [Waleed Ahmed and others v. Federation of Pakistan and others (Plot Nos.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 CRL.M.A. No.59-K OF 2018, [Application for Intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of applicant namely, Shah Mohammad (against encroachment made around Ziauddin Hospital, Clifton Karachi by its management and false cases registered against applicant)] AND C.M.A. No.1062-K OF 2021, [Dr. Sadia Rasool Virk v. Federation of Pakistan and others (Reply to Show Cuase Notice on behalf of South City Hospital)] AND C.M.A. No.1064-K OF 2021, [Messrs SouthCityHospital (Pvt.) Limited v. Federation of Pakistan and others (Reply to Show Cause Notice on behalf of South City Hospital)] AND C.M.A. NO.941-K OF 2020, [Niamatullah Khan Advocate v. ederation of Pakistan and others (regarding encroachment in Jacobabad at various government lands i.e. amenities, parks etc. by influential persons)] AND C.M.A. NO.NO.1114-K OF 2021, [Ms. Maliha Malik v. Federation of Pakistan (statement of Mr. Aijaz Hussain Jakhrani and Sajjad Hussain Jakhrani)] AND C.M.A. No.775-K OF 2021, [Muhammad Akram Abro v. Federation of Pakistan and others (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 C.M.A. NO.698-K OF 2021, [Messrs A.A. Joy Land (Pvt.) Ltd. v. Federation of Pakistan and others (matter pertains to Aladin Park)] AND C.M.A. No.1000-K OF 2021, [Niamatullah Khan and others. v. Federation of Pakistan and others (matter regarding Aladin Park)] AND C.M.A. No.74-K OF 2020 IN CONST. P. No.9 OF 2010, [Application for intervener filed on behalf of Sindh High Court Bar Association through its Honourary Secretary (regarding parking space at High Court of Sindh)] AND C.M.A. NO.86-K OF 2020 IN CONST.P.NO.9 OF 2010, [Messrs Ishaq Enterprises v. Federation of Pakistan and others (concise statement with regard to allotment of COMM-3)] AND C.M.A. No.711-K OF 2020 IN CONST.P. NO.9 OF 2010, [Messrs Ishaq Enterprises v. Federation of Pakistan and others (objecti filed on C.M.A. No.86-K of 2020)] AND CRP NO.57-K OF 2021, [Asian Pacific Alliance of YMCAs v. Federation of Pakistan and othe (matter pertains to YMCA Ground)] AND CRL.ORG.P.NO.8-K OF 2021, [Abu Turab v. Syed Mumtaz Ali Shah and others (matter regarding Kidney Hill Land)] AND C.M.A. NO.391-K OF 2020 IN CONST.P.NO.9 OF 2010, [Abu Turab v. Federation of Pakistan and others (regarding illegal consttuctions 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, [Niamatullah Khan v. Federation of Pakistan and others (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, [Mr. Ibrahim Younus and other:;. v. Federation of Pakistan and others (Kidney Hill Park Land)] AND C.M.A. NO.437-K OF 2021, [Niamatullah Khan v. Federation of Pakistan and others (matter , regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND C.M.A. NO.438-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others (matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND C.M.A. NO.515-K OF 2021, (Ibrar Hassan v. Federation of Pakistan and others (matter pertains to Kidney Hill Park)] AND CRL.ORG.P.NO.13-K OF 2021, [Mrs: Gul Nilofer and another v. Major (R) Naveed Ahmed Khan and others] AND CRL.ORG.P.NO.14-K OF 2021, [Mrs. Shabnum Humayun v. Federation of Pakistan and others (matter regarding Hill Park)] AND CRL.MA NO.229-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record on behalf of KDA Officer Club (Against illegal and unconstitutional partial demolition on the premises of the applicant at Plot No.ST-6, Of Kashmir Road, Karachi)] AND C.M.A. NO.621-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others. (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, [Application for intervener IV ed by Syed Muhammad Iqbai. Kazmi. (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, [Shamim Ahmed Siddiqui `s. Federation of Pakistan and others (regarding encroachment over railway land/Safari Pazk)] AND C.M.A. NO.177-K OF 2020, ---rnpplication for intervener filed by Farhad Younus Memon. (The matter regarding 650 cciistructed Houses in Project No.7 (PRECHS) near Gillani Station Gulshan-e-Iqbal, Karachi] AND C.M.A.. NO.898-K OF 2020, [Pakistan Railways through Divisional Superintendent v.Federation of Pakistan and others (matter regarding encroachment over Pakistan Railway Land and Revival of KCR)] AND C.M.A. NO.1124-K OF 2021 IN C.R.P. NIL-K OF 2021 IN C.M.A. NO.277-K OF 2021 IN C.R.P. NIL-K OF 2021 IN C.M.A. NO.898-K OF 2021, [Federation of Pakistan through Secretary/ Chairman Railways v. Messrs Karachi Town Builders (regarding encroachment over PakistanRailwayLand and revival of KCR) (Tejori Heights/Tower)] AND C.M.A. NO.541-K OF 2020, [Muhammad Ahmed Khan and others. v. Federation of Pakistan and others (matter regarding Pakistan Railway Employees Cooperative Housing Society))] AND C.M.A. NO.630-K OF 2020, [Pakistan Railway Employees Cooperative Housing Society Limited v. Federation of Pakistan and others (the matter pertains to encroachment over RailwayLand on account of Railway Cooperative Housing Society)] AND C.M.A. NO.1110-K OF 2021, [Application on behalf of Divisional Superintendent through Deputy Director Railways against Messrs Labaik CNG Station Hyderabad and others (matter regarding encroachment over Railway's land at Hyderabad)] AND C.M. APPEAL NO.37 OF 2021 IN CRP NO.7-K OF 2020 IN C.M.A. NO.690-K OF 201,9 IN CONST.P.NO.9 OF 2010, [Messrs Quality Builders v. Federation of Pakistan and others (for grant of time to remove and take away the materials from building)] AND C.M.A. NO.1004-K OF 2021, [Muhammad Zohaib Ather v. Federation of Pakistan and others (Matter regarding Royal Pak Project)] AND C.M.A. NO.770-K OF 2020, [Matter regarding non-supply of water through already decided water lines in DHA, Karachi] AND 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, [Application for intervener filed by Mrs. Nelofar Abbasey v. (illegal construction is carried out by King Builders over Private Park/Amenity Plot] AND C.M.A. NO.78-K OF 2020 IN CONST. P. NO.9 OF 2010, [Application for intervener filed on behalf of Muhammad Talha and Mansoor Sharif Hamid v. (regarding high rise building on amenity plot)] AND C.M.A. NO.523-K OF 2020 IN CONST.P.NO.9 OF 2010, [Muhammad Waseem Samoo v. Federation of Pakistan and others (matter regarding King Cottage Bagh-e-Qamar situated at Scheme No.36, Gulshan-e-Johar, Karachi)] AND C.M.A. NO.83-K OF 2020 IN CONST.P.NO.9 OF 2010, [Application for intervener filed on behalf of Pakistan Mercantile Exchange Ltd. And NCEL Building Management Ltd. v. (regarding Hyatt Pegency Hotel)] AND C.M.A. NO.512-K OF 2020 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Mst.Yasmeen Lari (regarding Karachi Gymkhana)] AND C.M.A. NO.594 K OF 2020 IN CONST.P.NO.9 OF 2010, [Messrs Madrasa Tahfeezul Quraan Al Karim v. Federation of Pakistan and others (matter regarding illegally constructed 18 floor building in a very sensitive area near Police Head Quarter at Garden Area)] AND C.M.A. NO.617-K OF 2019 IN CONST.P.NO.9 OF 2010 [Application for intervener filed bv Venu G. Advani (illegal conversion of plot from residential into commercial locals Block 4, Scheme-5, Clifton Karachi)] AND C.M.A. NO.889-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed on behalf of Pakistan Post through Postmaster General, Karachi v. (regarding ownership of P and T Colony also declared as Katchi Abadi)] AND CRP NO.28-K OF 2020 IN CONST.P.NO.9 OF 2010, [K-Electric Limited v. Federation of Pakistan and others (matter regarding fatal incidents resulting from electrocution in the service territory of K-Electric)] AND C.M.A. NO.1037-K OF 2021, [Naveed Ahmed Khan v. Federation of Pakistan and others (illegal usage of land of Askari Park for Commercial Activities and Marriage Hall)] AND C.M.A. NO.1095-K OF 2021, [Muhammad Imran v. Federation of Pakistan and others (matter regarding Food Street at Burns Road)] AND C.M.A. 140.1123-K OF 2021, [Kelash Kumar v. Federation of Pakistan and others (matter regarding encroachment over Hindu Temples/Mandirs)] AND C.M.A. NO.940-K OF 2020, [Muhammad Yousaf v. Federation f Pakistan and others (regarding ntSugarcane Crushing MachiJ.,e situated at Hasrat Mohani Road, near Cafe Victory, Karachi)] AND CRL. M.A.121-K OF 2017 IN CRL.ORG,P.NO.7-K OF 2017, [Application for intervener filed by Muhammad Essa v. (60 Feets land reserved for Bus Stop divided into 80 Sq. Yd. Plots-China Cutting Plot)] AND CRL.MA NO.38-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, . [Application for intervener filed by applicant namely, Akbar Hussain v. (against China Cutting of plots by manipulated documents of Plot No.R-160/4 86R-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, [Application for intervener filed by Porf. Dr. Muhammad Shahid Hussain v. (encroachment over public road in between St.6 to St.8, Gulshan-e-Iqbal, Block 4, KDA, Scheme-24, Karachi)] AND C.M.A. NO.179-K OF 2020, [Application for intervener filed on behalf of Rashid Ali v. (against demolishing/ sealing order of Friends Petrol Pump (Shell) on plot No.PP-1, Survey No.35, Pakistan Employees Cooperative Housing Society, Shahrah--Quaideen, Karachi)] AND C.P.NO.422-K OF 2020, [Mst. Zahida Naz v. Province of Sindh and others (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, [Syed Masood Ahmed and others v. Federation of Pakistan and others (Defence Officers Housing Authority has been and its illegally converting various plots to used others than its original use)] AND C.P. NO.92-K OF 2010, [Karachi Chamber of Commerce and Industry v. Karachi Metropolitan Corporation and others (Conversion of residential land it 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, [Karachi Chamber of Commerce and Industry v. Karachi. Metropolitan Corporation and others (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 CRL.ORG.P.NO.19-K OF 2017 IN CRL.ORG.P.NO.7 OF 2017, [Ghulam Muhiyuddin v. Province of Sindh through Secretary Local Governmnet and others (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.MA NO.124-K OF 2017 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Muhammad Ismail Shaheedi v. (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, [Application for intervener filed by Advocate-on-Record for the applicant Anjuman-e-Kalayna v. (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.MA 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 201g TN CRL.ORC.P.NO.7-K OF 2017, [Application for withdrawal filed by in person, namely, Anjuman-e-Sadat-e-Amroha through its President] AND CRL.MA NO.8-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed on behalf of Anjuman Sadat-e-­Amroha v. (for restraining from demolishing further construction stanton the applicant plot which was allotted by KDA to Anjuman on AND CRL.MA NO.19-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Mr. A.S.K. Ghori, Advocate-nn-Recordon behalf of applicant namely, Muhammad Jaffar v. (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. MA NO.20-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Muhammad Races v. (regarding encroachment on applicant's plot by construction boundary wall thereon by Mr. Hussain Rajpar, Land Grabber)] AND CRL.MA NO.72-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Mr. Mazhar Ali B.Chohan, Advocate-on-Record on behalf of Anjuman-e-Musalman-e-Kalayana v. (seeking direction to restrain KDA and SBCA not to demolish Girls College, Girls School, Coaching Centre and Medical Centre established on amenity plot)] AND C.M.A. NO.59-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Syed Arif Shah v. (encroachment on amenity plot allotted at Orangi for establishing Muslim Missionary College and Allied Institutions)] AND C.M.A. NO.349-K OF 2019, [Application for intervener filed on behalf of Public Interest Law Association of Pakistan v. (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, [Application for intervener filed by Muhammad Saleem Qureshi v. (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, [Application for intervener filed by Mrs. Mahamadi v. (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 C.M.A. NO.NIL OF 2020 IN C.M.A. NO.933-K OF 2019 IN CONST.P.NO.9 OF 2010, (Samira Mahamadi v. The Registrar, Supreme Court of Pakistan (for correction of order dated 13.08.2020)] AND C.M.A. NO.202-K OF 2020, [Application for intervener filed on behalf of AVA Aildeshir Cowasjee (regarding allotment of Plot No.9B, GKI, Ghulam Hussain Kasim Quarters Karachi, which was designated for the purpose of ejector sump pump by KW8&SB)] AND C.M.A. NO.281-K OF 2020, [Application for intervener filed on behalf of the Karachi Goan Association (Applicant has alleged that Plot No.J.M.1 /79, Jamshect Quarters, was allotted for Establishment of Gymkhana, but KIDCL has issued a letter for possession of said property for establishment of camp office for Green Line BRTS)] AND CRL.MA NO.32-K OF 2018, [Application for intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record (Applicant has paid all dues on account of a plot in new Malir Housing Scheme No.1, instead of issuing allotment order a notice recived to him for payment of Rs.40000, on objection he was intimated that said amount is required for grid station)] AND CRL. MA NO.1-K OF 2019, [Application for intervener filed by Mr. Mazhar Ali B. Chohan, Advocate-on-Record on behalf of Moulana Muhammad Ali Johar Memorial Cooperative Housing Society (seeking direction for removal of encroachment from the plot of applicant seciety i.e. Mollana Muhammad Ali Johar Memorial Cooperative Housing Society)] AND CRL. M.A. No.34-K/2020, [Application for intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of Messrs Fatima Jinnah Dental College and Hospital Trust (matter pertains to non-profitable educational institution/trust for ,Dental Collage/Medical and Dispensary p-w-pose on plot No.AM/ 1 /B at Bhittai Colony "Amenity Plot"] AND C.M.A. No.761-K OF 2020, [Abdul Haq Abbasi v. Federation of Pakistan, etc. (matter regarding encroached over state property (i.e. Street/Road) situated at Sindh GOR-II, Muslim Society Karachi)] AND C.M.A. No.808-K of 2020 IN C.M.A. No.459-K of 2020, [Muhammad Ameer Shah v. Federation of Pakistaki and others (Applicant alleged that illegal occupants have encroached over 2000 million road at North Karachi which cause inconvenience to the peoples of said areas)] AND C.M. APPEAL NO.16 OF 2021 IN CONST.P.NO.9 OF 2010, [Haji Abdul Razziq Khan v. Federation of Pakistan and others (Applicant has alleged that some persons along with Society Member have encroached upon park and Club Land "Amenity Plot at PECHS")] AND C.M.A. NO.782-K OF 2021, [Malik Jameel Ali v. Federation of Pakistan and others (matter regarding Custom Preventive Service Cooperative Housing Society and removal of encroachment from Green Belt from parking area and service road)] AND C.P. NO.599-K OF 2021, [Mumtaz A. Qureshi v. The Province of Sindh and others (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.1014-K OF 2021, [Muhammad Kabeer Malik and others v. Province of Sindh and others (matter pertains to encroachment upon the gardens/parks, amenity plots, playground and Footpath in the city of Nawabshah/Sheheed Benazirabad)] AND VIA NO.966-K OF 2021 IN CRP NO.NIL-K OF 2021 IN CONST.P.NO.9 K OF 2010, it [Azhar Ahsan Thanvi v. Federation of Pakistan as others (matter regarding encroachment over Plot No.ST-14)] AND C.M.A. NO.1006-K OF 2021, [Azhar Ahsan Thanvi v. Federation of Pakistan and others (mattn- regarding encroachment over Plot No.ST-14)] AND C.M.A. NO.1040-K OF 2021, (Application for withdrawal of earlier) AND C.M.A. No.1006-K OF 2021, [Azhar Ahsan Thanvi v. Federation of Pakistan and others (matter regarding encroachment over Plot No.ST-14)] AND C.M.A. NO.971-K OF 2021 IN CRP NO.NIL-K OF 2021 IN CONST.P.NO.9 OF 2010, [Muhammad Khan Parhar and others. v. Federation of Pakistan and others (matter regarding encroachment over Plot No.ST-14)] AND CRL.ORG.P. NO.10-K OF 2021, [Muhammad Irfan v. Federation of Pakistan and others (matter regarding encroachment over 51 Plots of Gulistan-e-Johar)] AND C.M.A. NO.1097-K OF 2021, [Ideal (Private) Limited v. Federation of Pakistan (matter regarding encroachment over Amenity Plots and ST-13 on account of Sanad with respect of some Haji Ibrahim Panhwar Goth) (Korangi Industrial Area)] AND CRL.MA NO.71-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Muhammad Hussain, in person (against encroachment by the land grabber on 51 Plots of the applicant at Sector 51-C, Korangi Township, Karachi)] AND CRL.MA NO.95-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Imdad Hussain, applicant in person (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.MA NO.214-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, Application for intervener filed oy Salman Muhammad (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, (Application for intervener filed by Muhammad Farhan (against illegal demolition of the lawful construction on the plot owned by applicant, as it was offered by KDA illegally in compensation to Mst.Sabtha Parveen)] AND C.M.A. NO.521-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Murtaza Ali (regarding illegal encroachment on Plots No.33 and 34, PR-II, Preedy Quarters, Karachi)] AND C.M.A. NO.527-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Advocate Aqeel Hassan Khan (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, [Application for intervener filed on behalf of Ms.Muneera Khatoon (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, [Application for intervener filed by Khawaja Muhammad Asghar (regarding encroachment of Plots No.B-100 86B-113, Block-JO, Gulistan-e-Johar, Karachi)] AND C.M.A. NO.762-K OF 2020, [Syed Khurram Iqbal v. Federation of Pakistan and others (matter pertains to encroached land situated in Aligarh Muslim University Old Boys Cooperative Housing Society Ltd., Gulzar-e-Hijri Scheme No.33)] AND C.M.A. NO.425-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed on behalf of Muhammad Jibran Nasir and others (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 2010, [Mohammad Jibran Nasir 8; others. v. Mr. Habib ur Rehmari. Gillani and others (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.AP.NO.9 OF 2010, [Yousuf Masih v. Federation of Pakistan and others (regarding grievances of people of Salman Brohi Goth as they apprehend to be disposed/vacated from the land in question)] AND C.M.A. NO.82-K OF 2020, [Application for intervener filed by Syed Mehmood Akhtar Naqvi (regarding corruption allegations against mentioned officials of SBCA and highlighted the illegal construction. and encroachment certain areas of Karachi)] AND C.M.A. NO.336-K OF 2020 IN CONST.P.NO.9 OF 2010, [Mr. Imran Ayub Khan Advocate v. Federation of Pakistan others (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. [Syed Mehmood Akhtar Naqvi v. Qazi Shahid Pervaiz, Sr. Member Board of Revenue, Government of Sindh and others)] AND C.M.A. NO.510-K of 2021, [Muhammad Ashraf Samoo. v. Province of Sindh and others (applicant has pointed out various issues i.e, corruption, violation of fundamental rights etc.)] AND C.M.A. NO.300-K OF 2020 IN CONST.P.NO.9 OF 2010, [Niamatullah Khan Advocate v. Federation of Pakistan and others (statement of the amicus curiae from "Salahuddin Ahmed, Advocate Supreme Court)] AND C.M.A. NO.414-K OF 2020 IN CONST.P.NO.9 OF 2010, [Niamatullah Khan Advocate v. The Province of Sindh and another (for extension of time for compliance of orders)] AND REPORT NO.7-K OF 2021, [Report filed on behalf of Chief Minister, Sindh through Advocate-on-Record in compliance of Court order dated 09.05.2019 v. Federation of Pakistan and others)] AND REPORT NO.76-K OF 2021, [Report filed by on behalf of Chief Minister, Sindh through Advocate-on-Record, Shehri. and others v. Naimatullah Khan and others], decided on 26th November, 2021.

(a) Constitution of Pakistan---

----Art. 184(3)---Matters relating to clearing encroachments upon land belonging to Civil Aviation Authority; plots belonging to Karachi Cooperative Housing Societies Union meant for amenity purposes i.e. for use of school and public park illegally allotted/leased out by the Union to private persons by tampering of original layout plan; construction of a multi-storey building "Al-Bari Towers on land meant for parks/playgrounds; progress of demolition work of "Nasla Tower" built illegally on encroached land; removal of debris from demolition of illegally built multi-storey building "Tejori Heights"; illegal commercial use of Cantonments' lands and restoration of such lands for strategic and defence purposes only---Supreme Court issued relevant directions to the concerned authorities and officials to file their progress reports with regard to the matters highlighted and also directed some of the officials to appear before the Court on the next date of hearing to address the matters.

(b) Allotment---

----Housing society---Original master plan/layout plan---Amenity plots---Once layout plan was prepared, in which amenities were provided, such amenities could not be removed or altered/converted into private buildings or used for commercial purposes---Members of the society acquired vested rights in the amenities provided in the society and those could not be taken away or allotted for any purposes other than those shown in the original master plan---Land meant for amenities and for parks and play grounds could not be legally and justifiably allotted to private persons for their exploitation as a commercial venture or for residential purposes.

In attendance:

Muhammad Iqbal Menion, Commissioner Karachi, Imran Khan, APM JIAP, CAA, Shakeel Ahmed Durrani, Additional D.G.FIA Karachi South, Kh. Shamas ul Islam, Advocate Supreme Court, Khalid Mehmood Siddiqui, Advocate Supreme Court, Ms. Ambar Alibhai, Sheri Citizen, Waqar Alam, President Karachi Cooperative Housing Society, Junaid Makda, one of the lessees, Haji Abdul Raziq, Applicant in C.M.A. 16/21, Raja Qasit Nawaz Khan, Advocate Supreme Court for Messrs Bahaduryar Jang Cooperative Housing Society, Imran Zaib, Federal Secretary, Ministry of Housing and Works, Asif Ali Memon, DG KDA, Abdul Haleem Jagrani, Administrator DMC West, Rashid A. Rizvi, Senior Advocate Supreme Court, Mian Raza Rabbani, Advocate Supreme Court, General Hilal Hussain, Secretary Ministry of Defence and Akhtar Ali Shaikh, MC Commissioner South, Anwar Mansoor Khan, Senior Advocate Supreme Court, Ms. Umaimah Anwar Khan; Advocate Supreme Court, Syed Ashikue Raza, Advocate Supreme Court with Ms. Abida Parveen Channar, Advocate-on-Record, Raja Qasit Nawaz, Advocate Supreme Court with Sajeel Shehryar Swab, Advocate Supreme Court, Syed Abdul Waheed, Advocate Supreme Court, Muhammad Ashraf Samoo, Advocate Supreme Court, Dr. Raana Khan, Advocate-on-Record (for KMC/SBCA), Mst. Sabiha Parveen in person, Syeda Maria Raja in person, Muhammad Sohail Hayat Khan, Advocate Supreme Court, Ms. Abida Parveen Channar, Advocate-on-Record, Ms. Maliha Malik in person, Muhammad Saleem Mangrio, Advocate Supreme Court, Salahuddin Ahmed, Advocate Supreme Court, Asim Iqbal, Advocate Supreme Court along with Akhtar Hussain, Advocate Supreme Court, Mukesh Kumar G. Karara, Advocate Supreme Court, Khalid Javed, Advocate Supreme Court, Aslam Abro, Arshad M. Tayyabali, Advocate Supreme Court, Zakir Hussain Khan Kheli, Advocate Supreme Court, Ghulam Rasool Mangi, Advocate-on-Record and Ch. Muhammad Iqbal, Advocate Supreme Court for the Petitioners/Applicants.

Kashif Sarwar Paracha, Additional A.G.P. for the Federation on Court's Notice.

Salman Talib ud Din, Advocate Genetal, Sindh, Sibtain Mehmood, Additional A.G. Sindh, Dr. Saeed Ahmed Qureshi, Focal Person to Chief Secretary, Mizhar Hussain Alvi, AIG Legal and Najam Ahmed Shah, Secretary Local Government for Government of Sindh.

Babar Ali, Advocate Supreme Court for F.W.O.

Assad Ullah Khan, M.D. for KWSB.

M. Idrees Mahsud, Member for NDMA.

Faizsan Haidar Shah Director Tech. for WAPDA.

Ghulam Nabi Karejo, SSP (South) for Traffic Police.

Karam Din Junejo, Nazir, High Court of Sindh.

Umar Lakhani, Advocate Supreme Court, Murtaza Wahab, Administrator, Azra Muqeem, Legal Advisor and Afzal Zaidi, M/C 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 Qazi Rizwan Ahmed, CEO, Karachi Cantonment and Haider Sial, CEO, Malir and Umair Mehboob, CEO Manora for Cantonments.

2022 S C M R 186

[Supreme Court of Pakistan]

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

SHER AFZAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1017 of 2020, decided on 12th November, 2021.

(Against order dated 05.08.2020 passed by Lahore High Court, Rawalpindi Bench in Criminal Misc. No. 1378-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---In the crime report two of the co-accused persons were alleged to have resorted to indiscriminate firing during the occurrence causing death of two persons, whereas accused was nominated with the allegation of raising "lalkara" and kicking the dead bodies after the occurrence---Close scrutiny of the accusation levelled by the prosecution revealed that no overt-act was ascribed to the accused except the proverbial lalkara---Question which required determination was whether the "lalkara" raised by the accused was commanding in nature or was it a mere a proverbial "lalkara" --- Furthermore the accused was aged about 65 years and he was also suffering from ailment---One of the co-accused with similar allegations as the accused was extended pre-arrest bail, hence accused was entitled for the same---Case of accused was one of further inquiry entitling him for concession of bail---Petition for leave to appeal was converted into appeal and allowed and accused was released on bail.

Muhammad Ikhlaque Awan, Advocate Supreme Court for Petitioner.

Muhammad Usman, DPG for the State.

Nemo for the Complainant.

2022 S C M R 189

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

PRINCIPAL PUBLIC SCHOOL SANGOTA, GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others…Appellants

Versus

SARBILAND and others---Petitioners

Civil Appeals Nos.71-P and 864 of 2014, decided on 26th November, 2011.

(Against the judgment dated 22.04.2014 passed by Peshawar High Court, Mingora Bench, Dar ul Qaza, Swat in C.R. No.737-M of 2012)

(a) Limitation Act (IX of 1908)---

----Ss. 3 & 5---Supreme Court Rules, 1980, O. XI, R. 2---Constitution of Pakistan, Arts. 185(2)(d), 185(2)(e) & 185(3)---Two appeals filed before the Supreme Court on the same subject matter, with one filed within the prescribed period of limitation and the other outside---Dispute between plaintiffs and Provincial Government over ownership of land that was in possession of a school---Provincial Government and school filing separate appeals before the Supreme Court against impugned judgment of the High Court, whereby the suit of plaintiffs had been decreed---Appeal filed by school was within the prescribed period of 30 days, however the appeal by the Provincial Government was filed belated with a delay of 19 days with the plea that Provincial Government was under a misapprehension that a petition for leave to appeal, and not an appeal, had to be filed to challenge the impugned judgment of the High Court---Held, that the High Court had set aside the judgment of the Appellate Court, which clearly meant that an appeal lay which had to be filed within thirty days, but this was not done---Provincial Government was supposed to know the law of the country, especially something as basic as the prescribed time period within which an appeal needed to be filed---On the other hand the school knew the law and were vigilant; it filed an appeal within time to protect their interest and the interest of the children studying in the school---Reason given by the Provincial Government to condone the delay did not behoove the Government and the highest law office of the Province---However, since both appeals arose from the same impugned judgment then, even if the appeal filed by the Provincial Government was dismissed because it was belatedly filed, the appeal filed by the school was maintainable and needed consideration.

(b) Constitution of Pakistan---

-----Arts. 9, 25 & 25-A-----Education in Islam---Importance---Dispute over of land in possession of a school---Suit decreed against the Provincial Government and the school---Provincial Government filing appeal before the Supreme Court belatedly---Observations recorded by the Supreme Court highlighting the gross neglect and incompetence of the Provincial Government and the importance of education in Islam.

The failure to file an appeal (before the Supreme Court) within the prescribed period of thirty days reflected the (Provincial) Government's ineptitude in not protecting public property but also its disdain towards the beneficiaries of the school, the local children who studied in the school. The school was situated in the troubled Swat region of the country which had suffered inequities at the hands of those who opposed the education of girls, had resorted to violence, attacked schools, forced schools to shut down and attacked school-going children. The school was the only all-girls school in Swat and it was educating over a thousand girls. The school was bombed by terrorists and remained closed for about five years due to terrorist activity in Swat. The Government's gross incompetence and neglect in filing a timely appeal may have achieved the very same result which the rampaging terrorists had achieved, which is the forced closure of the School.

The first command from Almighty Allah to Prophet Muhammad (peace and blessings be upon him), and through him to humanity, was Iqra - Read. This first command proceeded to then mention the pen (qalam) and education or learning (ilm). Of the myriad of things that the Most Benevolent Creator could have conveyed in the first revelation in the Holy Qur'an He, in his Infinite Wisdom and Mercy, considered reading, writing and education to be of the primary importance. Prophet Muhammad (peace and blessing be upon him) also placed great emphasis on education; he enabled the non-Muslim prisoners taken after the Battle of Badr, to secure their freedom if they taught the illiterate amongst the Muslims to read and write. This was probably the first ever use of a community service order (used in some countries), which is the successor of a probation order. Prophet Muhammad (peace and blessings be upon him) had also said to the men and women of the Islamic community to go as far as China, a non-Muslim country, to seek knowledge. Islam's emphasis on education and learning distinguished it from the prevailing civilizations where education and learning was restricted either to a particular class or to a section of society. Islam was inclusive and non-discriminatory. Race, colour, status, wealth and gender were submerged under the Islamic equality principle. Ironically, education has come under attack in Pakistan despite the Constitution guaranteeing equality of sexes and which compels the State to provide free and compulsory education to all children of the age of five to sixteen.

Holy Quran, surah Al-'Alaq (96) verse 1; Holy Qur'an, surah Al-'Alaq (96) verse 4; Ghulam Dastagir v. The State PLD 2014 Bal.100; Shams al-Din Muhammad al-Sakhawi, in his al-Maqasid al-hasana fi bayan kathir min, al-ahadith al-mushtahara 'ala 'l-alsina (Cairo, 1956), by Al-Bayhaqi in his Shuab al-Iman, vol. 2 p. 253 and by Ibn Abdul Barr in his Jamia Bayan al-Ilm, vol. 7, p. 8. and Al-Qur'an, surah Al-Hujurat (49) verse 13 rel.

There were over a thousand attacks on educational institutions in Pakistan between 1970-2019, recorded by the Global Terrorism Database; the highest number of attacks on educational institutions in the world. Unfortunately, neither the National Counter Terrorism Authority ('NACTA'), the Ministry of Interior nor the Ministry of Defence of the Government or any other official website maintains such a database. A State protects and supports its citizens. It is a testimony to the courage and determination of the teachers and children who attend schools in such dire circumstances. However, the horrendous number of terrorist attacks and the death and destruction left in their wake requires that the State ensures the guaranteed fundamental right to life and education. What lesson is really being taught to the girls studying in the public school, subject matter of the present case, and to the hundreds of millions of others who are, or should be, in school? Is it that their constitutionally guaranteed fundamental right to life and education is, after all, meaningless.

(c) Limitation Act (IX of 1908)---

----S. 3, First Sched. & Art. 120 ---Specific Relief Act (I of 1877), S. 42---Suit for declaration seeking correction of revenue record --- Limitation---New entry in Jamabandi--- Fresh cause of action---Scope---Dispute between plaintiffs and Provincial Government over ownership of land that was in possession of a school---Held, thatin case of mere correction of an entry in the revenue record, every new adverse entry in the revenue record of rights (Jamabandi) gave rise to a fresh cause of action to the person aggrieved of such an entry if that person was in possession of the land regarding which the entry is made---Present case concerned not only a matter of correction of an adverse entry having been made in the settlement/revenue record with regard to the ownership of the land but also a case in which possession had been assumed or, as alleged by the plaintiffs they were dispossessed---Suit was filed thirty-eight years after possession of the land was taken over by the school and sixteen years after the entry was made in the Jamabandi--- Suit filed by plaintiffs was, thus, clearly time barred---Appeal was allowed.

Muhammad Shumail Butt, AG Khyber Pakhtunkhawa and Muhammad Suhail, Additional A.G. for Appellants (in C.A. No. 71-P of 2014).

Representative of the Principal of the Public School, Sangota for Appellant (in C.A. No. 864 of 2014).

Muhammad Arshad Yousafzai, Advocate Supreme Court for the contesting respondents (in both appeals).

2022 S C M R 198

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Sayyed Mazahar Ali Akbar Naqvi, JJ

SIKANDAR HAYAT---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1183 of 2021, decided on 1st November, 2021.

(On appeal against the order dated 15.10.2021 passed by the Peshawar High Court, Peshawar in Cr.Misc (Bail Application) No.3098-P of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---As per the contents of the crime report, the allegation levelled against the accused was that he along with four co-accused while armed with firearms launched an attack on the complainant party and due to the fire shots two persons were done to death---However only a general role of firing had been ascribed to the accused and no details had been given as to what kind of weapon the accused had used and on which parts of the body of the deceased, the alleged fire shots made by him landed---From the place of occurrence, 27 empties were taken into possession, which according to the report of the Forensic Science Laboratory (FSL) were found to be fired from one and the same weapon---In such circumstances, when the role ascribed to the accused was of general nature and according to the report of FSL only one weapon was used in the commission of the crime, it was the Trial Court who after recording of evidence would decide about the guilt or otherwise of the accused and until then the accused could not be kept behind the bars for an indefinite period---Case of the accused squarely fell within the purview of S. 497(2), Cr.P.C. requiring further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed and accused was granted post-arrest bail.

Muhammad Fahim Wali, Advocate Supreme Court for Petitioner.

Shumail Aziz, Additional A.G. and Ziaullah, Inspector for the State.

2022 S C M R 201

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

Syed AZAM SHAH---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Cabinet Division, Cabinet Secretariat, Islamabad and another.---Respondent

Civil Appeal No.764 of 2021, decided on 19th November, 2021.

(Against the judgment dated 24.09.2018 passed by Federal Service Tribunal, Islamabad in Appeal No.4231(R)CS/2017 with M.P. No.1538 of 2018)

(a) Constitution of Pakistan---

----Art. 25---Equality of citizens-- Reasonable classification on basis of intelligible differentia---Connotation and Scope---Equality clause (Article 25 of the Constitution) did not prohibit classification for those differently circumstanced provided a rational standard was laid down---Protection of Art. 25 of the Constitution could be denied in peculiar circumstances of the case on basis of reasonable classification founded on an intelligible differentia which must have rational nexus to the object sought to be achieved by such classification---Intelligible differentia connoted dissimilarity or disparity capable of being comprehended---Classification must be based on an intelligible differentia which should distinguish the persons that were grouped together from others left out of the group and the differentia or categorization/cataloguing must have a logical and commonsensical nexus with the object sought to be achieved ---Definition of classification "intelligible differentia" meant differentiating between two sets of the people or objects---All such differentiations should be easily understood and should not be artificial---Concept of reasonableness was rationally a fundamental component of equality or non-arbitrariness.

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Secretary Economic Affairs Division, Islamabad and others. v. Anwarul Haq Ahmed and others 2013 SCMR 1687; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Tariq Aziz-ud-Din and others (Human Rights cases Nos.8340 of 2009, etc.) 2010 SCMR 130 and Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad and another 1997 SCMR 1026 ref.

(b) Constitution of Pakistan---

----Arts. 185(3) & 199--- Policy formulated by Government for civil servants --- Judicial review---Scope---Not the role of the Courts to interfere in policy decisions, unless it was manifest that such policy decisions were the outcome of arbitrary exercise of power, mala fides, patently illegal or manifestly unreasonable.

Compass and magnitude of judicial review of governmental policy was now well settled and defined in which the court cannot act as an appellate authority with the aim of scrutinizing the rightness, fittingness and aptness of a policy nor it may act as advisor to the executives on matters of policy which they were entitled to formulate. The extensiveness of judicial review of a policy was to test out whether it violates the fundamental rights of the citizens or is at variance to the provisions of the Constitution, or opposed to any statutory provision or demonstrably arbitrary or discriminately. The court may invalidate laws, acts and governmental actions that are incompatible with a higher authority more so, an executive decision may be invalidated for being unlawful. This can be sought on the grounds that a decision arises when a decision maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have, which is known as acting ultra vires. A decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it or a failure to observe statutory procedures. The dominance of judicial review of the executive and legislative action must be kept within the precincts of constitutional structure

Abdul Hameed and others. v. Water and Power Development Authority through Chairman, Lahore and others 2021 SCMR 1230 and Asaf Fasihuddin Khan v. Government of Pakistan 2014 SCMR 676 ref.

(c) Civil service---

----Locus-poenitentiae, principle of---Applicability---Benefit/allowance wrongly extended to a civil servant due to some misunderstanding, error, misconception of law or without sanction of competent authority---Such benefit/allowance cannot be claimed in perpetuity under the guise of locus poenitentiae principle---Perpetual rights cannot be gained on the basis of an illegal order.

There is no hard and fast rule that if some benefit was wrongly extended due to some misunderstanding, error, misconception of law or without sanction of competent authority, that act should be treated so sacred and sacrosanct which could not be withdrawn to retrace or redo the wrong decision or action under the guise of locus poenitentiae principle. A wrong benefit extended beyond the scope of law and rules/policy cannot be claimed in perpetuity or eternity hence the applicability of the doctrine of locus poenitentiae depends on the circumstances of each and every case and cannot apply universally or randomly without adverting to the merits of each case in its peculiar circumstances.

Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order.

Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 207 and Contempt proceedings against Chief Secretary, Sindh and others) 2013 SCMR 1752 ref.

Principle of locus poenitentiae would not be attracted in a case under which the benefit has been extended by a law which was violative of the provisions of the Constitution.

Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 and Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 ref.

Muhammad Ramzan Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Sohail Mehmood, Additional Attorney General for Respondents.

2022 S C M R 216

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Sayyed Mazahar Ali Akbar Naqvi, JJ

UMER KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1154 of 2021, decided on Ist November, 2021.

(On appeal against the order dated 30.08.2021 passed by the Peshawar High Court, Peshawar in Cr. M. B.A. No. 798-A of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan, Art. 185(3)---Prevention of Electronic Crimes Act (XL of 2016), S. 22(1)---Sharing child pornography on social media through a mobile device---Bail, refusal of---Social media platform over which the accused allegedly shared the content itself contacted the Federal Investigation Agency (FIA) and provided the information against the accused, upon which the FIA had inquired into the matter---Mobile phone of the accused was taken into possession and was sent to Forensic Science Laboratory (FSL) and according to the report of the FSL, the social media profile of the accused was found active on his mobile phone and child pornographic videos and images were also extracted therefrom---Mobile numbers which the accused was using in his mobile device were also found, active and the same were registered in his name---Although the offence with which the accused had been charged did not fall within the prohibitory clause of S. 497, Cr.P.C. and the maximum punishment for the same was seven years but keeping in view the nature of accusation, its impact on the society and the material collected so far merited the case to fall within the exception of granting bail where offence fell within the non-prohibitory clause---Petition for leave to appeal was dismissed and bail was refused.

Raja Faisal Younas Abbasi, Advocate Supreme Court for Petitioner.

Syed Nayyab Hussain Gardezi, DAG and Basit, I.O. for the State.

2022 S C M R 219

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Qazi Muhammad Amin Ahmed, J

NIAMATULLAH KHAN ADVOCATE and others---Petitioners/Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

CONST. PETITION NO.9 OF 2010, [Niamatullah Khan Advocate v. Federation of Pakistan and others] AND CRIMINAL ORIG. PETITION NO.7-K OF 2017, [Mst. Sahiba Parveen v. Syed Nasir Abbas, Director General, KDA and others (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: CRIMINAL ORIGINAL PETITION NO.9-K OF 2021, [Syeda Maria Raza v. Government of Sindh through Chief Secretary Sindh and others (matter regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)] AND C.M.A. NO.441-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others (Faiz Muhammad v. Province of Sindh through Chief Secretary and others (regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)] AND C.M.A. No.1083-K OF 2021, Niamatullah Khan Advocate v. Federation of Pakistan and others (For seeking direction for removal of encroachment on Gujjar Nalla and Orangi Nalla) (For seeking direction for removal of encroachment on Gujjar Nalla and Orangi Nalla) AND C.M.A. No.1112-K OF 2021 IN C.R.P. NO.61-K OF 2021, [Shehri and others v. Naimatullah Khan and others (Matter regarding encroachment over Gujjar Nalla and Orangi Nalla)] AND CIVIL AVIATION AUTHORITY: C.M.A. No.774-K OF 2021, [Civil Aviation Authority v. Federation of Pakistan and others (Applicant has alleged that Government of Sindh has allotted 209 acres land in 1990 to CAA for construction of new Airport but some officials of GOS are illegally allotting and creating Surveys Nos. from said land)] AND AMENITY PLOT USED FOR MARRIAGE HALLS: C.M.A. No.522-K OF 2020 IN CONST. P. No.9 OF 2010, [Waked Ahmed and others v. Federation of Pakistan and others (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 ZIAUDDIN HOSPITAL: CRL. M.A. No.59-K OF 2018, [Application for Intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of applicant namely, Shah Mohammad (against encroachment made around Ziauddin Hospital, Clifton Karachi by its management and false cases registered against applicant)] AND SOUTH CITY HOSPITAL: C.M.A. No.1062-K OF 2021, [Dr. Sadia Rasool Virk v. Federation of Pakistan and others (Reply to Show Cause Notice on behalf of South City Hospital)] AND C.M.A. No.1064-K OF 2021, [Messrs South City Hospital (Pvt.) Limited v. Federation of Pakistan and others (Reply to Show Cause Notice on behalf of South City Hospital)] AND ENCROACHMENT IN JACOBABAD ON AMENITIES: C.M.A. NO. 941-K OF 2020, [Niamatullah Khan Advocate v. Federation of Pakistan and others (regarding encroachment in Jacobabad at various government lands i.e. amenities, parks and others by influential persons)] AND C.M.A. NO.NO.1114-K OF 2021, [Ms. Maliha Malik v. Federation of Pakistan (statement of Mr. Aijaz Hussain Jakhrani and Sajjad Hussain Jakhrani)] AND C.M.A. No.775-K OF 2021, [Muhammad Akrarn Abro v. Federation of Pakistan and others (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, [Messrs A.A. Joy Land (Pvt.) Ltd. v. Federation of Pakistan and others (matter pertains to Aladin Park)] AND C.M.A. No.1000-K OF 2021, [Niamatullah Khan and others v. Federation of Pakistan and others (matter regarding Aladin Park)] AND PARKING ISSUES OF HIGH COURT OF SINDH AND FUTURE EXTENSION OF HIGH COURT OF SINDH: C.M.A. No.74-K OF 2020 IN CONST. P. No.9 OF 2010, [Application for intervener filed on behalf of Sindh High Court Bar Association through its Honourary Secretary (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, [Messrs Ishaq Enterprises v. Federation of Pakistan and others (concise statement with regard to allotment of COMM-3)] AND C.M.A. No.711-K OF 2020 IN CONST.P. NO.9 OF 2010, [Messrs Ishaq Enterprises v. Federation of Pakistan and others (objection filed on C.M.A. No.86-K of 2020)] AND YMCA GROUND: C.R.P. NO.57-K OF 2021, [Asian Pacific Alliance of YMCAs v. Federation of Pakistan and others (matter pertains to YMCA Ground)] AND KIDNEY HILL: CRL. ORG. P. NO.8-K OF 2021, [Abu Turab v. Syed Mumtaz Ali Shah and others (matter regarding Kidney Hill Land) AND C.M.A. NO.391-K OF 2020 IN CONST.P.NO.9 OF 2010, [Abu Turab v. Federation of Pakistan and others (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, [Niamatullah Khan v. Federation of Pakistan and others (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, [Mr. Ibrahim Younus and others v. Federation of Pakistan and others (Kidney Hill Park Land)] AND C.M.A. NO.437-K OF 2021, [Niamatullah Khan v. Federation of Pakistan and others (matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND C.M.A. NO.438-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others (matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND C.M.A. NO.515-K OF 2021, [Abrar Hassan v. Federation of Pakistan and others (matter pertains to Kidney Hill Park)] AND HILL PARK LAND: CRL.ORG.P.NO.13-K OF 2021, [Mrs. Gul Nilofer and another v. Major (R) Naveed Ahmed Khan and others] AND CRL. ORG. P. NO.14-K OF 2021. [Mrs. Shabnum Humayun v. Federation of Pakistan and others (matter regarding Hill Park)] AND KDA OFFICERS CLUB: CRL. M.A. NO.229-K OF 2018 IN CRL. ORG.P. NO.7-K OF 2017, [Application for intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record on behalf of KDA Officer Club (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, [Niamatullah Khan Advocate v. Federation of Pakistan and others (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, [Application for intervener filed by Syed Muhammad Iqbal Kazmi, (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, [Sharnim Ahmed Siddiqui v. Federation of Pakistan and others (regarding encroachment over railway land/Safari Park)] AND C.M.A. NO.177-K OF 2020, [Application for intervener filed by Farhad Younus Memon, (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, [Pakistan Railways through Divisional Superintendent v. Federation of Pakistan and others (matter regarding encroachment over Pakistan Railway Land and Revival of KCR)] AND TEJORI HIGHTS/TOWER ON RAILWAYS LAND: C.M.A. NO.1124-K OF 2021 IN C.R.P. NIL-K OF 2021 IN C.M.A. NO.277-K OF 2021 IN C.R.P. NIL-K OF 2021 IN C.M.A. NO.898-K OF 2021, [Federation of Pakistan through Secretary/Chairman Railways v. Messrs Karachi Town Builders (regarding encroachment over Pakistan Railway Land and revival of KCR) (Tejori Heights/Tower)] AND RAILWAYS EMPLOYEES CO-OPERATIVE HOUSING SOCIETY: C.M.A. NO.541-K OF 2020, [Muhammad Ahmed Khan and others v. Federation of Pakistan and others (matter regarding Pakistan Railway Employees Cooperative Housing Society)] AND C.M.A. NO.630-K OF 2020, [Pakistan Railway Employees Cooperative Housing Society Limited v. Federation of Pakistan and others (the matter pertains to encroachment over Railway Land on account of Railway Cooperative Housing Society)] AND ENCROACHMENT OVER RAILWAYS LAND AT HYDERABAD: C.M.A. NO.1110-K OF 2021, [Application on behalf of Divisional Superintendent through Deputy Director Railways against Messrs Labaik CNG Station Hyderabad and others (matter regarding encroachment over Railway's land at Hyderabad)] AND ROYAL PARK: C.M. APPEAL NO.37 OF 2021 IN C.R.P. NO.7-K OF 2020 IN C.M.A. NO.690-K OF 2019 IN CONST.P.NO.9 OF 2010, [Messrs Quality Builders v. Federation of Pakistan and others (for grant of time to remove and take away the materials from building)] AND C.M.A. NO.1004-K OF 2021, [Muhammad Zohaib Ather v. Federation of Pakistan and others (Matter regarding Royal Park Project)] 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- STORIES 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, [Application for intervener filed by Mrs. Nelofar Abbasey v. (illegal construction is carried out by King Builders over Private Park/Amenity Plot)] AND C.M.A. NO.78-K OF 2020 IN CONST. P. NO.9 OF 2010, [Application for intervener filed on behalf of Muhammad Talha and Mansoor Sharif Hamid v. (regarding high rise building on amenity plot)] AND KING COTTAGES/BAGH-E-QAMAR: C.M.A. NO.523-K OF 2020 IN CONST.P.NO.9 OF 2010, [Muhammad Waseem Samoo v. Federation of Pakistan and others (matter regarding King Cottage/Bagh-e-Qamar situated at Scheme No.36, Gulshan-e-Johar, Karachi)] AND HAYAT REGENCY HOTEL: C.M.A. NO.83-K OF 2020 IN CONST.P.NO.9 OF 2010, [Application for intervener filed on behalf of Pakistan Mercantile Exchange Ltd. And NCEL Building Management Ltd. v. (regarding Hyatt Regency Hotel)] AND KARACHI GYMKHANA: C.M.A. NO.512-K OF 2020 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Mst.Yasmeen Lari (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, [Messrs Madrasa Tahfeezul Quraan Al Karim v. Federation of Pakistan and others (matter regarding illegally constructed 18 floor building in a very sensitive area near Police Head Quarter at Garden Area)] AND HYPER STAR (RESIDENTIAL COMMERCIAL LOCALS): C.M.A. NO.617-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Venu G. Advani v. (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, [Application for intervener filed on behalf of Pakistan Post through Postmaster General, Karachi v. (regarding ownership of P&T Colony also declared as Katchi Abadi)] AND K-ELECTRIC (CONNECTED WITH H.R.C. NO.20883/2018 PENDING AT PRINCIPAL SEAT, ISLAMABAD: C.R.P. NO.28-K OF 2020 IN CONST.P.NO.9 OF 2010, [K-Electric Limited v. Federation of Pakistan and others (matter regarding fatal incidents resulting from electrocution in the service territory of K-Electric)] AND ASKARI PARK: C.M.A. NO.1087-K OF 2021, [Naveed Ahmed Khan v. Federation of Pakistan and others (illegal usage of land of Askari Park for Commercial Activities and Marriage Hall)] AND FOOD STREET AT BURNS ROAD: C.M.A. NO.1095-K OF 2021, [Muhammad Imran v. Federation of Pakistan and others (matter regarding Food Street at Burns Road)] AND ENCROACHMENT OVER/BESIDES HINDU'S TEMPLES/MANDIRS: C.M.A. NO.1123-K OF 2021, [Kelash Kumar v. Federation of Pakistan and others (matter regarding encroachment over Hindu Temples/Mandirs)] AND SAIMA ROYAL RESIDENCY: C.M.A. NO.1129-K OF 2021, [Jawwad Ali Khan v. Federation of Pakistan and others (matter regarding Saima Royal Residency)] AND SMALL BUSINESSES RUNNING I.E. SUGARCANE CRUSHING MACHINES AT FOOTPATH/ROADS, ETC: C.M.A. NO.940-K OF 2020, [Muhammad Yousaf v. Federation of Pakistan and others (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, [Application for intervener filed by Muhammad Essa v. (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, [Application for intervener filed by applicant namely, Akbar Hussain v. (against China Cutting of plots by manipulated documents of Plots Nos. 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 and others)] AND C.M.A. NO.423-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Porf. Dr. Muhammad Shahid Hussain v. (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 (SHAHRAH-E-QUAIDEEN): C.M.A. NO. 179-K OF 2020, [Application for intervener filed on behalf of Rashid Ali v. (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 RESIDENCIAL INTO COMMERCIAL: C.P. NO.422-K OF 2020, [Mst. Zahida Naz v. Province of Sindh and others (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, [Syed Masood Ahmed and others v. Federation of Pakistan and others (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 2020, [Karachi Chamber of Commerce and Industry v. Karachi Metropolitan Corporation and others (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 2020, [Karachi Chamber of Commerce and Industry v. Karachi Metropolitan Corporation and others (Coversion 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 35000 AMENITY PLOTS AT 112 SITES OF KDA SCHEME/TOWNSHIP: CRL.ORG.P.NO.19-K OF 2017 IN CRL. ORG. P. NO.7 OF 2017, [Ghulam Muhiyuddin v. Province of Sindh through Secretary Local Governmnet and others (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, [Application for intervener filed by Muhammad Ismail Shaheedi v. (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, [Application for intervener filed by Advocate-on-Record for the applicant Anjuman­. e-Kalayna v. (Amenity plot allotted for Kalayana Community Centre at North Karachi as illegally demolished by respondent)] AND CRL. M.A. 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. M.A. NO.243-K OF 2018 IN CRL. M.A. 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, [Application for intervener filed on behalf of Anjuman Sadat-e-Amroha v. (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, [Application for intervener filed by Mr. A.S.K. Ghori, Advocate-on-Record on behalf of applicant namely, Muhammad Jaffar v. (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, [Application for intervener filed by Muhammad Raees v. (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, [Application for intervener filed by Mr. Mazhar Ali B. Chohan, Advocate-on-Record on behalf of Anjuman-e-Musalman-e-Kalayana v. (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, [Application for intervener filed by Syed Arif Shah v. (encroachment on amenity plot allotted at Orangi for establishing Muslim Missionary College and Allied Institutions)] AND C.M.A. NO.349-K OF 2019, [Application for intervener filed on behalf of Public Interest Law Association of Pakistan v. (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, [Application for intervener filed by Muhammad Saleem Qureshi v. (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, [Application for intervener filed by Mrs. Mahamadi v. (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 C.M.A. NO.NIL OF 2020 IN C.M.A. NO.933-K OF 2019 IN CONST.P.NO.9 OF 2010, (Samira Mahamadi v. The Registrar, Supreme Court of Pakistan (for correction of order dated 13.08.2020)] AND C.M.A. NO.202-K OF 2020, [Application for intervener filed on behalf of AVA Ardeshir Cowasjee (regarding allotment of Plot No.9B, GKI, Ghulam Hussain Kasim Quarters Karachi, which was designated for the purpose of ejector sump pump by KW&SB)] AND C.M.A. NO.281-K OF 2020, [Application for intervener filed on behalf of the Karachi Goan Association (Applicant has alleged that Plot No.J.M.1/79, Jamshed Quarters, was allotted for Establishment of Gymkhana, but KIDCL has issued a letter for possession of said property for establishment of camp office for Green Line BRTS)] AND CRL. M.A. NO.32-K OF 2018, [Application for intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record (Applicant has paid all dues on account of a plot in new Malir Housing Scheme No.1, instead of issuing allotment order a notice received to him for payment of Rs.40000, on objection he was intimated that said amount is required for grid station)] AND CRL. M.A. NO.1-K OF 2019, [Application for intervener filed by Mr. Mazhar Ali B. Chohan, Advocate-on-Record on behalf of Moulana Muhammad Ali Johar Memorial Cooperative Housing Society (seeking direction for removal of encroachment from the plot of applicant society i.e. Mollana Muhammad Ali Johar Memorial Cooperative Housing Society)] AND CRL. M.A. No.34-K/2020, [Application for intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of Messrs Fatima Jinnah Dental College and Hospital Trust (matter pertains to non-profitable educational institution/trust for Dental Collage/Medical and Dispensary purpose on plot No.AM/1/B at Bhittai Colony "Amenity Plot")] AND C.M.A. No.761-K OF 2020, [Abdul Haq Abbasi v. Federation of Pakistan and others (matter regarding encroached over state property (i.e. Street/Road) situated at Sindh GOR-II, Muslim Society Karachi)] AND C.M.A. No.808-K of 2020 IN C.M.A. No.459-K of 2020, [Muhammad Ameer Shah v. Federation of Pakistan and others (Applicant alleged that illegal occupants have encroached over 2000 million road at North Karachi which cause inconvenience to the peoples of said areas)] AND C.M. APPEAL NO.16 OF 2021 IN CONST.P.NO.9 OF 2010, [Haji Abdul Razziq Khan v. Federation of Pakistan and others (Applicant has alleged that some persons along with Society Member have encroached upon park and Club Land "Amenity Plot at PECHS")] AND C.M.A. NO.782-K OF 2021, [Malik Jameel Ali v. Federation of Pakistan and others (matter regarding Custom Preventive Service Cooperative Housing Society and removal of encroachment from Green Belt from parking area and service road)] AND C.P. NO.599-K OF 2021, [Mumtaz A. Qureshi v. The Province of Sindh and others (matter pertains to encroachment upon the gardens/parks, amenity plots playground and Footpath in the city of Nawabshah/Shaheed Benazirabad)] AND C.M.A. NO.1014-K OF 2021, [Muhammad Kabeer Malik and others v. Province of Sindh and others (matter pertains to encroachment upon the gardens/parks, amenity plots, playground and Footpath in the city of Nawabshah/Sheheed 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, [Azhar Ahsan Thanvi v. Federation of Pakistan and others (matter regarding encroachment over Plot No.ST-14)] AND C.M.A. NO.1006-K OF 2021, [Azhar Ahsan Thanvi v. Federation of Pakistan and others (matter regarding encroachment over Plot No. ST-14)] AND C.M.A. NO.1040-K OF 2021 (Application for withdrawal of earlier C.M.A. No.1006-K of 2021, [Azhar Ahsan Thanvi v. Federation of Pakistan and others (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, [Muhammad Khan Parhar and others v. Federation of Pakistan and others (matter regarding encroachment over Plot No. ST-14)] AND CRL.ORG.P. NO.10-K OF 2021, [Muhammad Irfan v. Federation of Pakistan and others (matter regarding encroachment over 51 Plots of Gulistan-e-Johar)] AND C.M.A. NO.1097-K OF 2021, [Ideal (Private) Limited v. Federation of Pakistan (matter regarding encroachment over Amenity Plots and ST-13 on account of Sanad with respect of some Haji Ibrahim Panhwar Goth) (Korangi Industrial Area)] AND C.M.A. NO.1164-K OF 2021, [Zohaib Yousuf v. Federation of Pakistan and others - matter regarding illegal construction of multi story five tower (RJ Towers and Royal Icon) 24 stories each on amenity plot of Baloch Goth 13-D/3, Gulshan-e-Iqbal, Karachi)] AND ILLEGAL ENCROACHMENT OVER PLOTS OF INDIVIDUAL: CRL. M.A. NO.71-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Muhammad Hussain, in person (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, [Application for intervener filed by Imdad Hussain, applicant in person (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, [Application for intervener filed by Salman Muhammad (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, (Application for intervener filed by Muhammad Farhan (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, [Application for intervener filed by Murtaza Ali (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, [Application for intervener filed by Advocate Aqeel Hassan Khan (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, [Application for intervener filed on behalf of Ms. Muneera Khatoon (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, [Application for intervener filed by Khawaja Muhammad Asghar (regarding encroachment of Plots Nos.B-100 and B-113, Block-10, Gulistan-e-Johar, Karachi)] AND C.M.A. NO.762-K OF 2020, [Syed Khurram Iqbal v. Federation of Pakistan and others (matter pertains to encroached land situated in Aligarh Muslim University Old Boys Cooperative Housing Society Ltd., Gulzar-e-Hijri Scheme No.33)] AND DISCRIMINATION/GRIEVANCES WITH REGARD TO ENCROACH­MENT DRIVE: C.M.A. NO.425-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed on behalf of Muhammad Jibran Nasir and others (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 2010, [Mohammad Jibran Nasir and others v. Mr. Habib ur Rehman Gillani and others (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, [Yousuf Masih v. Federation of Pakistan and others (regarding grievances of people of Salman Brohi Goth as they apprehend to be disposed/vacated from the land in question)] AND ALLEGATION LEVELED AGAINST GOVERNMENT OFFICIALS: C.M.A. NO.82-K OF 2020, [Application for intervener filed by Syed Mehmood Akhtar Naqvi (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, [Mr. Imran Ayub Khan Advocate v. Federation of Pakistan and others (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, [Syed Mehmood Akhtar Naqvi v. Qazi Shahid Pervaiz, Sr. Member Board of Revenue, Government of Sindh and others)] AND C.M.A. NO.510-K of 2021, [Muhammad Ashraf Samoo v. Province of Sindh and others (applicant has pointed out various issues i.e, corruption, violation of fundamental rights and others)] AND MISCELLANEOUS: C.M.A. NO.300-K OF 2020 IN CONST.P.NO.9 OF 2010, [Niamatullah Khan Advocate v. Federation of Pakistan and others (statement of the amicus curiae from "Salahuddin Ahmed, Advocate Supreme Court)] AND C.M.A. NO.414-K OF 2020 IN CONST.P.NO.9 OF 2010, [Niamatullah Khan Advocate v. The Province of Sindh and another (for extension of time for compliance of orders)] AND REPORT NO.7-K OF 2021, [Report filed on behalf of Chief Minister, Sindh through Advocate-on-Record in compliance of Court order dated 09.05.2019 v. Federation of Pakistan and others)] AND REPORT NO.76-K OF 2021. [Report filed by on behalf of Chief Minister, Sindh through Advocate-on-Record, Shehri and others v. Naimatullah Khan and others], decided on 27th December, 2021.

(a) Constitution of Pakistan---

----Arts. 184(3) & 204---Contempt of Court Ordinance (V of 2003), S. 3---Matters relating to progress of demolition work of "Nasla Tower" built illegally on encroached land; contempt of Court notice issued to Director General, Sindh Building Control Authority for defying Supreme Court's orders regarding demolition of "Nasla Tower"; registration of FIR against the Director General and other concerned officials of the Sindh Building Control Authority for demanding bribes from the contractor undertaking demolition work of "Nasla Tower"; compensation for purported allottees of "Nasla Tower"; registration of FIR against the owner and builder of "Nasla Tower" and other officials of the Sindh Building Control Authority and other government departments including Sindh Muslim Cooperative Housing Society for approving and allowing illegal construction of "Nasla Tower"---Supreme Court issued relevant directions to the concerned authorities and officials to address the issues highlighted and also gave directions for filing progress reports on the next date of hearing to address the issues.

(b) Constitution of Pakistan---

----Art. 184(3) ---Matters relating to demolition of illegally built multi-storey building "Tejori Heights" and cost incurred on its demolition and removal of debris; retrieval of amenity plot by the name of 'Gutter Baghiacha" meant for building a park which was illegally allotted/transferred to Karachi Municipal Corporation Officers Cooperative Housing Society for making a housing society; seventeen (17) acres of land comprising of old Sabzi Mandi apparently given to the Headquarters Engineers-5 Corps, Liaquat Barracks, for maintaining it as a park being illegally used for commercial activities comprising of shops and marriage halls; plots Nos. AP-30 and AP-31 in layout plan of Pakistan Employees Cooperative Housing Society meant for a park and club respectively, occupied by a mosque and madrassah (religious school)---Supreme Court issued relevant directions to the concerned authorities and officials to address the issues highlighted and also gave directions for filing progress reports on the next date of hearing to address the issues.

In attendance:

Muhammad Iqbal Memon, Commissioner, Karachi, Muhammad Salim Raza, D.G., SBCA, Ms. Ambar Alibhai, Sheri Citizen, Murtaza Wahab, Administrator KMC, Haji Abdul Raziq (Applicant in C.M.A. 16/21) and Raja Qasit Nawaz Khan, Advocate Supreme Court.

Mian Raza Rabbani, Senior Advocate Supreme Court, Ch. Muhammad Iqbal, Advocate Supreme Court, Obaid ur Rehman Khan, Advocate Supreme Court, Khalid Javed, Advocate Supreme Court, K.A. Wahab, Advocate-on-Record, Anwar Mansoor Khan, Senior Advocate Supreme Court, Ms. Umaimah Anwar Khan, Advocate Supreme Court, Abid S. Zubari, Advocate Supreme Court, Khawaja Shams-ul-Islam, Advocate Supreme Court, Mazhar Ali B. Chohan, Advocate-on-record/Advocate Supreme Court, Muhammad Ashraf Samoo, Advocate Supreme Court, Badar Alam, Senior Advocate Supreme Court, Khalid Mehmood Siddiqui, Advocate Supreme Court, Dr. Raana Khan, Advocate-on-Record, Mst. Sabiha Parveen, Syeda Maria Raza, Muhammad Saleem Mangrio, Advocate Supreme Court, Salahuddin Ahmed, Advocate Supreme Court, Ms. Razia Danish, Advocate Supreme Court, Ghulam Rasool Mangi, Advocate-on-Record and Syed Ali Zafar, Advocate Supreme Court, VL Lahore for Petitioners/Appellants.

Khalid Javed Khan, Attorney General for Pakistan, Kashif Sarwar Paracha, Additional A.G.P., Khaliq Ahmed, D.A.G. and Dr. Imran Zaib, Secretary, Housing and Works on Court's Notice for the Federation.

Salman Talib ud Din, Advocate General, Sindh, Sibtain Mehmood, Additional A.G., Dr. Saeed Ahmed Qureshi, Focal Person to Chief Secretary, Qazi Shahid Pervaiz Memon, Acting Chief Secretary, Sindh, Najam Ahmed Shah, Secretary Local Government, Zulfiqar Gul Memon, Deputy Chief, T&C, Ministry of Planning, Saeed Ahmed, Additional Secretary, Planning and Development, Abdul Rahim Sheikh, Secretary Environment, Sikandar Hassan, Law Officer, Finance Department, Shafique Ahmed, Commissioner, Larkana, Dr. Hafeez Sial, DC, Jacobabad and Shumail Riaz Malik, SSP Jacobabad for Government of Sindh.

Babar Ali, Advocate Supreme Court for F.W.O.

Nisar Ahmed Memon, CEO/Senior GM Railways, Ameer Muhammad Daudpota, D.G. and Rao Waqar Ahmed, DS for Pakistan Railways.

Assad Ullah Khan, M.D. for KWSB.

M. Idrees Mahsud, Member for NDMA.

Faizsan Haidar Shah, Director Tech. for WAPDA.

Karam Din Junejo, Nazir for High Court of Sindh.

Azra Muqeem, Legal Advisor, Afzal Zaidi, M/C and Mazhar Khan, Chairman, KMC Officers Housing Society for Karachi Municipal Corporation.

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 via video link from Lahore, Rana Khawar Iftikhar, CEO, Faisal and Qazi Rizwan Ahmed, CEO, Karachi, Cantonment for Cantonments.

2022 S C M R 238

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Qazi Muhammad Amin Ahmed, J

NIAMATULLAH KHAN ADVOCATE and others---Petitioners/Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

CONST. PETITION NO.9 OF 2010, [Niamatullah Khan Advocate v. Federation of Pakistan and others] AND CRIMINAL ORIG. PETITION NO.7-K OF 2017, [Mst. Sahiba Parveen v. Syed Nasir Abbas, Director General, KDA and others (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: CRIMINAL ORIGINAL PETITION NO.9-K OF 2021, [Syeda Maria Raza v. Government of Sindh through Chief Secretary Sindh and others (matter regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)] AND C.M.A. NO.441-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others (Faiz Muhammad v. Province of Sindh through Chief Secretary and others (regarding illegal encroachment over drainage river of Haji Limo Village at Gulshan-e-Iqbal)] AND C.M.A. No.1083-K OF 2021, Niamatullah Khan Advocate v. Federation of Pakistan and others (For seeking direction for removal of encroachment on Gujjar Nalla and Orangi Nalla) (For seeking direction for removal of encroachment on Gujjar Nalla and Orangi Nala) AND C.M.A. No.1112-K OF 2021 IN C.R.P. NO.61-K OF 2021, [Shehri and others v. Naimatullah Khan and others (Matter regarding encroachment over Gujjar Nalla and Orangi Nalla)] AND CIVIL AVIATION AUTHORITY: C.M.A. No.774-K OF 2021, [Civil Aviation Authority v. Federation of Pakistan and others (Applicant has alleged that Government of Sindh has allotted 209 acres land in 1990 to CAA for construction of new Airport but some officials of GOS are illegally allotting and creating Surveys Nos. from said land)] AND AMENITY PLOT USED FOR MARRIAGE HALLS: C.M.A. No.522-K OF 2020 IN CONST. P. No.9 OF 2010, [Waleed Ahmed and others v. Federation of Pakistan and others (Plot No.SNPA-21-D SNPA-23, both are public amenities plots and meant for "Park" and the same are used for marriage/commercial activities)] AND ZIAUDDIN HOSPITAL: CRL. M.A. No.59-K OF 2018, [Application for Intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of applicant namely, Shah Mohammad (against encroachment made around Ziauddin Hospital, Clifton Karachi by its management and false cases registered against applicant)] AND SOUTH CITY HOSPITAL: C.M.A. No.1062-K OF 2021, [Dr. Sadia Rasool Virk v. Federation of Pakistan and others (Reply to Show Cuase Notice on behalf of South City Hospital)] AND C.M.A. No.1064-K OF 2021, [Messrs South City Hospital (Pvt.) Limited v. Federation of Pakistan and others (Reply to Show Cause Notice on behalf of South City Hospital)] AND ENCROACHMENT IN JACOBABAD ON AMENITIES: C.M.A. NO. 941-K OF 2020, [Niamatullah Khan Advocate v. Federation of Pakistan and others (regarding encroachment in Jacobabad at various government lands i.e. amenities, parks etc. by influential persons)] AND C.M.A. NO.1114-K OF 2021, [Ms. Maliha Malik v. Federation of Pakistan (statement of Mr. Aijaz Hussain Jakhrani and Sajjad Hussain Jakhrani)] AND C.M.A. No.775-K OF 2021, [Muhammad Akram Abro v. Federation of Pakistan and others (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, [Messrs A.A. Joy Land (Pvt.) Ltd. v. Federation of Pakistan and others (matter pertains to Aladin Park)] AND C.M.A. No.1000-K OF 2021, [Niamatullah Khan and others v. Federation of Pakistan and others (matter regarding Aladin Park)] AND PARKING ISSUES OF HIGH COURT OF SINDH AND FUTURE EXTENSION OF HIGH COURT OF SINDH: C.M.A. No.74-K OF 2020 IN CONST. P. No.9 OF 2010, [Application for intervener filed on behalf of Sindh High Court Bar Association through its Honourary Secretary (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, [Messrs Ishaq Enterprises v. Federation of Pakistan and others (concise statement with regard to allotment of COMM-3)] AND C.M.A. No.711-K OF 2020 IN CONST.P. NO.9 OF 2010, [Messrs Ishaq Enterprises v. Federation of Pakistan and others (objection filed on C.M.A. No.86-K of 2020)] AND YMCA GROUND: C.R.P. NO.57-K OF 2021, [Asian Pacific Alliance of YMCAs v. Federation of Pakistan and others (matter pertains to YMCA Ground)] AND KIDNEY HILL: CRL. ORG.P.NO.8-K OF 2021, [Abu Turab v. Syed Mumtaz Ali Shah and others (matter regarding Kidney Hill Land) AND C.M.A. NO.391-K OF 2020 IN CONST.P.NO.9 OF 2010, [Abu Turab v. Federation of Pakistan and others (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, [Niamatullah Khan v. Federation of Pakistan and others (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, [Mr. Ibrahim Younus and others v. Federation of Pakistan and others (Kidney Hill Park Land)] AND C.M.A. NO.437-K OF 2021, [Niamatullah Khan v. Federation of Pakistan and others (matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND C.M.A. NO.438-K OF 2021, [Niamatullah Khan Advocate v. Federation of Pakistan and others (matter regarding various plots at Overseas Cooperative Housing Society lies adjacent to Kidney Hill Park)] AND C.M.A. NO.515-K OF 2021, [Abrar Hassan v. Federation of Pakistan and others (matter pertains to Kidney Hill Park)] AND HILL PARK LAND: CRL.ORG.P.NO.13-K OF 2021, [Mrs. Gul Nilofer and another v. Major (R) Naveed Ahmed Khan and others] AND CRL.ORG.P.NO.14-K OF 2021, [Mrs. Shabnum Humayun v. Federation of Pakistan and others (matter regarding Hill Park)] AND KDA OFFICERS CLUB: CRL. M.A. NO.229-K OF 2018 IN CRL. ORG.P.NO.7-K OF 2017, [Application for intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record on behalf of KDA Officer Club (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, [Niamatullah Khan Advocate v. Federation of Pakistan and others (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, [Application for intervener filed by Syed Muhammad Iqbal Kazmi. (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, [Shamim Ahmed Siddiqui v. Federation of Pakistan and others (regarding encroachment over railway land/Safari Park)] AND C.M.A. NO.177-K OF 2020, [Application for intervener filed by Farhad Younus Memon. (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, [Pakistan Railways through Divisional Superintendent v. Federation of Pakistan and others (matter regarding encroachment over Pakistan Railway Land and Revival of KCR)] AND TEJORI HIGHTS/TOWER ON RAILWAYS LAND: C.M.A. NO.1124-K OF 2021 IN C.R.P. NIL-K OF 2021 IN C.M.A. NO.277-K OF 2021 IN C.R.P. NIL-K OF 2021 IN C.M.A. NO.898-K OF 2021, [Federation of Pakistan through Secretary/Chairman Railways v. Messrs Karachi Town Builders (regarding encroachment over Pakistan Railway Land and revival of KCR) (Tejori Heights/Tower)] AND RAILWAYS EMPLOYEES CO-OPERATIVE HOUSING SOCIETY: C.M.A. NO.541-K OF 2020, [Muhammad Ahmed Khan and others v. Federation of Pakistan and others (matter regarding Pakistan Railway Employees Cooperative Housing Society)] AND C.M.A. NO.630-K OF 2020, [Pakistan Railway Employees Cooperative Housing Society Limited v. Federation of Pakistan and others (the matter pertains to encroachment over Railway Land on account of Railway Cooperative Housing Society)] AND ENCROACHMENT OVER RAILWAYS LAND AT HYDERABAD: C.M.A. NO.1110-K OF 2021, [Application on behalf of Divisional Superintendent through Deputy Director Railways against Messrs Labaik CNG Station Hyderabad and others (matter regarding encroachment over Railway's land at Hyderabad)] AND ROYAL PARK: C.M. APPEAL NO.37 OF 2021 IN C.R.P. NO.7-K OF 2020 IN C.M.A. NO.690-K OF 2019 IN CONST.P.NO.9 OF 2010, [Messrs Quality Builders v. Federation of Pakistan and others (for grant of time to remove and take away the materials from building)] AND C.M.A. NO.1004-K OF 2021, [Muhammad Zohaib Ather v. Federation of Pakistan and others (Matter regarding Royal Park Project)] 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-STORIES BUILDINGS: 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, [Application for intervener filed by Mrs. Nelofar Abbasey v. (illegal construction is carried out by King Builders over Private Park/Amenity Plot] AND C.M.A. NO.78-K OF 2020 IN CONST. P. NO.9 OF 2010, [Application for intervener filed on behalf of Muhammad Talha and Mansoor Sharif Hamid v. (regarding high rise building on amenity plot)] AND KING COTTAGES/BAGH-E-QAMAR: C.M.A. NO.523-K OF 2020 IN CONST.P.NO.9 OF 2010, [Muhammad Waseem Samoo v. Federation of Pakistan and others (matter regarding King Cottage/Bagh-e-Qamar situated at Scheme No.36, Gulshan-e-Johar, Karachi)] AND HAYAT REGENCY HOTEL: C.M.A. NO.83-K OF 2020 IN CONST.P.NO.9 OF 2010, [Application for intervener filed on behalf of Pakistan Mercantile Exchange Ltd. and NCEL Building Management Ltd. v. (regarding Hyatt Regency Hotel)] AND KARACHI GYMKHANA: C.M.A. NO.512-K OF 2020 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Mst. Yasmeen Lan (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, [Messrs Madrasa Tahfeezul Quraan Al Karim v. Federation of Pakistan and others (matter regarding illegally constructed 18 floor building in a very sensitive area near Police Head Quarter at Garden Area)] AND HYPER STAR (RESIDENTIAL COMMERCIAL LOCALS); C.M.A. NO.617-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed by Venu G. Advani v. (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, [Application for intervener filed on behalf of Pakistan Post through Postmaster General, Karachi v. (regarding ownership of P&T Colony also declared as Katchi Abadi)] AND K-ELECTRIC (CONNECTED WITH H.R.C. NO.20883/2018 PENDING AT PRINCIPAL SEAT, ISLAMABAD: C.R.P. NO.28-K OF 2020 IN CONST.P.NO.9 OF 2010, [K-Electric Limited v. Federation of Pakistan and others (matter regarding fatal incidents resulting from electrocution in the service territory of K-Electric)] AND ASKARI PARK: C.M.A. NO.1087-K OF 2021, [Naveed Ahmed Khan v. Federation of Pakistan and others (illegal usage of land of Askari Park for Commercial Activities and Marriage Hall)] AND FOOD STREET AT BURNS ROAD: C.M.A. NO.1095-K OF 2021, [Muhammad Imran v. Federation of Pakistan and others (matter regarding Food Street at Burns Road)] AND ENCROACHMENT OVER/BESIDES HINDU'S TEMPLES/MANDIRS: C.M.A. NO.1123-K OF 2021, [Kelash Kumar v. Federation of Pakistan and others (matter regarding encroachment over Hindu Temples/Mandirs)] AND SAIMA ROYAL RESIDENCY: C.M.A. NO.1129-K OF 2021, [Jawwad Ali Khan v. Federation of Pakistan and others (matter regarding Saima Royal Residency)] AND SMALL BUSINESSES RUNNING I.E. SUGARCANE CRUSHING MACHINES AT FOOTPATH/ROADS, ETC: C.M.A. NO.940-K OF 2020, [Muhammad Yousaf v. Federation of Pakistan and others (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, [Application for intervener filed by Muhammad Essa v. (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, [Application for intervener filed by applicant namely, Akbar Hussain v. (against China Cutting of plots by manipulated documents of Plots Nos. 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, [Application for intervener filed by Porf. Dr. Muhammad Shahid Hussain v. (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 (SHAHRAH-E-QUAIDEEN): C.M.A. NO.179-K OF 2020, [Application for intervener filed on behalf of Rashid Ali v. (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 RESIDENCIAL INTO COMMERCIAL: C.P. NO.422-K OF 2020, [Mst. Zahida Naz v. Province of Sindh and others (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, [Syed Masood Ahmed and others v. Federation of Pakistan and others (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 2020, [Karachi Chamber of Commerce and Industry v. Karachi Metropolitan Corporation and others (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 2020, [Karachi Chamber of Commerce and Industry v. Karachi Metropolitan Corporation and others (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 35000 AMENITY PLOTS AT 112 SITES OF KDA SCHEME/TOWNSHIP: CRL.ORG.P.NO.19-K OF 2017 IN CRL. ORG.P.NO.7 OF 2017, [Ghulam Muhiyuddin v. Province of Sindh through Secretary Local Governmnet and others (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, [Application for intervener filed by Muhammad Ismail Shaheedi v. (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, [Application for intervener filed by AOR for the applicant Anjuman-e-Kalayna v. (Amenity plot allotted for Kalayana Community Centre at North Karachi as illegally demolished by respondent)] AND CRL. M.A. 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. M.A. NO.243-K OF 2018 IN CRL. M.A. 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, [Application for intervener filed on behalf of Anjuman Sadat-e-Amroha v. (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, [Application for intervener filed by Mr. A.S.K. Ghori, Advocate-on-Record on behalf of applicant namely, Muhammad Jaffar v. (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, [Application for intervener filed by Muhammad Raees v. (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, [Application for intervener filed by Mr. Mazhar Ali B.Chohan, Advocate-on-Record on behalf of Anjuman-e-Musalman-e-Kalayana v. (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, [Application for intervener filed by Syed Arif Shah v. (encroachment on amenity plot allotted at Orangi for establishing Muslim Missionary College and Allied Institutions)] AND C.M.A. NO.349-K OF 2019, [Application for intervener filed on behalf of Public Interest Law Association of Pakistan v. (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, [Application for intervener filed by Muhammad Saleem Qureshi v. (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, [Application for intervener filed by Mrs. Mahamadi v. (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 C.M.A. NO.NIL OF 2020 IN C.M.A. NO.933-K OF 2019 IN CONST.P.NO.9 OF 2010, (Samira Mahamadi v. The Registrar, Supreme Court of Pakistan (for correction of order dated 13.08.2020)] AND C.M.A. NO.202-K OF 2020, [Application for intervener filed on behalf of AVA Ardeshir Cowasjee (regarding allotment of Plot No.9B, GKI, Ghulam Hussain Kasim Quarters Karachi, which was designated for the purpose of ejector sump pump by KW&SB)] AND C.M.A. NO.281-K OF 2020, [Application for intervener filed on behalf of the Karachi Goan Association (Applicant has alleged that Plot No.J.M.1/79, Jamshed Quarters, was allotted for Establishment of Gymkhana, but KIDCL has issued a letter for possession of said property for establishment of camp office for Green Line BRTS)] AND CRL. M.A. NO.32-K OF 2018, [Application for intervener filed by Mr. Ghulam Qadir Jatoi, Advocate-on-Record (Applicant has paid all dues on account of a plot in new Malir Housing Scheme No.1, instead of issuing allotment order a notice received to him for payment of Rs.40000, on objection he was intimated that said amount is required for grid station)] AND CRL. M.A. NO.1-K OF 2019, [Application for intervener filed by Mr. Mazhar Ali B. Chohan, Advocate-on-Record on behalf of Moulana Muhammad Ali Johar Memorial Cooperative Housing Society (seeking direction for removal of encroachment from the plot of applicant society i.e. Mollana Muhammad Ali Johar Memorial Cooperative Housing Society)] AND CRL. M.A. No.34-K/2020, [Application for intervener filed by Mr. Ghulam Rasool Mangi, Advocate-on-Record on behalf of Messrs Fatima Jinnah Dental College and Hospital Trust (matter pertains to non-profitable educational institution/ trust for Dental Collage/Medical and Dispensary purpose on plot No.AM/1/B at Bhittai Colony 'Amenity Plot")] AND C.M.A. No.761-K OF 2020, [Abdul Haq Abbasi v. Federation of Pakistan and others (matter regarding encroached over state property (i.e. Street/ Road) situated at Sindh GOR-II, Muslim Society Karachi)] AND C.M.A. No.808-K of 2020 IN C.M.A. No.459-K of 2020, [Muhammad Ameer Shah v. Federation of Pakistan and others (Applicant alleged that illegal occupants have encroached over 2000 million road at North Karachi which cause inconvenience to the peoples of said areas)] AND C.M. APPEAL NO.16 OF 2021 IN CONST.P.NO.9 OF 2010, [Haji Abdul Razziq Khan v. Federation of Pakistan and others (Applicant has alleged that some persons along with Society Member have encroached upon park and Club Land 'Amenity Plot at PECHS")] AND C.M.A. NO.782-K OF 2021, [Malik Jameel Ali v. Federation of Pakistan and others (matter regarding Custom Preventive Service Cooperative Housing Society and removal of encroachment from Green Belt from parking area and service road)] AND C.P. NO.599-K OF 2021, [Mumtaz A. Qureshi v. The Province of Sindh and others (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.1014-K OF 2021, [Muhammad Kabeer Malik and others v. Province of Sindh and others (matter pertains to encroachment upon the gardens/parks, amenity plots, playground and Footpath in the city of Nawabshah/Sheheed 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, [Azhar Ahsan Thanvi v. Federation of Pakistan and others (matter regarding encroachment over Plot No.ST-14)] AND C.M.A. NO.1006-K OF 2021, [Azhar Ahsan Thanvi v. Federation of Pakistan and others (matter regarding encroachment over Plot No.ST-14)] AND C.M.A. NO.1040-K OF 2021 (Application for withdrawal of earlier C.M.A. No.1006-K of 2021, [Azhar Ahsan Thanvi v. Federation of Pakistan and others (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, [Muhammad Khan Parhar and others v. Federation of Pakistan and others (matter regarding encroachment over Plot No. ST-14)] AND CRL.ORG.P. NO.10-K OF 2021, [Muhammad Irfan v. Federation of Pakistan and others (matter regarding encroachment over 51 Plots of Gulistan-e-Johar)] AND C.M.A. NO.1097-K OF 2021, [Ideal (Private) Limited v. Federation of Pakistan (matter regarding encroachment over Amenity Plots and ST-13 on account of Sanad with respect of some Haji Ibrahim Panhwar Goth) (Korangi Industrial Area)] AND C.M.A. NO.1164-K OF 2021, [Zohaib Yousuf v. Federation of Pakistan and others - matter regarding illegal construction of multi story five tower (RJ Towers and Royal Icon) 24 storeys each on amenity plot of Baloch Goth 13-D/3, Gulshan-e-Iqbal, Karachi)] AND ILLEGAL ENCROACHMENT OVER PLOTS OF INDIVIDUAL: CRL. M.A. NO.71-K OF 2018 IN CRL.ORG.P.NO.7-K OF 2017, [Application for intervener filed by Muhammad Hussain, in person (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, [Application for intervener filed by Imdad Hussain, applicant in person (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, [Application for intervener filed by Salman Muhammad (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, (Application for intervener filed by Muhammad Farhan (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, [Application for intervener filed by Murtaza Ali (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, [Application for intervener filed by Advocate Aqeel Hassan Khan (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, [Application for intervener filed on behalf of Ms. Muneera Khatoon (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. [Application for intervener filed by Khawaja Muhammad Asghar (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, [Syed Khurram Iqbal v. Federation of Pakistan and others (matter pertains to encroached land situated in Aligarh Muslim University Old Boys Cooperative Housing Society Ltd., Gulzar-e-Hijri Scheme No.33)] AND DISCRIMINATION/GRIEVANCES WITH REGARD TO ENCROACH­MENT DRIVE: C.M.A. NO.425-K OF 2019 IN CONST.P.NO.9 OF 2010, [Application for intervener filed on behalf of Muhammad Jibran Nasir and others (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 2010, [Mohammad Jibran Nasir and others v. Mr. Habib ur Rehman Gillani and others (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, [Yousuf Masih v. Federation of Pakistan and others (regarding grievances of people of Salman Brohi Goth as they apprehend to be disposed/vacated from the land in question)] AND ALLEGATION LEVELED AGAINST GOVERNMENT OFFICIALS: C.M.A. NO.82-K OF 2020, [Application for intervener filed by Syed Mehmood Akhtar Naqvi (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, [Mr. Imran Ayub Khan Advocate v. Federation of Pakistan and others (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, [Syed Mehmood Akhtar Naqvi v. Qazi Shahid Pervaiz, Sr. Member Board of Revenue, Government of Sindh and others)] AND C.M.A. NO.510-K of 2021, [Muhammad Ashraf Samoo v. Province of Sindh and others (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, [Niamatullah Khan Advocate v. Federation of Pakistan and others (statement of the amicus curiae from 'Salahuddin Ahmed, Advocate Supreme Court)] AND C.M.A. NO.414-K OF 2020 IN CONST.P.NO.9 OF 2010, [Niamatullah Khan Advocate v. The Province of Sindh and another (for extension of time for compliance of orders)] AND REPORT NO.7-K OF 2021, [Report filed on behalf of Chief Minister, Sindh through Advocate-on-Record in compliance of Court order dated 09.05.2019 v. Federation of Pakistan and others)] AND REPORT NO.76-K OF 2021, [Report filed by on behalf of Chief Minister, Sindh through Advocate-on-Record, Shehri and others v. Naimatullah Khan and others]

(a) Constitution of Pakistan---

----Art. 184(3)---Matter relating to mosques built on land belonging to Kidney Hill Park ('the Park')---Mosques built without any provision in the layout plan for the Park---Legality---Layout plan of Kidney Hill Park did not contain any provision for building of a mosque in the park---Once a plan did not make provision for construction of a mosque in the park, allowing such construction to be made was totally against the law and the approved plan of the Park---Same was also not permissible under Muslim jurisprudence for any mosque to be established and it had to be done by procuring the land and consideration for the said land had to be paid---Apparently, the Karachi Metropolitan Corporation (KMC) which was looking after the Park itself had no authority in law to make allotment or to give license for construction of the mosque in the Park---Purported license issued by Karachi Municipal Corporation for construction of a mosque was, ex facie, illegal and did not create any right of any person in the land of the Park---Supreme Court directed the city Commissioner to remove any mosque from the land belonging to the Park and put up a report in such regard before the Supreme Court.

(b) Constitution of Pakistan---

----Art. 184(3)---Matters relating to graves existing on land belonging to Kidney Hill Park ('the Park'); and two houses built adjacent to the Park with gates opening towards the Park providing an illegal passage for the said houses---Supreme Court gave directions to relevant officials for exploring possibility of shifting the graves from the Park to a properly declared graveyard and for removing any gates of houses existing adjacent to the Park.

(c) Constitution of Pakistan---

----Art. 184(3)---Matter relating to mosque built on plot No. AP-30 of Pakistan Employees Cooperative Housing Society ('PECHS')---Said plot was shown as a park in the layout plan of PECHS---Land meant for park had been encroached upon and a mosque had been constructed--- Concerned Administrator of District Municipal Corporation was present in Court and acknowledged that on park land a mosque had been constructed and that he would ensure that the land was restored to the park and all illegal constructions raised on it were removed---Supreme Court directed that the Administrator shall with due diligence ensure that the park was restored, and that a report in such regard shall be submitted by the Administrator in Court within one week.

In attendance:

Salman Talib ud Din, Advocate General, Sindh, Muhammad Iqbal Memon, Commissioner, Karachi, Murtaza Wahab, Administrator KMC, Mazhar Khan, Chairman, KMC Officers Housing Society, Ms. Ambar Alibhai, Sheri Citizen, Awais Iqbal, Administrator Auqaf, Mehtab Khan, Manager Auqaf East, D.C. East, Rehmat Ullah Sheikh, Administrator, D.M.C. East, Rashid A. Rizvi, Senior Advocate Supreme Court, Raja Qasit Nawaz Khan, Advocate Supreme Court, Khawaja Shamas ul Islam, Advocate Supreme Court, Anwar Mansoor Khan, Senior Advocate Supreme Court, Ms. Umaimah Anwar Khan, Advocate Supreme Court, Obaid ur Rehman Khan, Advocate Supreme Court, Naveed Ahmed Khan, Joint Secretary, PECHS, Asma Batool, A.C. Ferozabad, Kelash Kumar, in person, Sajeel Shehryar Swati, Advocate Supreme Court, Dr. Raana Khan, Advocate-on-Rcord, Mazhar Ali B. Chohan, Advocate-on-Record/Advocate Supreme Court, Kashif Sarwar Paracha, Additional A.G.P., Khaliq Ahmed, DAG, Azra Muqeem, Legal Advisor Afzal Zaidi, M/C and Barrister M. Omer Riaz, Advocate Supreme Court (via video-link Lahore).

2022 S C M R 253

[Supreme Court of Pakistan]

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

REPORT ON BEHALF OF SHEHRI-CITIZENS---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

REPORT NO. 128-K OF 2021, [Report on behalf of Shehri-Citizens v. Federation of Pakistan and others] AND REPORT NO. 135-K OF 2021, [Regarding KMC Officer Co-operative Housing Society land of abounded KMC Sewage v. Federation of Pakistan and others] AND REPORT NO. 146-K OF 2021, [Chairman KMC Officer Co-operative Housing Society Owais Qarni Town at Abandoned KMC Sewage Farm v. Federation of Pakistan and others], decided on 11th January, 2022.

Sindh Local Government Ordinance (XII of 1979)---

----S. 45(5)(i)---Sindh Peoples' Local Council (Land) Rules, 1975, R. 10---Plot of land in Karachi city known as Gutter Baghicha---Grant of 200 acres of land of Gutter Baghicha to KMC Officers' Co-operative Housing Society Limited ('the Society')---Legality---Section 45(5)(i) of the Sindh Local Government Ordinance, 1979 did not at all provide for grant/allotment/lease of a land to the Society for allotment to the employees of KMC---Whole land of Gutter Baghicha is an amenity land and can only be used for amenity purpose of a park---Leasehold right of amenity plot cannot be granted to a Society nor any such thing is provided in R. 10 of the Sindh Peoples' Local Council (Land) Rules, 1975---Karachi Metropolitan Corporation (KMC) or the KMC Council or the Provincial Government or the Provincial Minister of Local Government were not empowered to grant 200 acres of land of Gutter Baghicha to the Society, as the law did not allow such grant or allotment or sale of the land to the Society---Supreme Court declared the same to be altogether illegal, not supportable by law and void ab initio and issued relevant directions in such regard.

The 200 acres land had been granted/allotted/leased by Karachi Metropolitan Corporation (KMC) to the KMC Officers' Co-operative Housing Society Limited ('the Society') for use of housing purposes of its own employees and also as the layout plan shows for commercial purposes. Section 45(5)(i) of the Sindh Local Government Ordinance, 1979 ('the Ordinance of 1979') does not at all provide that the KMC Council could grant, sell or lease the land of KMC to its own employees for housing and commercial purposes. Under the said provision the land which is allowed to be granted, sold or leased, in the first place is to associations, organizations, individuals or any department or institution of the Federal or a Provincial Government and that too for establishing, maintaining or extending educational, religious and charitable institutions and for such other purposes for the benefit of the public. Obviously, the allotment of land for housing and commercial purposes to the employees of KMC will not be that for the benefit of the public. Thus, reading of the provision of section 45(5)(i) did not at all provide for grant/ allotment/lease of a land to the Society for allotment to the employees of KMC.

The whole land of Gutter Baghicha is an amenity land and can only be used for amenity purpose of a park. The leasehold right of amenity plot cannot be granted to a Society nor any such thing is provided in Rule 10 of the Sindh Peoples' Local Council (Land) Rules, 1975 ('the Rules of 1975'). Thus, Rule 10 of the Rules of 1975, as relied upon by KMC, has no application to the case in hand and cannot protect the grant/allotment/lease of land under the provision of section 45(5)(i) of the Ordinance of 1979 and once the Ordinance of 1979 itself cannot support such grant/allotment/lease, the same could not be saved by the Rules, as the Rules have to be consistent with the law under which they are made.

KMC or the KMC Council or the Provincial Government or the Provincial Minister of Local Government were not empowered to grant 200 acres of land of Gutter Baghicha to the Society, as the law did not allow such grant or allotment or sale of the land to the Society. Thus, from inception the Society has wrongly claimed that the land is granted to it under the provision of section 45(5)(i) of the Ordinance of 1979. The very grant made under this provision by the Administrator/Council or the Provincial Government is altogether illegal, not supportable by law and void ab initio. Supreme Court declared that that the grant of 200 acres of land by the Provincial Minister, Local Government, contained in the Minutes of Meeting dated 06-03-1993 mentioned in document dated 09-03-1993, the approval of the Provincial Government vide letter dated 25-07-1993, the letter of allotment dated 03-08-1993, the letter of possession dated 03-08-1993 and the lease deed dated 11-08-1993, are all contrary to law, illegal and thus, set aside, resultantly, all consequential allotments made by the Society to its members are also declared to be contrary to law and illegal and the same are also set aside and cancelled.

Supreme Court directed that the Administrator, KMC shall resume the land immediately and utilize it for the amenity purpose of a park for which it is meant, and that the Administrator shall submit its report to the Court showing compliance of the Court order within two weeks.

In attendance:

Ayyaz Shaukat, DAG, Fauzi Zafar, Additional A.G., Sindh, S.M. Saulat Rizvi, Additional A.G., Sindh (via video link from Karachi), Abrar Hasan, Advocate Supreme Court, Mazhar Khan, Chairman, Qazi Mumtaz Iqbal, General Secretary (For KMC Officers Co-operative Housing Society), Mrs. Amber Alibhai (in person), Muhammad Iqbal Memon, Commissioner, Karachi, Muhammad Shahab Aslam, A.C. Revenue, Karachi, Mrs. Azra Muqeem, Legal Advisor, KMC and Dr. Saeed Ahmed Qureshi, Focal Person to Chief Secretary, Sindh (all via video link from Karachi).

2022 S C M R 264

[Supreme Court of Pakistan]

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

DILDAR AHMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 145-L of 2021, decided on 4th November, 2021.

(On appeal against the order dated 20.01.2021 passed by the Lahore High Court, Lahore in Crl. Misc. No. 33500-B of 2020)

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 34 & 337-F(v)---Common intention, ghayr-jaifah-hashimah---Ad interim pre-arrest bail, confirmation of---Further inquiry---Possibility of fabrication of injury---Injuries sustained by accused suppressed---As per the contents of the crime report, the allegation levelled against the accused was that he caused `kassi' blow on the right arm of the complainant due to which it got fractured/ broken---Complainant was firstly medically examined by a Medical Officer of Rural Health Clinic and then was re­examined by the District Standing Medical Board, which clearly opined that considering the nature and locale of injury, the possibility of fabrication could not be ruled out---Although, the case of the complainant was re-examined by the Provincial Standing Medical Board for the third time but the complainant had not appeared before it for his examination for the third time---Furthermore the accused claimed that in-fact the complainant party was the aggressor and during the occurrence, the accused had also received as many as five injuries on different parts of his body, which were detailed in the medico legal report available on the paper book---Prima facie the injuries sustained by the accused were suppressed--In these circumstances, a prima facie doubt had arisen qua the authenticity of the prosecution's case---Case of the accused squarely fell within the purview of S. 497(2), Cr.P.C. entitling him 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 accused was confirmed.

Samiullah v. Laiqzada 2020 SCMR 1115 and Muhammad Faisal v. The State 2020 SCMR 971 ref.

Mian Muhammad Saeed, Advocate Supreme Court for Petitioner along with Petitioner in person.

Ch. Muhammad Sarwar Sidhu, Additional P.G. for the State.

Mansoor-ur-Rehman, Advocate Supreme Court for Respondent No. 2.

2022 S C M R 267

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Amin-ud-Din Khan and Sayyed Mazahar Ali Akbar Naqvi, JJ

BASHARAT ALI---Petitioner

Versus

The STATE through Prosecutor General Punjab and another---Respondents

Criminal Petition No. 560-L of 2021, decided on 15th November, 2021.

(Against the order dated 04.03.2021 of the Lahore High Court, Lahore passed in Crl. Misc. No. 11025/B of 2021)

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

---S. 497(2)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 302, 324, 34 & 109---Qatl-i-amd, attempt to commit qatl-i-amd, common intention and abetment---Bail, refusal of---Occurrence had taken place within the premises of a police station---Parties also belonged to the same vicinity and there was no chance of mis-identification especially when the parties were inimical to each other---As per the accusation against the accused, he was ascribed the role of causing fire-arm injury on the body of the deceased as well as injured witness---Both the said injuries were spelt out from the medical report---During the course of first investigation, the accused was found fully involved in the case---Claim of the accused that during the second investigation, he was found innocent did not imprint any concession in his favour especially when such aspect was already taken into consideration by the High Court while dismissing the petition for bail in the first round of litigation---Furthermore the Investigating Officer who gave opinion in favour of the accused had not dared to place his name in column No.2, rather the same was placed in column No.3 of the report submitted under S. 173, Cr.P.C.---Accused had failed to make out a case for enlargement on bail---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 173 & 497---Bail---Police report/opinion---Persuasive value---Ipse dixit of the police was not binding, rather it had persuasive value which depended upon the facts and circumstances surfacing on the record.

The State through Advocate-General, NWFP v. Zubair and 4 others PLD 1986 SC 173 ref.

Dr. Khalid Ranjha, Advocate Supreme Court for Petitioner.

Muhammad Jaffar, DPG and Sibtain, I.O. for the State.

Tariq Nadeem, Advocate Supreme Court for Respondent No. 2.

2022 S C M R 270

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

ZEESHAN SHAIKH---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Interior Division, Islamabad

and others---Respondents

Civil Petition No. 482-K of 2020, decided on 10th January, 2022.

(Against the judgment dated 23.06.2020 passed by the Federal Service Tribunal, Islamabad (Karachi Bench) in Appeal No. 07(K)CS/2018 along with Misc. Petition No. 53 of 2019)

Federal Investigation Agency (Appointment, Promotion and Transfer) Rules, 1975---

----R. 12--- Seniority--- Federal Investigation Agency (FIA)---'Investigation group' and 'Immigration wing' of FIA---Joint seniority list---Whether 'Investigation group' and 'Immigration wing' of FIA were distinct groups/cadres---Held, that Federal Government had the power, under R. 12 of the Federal Investigation Agency (Appointment, Promotion and Transfer) Rules, 1975, to add to or modify the six groups with the FIA, but it had not exercised such power to make the Immigration wing into a distinct group, and one separate from the Investigation group---Throughout, a combined seniority list of the Investigation group was issued, and when such practice was departed with for a while it was restored by the Tribunal and the decision of the Tribunal was endorsed by the Supreme Court---Petition for leave to appeal was dismissed and leave was refused.

Malik Naeem Iqbal, Advocate Supreme Court and M. Iqbal Chaudhry, Advocate-on-Record assisted by M. Nasir Arrian, Advocate High Court for Petitioner.

Hassan Mehmood Mandviwalla, Advocate High Court (with permission) for Respondents.

Ms. Abida Parveen Channar, Advocate-on-Record for Respondent No. 32.

Other Respondents not represented.

2022 S C M R 273

[Supreme Court of Pakistan]

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

QAYYUM KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1027-L of 2021, decided on 12th November, 2021.

(Against the order dated 07.06.2021 passed by the Lahore High Court, Lahore in Crl. Misc. No. 24735-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 498---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), S. 324---Murderous assault---Bail, refusal of---Accused along with his co-accused allegedly fired at the injured and caused four injuries to him---Accused was specifically nominated in the FIR---Only ground which was agitated before the Court was that the accused was found empty handed by the Investigating Officer at the place of occurrence---Concerned Superintendent of Police (SP) appeared before the Court and stated that the opinion of the Investigating Officer was not based on any credible evidence and disciplinary action had been taken against him; he also confirmed that he had recommended for re-investigation of the matter---In such eventuality when accused was specifically nominated in the FIR for causing injury to the injured, he was not entitled for the concession of bail---High Court while refusing bail to the accused had given valid reasons which were not open to any exception---Petition for leave to appeal was dismissed and leave was refused. [p. 274] A

Malik Matee Ullah, Advocate Supreme Court for Petitioner.

Muhammad Usman, DPG, Punjab along with Fayaz, ASI/I.O. for the State.

2022 S C M R 274

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Amin-ud-Din Khan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD AJMAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 863-L of 2021, decided on 15th November, 2021.

(Against the order dated 01.06.2021 of the Lahore High Court, Lahore passed in Crl. Misc. No. 29729-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Constitution of Pakistan, Art. 185(3)---Prevention of Electronic Crimes Act (XL of 2016), Ss. 20, 21 & 24---Making objectionable videos of a woman by intoxicating her and sharing the same over social media---Bail, grant of---Further inquiry---Rule of consistency---Co-accused had already been granted bail on the basis of concessional statement made by the victim herself---Device used for sharing the objectionable video was of the co-accused and as such the case of the accused was at better footings as compared to co-accused--- As the co-accused had already been enlarged on bail, therefore, the accused was entitled for the concession of post-arrest bail on the plea of consistency---Furthermore maximum punishment for the offence under the statute was 05 years which did not attract the prohibitory clause of S. 497, Cr.P.C.---Prima facie, there were sufficient grounds to take into consideration that the case of the accused was fully covered by S. 497(2), Cr.P.C. calling for further inquiry to his guilt--- Consequently 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.

Shahid Azeem, Advocate Supreme Court for Petitioner.

Tariq Rafiq Bhandera, Advocate Supreme Court and Um-e-Habiba, S.I. for the State.

Seerat Hussain Naqvi, Advocate Supreme Court for the Complainant.

2022 S C M R 277

[Supreme Court of Pakistan]

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

GOVERNMENT OF KHYBER PAKHTUNKHWA through District Collector/District Officer (R&E) (Now) Deputy Commissioner Mardan and others---Petitioners

Versus

MISAL KHAN and others---Respondents

Civil Review Petitions Nos.758 and 759 of 2019 and Civil Review Petitions Nos. 7 to 84 and 121 of 2020, decided on 14th October, 2021.

(For review of the order dated 14.11.2019, passed by this Court, in Civil Appeal No.169-P/2018 and other connected matters)

Land Acquisition Act (I of 1894)---

----S. 28 [as amended by the Khyber Pakhtunkhwa Land Acquisition (Amendment) Ordinance 2001]---Interest on enhanced compensation---Scope---Section 28 of the Land Acquisition Act, 1894 as it existed in the Province of Khyber Pakhtunkhwa (KPK), authorized the Court to determine the amount of compensation to be paid to a land owner, which was over and above the enhanced sum of compensation awarded by the Court---Said determination of the amount included the interest on the enhanced sum of the compensation for the period when the possession of the land was taken till the payment of the enhanced sum of the compensation to the land owner---In the Province of KPK the Court was not bound by any fixed rate of interest and could grant interest at any just, proper and reasonable rate as it determined, which could also be the rate determined by the State Bank of Pakistan.

Atif Ali Khan, Additional A.G. Khyber Pakhtunkhwa and Malik Akhtar Awan, Additional A.G. Kbyber Pakhtunkhwa for Petitioners (in all cases).

Nemo for Respondents.

2022 S C M R 282

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Syed JAMIL AHMAD---Appellant

Versus

MUHAMMAD SALAM and others---Respondents

Civil Appeal No. 73-K of 2018, decided on 6th January, 2022.

(Against the order dated 13.08.2018 passed by the High Court of Sindh, Karachi in Civil Revision No. 54 of 2012)

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Maintainability---Lease granted by the Directorate of Katchi Abadies of the Karachi Metropolitan Corporation (KMC)---Persons in unauthorised possession of land (not owned by them) and which formed part of a declared Katchi Abadie were granted ownership rights to the land in their possession by the KMC---Admittedly, the appellant/plaintiff was not in possession of the land in respect of which the respondent/defendant was granted a lease---Appellant contended that the respondent was his tenant, therefore, the respondent should not have been granted the lease in question---Even if it be assumed that the respondent was the appellant's tenant still the appellant could not claim leasehold rights on the basis of the purported tenancy in respect of land situated in a declared Katchi Abadie---Law regularizing Katchi Abadies was meant to accommodate/benefit the landless---Appellant based his claim to the land which admittedly was not owned by him nor was in his possession---Land in Katchi Abadies could not be used for personal enrichment by somehow acquiring possession of it and then handing over its possession to a purported tenant, as it would be against public policy if money was permitted to be made at the expense of the landowner, by exploiting the landless and then claiming ownership rights emanating from having had possession of such land---Appellant had no legal character in terms of S. 42 of the Specific Relief Act, 1877 and his suit, seeking declaration to ownership of the subject plot, in possession of the respondent, was not maintainable---Appeal was dismissed.

Shahab Sarki, Advocate Supreme Court and K. A. Wahab, Advocate-on-Record for Appellant.

Ex part for Respondents.

2022 S C M R 284

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Muhammad Ali Mazhar, JJ

BAHAR SHAH and others---Appellants

Versus

MANZOOR AHMAD---Respondent

Civil Appeal No. 389 of 2015, decided on 14th October, 2021.

(Against the judgment dated 23.12.2014 passed by Lahore High Court, Multan Bench in R.S.A. No.37 of 2014)

(a) 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 vendee--- Bona fide purchaser--- Scope--- Whether subsequent vendee had no prior notice of earlier agreement to sell of the same property---Held, that in the present case the agreement to sell was executed against consideration between the respondent (vendee) and the vendor-lady, but the vendor-lady dubiously and distrustfully transferred the land in question in the name of her real brother/ appellant by means of an alleged oral sale and mutation entry---Though in the written statement, the vendor disavowed the execution of agreement with respondent but when she appeared in the witness box, she deposed divergently that her husband took her thumb impression on blank papers---Vendor did not explain as to what legal action was taken by her against her husband, who allegedly secured her thumb impression on blank papers by fraudulent and deceitful means---Whereas the respondent produced witnesses to testify the execution of agreement to sell who were fully firm and supported the version of the respondent in the aid of proving the execution of agreement to sell and payment of sale consideration---Agreement to sell was executed between the vendor and the respondent on 4.9.2008 but after few days, i.e. on 19-9-2008 she transferred the land in question in favour of her brother/appellant, which was incredible as being real sister and brother the vendor acted ignorant or unacquainted of her earlier agreement to sell---According to the agreement with the respondent, the cutoff date for the payment of balance sale consideration and conveyance deed was to be registered on 20.10.2008 but before expiry of said cutoff date, the vendor transferred the land on 19.9.2008 in favour of her brother/appellant---Conduct of vendor and her brother/appellant demonstrated that mutation entry was a sequel of an attempt to deprive and exasperate the deal finalized with the respondent and hasty and abrupt transfer of property through mutation entry was effected to bring in an unconvincing plea of bona fide purchaser in anticipation of lawsuit of the respondent---Respondent proved his case of specific performance through trustworthy and reliable evidence whereas the appellant failed to establish his plea as a bona fide purchaser through any credible evidence---Appellate Court had rightly decreed suit for specific performance filed by the respondent---Appeal was dismissed.

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

----Ss. 41 & 54---Specific Relief Act (I of 1877), S. 27(b)---Agreement to sell immoveable property--- Subsequent vendee--- Bona fide purchaser---Scope and burden of proof---Whether subsequent vendee had no prior notice of earlier agreement to sell of the same property---Held, that plea of bona fide purchaser should be established by a fair preponderance of the evidence---Fact of notice may be inferred from the circumstances as well as proved by direct evidence---Conscious and purposive circumvention of an enquiry and due diligence which a buyer ought to have made would always communicate a presumption of definite notice---Honest buyer should at least make some inquiries with the persons having knowledge of the property and also with the neighbors---Burden of proof of good faith was on the subsequent buyer, who moved forward a plea that he was an innocent/bona fide purchaser---If the subsequent buyer failed to take routine cautionary and preventive measure, which an ordinary purchaser would have to take, then his conduct could not be considered bona fide or him having acted with fairness and uprightness---Whether in a particular case a person acted with honesty or not would obviously depend on the facts of each case---Good faith entailed righteous and rational approach with good sense of right and wrong which excluded the element of deceitfulness, lack of fair-mindedness and uprightness and or wilful negligence.

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

----Ss. 41 & 54---Agreement to sell immoveable property---Subsequent vendee---Bona fide purchaser without notice---Requirement of subsequent vendee having acted in 'good faith'---Condition of subsequent vendee having acted in good faith shall stand settled if the subsequent vendee had acted as a man of ordinary prudence in making inquiries expected from a purchaser, who wanted to acquire a good title for the price/value he was paying; this may include the checking of the Revenue Record or obtaining copies thereof to verify about the title of the vendor or any third party in right, interest or charge over the property or any endorsement in such record about any pending litigation or an injunctive order etc; this may be a good and adequate exercise of investigative process, in case of rural/agriculture property---For the same purpose, regarding urban property, the Excise and Taxation record may be examined coupled with the verification and obtaining the original documents of title from the vendor, if those were available---However, the subsequent vendee was not obliged to run from the pillar to post in conducting, rowing and fishing inquiries, to ascertain if a third party had any interest etc. in the property which otherwise was visibly lacking---If there existed some overt, prominent and conspicuous indicators about the third party interest, which were so patently noticeable and manifest that those could not and should not be missed and ignored by a purchaser, such as the possession not with the vendor but someone else, who if approached or its nature investigated would lead to discover such interest, the purchaser was obliged to probe about it, otherwise he may not be able to take resort of the equitable rule of bona fide purchaser without notice.

Nannu Mal v. Rani Chander AIR 1931 All 277 and R. K. Mohammed Ubaidullah and others v. Hajee C. Abdul Wahab (D) By LRs and others AIR 2001 SC 1658 ref.

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

----S. 100---Second Appeal before the High Court---Scope---Right to file Second Appeal provided under S. 100 of C.P.C, could be set into motion only when the decision impugned was contrary to law; or there was failure to determine some material issue of law, or there was a substantial error or defect in the procedure provided by the Code or law---In case of inconsistency between the Trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary.

Amjad Ikram v. Mst. Asiya Kausar 2015 SCMR 1 ref.

Zahoor-ul-Haq Chishti, Advocate Supreme Court for Appellants.

M. Ishtiaq Ahmad Raja, Advocate Supreme Court for Respondent.

2022 S C M R 292

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi JJ

DIVISIONAL SUPERINTENDENT, QUETTA POSTAL DIVISION and others---Appellants

Versus

MUHAMMAD IBRAHIM and others---Respondents

Civil Appeal No. 508 of 2020, decided on 7th December, 2021.

(On appeal against the judgment dated 25.08.2018 passed by the High Court of Balochistan, Quetta, in C.P. No. 136/2014)

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

----S. 2(1)(b)(iii)---Industrial Relations Act (X of 2012), S. 2(xxxiii)---Balochistan Industrial Relations Act (XIV of 2010), Ss. 1(4)(b) & 2(dd)---Workmen's Compensation Act (VIII of 1923), S. 2(1)(n) & Second Sched. Cl. (xiii)---Employee of Pakistan Post Office---Workman---Scope---Employees of Post Office employed in any occupation ordinarily involving outdoor work were included in the term "workman" as defined in the Workman's Compensation Act, 1923 and were excluded from the term "civil servant" as defined in the Civil Servants Act, 1973.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 ref.

(b) Industrial Relations Act (X of 2012)---

----Ss. 1(3), 54(h) & Preamble---Balochistan Industrial Relations Act (XIV of 2010), S. 1(4)---Constitution of Pakistan, Art. 143 & Fourth Sched. Pt. II, Entry No. 13---Employee of Pakistan Post Office---Grievance---Whether employee of Post Office would have remedy under the Industrial Relations Act, 2012 or the Balochistan Industrial Relations Act, 2010---Held, that S. 1(3) of the Industrial Relations Act, 2012, which made the said Act applicable to workmen employed in the administration of the State (which included the Postal Service Department) would override the provisions of S. 1(4)(b) the Balochistan Industrial Relations Act, 2010---Workmen of the Post Office Department were subject to the Industrial Relations Act, 2012 and not the Balochistan Industrial Relations Act, 2010, and hence remedy for redressal of such worker's grievance laid before the National Industrial Relations Commission---Section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, insofar as it dealt with the workmen of Pakistan Post Office, was repugnant and void in terms of Art. 143 of the Constitution and the Industrial Relations Act, 2012.

Industrial Relations Act, 2012 was applicable to all persons employed in any establishment or industry, in the Islamabad Capital Territory or to any other establishment or industry, which being trans-provincial was carrying on business in more than one province, whereas, the Balochistan Industrial Relations Act, 2010 shall apply to all persons employed in any establishment or industry to the extent of province of Balochistan. The Pakistan Post Office Department was managed by the Pakistan Postal Services Management Board, and rendering services not only in the Islamabad Capital Territory but also in all the four Provinces, it was squarely covered by section 1(3) of the Industrial Relations Act, 2012.

Section 1(3) of the Industrial Relations Act, 2012, which made the said Act applicable to workmen employed in the administration of the State (which included the Postal Service Department) would override the provisions of section 1(4)(b) the Balochistan Industrial Relations Act, 2010. Workmen of the Post Office Department were subject to the Industrial Relations Act, 2012 and not the Balochistan Industrial Relations Act, 2010, and hence remedy for redressal of such worker's grievance laid before the National Industrial Relations Commission.

PTCL v. Member NIRC 2014 SCMR 535 ref.

As by virtue of section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, applicability of provincial statute extended to a trans-provincial department i.e. Post Office, therefore, it was inconsistent with the Federal Legislation i.e. Industrial Relations Act, 2012. Entry No. 13 of Part II of the Federal Legislative List provided in the Constitution empowered the Parliament to enact on any matter which was related to inter-provincial matters and co-ordination, however, while enacting section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, the Provincial Legislature went beyond its competence/power to enact.

Sui Southern Gas Company v. Federation of Pakistan 2018 SCMR 802 and Federal Government Employees Housing Foundation v. Ghulam Mustafa 2021 SCMR 201 ref.

Section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, insofar as it dealt with the workmen of Pakistan Post Office, being a trans-provincial subject/entity, was repugnant and void in terms of Article 143 of the Constitution and the Industrial Relations Act, 2012.

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

----S. 25(1)--- Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, S. 1, first proviso---Employee/postman of Pakistan Post Office---Rules framed under the Civil Servants Act, 1973---Said Rules would not be applicable to a workman/postman and the Standing Orders Ordinance, 1968 would be applicable for such a workman/postman---Postman had guaranteed rights under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, for violation of which he could file a grievance petition in the Labour fora.

Pakistan Post Office v. Nadeem Ahmed Khan 1995 PLC 205 ref.

Moulvi Ejaz ul Haq, DAG, Syed Rifaqat Hussain Shah, Advocate-on-Record and Hamid ul Haseeb, Asst. Director (Investigation), Quetta for Appellants.

Ms. Sarwat Mukhtar, Advocate Supreme Court (through video link from Quetta) for Respondent No. 1.

Hafiz Muhammad Tariq Nasim, Advocate Supreme Court, Amicus curiae.

2022 S C M R 309

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

JEHANGIR---Appellant

Versus

Mst. SHAMS SULTANA and others---Respondents

Civil Appeal No. 177-P of 2020 and C.M.A. No. 1064-P of 2020, decided on 25th November, 2021.

(On appeal from the judgment dated 07.10.2020 of the Peshawar High Court, Peshawar passed in Civil Revision No. 325-P/08)

Specific Relief Act (I of 1877)---

----Ss. 39 & 42---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Suit for declaration and cancellation of sale mutation---Withholding/non-production of evidence---Effect---On death of predecessor of the parties, his estate was inherited by the appellant (brother), his four sisters and their mother---Three of the sisters allegedly sold part of their inherited land to their brother i.e. the appellant through an attested sale mutation---Said sale mutation was subsequently assailed by one of the sisters i.e. respondent-sister by filing a suit---Held, that the respondent-sister did not come forward to testify herself that she had not sold the property, instead her husband testified on her behalf as her attorney---Importantly one of the sisters and their mother had testified in support of the sale---Direct challenge had also been thrown to the respondent's husband/attorney that if the respondent came to testify she would acknowledge the sale---When the best evidence i.e. the respondent was intentionally withheld an adverse presumption ensued that if it was produced it would be against the person withholding it as per Art. 129(g) of the Qanun-e-Shahadat, 1984---Husband of the respondent i.e. her attorney had also stated, in his examination-in-chief, that the land had been sold by the respondent because she needed the money---Such statement could not be construed as a misunderstanding; his re-examination was also not sought nor the court record sought to be corrected if a mistake had been committed in recording the testimony of the witness---In conclusion sale was admitted/not denied by the two sellers who had a two-third share in the subject land and the third seller i.e. respondent did not come forward to testify---Apparently, the respondent's husband was interested in the land and he had himself also filed the suit---Appeal was allowed and suit filed on behalf of the respondent was dismissed.

Mazullah Barkandi, Advocate Supreme Court (through video-link from Peshawar) and M. Tariq Khan, Advocate-on-Record (absent) for Appellant.

M. Ajmal Zeb Khan, Advocate Supreme Court (through video-link from Peshawar) for Respondent No. 1.

Proforma Respondents for Respondents Nos. 2-3

2022 S C M R 313

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Mazhar Alam Khan Miankhel, J

BILAL HUSSAIN (DECEASED) through L.Rs.---Appellant

Versus

PRESIDENT, NATIONAL BANK OF PAKISTAN (NBP), HEAD OFFICE, I.I. CHUNDRIGARH ROAD, KARACHI and others---Respondents

Civil Appeal No. 746 of 2021, decided on 16th November, 2021.

(Against the order dated 19.03.2019, passed by the Lahore High Court, Multan Bench, Multan in Writ Petition No. 4611 of 2014)

(a) Civil service---

----Branch Manager of National Bank of Pakistan---Major penalty---Compulsory retirement from service---Junior officer/co-accused imposed lesser penalty---Whether a ground to set-aside major penalty---Held, that the appellant being a branch manager of the Bank having higher responsibility was appropriately imposed penalty of compulsory retirement, while co-accused being an OG-II officer and functioning under the directions of the appellant was imposed lesser penalty---Appeal was dismissed and penalty of compulsory retirement from service imposed upon the appellant was maintained.

(b) Civil service---

----Branch Manager of National Bank of Pakistan---Major penalty---Compulsory retirement from service---Order of imposition of penalty---Whether passed by competent authority---Plea of petitioner that the letter provided to him mentioning that he had been compulsorily retired from service by the 'authority' did not mention who the authority was---Held, that it was a routine practice in large organizations that when an authority passed an order, it was communicated by the organization's office to the relevant official---Use of the word authority in the letter itself showed that the competent authority i.e. President of the Bank had passed the order of compulsory retirement of the appellant and the same had been conveyed to him by the Bank officials through a letter signed by a Senior Vice President and an Assistant Vice President---Appeal was dismissed and penalty of compulsory retirement from service imposed upon the appellant was maintained.

Shah Khawar, Advocate Supreme Court for Appellant.

Umer Abdullah, Advocate Supreme Court for Respondents.

2022 S C M R 317

[Supreme Court of Pakistan]

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

AJAB KHAN---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 614 of 2016, decided on 28th October, 2021.

(On appeal against the judgment dated 19.10.2016 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 46-P/2014)

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

----S. 9(c)---Possession and transportation of 19 kilograms of charas---Reappraisal of evidence---Accused was caught red handed by the police and 19 packets of charas garda, each packet weighing 1000 grams (total 19 kilogram), was recovered from beneath the rear seat of the car, which was being driven by the accused---From each packet, 4 grams of charas was separated in 19 separate parcels for the purpose of chemical examination and the remaining was sealed into a separate parcel---Prosecution's case hinged upon the statements of two police officials, who narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered by the defence despite lengthy cross-examination---Said witnesses had no enmity with the accused to falsely implicate him in the present case as a huge quantity of charas could not be foisted upon the accused to fabricate a fake case---Police officials separated the samples from each packet in the prescribed manner and sent the same to the office of Forensic Science Laboratory---Report of the Forensic Science Laboratory showed that all the 19 samples were subjected to chemical and instrumental analysis and the same were found to be narcotic substance---Nothing on record suggested that the safe chain of custody of the samples was compromised---Petition for leave to appeal was dismissed, leave was refused and conviction and sentence recorded against the accused was maintained.

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

----S. 9---Possession of narcotics---Testimony of police officials---Such testimony was as good as any other private witness unless it was proved that the police officials had animus against the accused.

Salah-ud-Din v. State 2010 SCMR 1962 ref.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 164 & 364---Possession and transportation of 19 kilograms of charas---Reappraisal of evidence---Judicial confession before Magistrate---Use of a printed proforma for recording confession of accused---Propriety---Two days after of the occurrence, the accused had made a confessional statement before the Judicial Magistrate in which he confessed his guilt and stated that because of poverty he had committed the crime---Printed proforma was only a memorandum of enquiry through which some basic questions were asked from the accused---Confessional statement of the accused was separately recorded and not on a printed proforma---Certificate issued by the Magistrate in such regard clearly showed that although the accused gave the statement in Pashto language but the same was translated and read over to him---Accused was also given 30 minutes time to think over before recording his confessional statement---Judicial Magistrate who had recorded the statement of the accused had also appeared before the Trial Court as a witness and had duly testified the same; he was cross-examined at length but nothing favourable to the accused could be brought on record---Petition for leave to appeal was dismissed, leave was refused and conviction and sentence recorded against the accused was maintained.

Ms. Aisha Tasneem, Advocate Supreme Court for Petitioner.

Raja Muhammad Rizwan Ibrahim Satti, State Counsel for the State.

2022 S C M R 321

[Supreme Court of Pakistan]

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

ABDUL QADIR and 2 others---Petitioners

Versus

JAHANGIR KHAN and others---Respondents

Civil Petitions Nos. 181-Q to 184-Q of 2021, decided on 25th October, 2021.

(Against the judgment dated 06.05.2021 passed by the High Court of Balochistan, Quetta in Review Petition No. 04 of 2021 in Civil Revision No. 330 of 2020)

Civil Procedure Code (V of 1908)---

----Ss. 114, 115 & O. XLVII, R. 1---Supreme Court Rules, 1980, O. XIII, R. 1---Petition for leave to appeal before the Supreme Court under Art. 185(3) of the Constitution---Limitation---Review jurisdiction of the High Court---Scope---Civil revision petitions dismissed by the High Court---Review petition against dismissal of revision petitions also dismissed by the High Court as being not competent---Question as to whether after dismissal of review petition the party was allowed to assail validity of both the orders i.e. order of dismissal of review as well as dismissal of revision petitions when against the order of dismissal of revision petitions the limitation for filing a petition for leave to appeal before the Supreme Court under Art. 185(3) of the Constitution had expired---Held, that petitioner failed to show the Court any point pleaded in his review petition before the High Court whereby any reason for invoking the jurisdiction of the High Court for exercise of review jurisdiction was permissible---Petitioner was also unable to satisfy the Court as to why he did not choose to challenge the dismissal of revision petitions directly before the Supreme Court and instead preferred a review petition before the High Court---All the points raised in review petition before the High Court seemed to be an attempt to seek rehearing of whole of the matter---When review petition had simply been dismissed without altering judgment given in revisional jurisdiction no question arose of merger of judgment of revisional court into the review judgment---Petitioners could not file a petition for leave to appeal in the Supreme Court when his review petition had been dismissed without any modification to the original judgment passed in the revision petition except to the extent of legality of exercise of review jurisdiction---Furthermore all present petitions for leave to appeal before the Supreme Court were barred by limitation when time of limitation was considered from the dates when the certified copies of judgments of High Court in its revisional jurisdiction were prepared and issued---Since the revision petition was dismissed by the High Court against which no petition for leave to appeal was filed before the Supreme Court within period of limitation as such the same had attained finality---High Court had rightly dismissed the revision petition---Petition for leave to appeal was dismissed and leave was refused.

DSR Steel (P) Ltd. v. State of Rajasthan and others 2012 (2) CCC 88 and Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336 ref.

Liaqat Ali Tareen, Advocate Supreme Court for Petitioners.

Shamsuddin Achakzai, Advocate Supreme Court for Respondent No. 1.

2022 S C M R 326

[Supreme Court of Pakistan]

Present: Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD SHOAIB---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1290 of 2021, decided on 6th December, 2021.

(Against the judgment dated 01.11.2021 passed by the Lahore High Court, Rawalpindi Bench in Crl. Misc. No.7752/2021)

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan, Art. 185(3)---Subsequent/second bail petition, filing of---Fresh grounds---Scope---Accused can maintain a subsequent bail petition, at post-arrest stage, only on the strength of a fresh ground, accrued after dismissal of his first plea (for bail)---Ground earlier available but abandoned cannot be received as a fresh ground and, thus, consequences of withdrawal of a bail petition, made at any stage of hearing, cannot be quantified nor viewed as simpliciter and as such does not allow space for a second attempt in the absence of a newly accrued ground.

The State through Advocate General N.W.F.P. v. Zubair Ahmed and 4 others PLD 1986 SC 173 ref.

Aftab Alam Yasir, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2022 S C M R 327

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

SENIOR SUPERINTENDENT OF POLICE (OPERATIONS) and others---Appellants

Versus

SHAHID NAZIR---Respondent

Civil Appeal No. 608 of 2021, decided on 12th October, 2021.

(Against the judgment dated 11.02.2020 passed by Punjab Service Tribunal, Lahore in Appeal No.1975/2019)

(a) Civil service---

----Concurrent 'departmental disciplinary proceedings' and 'criminal proceedings' against an employee over the same allegations---Distinction and purpose stated.

Purpose and sagacity of initiating disciplinary proceedings by the employer was to find out and come to a decision whether the charges of misconduct leveled against the delinquent officer/employee were proved or not and in case his guilt was established, what action should be taken against him under the applicable Service laws, Rules and Regulations, which may include the imposition of minor or major penalties in accordance with the fine sense of judgment of the competent Authority/Management. In contrast, the perception and rationality to set into motion criminal prosecution was altogether different where the prosecution had to prove the guilt of an accused beyond any reasonable doubt. Both had distinct features and characteristics with regard to the standard of proof. The prosecution in criminal cases as well as the departmental inquiry on the same allegations could be conducted and continued concurrently without having any overriding or overlapping effect. The object of criminal trial was to inflict punishment of the offences committed by the accused while departmental inquiry was geared up or activated to inquire into the allegations of misconduct in order to keep up and maintain the discipline and decorum in the institution and efficiency of department to strengthen and preserve public confidence in any such institution. Even an acquittal by criminal court would not debar an employer from exercising disciplinary powers in accordance with applicable service Rules and Regulations.

(b) Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 6(3)(b)---Discretion of department to dispense with regular inquiry---Scope---No hard and fast rule that in each and every case after issuing show cause notice the regular inquiry should be conducted but if the department wanted to dispense with the regular inquiry there must be some compelling and justiciable reasons assigned in writing.

(c) Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 6(3)(b)---Misconduct---Involvement in criminal cases and failure to perform duty efficiently---Whether competent authority could dispense with regular inquiry in view of registration of FIRs against the delinquent police official/respondent---Held, that in the present case although the respondent (police official) was booked in some FIRs lodged against him but he was not convicted by the court in any case when the show cause notice was issued to him, therefore, in order to reach just and proper conclusion, regular departmental inquiry should have been conducted by the police department as the case of respondent's misconduct could not be solitary based on mere documentary evidence but on the basis of the FIRs lodged where the prosecution had to prove the guilt of accused beyond any reasonable doubt---Inquiry was dispensed with on the pretext that FIRs were lodged which did not culminate in the conviction of the respondent before show cause notice, therefore, in the peculiar circumstances, neither inquiry could be dispensed with nor registration of FIRs could relax or absolve the obligation of holding regular inquiry to decide the allegations of misconduct against the respondent---Appeal was dismissed and judgment of Service Tribunal whereby respondent's dismissal from service was converted into forfeiture of two years of service was maintained with the observation that conduct of the police department in the present case was quite negligent and reckless giving the impression that departmental inquiry was intentionally dispensed with to accord technical benefit to the respondent by perpetration of procedural lapses.

Basharat Ali v. Director, Excise and Taxation, Lahore and another 1997 SCMR 1543; Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (C.S.) 868; Shakeel Ahmad v. I.G. Punjab Police, Lahore and others 2007 SCMR 192; Naseeb Khan v. Divisional Superintendent, Pakistan Railways, Lahore and another 2008 SCMR 1369; Pakistan International Airlines Corporation v. Ms. Shaista Naheed 2004 SCMR 316; Inspector-General of Police, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 2007; Fuad Asadullah Khan v. Federation of Pakistan 2009 SCMR 412 and Chief Postmaster Faisalabad, GPO and another. v. Muhammad Fazal 2020 SCMR 1029 ref.

Shaukat Rauf Siddiqui, Additional A.G. Punjab along with Ms. Nazia, DSP for Appellants.

Respondent in person.

2022 S C M R 335

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Prosecutor General Accountability, NAB Headquarters, Sector G-5/1, Islamabad---Appellant

Versus

FARAZ AHMED SHERWANI and others---Respondents

Civil Appeal No. 1000 of 2020, decided on 9th June, 2021.

[Against the judgment dated 22.06.2020, passed by the High Court of Sindh, Karachi in C.P. No.D-253 of 2015]

National Accountability Bureau (NAB) Employees Terms and Conditions of Services (TCS), 2002---

----Para. 14.08---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R. 3(2)---Post of Private Secretary (BPS-17) in National Accountability Bureau (NAB)---History of creation of said post and service rules applicable to the same stated.

National Accountability Bureau (NAB) Employees Terms and Conditions of Services (TCS), 2002 ('TCS-2002') did not mention the post of Private Secretary (BPS-17) but the fact remains that firstly a Private Secretary, though on temporary post, was appointed in the NAB on 15.11.2002. Subsequently, more Private Secretaries were appointed on 15.02.2006, 24.03.2006, 01.06.2012, 10.07.2012 and 29.03.2013, while three temporary posts were converted into permanent posts on 02.01.2008 and further two permanent posts of Private Secretary (BPS-17) were created on 30.01.2012. Posts of Private Secretary (BPS-17) were created in NAB by adopting the rules applicable to the Government Servants. Thus, the posts of Private Secretary (BPS-17), apparently, were created by following the rules as were applicable to the Government Servants and this was done under paragraph 14.08 of TCS-2002.

Thus, on the basis of paragraph 14.08 of TCS-2002, in matters not covered under the TCS-2002, the employees of NAB were to be governed by the rules as applicable to the other civil servants and instructions issued from time to time by the Federal Government on the subject. The rules applicable to the civil servants for appointment to the posts of Private Secretary (BPS-17) were adopted by NAB on 24.10.2005 and the rules applicable to other civil servants in the light of paragraph 14.08 of TCS-2002 were applicable to the posts of Private Secretary (BPS-17). Thus, the posts of Private Secretary (BPS-17) were created in NAB by adopting the rules on 24.10.2005, and for all intends and purposes, TCS-2002 stood amended by adoption of the rules applicable to other civil servants in respect of the posts of Private Secretary (BPS-17) on 24.10.2005. When the posts were created by following the rules as were applicable to the other civil servants, obviously the manner in which they were to be filled in was also to be adopted and such adoption was provided in SRO No.99(KE)/87, dated 22.10.1987 where the posts of Private Secretary (BPS-17) were to be filled in from amongst the Stenographers, including those in the Selection Grade. The post of Stenographer and the post of Personal Assistant, both being in BPS-16, their line of promotion as per rules was to the post of Private Secretary (BPS-17).

Muhammad Amin v. Chief Engineer, Irrigation and others 2012 PLC (C.S.) 834 ref.

Imran ul Haq, Deputy Prosecutor General, NAB and Muhammad Sharif Janjua, Advocate-on-Record for Appellant.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Respondents Nos. 1 - 2.

2022 S C M R 346

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

TAHSINULLAH---Appellant

Versus

Mst. PARVEEN (DECEASED) through L.Rs. and others---Respondents

Civil Appeal No. 46-P of 2020, decided on 25th November, 2021.

(On appeal from the judgment dated 03.02.2020 of the Peshawar High Court, Peshawar passed in Civil Revision No. 900-P/08)

(a) Islamic law---

----Gift---Proof---Brother depriving his sisters of their share in inheritance through a purported gift of immoveable property made by their father---Violation of laws of Almighty Allah---In the present case, perusal of the gift/tamleek mutation showed that acceptance of the gift by the appellant (brother) was not mentioned---Alleged donor/father of the parties had made the said gift the very same day that he died---Burden to establish the gift lay upon the appellant, which he failed to discharge and the fact that it was made by his father on the very day that he died made it extremely suspect and unreliable---Sisters themselves had filed the suit in their lifetime, which was sufficient to sustain it---High Court had rightly decreed the suit filed by the sisters challenging the gift/ tamleek mutation---Appeal was dismissed with the observations that it was a matter of great regret that the laws of Almighty Allah and the law of the country was not abided by the appellant, who brought forth a fictitious gift in his favour by depriving the legal heirs of their respective shares as prescribed by Islamic Shari'ah and on the basis of such manipulation the appellant managed to remain in possession till date, that is, after a period of almost thirty-eight years.

(b) Islamic law---

----Inheritance---Legal heirs---Constructive possession of immoveable property---Upon the death of a Muslim his/her legal heirs became the owners of the estate left by him/her and possession of any one of the co-owners was deemed to be the possession by all.

Nasimullah, Advocate Supreme Court (through video-link from Peshawar) and Abdul Qayyum Sarwar, Advocate-on-Record (absent) for Appellant.

Nemo for Respondents.

2022 S C M R 348

[Supreme Court of Pakistan]

Present: Amin-Ud-Din Khan and Jamal Khan Mandokhail, JJ

MUHAMMAD JAMEEL and others---Petitioners

Versus

ABDUL GHAFOOR---Respondent

Civil Petition No. 1890-L of 2017 and C.M.A.2295-L of 2017, decided on 29th September, 2021.

(Against the order dated 10.5.2017 passed by the Lahore High Court, Multan Bench in Civil Revision No. 770-D of 2009.)

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

----S. 42--- Suit for declaration--- Scope--- Pre-existing right---For seeking a declaration under S. 42 of the Specific Relief Act, 1877 through a declaratory decree, a pre-existing right could be declared by the Court but a new right could not be created---When the plaintiff claimed a declaration of title, without a pre-existing right, suit for declaration was not competent and the courts should not grant a declaratory decree when no pre-existing rights were available with the plaintiff in the suit property.

Muhammad Siddique (Deceased) through LRs and others v. Mst. Noor Bibi (Deceased) through LRs and others 2020 SCMR 483 and Abdul Razaq v. Abdul Ghaffar and others 2020 SCMR 202 ref.

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

----S. 42---Suit for declaration---Impleadment of parties---Scope---No declaration of title could be passed without impleading the real owners (of the property).

(c) Maxim---

----"Nemo dat qui non habet"---Scope---No one can confer a better title in property than he himself possessed.

The Province of Punjab through Collector, Sialkot v. Feroz Din and others 2015 SCMR 909; Muhammad Shamim through legal heirs v. Mst. Nisar Fatima through legal heirs and others 2010 SCMR 18 and Abdul Hameed v. Shamasuddin PLD 2008 SC 140 ref.

Rana Zia Abdul Rehman, Advocate Supreme Court for Petitioners.

Dr. G. M. Chaudhry, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the State.

2022 S C M R 352

[Supreme Court of Pakistan]

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

SHAH JAHAN and another---Petitioners

Versus

RAHEEM SHAH and others---Respondents

Criminal Petition No. 801 of 2021, decided on 20th October, 2021.

(On appeal against the judgment dated 11.06.2021 passed by the Peshawar High Court, Peshawar in Criminal Revision No. 49-P/2021)

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

----S. 540---Summoning of witnesses---Scope---During the pendency of the trial, an application under S. 540, Cr.P.C. was filed to summon witness 'R' (father of the deceased), and witness 'S' (one of the eye-witnesses of the occurrence) and re-examination of witnesses 'Z' and 'U' as they turned hostile during trial---Trial Court allowed the application to the extent of summoning of 'R' and S', whereas the application to the extent of re-summoning and re-examining of 'Z' and 'U' was dismissed as their examination-in-chief and cross-examination had already been completed, thus, there was no occasion for re-calling them for reexamination---High Court allowed the revision petition against the order of the Trial Court---Held, that crime report was registered at the instance of 'Z', and 'S' was one of the eye-witnesses, whereas 'R', stood nowhere in the crime report as a witness---Filing of the application under S. 540, Cr.P.C. after the lapse of about 14 months wherein a new witness had been introduced to substantiate the accusations levelled in the crime report did not make sense as considerable time has already elapsed and it would certainly imprint that the said application had been filed after due deliberation and consultation---No doubt the introduction of new witness could not be denied stricto sensu but certainly the scheme of law would be bypassed if at present stage the statement of 'R' was permitted to be recorded during the proceedings before the Trial Court although it was well within the knowledge of the 'R' about the murder of his son and he never opted to appear as a witness and in such regard his statement under S. 161, Cr.P.C. was not recorded by the Investigating Officer---Nowhere was it mentioned that 'R' ever appeared before the Investigation Officer to substantiate the accusation leveled against the accused persons---As far as the case of 'S' was concerned, he was one of the eye-witnesses of the crime report and as such his statement, if it had not been given up earlier by the prosecution and the prosecution's case was still not closed, the same could be re-agitated and adduced to strengthen the prosecution version on the basis of contents of the crime report, therefore, he could be produced and recorded by the Trial Court as per dictates of law---Petition for leave to appeal was disposed of with the consequence that order of the Trial Court to the extent of declining re-summoning and re-examination of 'Z' and 'U' was upheld; the finding of Trial Court to summon 'R', the father of deceased, was also set aside, however, it was directed that 'S' could be summoned to substantiate the prosecution version, if so desired.

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

----S. 540---Re-summoning and re-examination of witnesses already recorded by the Trial Court---Permissibility---When cross-examination of prosecution witnesses had already been conducted by the defence counsel, any application under S. 540, Cr.P.C. at a belated stage just on the ground that the said prosecution witnesses had made statements contrary to their earlier statements under S. 161, Cr.P.C. was no ground at all to issue direction for re-summoning and re-examining the said witnesses for further cross-examination which was against the essence of law---No one could be permitted to fill in the lacunas at the belated stage according to his own whims.

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

Shumyl Aziz, Additional A.G., Khyber Pakhtunkhwa for the State.

2022 S C M R 356

[Supreme Court of Pakistan]

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

MUHAMMAD ILTAF KHAN---Petitioner

Versus

BASHEER and others---Respondents

Criminal Petition No.46-P of 2016, decided on 26th July, 2021.

(Against the order dated 20.04.2016 passed by the Peshawar High Court Peshawar passed in Cr. R. No.66-P/2015 with Cr. Misc. No.189-P/2016)

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

----Ss. 500 & 502-A---Criminal Procedure Code (V of 1898), Ss. 190(2) & 193---Section 502-A of P.P.C, interpretation of---Defamation---Private complaint---Direct cognizance by Sessions Court without case being sent up by Magistrate---Legality---Section 193 of Cr.P.C. placed a complete and clear bar on taking of cognizance of any offence by the Court of Session in its original jurisdiction unless the case was sent up by a Magistrate under S. 190(2) of Cr.P.C.---Offence of defamation under S. 500 of the P.P.C. was punishable with imprisonment that may possibly extend to a period of 5 years and as such, was triable by a Magistrate---Legislature in its wisdom desired an expeditious trial of the offence with right of appeal going to the High Court and this appeared to be the dominant purpose for insertion of S. 502A in the P.P.C. with no bearings upon the procedure, otherwise provided for the institution of a complaint---Petition for leave to appeal was dismissed and leave was refused.

Syed Azhar Hussain Shah and another v. The State and others 2019 SCMR 537; Major ((Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562; Habibul Wahab-el-Kheiri v. Ch. Saeed Ahmad 1979 SCMR 545; Rahim Dad v. The State and another 1980 PCr.LJ 500; Riffat Hayat v. Judge Special Court for Suppression of Terrorist Activities, Lahore and another 1994 SCMR 2177; JIK Industries Limited and others v. Amarlal Jumani and others AIR 2012 SC 1079; Madhav Rao Jivaji Rao Scindia Bahadur and others v. Union of India (UOI) and others AIR 1971 SC 530; Central Bank of India v. State of Kerala and others (2009) 4 SCC 94; Balveer Singh and others v. State of Rajasthan and others AIR 2016 SC 2266; P.C. Gulati v. Lajya Ram Kapur and others AIR 1966 SC 595 and Basdeo and others v. Emperor AIR 1945 All 340 ref.

(b) Interpretation of statutes---

----Non-obstante clause---Scope---Non-obstante clause in a statute was a potent legislative tool often employed, essentially to achieve a limited/specific statutory purpose, nonetheless, the concomitant overriding effect was purpose specific without impinging upon the structural integrity of the statute; it merely presented a restricted deviation or departure without disturbing the overall functionality of the Statute.

Muhammad Tariq Hoti, Advocate Supreme Court and Muhammad Ajmal Khan, Advocate-on-Record for Petitioner.

Shumayl Butt, Advocate General, Khyber Pakhtunkhwa, Malik Akhtar Hussain, Additional Advocate General, Khyber Pakhtunkhwa and Aamir Javed, Additional Attorney General for Pakistan for the State.

2022 S C M R 360

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

MUHAMMAD SARWAR and others---Appellants

Versus

Mst. RAZIA SULTANA and others---Respondents

Civil Appeal No. 278 of 2015, decided on 2nd November, 2021.

(Against the judgment dated 12.12.2014 passed by the Lahore High Court, Lahore in R.S.A. No. 181 of 2005)

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

----O. XLI, R. 25---Remand of case to Trial Court after framing of additional issues by the Appellate Court---Rule 25 of O. XLI, C.P.C. clearly provided that the Trial Court, on remand, was to try the additional issues framed by the Appellate Court, take the additional evidence and record its findings and reasons therefor.

(b) Constitution of Pakistan---

----Art. 185(3)---Consent order passed by the High Court---Petition for leave to appeal before the Supreme Court---Competency---No petition for leave to appeal laid against a consent order (of the High Court).

Ch. Afrasiab Khan, Advocate Supreme Court for Appellants.

Muhammad Shahzad Shoukat, Advocate Supreme Court for Respondents Nos. 1 - 14.

Respondent Nos. 15 - 31 ex-parte

Nemo for Respondent No. 32.

2022 S C M R 363

[Supreme Court of Pakistan]

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

MUHAMMAD BAQIR---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 879 of 2021, decided on 6th December, 2021.

(On appeal against the order dated 15.07.2021 passed by the Lahore High Court, Multan Bench in Crl. Misc. No. 4853-B/2021)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 302, 109, 148, 149 & 452---Murderous assault after house trespass---Bail, cancellation of---Accused was nominated in the crime report with a specific accusation of causing firearm injury on the backside of right hand of the deceased---Mode and manner of occurrence showed that the accused along with co-accused had trespassed into the house of the complainant with the intent to kill as they made straight firing upon the deceased---Mere fact that the fire shot made by the accused hit on the hand of the deceased did not make any difference because the accused had made a direct fire on the deceased with the intention to kill---Postmortem report clearly depicted that both injuries were contributory toward death of deceased---Prima facie, the accused was vicariously liable for the offence committed and had shared the common intention to take the life of the deceased---Although the matter was reported to the police after about 4 hours but keeping in view the inter se distance between the place of occurrence and the police station i.e. 18 kilometers and the fact that in such like situations, people firstly try to save the life of injured, the same would be considered a promptly lodged FIR---Previous enmity between the parties was not denied---Occurrence had taken place in broad daylight whereas the parties were known to each other, therefore, there was no chance of mis-identification---Injury ascribed to the accused was fully supported by medical evidence---Furthermore the accused remained an absconder for a considerable period of time---Petition for leave to appeal was converted into appeal and allowed, and post-arrest bail granted to the accused by the High Court was cancelled.

Rafaqat Islam Awan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Mian Muhammad Ismail Thaheem, Advocate Supreme Court for Respondent No. 2 along with Respondent No. 2 in person.

Mirza Muhammad Usman, D.P.G. for the State.

2022 S C M R 366

[Supreme Court of Pakistan]

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

SUPREME COURT EMPLOYEES CO-OPERATIVE HOUSING SOCIETY, ISLAMABAD---Petitioner

Versus

Messrs MARSHAL CONSTRUCTION MANAGEMENT through Managing Partner and another---Respondents

Civil Petition No. 3056 of 2015, decided on 8th December, 2015.

(On appeal from judgment dated 5.10.2015 passed by the Islamabad High Court, Islamabad in C.R. No. 380 of 2015)

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

----O.XXXIX, Rr. 1 & 2---Interim injunction, application for---Scope---Orders passed on interim applications do not have any binding effect on the final outcome of the main proceedings.

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

----Ss. 42, 54 & 56---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration and permanent injunction---Supreme Court Employees Co-operative Housing Society ('the Housing Society'---Service contract/Joint Venture Agreement ('the JVA') between the Housing Society and a construction company ('the company') for purchase and development of land---Breach of 'JVA' by the company---Termination of JVA by the Housing Society---Pursuant to termination of the JVA, the company (respondent) filed a suit for declaration and permanent injunction before the Trial Court along with an application for interim injunction---Said injunction application was dismissed, and appeal against the same was also dismissed by the Appellate Court---High Court by way of impugned judgment set-aside the orders of the courts below and remanded the matter to the Trial Court for decision on the injunction application of the company, afresh affording opportunity of hearing to both parties---Validity---Company from the very inception of the contract till its termination had not addressed a single letter to the Housing Society or to any other .forum, justifying their failure in discharging their obligations under the contract---Admittedly, the company had pocketed a huge amount of Rs.24,97,00,000/- immediately after amendment in the basic contract, which amount the Housing Society was not obliged to pay to the company and even at the time of hearing of present proceedings, the counsel for the company admitted that an amount of more than Rs. 2 crores was laying with them, which they had offered to pay (back) to the Housing Society---Material produced before the court clearly established that the company was not in a position to develop the land---Suit filed by the company challenging the notice of termination of the contract, did not spell out justifiable grounds restraining the company from discharging its obligations under the contract---No written letter was ever addressed by the company from the year the JVA was signed till the termination of the contract, offering any explanation for not starting development work of the project---Company had wilfully avoided to plead the material facts in regard to the amounts which they had invested or spent on the land pursuant to the terms of the contract---In absence of such details in the pleadings, the company could not seek injunction against the Housing Society---Prima facie the company did not approach the Court with clean hands---Furthermore the High Court lost sight of the fact that S. 56 of the Specific Relief Act, 1877 postulated that that no interim injunction shall be granted where the specific performance of the grant could not be allowed---Company failed to make out prima facie case for grant of injunction---Balance of convenience did not lie with the company to allow it to continue after termination of the contract for which it could otherwise approach the Court for damages in case it was established that the termination of the contract was unwarranted in law---Petition for leave to appeal was converted into appeal and allowed, impugned order of High Court was set aside, and judgments of courts below dismissing interim injunction application of company were restored.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction---Basic ingredients---For grant of an interim injunction the party approaching the Court must show prima facie case, balance of convenience and irreparable loss.

Miangul Hassan Aurangzeb, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Petitioner.

Abdur Rashid Awan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

2022 S C M R 374

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J.,Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

SAQIB ALI KHOKHAR, DIRECTOR (REGIONAL)/ADDITIONAL DIRECTOR through Managing Director (STEVTA)---Appellant

Versus

INAYATULLAH LOHAR and others---Respondents

Civil Appeal No. 607 of 2021, decided on 8th November, 2021.

(Against judgment dated 24.02.2021 of Sindh Service Tribunal, Karachi passed in Service Appeal No. 888 of 2018)

Sindh Technical Vocational Training Authority Act, 2009 (VIII of 2010)---

----Ss. 15(2) & 15(3)---Sindh Technical Education and Vocational Training Authority Employees (Appointment, Promotion and Transfer) Rules, 2012, R. 13---Sindh Civil Servants Act (XIV of 1973), S. 9---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Rr. 7 & 8---Constitution of Pakistan, Art. 240---Civil servants belonging to different departments and cadres transferred/posted to Sindh Technical Education and Vocational Training Authority (STEVTA) but not absorbed therein---Promotion---All employees of STEVTA who had been transferred/posted to STEVTA from different departments of Provincial Government continued to be employees of the Government and various aspects of their service including seniority and promotion were governed by the Sindh Civil Servants Act, 1973 and they had to follow the channels of promotion available in their own departments and cadres under the Sindh Civil Servants Act, 1973 and the Rules made thereunder.

Employees/civil servants of Provincial Government who were transferred to Sindh Technical Education and Vocational Training Authority (STEVTA) but not absorbed therein had to be promoted through their parent channels under the Rules framed under Sindh Civil Servants Act, 1973. Granting of promotion to civil servants who had been transferred to STEVTA for the time being under the Sindh Technical Education and Vocational Training Authority Employees (Appointment, Promotion and Transfer) Rules, 2012 framed by STEVTA was illegal and without lawful authority.

Administrative changes, transfers and postings of civil servants to different departments, agencies or authorities working as a part of the Government or under the Government could not change the service structure and the conditions of service including seniority of civil servants which could only be done by a statutory instrument in terms of Article 240 of the Constitution.

Muhammad Bachal Memon v. Tanveer Hussain Shah 2014 SCMR 1539 ref.

Provincial Assembly did not make any amendments in the Sindh Civil Servants Act, 1973 or the Rules framed thereunder in order to change, modify or alter the terms and conditions of service of those transferred to STEVTA. For the purpose of promotion, STEVTA could not exclude the applicability of the Sindh Civil Servants Act, 1973 and the Rules farmed thereunder and apply its own rules. All employees of STEVTA who had been transferred/posted to STEVTA from different departments of Provincial Government continued to be employees of the Government and various aspects of their service including seniority and promotion were governed by the Sindh Civil Servants Act, 1973 and they had to follow the channels of promotion available in their own departments and cadres under the Sindh Civil Servants Act, 1973 and the Rules made thereunder.

M. Shoaib Shaheen, Advocate Supreme Court for Appellant.

Syed Ghulam Shabbir Shah, Advocate Supreme Court (via video link from Karachi) assisted by Awwad Anwar, Advocate and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent No. 1.

Fauzi Zafar, Additional A.G. Sindh for Respondents Nos. 2 - 4.

2022 S C M R 381

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SECRETARY FINANCE, FINANCE DIVISION PAK. SECRETARIAT, ISLAMABAD---Appellant

Versus

MUHAMMAD FAROOQ KHAN and others---Respondents

Civil Appeal No. 550 of 2020, decided on 14th December, 2021.

(Against the judgment dated 17.12.2018, passed by the Federal Service Tribunal, Islamabad in Appeal No. 1571(R)CS/2016)

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

----Rr. 7 & 8---Time scale promotion from BPS-17 to BPS-18 without change in designation of post---Premature increment, eligibility for---Employee granted time-scale promotion was also granted premature increment on order of the Service Tribunal---Legality---Grant of time scale promotion was not a promotion in terms of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---In the present case, the notification through which the respondent was given time scale promotion was issued in pursuance of a Finance Division's Office Memorandum and Establishment Division's Office Memorandum---Establishment Division specifically noted in its Office Memorandum that time scale formula was simply grant of higher grade without any change in designation of posts and did not involve upgradation of posts and amendment in recruitment rules---Said wording of the Office Memorandum was also incorporated in the notification through which the respondent was given time scale promotion---Importantly when the respondent had not challenged the said notification to the extent that grant of time scale promotion did not allow him promotion, and had not made such prayer in his memo of appeal before the Tribunal, the Tribunal could not in the presence of the notification allow the claim of the respondent for grant of premature increment---Impugned judgment of Service Tribunal whereby it termed the grant of time scale promotion as a promotion in service and granted premature increment to the respondent was not sustainable---Appeal was allowed and impugned judgment of Service Tribunal was set aside.

PESCO, WAPDA House through Chief Executive v. Ishfaq Khan and others 2021 SCMR 637; Muhammad Ashraf and others v. Federation of Pakistan through Secretary, Ministry of Railways, Islamabad and others 2000 SCMR 477 and Khushdil Khan Malik v. Secretary, Establishment Division Cabinet Block, Islamabad and others 2021 SCMR 1496 ref.

Government of the Punjab through Secretary Services Punjab Lahore and 4 others v. Muhammad Awais Shahid and 4 others 1991 SCMR 696 distinguished.

Sajid Ilyas Bhatti, Additional Attorney General for Pakistan, Khan Hafeez, Joint Secretary, Finance Division and Sajid Javed, Legal Assistant, Finance Division for Appellant.

Kamran Afzal, Secretary Finance Division on Court's Notice.

Ms. Farah Hamid Khan, Secretary, Ministry of Federal Education and Professional Training on Court's Notice.

Dr. Ijaz Munir, Secretary for Establishment Division on Court's Notice.

Ms. Shireen Imran, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents.

2022 S C M R 393

[Supreme Court of Pakistan]

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

PERVAIZ KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 515 and 516 of 2020, decided on 10th December, 2021.

(Against the judgment dated 17.03.2016 of the Lahore High Court, Lahore passed in Criminal Appeals Nos. 334-J, 1680 of 2011 and M.R. No. 419 of 2011)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused and co-accused with similar roles---Evidence found doubtful to the extent of acquitted co-accused not sustainable for convicting the accused---In the present case, the High Court concurred with the findings of the Trial Court regarding the acquittal of three co-accused persons who actively participated in the occurrence and their role also got support from the medical evidence meaning thereby that the witnesses of the ocular account had been disbelieved qua the said acquitted co-accused and their evidence could not be taken into consideration against the present accused persons in the absence of any corroboratory piece of evidence which was totally missing in the present case---Forensic Science Laboratory (FSL) report to the extent of one of the present accused was negative and even no recovery was effected from the other accused---Nothing was available on record to distinguish the role of the present accused persons from the role of those co-accused who had been acquitted by the Trial Court and their acquittal had been maintained by the High Court and further their acquittal was never challenged before the Supreme Court---Due to the such circumstances, the conviction and sentence of present accused persons was not sustainable on the same set of evidence, which was found doubtful to the extent of three acquitted co-accused--- Appeals were allowed, convictions of accused persons were set aside and they were acquitted of the charge.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt---Source of light mentioned by the prosecution was a tractor, on which allegedly three eye-witnesses were sitting---However according to the police when it arrived at the scene of occurrence the tractor was not available and the same was produced for the first time six days after the occurrence---According to prosecution the occurrence took place at 7 p.m. whereas the FIR was chalked out at 11:35 p.m.---Although complainant claimed that he arrived at the hospital within one or one and a half hour but even then the report was lodged in the hospital at 11:15 p.m.---No explanation was provided as to why after reaching the hospital when both the deceased had succumbed to the injuries, the incident was not reported to the police and where such delay time was consumed, raising the possibility that such time was consumed for deliberation and consultation---Delayed postmortem on the next day of receiving the bodies also created serious doubt regarding the prosecution case---Doctor while conducting postmortem examination in postmortem report had categorically stated that according to police paper the time of death was 10:45 p.m. whereas according to eye witnesses the occurrence took place at 7 p.m.---Complainant did not provide any explanation for such inconsistency---Fourth eye-witness who was driving the tractor and could be said to be a person present at the spot, was not produced during the trial and his evidence was withheld by the prosecution---Appeals were allowed and by extending benefit of doubt to the accused persons, their conviction was set-aside and they were acquitted of the charge.

Malik Muhammad Noman Khalid, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Appellants.

Mirza Muhammad Usman, D.P.G., Punjab for the State.

Malik Matee Ullah, Advocate Supreme Court for the Complainant.

2022 S C M R 399

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

ABDUL REHMAN and others---Appellants

Versus

Mst. ALLAH WASAI and others---Respondents

Civil Appeal No. 1002 of 2015, decided on 11th January, 2022.

(Against the judgment dated 24.06.2015 passed by Lahore High Court, Multan Bench, in C.R. No. 1021-D of 2011)

(a) Islamic law---

----Inheritance---Sect of deceased---Principles and presumption as to the sect of a deceased Muslim stated.

Every Muslim in the sub-continent was presumed to belong to Sunni sect, unless "good evidence" to the contrary is produced by the party contesting the same. The judicial determination of whether the said presumption of faith of a party, holds or positively stands rebutted, would be adjudged on the principle of preponderance of evidence produced by the parties. No strict criteria can be set to determine the faith of a person, and thus, to pass any finding thereon, the Courts are to consider the surrounding circumstances; way of life, parental faith and faith of other close relatives.

Pathana v. Mst. Wasai and another PLD 1965 SC 134; Muhammad Bashir v. Mst. Latifa Bibi 2010 SCMR 1915; Chanani Begum v. Qamar Sultan 2020 SCMR 254 and Shahzado Shah v. M. Sardaro 2004 SCMR 1738 ref.

(b) Islamic law---

----Inheritance---Dispute between sisters and mother of deceased over his faith/sect---When the impugned inheritance mutation was initially entered and sanctioned (in favour of the deceased's mother), she did not claim that her son (deceased-son) was a Shia Muslim; it was only after the impugned inheritance mutation was set aside, and the matter was remanded by the Collector for afresh decision that she, for the first time, took the stance that her son, belonged to Shia sect---Moreover, the mother was not a credible witness, as her deposition that her husband, father of deceased, was a Shia Muslim was belied by the inheritance mutation of her husband---Under the said mutation, the estate of her husband was divided amongst his legal heirs in accordance with the Hanfi Sunni law of inheritance, and not Shia law---Preponderance of evidence supported the assertion of the sisters, that their deceased brother was of Sunni sect, resultantly, the mother was unable to positively discharge the burden of proof that lay on her and rebut the initial presumption that the deceased belonged to Sunni sect---Appeal was allowed, and suit for declaration filed by the sister/plaintiff was decreed.

(c) Limitation Act (IX of 1908)---

----S. 3, First Sched. & Art. 120---Specific Relief Act (I of 1877), S. 42---Inheritance---Co-sharer---Suit for declaration seeking share in inheritance---Limitation---Six-year period of limitation provided by Art. 120 of First Schedule to the Limitation Act, 1908 was to be counted from the time when the right to sue accrues, and the right to sue accrues to a co-sharer against the other co-sharer, when the latter denies the rights of the former in the joint property or ousts him/her from the co-ownership of the joint property---Wrong entry as to one's inheritance rights in the revenue record (i.e., inheritance mutation) is not, to be taken as an ouster of a co-heir from the co-ownership of the joint property---Indeed, the devolution of the ownership of the property on the legal heirs takes place, under the Islamic law, through inheritance immediately, and that too without intervention of anyone---Treating a wrong inheritance mutation, as an ouster of a co-sharer from the co-ownership of the joint property, and treating the six-year limitation period under Art. 120 of the Limitation Act, 1908 to start from the date of sanction of the inheritance mutation, is not legally correct.

Ghulam Ali v. Ghulam Sarwar PLD 1990 SC 1 ref.

Dil Muhammad Alizai, Advocate Supreme Court for Appellants.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 1, 2, 4 and 5(i)(ii)(iv).

Ex parte for respondents Nos. 3 and 5(iv).

2022 S C M R 406

[Supreme Court of Pakistan]

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

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

Versus

SHER AMAN and others---Respondents

Civil Appeals Nos. 232, 244, 247, 261 and 282 of 2020, decided on 18th October, 2021.

(Against judgments mentioned in Schedule-I of this judgment)

(a) Civil service---

----Contractual employee adjusted against a permanent post in a department---Legality---Permanent posts in a department were required to be filled in a transparent manner, after due advertisement, open competition, a level playing field for all eligible candidates, the best and most qualified of them being employed in accordance with a merit list prepared after fulfilling all necessary testing, interview and short-listing requirements---Contractual employees could not be adjusted against permanent posts without following the said process.

(b) Constitution of Pakistan---

----Art. 199---Civil service---Contractual employment---Project posts---Constitutional jurisdiction of the High Court---Scope---High Court could not step into the shoes of the appointing authority---When the High Court was exercising jurisdiction under Art. 199 of the Constitution, it could not extend the scope of a contract or alter/amend the terms and conditions of employment in favour of employee that had been signed by an employee as the same went against the spirit of the very concept of contract employment---When an employee accepted a post in a project, he was aware of the fact that the project would come to an end on its completion or cessation of its funding (as the case may be) and with that, his employment would also come to an end---Forcing the Government to "accommodate/adjust" such employees was not only a transgression of the powers vested with the High Court under Art. 199 of the Constitution, but was also a burden on the Government Exchequer which the court was not at liberty to place---Employer had the prerogative to decide the terms and conditions of an employee's contract, and it was not for the court to step into the shoes of the employer and force him to employ someone for whom there was no available post and even if there was one, without following due process, procedure and criteria.

(c) Constitution of Pakistan---

----Art. 199---Civil service---Project posts---Constitutional jurisdiction of the High Court---Scope---Once the project in question had come to an end and the project employees were relieved from their services, High Court in its Constitutional jurisdiction ordered Provincial authorities to adjust the project employees against regular posts in a Municipal Committee, opining that constitution of a fresh Committee for fresh appointments would be "wastage of time and money" and that the respondents had a preferential right to serve in the project till its life---Legality---Ascertaining what and what did not constitute wastage of resources was not the domain of the High Court; this went against the basic principle of separation of powers and entering the domain of executive policy making which under the scheme of the Constitution fell in the domain of the executive---Role of the courts was to interpret the law and not delve in matters involving policy issues---High Court could not have assumed the role of the executive or a policy maker and opined that constituting a Committee for fresh appointments would have been "wastage of time and resources"---If a private organization or project, or the government thought fit to constitute a committee, the only interference which may be warranted was in exceptional circumstances showing mala fides and/or arbitrary exercise of power by any of the members of the Committee so constituted---Appeal was allowed and impugned judgment of High Court directing adjustment of project employees against regular posts was set aside.

(d) Civil service---

----Contract employees--- Regularization in service--- Contractual employees had no vested right of regularization---Regularization cannot take place without statutory backing---In the absence of any law, policy or rules, an employee could not knock the door of the Court for regularization of his/her services.

Government of Khyber Pakhtunkhwa, Workers Welfare Board v. Raheel Ali Gohar 2021 PLC (C.S.) Note 125 and Khushal Khan Khattak University through Vice-Chancellor and others v. Jabran Ali Khan and others 2021 SCMR 977 ref.

(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 valid basis, showing 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 the Supreme Court.

Shumail Ahmad Butt, A.G. Khyber Pakhtunkhwa, Atif Ali Khan, Ad. A.G. Khyber Pakhtunkhwa, Barrister Qasim Wadood, Ad. A.G. Khyber Pakhtunkhwa, Ms. 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, Sadullah, Asst. Secretary, BOR, Khyber Pakhtunkhwa, Faheem Ullah Khan, Senior LO, KPPSC, Assad Ullah Khan, SO, P&D Deptt. and Amanatullah Qureshi, Dy. Secy. FDKP for Appellants.

Shahid Kamal Khan, Advocate Supreme Court, Ahmed Nawaz Chaudhry, Advocate-on-Record for Respondents (in C.A. No. 232 of 2020).

Khaled Rehman, Advocate Supreme Court for Respondents (in C.A. No. 244 of 2020).

Mukhtar Ahmad Maneri, Advocate Supreme Court for Respondents (in C.A. No.247 of 2020).

Aftab Alam Yasir, Advocate Supreme Court for Respondents (in C.A. No. 261 of 2020).

M. Asif Yousafzai, Advocate Supreme Court for Respondents (in C.A. No. 282 of 2020).

2022 S C M R 419

[Supreme Court of Pakistan]

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

NAEEM KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1207-L of 2021, decided on 28th October, 2021.

(On appeal against the order dated 07.07.2021 passed by the Lahore High Court, Lahore in Crl. Misc. No. 35999-B of 2021)

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

----S. 497(2)---Constitution of Pakistan, Art. 185(3)---Prevention of Corruption Act (II of 1947), S. 5(2)---Penal Code (XLV of 1860), S. 409---Embezzlement by government employee---Bail, grant of---Further inquiry---As per the contents of the crime report, the allegation levelled against the accused was that he misappropriated an amount of Rs.8,67,440/- from the public exchequer---However, the Law Officer and the Investigating Officer admitted that to date there was no documentary evidence in support of the accusation levelled against the accused---Merely on the basis of a bald accusation, the liberty of a person could not be curtailed---Law Officer argued that an amount of Rs.87000/- was recovered from the accused, which showed that he had committed the crime, but at present stage it could not be said with exactitude as to whether the amount recovered from the accused was part of the amount allegedly embezzled, which aspect could be determined by the Trial Court after recording of evidence---Case of accused called for further inquiry into his guilt---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---Abscondment of accused---Effect---Mere abscondment of accused was not a conclusive proof of his guilt---Value of abscondment, therefore, depended on the facts of each case and bail could be granted if an accused had good case for bail on merits---Mere abscondment would not deprive an accused of bail.

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.

Malik Mateeullah, Advocate Supreme Court and Ms. Tasnim Amin, Advocate-on-Record for Petitioner.

Sayyed Nayab Hussain Gardezi, D.A.G., Ahsan Ali, Deputy Director and Farooq Akram, SI for the State.

2022 S C M R 422

[Supreme Court of Pakistan]

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

SAKHI JAN and another---Petitioners

Versus

QAMAR ALI KHAN---Respondent

Civil Petition No. 223-P of 2012, decided on 28th July, 2021.

(Against the judgment dated 06.03.2012 passed by the Peshawar High Court, Bannu Bench in C.R. No. 325-B of 2011)

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

----Ss. 9 & 20---Co-sharers---Right of pre-emption on basis of contiguity---Distribution of the property under S. 20 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 between the parties having equal status and right of pre-emption on the basis of contiguity---Held, that in the present case the pre-emptor/respondent was alone and had not joined with him any other co-preemptor whereas vendees were two in number and all the three had similar status and right of pre­-emption---In such circumstances the property had to be divided in three equal shares on per capita basis---Number of pre-emptors and the vendees, having the same status and pre-emption right, would get the property under pre-emption in equal shares---Petition for leave to appeal was converted into appeal and allowed.

Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539; Faizullah Khan and others v. Haji Abdul Hakeem Khan 2011 SCMR 1802 and Rustam v. Aurangzeb and others 2014 SCMR 146 ref.

Muhammad Javaid Yousafzai, Advocate Supreme Court for Petitioners.

Zafar Iqbal, Advocate Supreme Court for Respondent.

2022 S C M R 426

[Supreme Court of Pakistan]

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

FAWAD AHMAD MUKHTAR and others---Appellants

Versus

COMMISSIONER INLAND REVENUE (ZONE-II),REGIONAL TAX OFFICE, MULTAN and another---Respondents

Civil Appeals Nos. 1521 to 1526 of 2018, decided on 9th February, 2022.

(On appeal against judgment dated 04.11.2013 passed by the Lahore High Court, Multan Bench, Multan in Tax References Nos.55, 58, 61, 62, 64 of 2011 and 48 of 2009)

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

----Ss. 2(19)(a), 4(4), 4(5), 5, 8 & 39---Dividend in specie---Income liable to tax---Scope---Dividend in specie received by the taxpayer is income and taxable under S. 5 of the Income Tax Ordinance, 2001 ('the 2001 Ordinance')---Dividends constitute a separate block of income that is brought to tax in terms of S. 5 of the 2001 Ordinance---Dividends are to be taxed as a separate block of income under S. 5 but if for any reason any particular type, class or category of dividend, or the dividend involved in the facts and circumstances of a particular case, are found not to fall within the scope thereof, such dividend would then be brought to tax as "income from other sources" under S. 39 of the 2001 Ordinance---Either way a dividend is taxable unless exempt or otherwise taken out of the tax net by the application of any provision of the 2001 Ordinance.

Maharaj Kumar Gopal Saran Narain Singh v. Commissioner of Income Tax [1935] 3 ITR 237, [1935] UKPC 29 and Kanga and Palkhiwala's The Law and Practice of Income Tax (10th ed., 2014, pg. 193) ref.

(b) Income tax---

----Each tax year is a separate unit of account and taxation and the law has to be applied as it stood in respect of that tax year alone.

(c) Interpretation of statutes---

----Tax statute---Exemption clause---Retrospective effect---Scope---Exemption clause has a beneficial effect---Simply because a statutory provision has a beneficial effect does not mean that it automatically has, or can have, retrospective effect---Such principle is not sacrosanct; it can be overridden by the legislative will, but that must be done either expressly or shown to be the necessary intendment of the provision sought to be applied retrospectively.

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

----Ss. 5 & 150---Dividends, tax on---Sections 5 & 150 of the Income Tax Ordinance, 2001 ('the 2001 Ordinance')---Distinction---Section 5 speaks of the dividend being "received" by a person from a company, while S. 150 speaks of the dividend being "paid" by the latter---Former is a general expression, bringing to tax all that is received by way of dividend, while the latter is limited to the requirements of S. 150, i.e., requiring a deduction to be made on the dividend paid---Drawing any equivalence between Ss. 5 & 150 is illusory---One relates to the charge of the tax and the other to a mechanism of payment or recovery.

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

----S. 150--- Dividend in specie--- Section 150 of the Income Tax Ordinance, 2001 did not apply to dividend in specie.

Syed Ali Zafar, Advocate Supreme Court for Appellants (in C.As. Nos. 1521 to 1525/2018 via Video-Link, Lahore).

Ch. M. Zafar Iqbal, Advocate Supreme Court and Safaraz Ahmed Cheema, Advocate Supreme Court for Appellants (in C.A. No. 1526/2018 via Video-Link, Lahore).

Safaraz Ahmed Cheema, Advocate Supreme Court and Ch. M. Zafar Iqbal, Advocate Supreme Court for Respondents (in C.As. Nos.1521-1525/2018 via Video-Link, Lahore).

Mansoor Usman Awan, Advocate Supreme Court for Respondents (in C.A. 1526/2018).

2022 S C M R 439

[Supreme Court of Pakistan]

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

PROVINCE OF SINDH and others---Petitioners

Versus

SHAHZAD HUSSAIN TALPUR---Respondent

Civil Petition No. 407-K of 2019, decided on 30th December, 2021.

(Against the judgment dated 15.03.2019 passed by the Sindh Service Tribunal at Karachi in Service Appeal No. 815/2017)

(a) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

----R. 4(1)---Sindh Public Service Commission (Functions) Rules, 1990, R. 3(1)(i)---Special Auditor, Cooperative Societies---Appointment, legality of---Special Auditor was required to be selected by the Provincial Public Service Commission ('the Commission')---Special Auditor was a grade 17 post and the Secretary, Cooperative Societies was not authorized to either select or appoint a person in Grade 17.

Perusal of the original file and documents pertaining to the appointment of the respondent as Special Auditor, Cooperative Societies showed only the relevant notification appointing the respondent; there is nothing therein regarding the number of persons who had applied for the position of Special Auditor, how many had participated in the test and interview, the results of such test and interview, and culminating in a seriatim listing of the applicants in the order of merit - the merit list. The respondent was pre-selected and appointed by the Secretary, Cooperative Societies and this was done without making him take any test and/or interview

The Secretary issued the notification appointing the respondent by using the ubiquitous term competent authority, without disclosing the designation and name of the competent authority. Secretary also did not disclose that he himself was the competent authority in respect of appointments to a Grade 16 position. To enable himself to appoint the respondent, the Secretary illegally downgraded the position of Special Auditor from Grade 17 to Grade 16, and, to ensure that the nexus between him and the respondent went unnoticed the Secretary did not mention the full name of the respondent in the notification and left out the names shared between them -'Mir' and 'Talpur'.

Special Auditor was required to be selected by the Provincial Public Service Commission ('the Commission'). Special Auditor was a Grade 17 post and the Secretary was not authorized to either select or appoint a person in Grade 17. In selecting and appointing the respondent as Special Auditor the Secretary had acted illegally. Respondent was not selected by the Commission yet he was appointed as Special Auditor, and, it would not make a difference even if it be accepted that the post of Special Auditor was in Grade 16 because selection to Grade 16 posts was also to be done by the Commission. Appointment of respondent as Special Auditor was patently illegal.

(b) Civil service---

----Appointment---Use of the term "competent authority" in notifications, orders, office memorandums, instructions, letters and other communications---Deprecated---Using the term 'competent authority' but without disclosing such person's designation and name is against public policy and also against the public interest since it facilitates illegalities to be committed and protects those committing them.

It is an individual who holds a particular position and by virtue of such position exercises power. Merely mentioning the competent authority without disclosing the designation and name of the person who is supposed to be the competent authority is utterly meaningless. Non-disclosure serves to obfuscate and enables illegalities to be committed.

The use of vague and imprecise language, such as, the competent authority, in legal matters is an anathema and oftentimes results in avoidable disputes, which unnecessarily consume time and public resources. The use of accurate and precise language helps avoid disputes. Using the term the competent authority but without disclosing such person's designation and name is against public policy and also against the public interest since it facilitates illegalities to be committed and protects those committing them. Every functionary of the government, and everyone else paid out of the public exchequer, serves the people; positions of trust cannot be misused to appoint one's own or to illegally exercise power.

There is a need to put a stop to the use of the illusive and elusive term - the competent authority without disclosure of the competent authority's designation and name. Therefore, all the Provincial Governments, Registrars of the Supreme Court and all High Courts, and through the Registrars of the High Courts all District and Sessions courts, are required to issue requisite orders/directions that they and their respective functionaries, semi-government and statutory organizations whenever issuing notifications, orders, office memorandums, instructions, letters and other communications must disclose the designation and the name of the person issuing the same to ensure that it is by one who is legally authorized to do so, and which will ensure that such person remains accountable.

Saulat Rizvi, Additional Advocate-General, Sindh, Ghulam Rasool Mangi, Advocate-on-Record, Ali Gul Sanjrani, Deputy Secretary and Abdul Latif Qazi, Deputy Registrar for Petitioners.

Mukesh Kumar G. Karara, Advocate Supreme Court along with Respondent and M. Iqbal Ch., Advocate-on-Record (absent) for Respondent.

2022 S C M R 448

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

BASHIR AHMED BADINI, D&SJ, DERA ALLAH YAR and others---Appellants

Versus

HON'BLE CHAIRMAN AND MEMBER OF ADMINISTRATION COMMITTEE AND PROMOTION COMMITTEE OF HON'BLE HIGH COURT OF

BALOCHISTAN and others---Respondents

Civil Appeals Nos.446 to 454 of 2021, decided on 28th January, 2022.

(Against the judgment dated 30.11.2020 passed by the Balochistan Sub-Ordinate Judiciary Service Tribunal, Quetta in Service Appeals Nos. 02/2017, 07/2019, 09/2019, 10/2019, 07/2019, 09/2019, 10/2019, 07/2019 and 10/2019)

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

----R. 8-B--- Acting charge appointment--- Scope---Acting charge appointment does not amount to an appointment by promotion on regular basis for any purpose including seniority, and also does not confer any vested right for regular promotion to the post held on acting charge basis.

(b) Civil service---

----Promotion---'Eligibility' and 'fitness'---Factors to be considered---Eligibility itself is not the benchmark for promotion, rather the most vital yardstick is fitness, which can be judged from the service record which includes ACRs, qualification, length of service in a particular grade/scale, integrity, knowledge and proficiency in the work/ assignments, all of which are essential dynamics for weighing and appraising the merits for promotion to the selection post which is quite common procedure and practice articulated under the law for considering the promotions on merit.

(c) Civil service---

----Promotion---Eligibility and fitness---Distinction---Question of eligibility is different from the question of fitness---Concept of eligibility implies a qualification to be appointed or promoted, whereas that of fitness encompasses a person's competence to be chosen or selected for appointment or promotion---Question whether a person is legally qualified for appointment or promotion to a particular post and grade is relatable to the factum whether he possesses the requisite qualifications for consideration, whereas the question of fitness pertains to the competency of the person concerned, which is to be decided by the competent authority---Question of fitness for being appointed is to be determined by the functionaries mentioned therein---Person may be eligible for consideration for a particular post, but may not be fit to be appointed---Tests for eligibility are objective and open to scrutiny by a judicial forum---However, even in the matters involving fitness to be appointed or promoted to a particular post or grade there has to be necessary material on the basis of which an opinion, one way or the other, is to be formed.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 and Muhammad Rahim Khan v. The Chief Secretary, N.W.F.P. and 4 others 1999 SCMR 1605 ref.

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

----R. 19---Ad-hoc employee---Seniority---Seniority in the grade to which a civil servant is promoted is to take effect from the date of regular appointment to a post in the grade---Services rendered by the employees on ad-hoc basis prior to their regularization cannot be counted for the purpose of their seniority but their seniority will be counted from their substantive/regular appointments---Ad-hoc employees cannot claim precedence in seniority over the regularly appointed employees; their status will be reckoned with their batch mates and after regularization their seniority will be fixed accordingly.

Director-General Intelligence Bureau, Islamabad and others v. Amir Mujahid Khan and others 2011 SCMR 389 ref.

(e) Civil service---

----Seniority---Retrospective effect---Seniority with retrospective effect cannot be conferred unless such right was established.

Fasihuddin Siddiqui's case 1998 SCMR 637; Muhammad Yousaf's case 1996 SCMR 1297; Rustam Khan's case 1994 SCMR 1957; Muhammad Zakir Khan's case 2004 SCMR 497; Jehangir Mirza's case PLD 1990 SC 1013; Wajahat Hussain's case PLD 1991 SC 82; Sh. Anwar Hussain's case 1985 SCMR 1201; Muhammad Yousaf's case 1996 SCMR 1297 and Nazeer Ahmed's case 2001 SCMR 352 = 2001 PLC (C.S.) 394 ref.

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

----R. 19---Ad-hoc employee---No vested right of regular appointment---Scope---Ad hoc appointment is an appointment of a duly qualified person made otherwise in accordance with prescribed method of recruitment and is made only in exceptional circumstances---Such stopgap arrangement as a temporary measure for a particular period of time does not by itself confer any right on the incumbent for regular appointment or to hold it for indefinite period but at the same time if it is found that incumbent is qualified to hold the post despite his appointment being in the nature of precarious tenure, he would carry the right to be considered for permanent appointment through the process of selection as the continuation of ad hoc appointment for considerable length of time would create an impression in the mind of the employee that he was being considered to be retained on regular basis.

Naveeda Tufail v. Government of Punjab 2003 SCMR 291 ref.

(g) Civil service---

----Antedated promotion---Departmental Promotion Committee (DPC)---Delay in holding DPC meeting---Effect---Where the meeting of DPC scheduled to be held is postponed or adjourned without announcing any future date or not convened within reasonable period to the prejudice of an officer/employee, the competent authority in order to foster justice may grant antedated promotion to the higher post bearing in mind the eligibility and fitness in the DPC so that such officer/employee may not be subjected to a lower position in his/her seniority list or become victim of unwarranted delay in holding DPC by the competent authority.

(h) Judgment---

----Merger, doctrine of---Scope and applicability---In case an appeal or revision is provided before a superior court against an order passed by any Court or Tribunal or any other authority and the superior court where the appeal is preferred modifies, reverses or affirms the decision of lower fora then the order or decision passed by subordinate or lower forum is merged into the decision rendered by superior courts which will remain operative for enforcement in accordance with law---In order to apply the doctrine of merger in letter and spirit, there must be a decision of a subordinate forum or Tribunal and against any such decision, there must be a right of appeal or revision provided under the relevant law---While deciding any such appeal or revision, the appellate forum must have affirmed, modified or reversed the order or judgment of the court below.

(i) Civil service---

----Judgment in rem---Scope---Where the Tribunal or the Supreme Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken up legal proceedings, in such a case, the dictates of justice and rules of good governance demand that the benefit of the judgment be extended to other civil servants, who may not be parties to the above litigation, instead of compelling them to approach the Tribunal or any other legal forum.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 SCMR 499 ref.

(j) Administration of justice---

----Cause of action---Scope---Cause of action is predominantly a technical legal term meant for the set of circumstances and facts which give rise to institute and lodge the claim in the court of law but not any premature claims or grievances---Right to sue originates and is triggered by a wrongdoing---Court cannot hear any case nor render any decision without a valid cause of action or without accrual of right to sue or in other words without accrual of cause of action to set the law into motion---Court of law does not decide the lis on mere sentiment, presumption or mere apprehension but the cause of action should be based on a real cause for remedying the wrong into right---Not only the party seeking relief should have a cause of action when the transaction or the alleged act is done but also at the time of the institution of the claim.

Abdul Malik, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. 446, 453 and 454/2021).

Shams ud Din, Advocate Supreme Court for Appellants (in C.As.447-449/2021).

Muhammad Rauf Atta, Advocate Supreme Court (in C.As.450, 451 and 452/2021 via Video Link from Quetta)

Ayaz Khan Swati, Additional A.G. Balochistan on Courts Notice.

Rashid Mehmood, Registrar High Court Balochistan and Arshad Mehmood, Additional Registrar High Court Balochistan for Respondent No. 2 (via video link from Quetta) (in C.A.446/21).

Muhammad Rauf Atta, Advocate Supreme Court for Respondents Nos. 4, 6 and 7 (in C.A.446/21).

Gul Hassan Tareen, Advocate Supreme Court for Respondents Nos. 9 - 10 (in C.A. 446/21).

Muhammad Shoaib Shaheen, Advocate Supreme Court for Respondent No. 1 (in C.As.447 to 452/2021).

Nemo for remaining Respondents in Civil Appeals.

2022 S C M R 472

[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---Appellants

Versus

INTIZAR ALI and others---Respondents

Civil Appeals Nos. 759/2020, 1448/2016, 1483/2019, 760/2020, 761/2020, 1213/2020 to 1230/2020, decided on 28th January, 2022.

(On appeal from the judgments/orders dated 20.06.2017, 18.09.2015, 27.10.2016, 27.03.2018, 14.03.2016, 07.04.2016, 11.09.2017, 19.09.2017, 16.10.2017, 18.04.2018, 03.05.2018, 17.05.2018, 24.05.2018, 18.10.2018, 11.10.2018, 04.07.2017, 20.11.2018, 15.05.2019 and 07.03.2019 of the Peshawar High Court, Peshawar; Peshawar High Court, Mingora Bench (Dar-ul-­Qaza), Swat; KPK Service Tribunal, Peshawar; and Peshawar High Court, D.I. Khan Bench passed in Writ Petitions Nos. 1714-P/2015, 3592-P/2014, 3909-P/2015, 602-P/2015 and 4814-P/2017; Civil Revision No. 493-P/2015; Writ Petitions Nos. 1851-P/2014, 3245-P/2015, 429-M/2014 and 3449-P/2014; Appeals Nos. 62/2020, 63/2020 and 326/2015; and Writ Petitions Nos. 778-M/2017, 1678-P/2016, 3452-P/2017, 4675-P/2017, 2446-P/2016, 3315-P/2018, 667-D/2016, 2096-P/2016, 2389-P/2018 and 965-P/2014)

(a) Khyber Pakhtunkhwa Sacked Employees (Appointment) Act (XVII of 2012)---

----S. 7 & Preamble--- Sacked employees--- Pre-requisites for reinstatement under the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 ('the 2012 Act')---To become eligible to get the relief of reinstatement, one has to fulfill (all) three conditions; first, the aggrieved person should be a regular employee; second, he must have the requisite qualification and experience for the post during the period from 01-11-1993 to 30-11-1996 and not later, and, third, he was dismissed, removed or terminated from service during the period from 01-11-1996 to 31-12-1998---Temporary/ad-hoc/contract employees have no vested right to claim reinstatement under the 2012 Act.

(b) Civil service---

----Temporary/contract/project employees---Such employees had no vested right to claim regularization.

PTCL v. Muhammad Samiullah 2021 SCMR 998 ref.

(c) Interpretation of statutes---

----Natural and ordinary meaning of words---When meaning of a statute is clear and plain language of statute requires no other interpretation then intention of Legislature conveyed through such language has to be given full effect---Plain words must be expounded in their natural and ordinary sense---Intention of the Legislature is primarily to be gathered from language used and attention has to be paid to what has been said and not to that what has not been said.

Government of Khyber Pakhtunkhwa v. Abdul Manan 2021 SCMR 1871 ref.

(d) Words and phrases---

----'Ultra vires' and 'illegal'---Distinction---Term 'ultra vires' literally means "beyond powers" or "lack of power"; it signifies a concept distinct from "illegality"---In the loose or the widest sense, everything that is not warranted by law is illegal but in its proper or strict connotation "illegal" refers to that quality which makes the act itself contrary to law.

(e) Constitution of Pakistan---

----Arts. 185 & 199---Factual controversies---Superior Courts can not engage in factual controversies---Matters pertaining to factual controversy can only be resolved after thorough inquiry and recording of evidence in a civil court. [p. 485] G

Fateh Yarn Pvt. Ltd. v. Commissioner Inland Revenue 2021 SCMR 1133 ref.

(f) Constitution of Pakistan---

----Arts. 4 & 9---Civil service---Government departments---Practice of not formulating statutory rules of service---Such practice was deprecated by the Supreme Court.

In a number of cases the statutory departments, due to one reason or the other, do not formulate statutory rules of service, which in other words is defiance of service structure, which invariably affects the sanctity of the service. Framing of statutory rules of service is warranted and necessary as per law. It is invariably true that an employee unless given a peace of mind cannot perform his/her functions effectively and properly. The premise behind formulation of statutory rules of service is gauged from Articles 4 and 9 of the Constitution. An employee who derives his/her employment by virtue of an act or statute must know the contours of his employment and those niceties of the said employment must be backed by statutory formation. Unless rules are not framed statutorily it is against the very fundamental/structured employment as it must be guaranteed appropriately as per notions of the law and equity derived from the Constitution.

Shumail Butt, Advocate General, Khyber Pakhtunkhwa, Barrister Qasim Wadood, Additional A.G., Khyber Pakhtunkhwa, Atif Ali Khan, Additional A.G., Khyber Pakhtunkhwa, Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa, Iftikhar Ghani, DEO (Male) Bunir, Muhammad Aslam, S. O. (Litigation), Fazle Khaliq, Litigation Officer/DEO (Male) Swat, Fazal Rehman, Principle/DEO Swat Ms. Roheen Naz, ADO (Legal)/DEO(F) Nowshera, Malik Muhammad Ali, S. O. C&W Department, Khyber Pakhtunkhwa and Jehanzeb Khan, SDO/XEN C&W for Appellants (in all cases).

Sh. Riaz-ul-Haque, Advocate Supreme Court for Respondents (in C.As.759/2020, 1483/2019, 760, 1214, 1215, 1217, 1218, 1220 and 1223/2020).

Fazal Shah, Advocate Supreme Court for Respondents Nos.1 and 2 (in C.A. 1448/2016), Respondents Nos.2 to 4, 8, 9, 11 and 12 (in C.A.1213/2020) and Respondents (in C.A.1229/2020).

Abdul Munim Khan, Advocate Supreme Court for Respondents (in C.A.761/2020).

Barrister Umer Aslam Khan, Advocate Supreme Court for Respondent No.1 (in C.A. 1213/2020).

Taufiq Asif, Advocate Supreme Court for Respondents (in C.A.1221/2020).

Misbah Ullah Khan, Advocate Supreme Court for Respondents (in C.A.1222/2020).

Hafiz S. A. Rehman, Senior Advocate Supreme Court for Respondents Nos.1, 3 to 8 (in C.A.1225/2020).

Saleem Ullah Ranazai, Advocate Supreme Court for Respondents (in C.A.1227/2020).

Chaudhry Muhammad Shuaib, Advocate Supreme Court for Respondent No.2 (in C.A.1228/2020).

Fida Gul, Advocate Supreme Court for Respondents (in C.A.1230/2020).

Nemo for Respondents Nos. 5 to 7 and 10 (in C.A.1213/2020), Respondents in C.As.1216/2020, 1219/2020, 1224/2020 and 1226/2020), Respondent No.2 (in C.A.1225/2020 and Respondents Nos.1 and 3 (in C.A.1228/2020).

2022 S C M R 487

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Umar Ata Bandial, Ijaz ul Ahsan, Qazi Muhammad Amin Ahmed and Jamal Khan Mandokhail, JJ

MUHAMMAD SHABBIR and another---Appellants

Versus

QUAID-E-AZAM UNIVERSITY through Vice-Chancellor, Islamabad and others---Respondents

Civil Appeals Nos. 803 and 804 of 2016, decided on 20th January, 2022.

(Against the order dated 21.12.2015, passed by the Islamabad High Court, Islamabad, in W.Ps. Nos. 7 and 8 of 2010)

(a) Industrial Relations Act (X of 2012)---

----Ss. 33 & 53---Industrial Relations Act (IV of 2008), S. 87(3)---Repeal of Industrial Relations Act, 2008 ('Act of 2008')---Disputes between workers and employers and matters relating to their Trade Unions--- Forum for redressal of grievance after repeal of Act of 2008---Forum provided under the Act of 2008 for adjudication of individual grievances of the workers ceased to exist on the repeal of the said Act and the respective forums provided under the new Industrial Relations laws made by the Provincial Governments shall have the jurisdiction to determine the individual grievances of the workers---While by the Industrial Relations Act, 2012 ('Act of 2012'), specific forum of National Industrial Relation Commission (NIRC) was created for determination of the individual grievances of the workers in Islamabad Capital Territory and for trans-provincial establishments and industry and it would alone have jurisdiction to deal with the cases of individual grievances of workers---Parties to the proceedings under the repealed Act of 2008, have no vested right to have their cases heard and decided by the forum created under the Act of 2008 i.e., the Labour Court rather on promulgation of the Act of 2012, whereby the forum of NIRC has been created and such having been given retrospective effect from 01-05-2010, only the forum of NIRC can hear and decide the grievance petitions.

Industrial Relations Act, 2008 ('Act of 2008') stood repealed on 30-04-2010 and from 01-05-2010 there was no law in the field of Industrial Relations either at the level of the Federation or in any of the Provinces. The Supreme Court in the cases reported as Air League of PIAC Employees through President v. Federation of Pakistan Ministry of Labour and Manpower Division Islamabad and others (2011 SCMR 1254) as well as in Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 had opined that in the absence of law of Industrial Relations, which being a special law, the workers' remedy would lie under the ordinary laws prevailing at that time, which will come in and fill up the vacuum. Thus, it is clear that the Court has specifically meant that on 30-04-2010, the Act of 2008 stood repealed, and it being the special law operating in the field of Industrial Relations, the remedy which the workers/Trade Unions would have immediately after repeal of the Act of 2008 would be before the forum provided under the ordinary civil laws, which means Civil Courts, and such forum was provided for the interregnum period of two months i.e. up till the promulgation by all the four provincial legislatures of their respective law of Industrial Relations.

The laws of Industrial Relations promulgated by the Provincial Legislatures on repeal of the Act of 2008, were procedural laws and had retrospective application from 01-05-2010. The forum provided under the Act of 2008, i.e., the National Industrial Relation Commission (NIRC) had been abolished with the repeal of the Act of 2008 and new fora had been created under the Provincial Industrial Relations laws. Such new fora shall have jurisdiction to decide disputes between the workers and employers and matters relating to their Trade Unions. The Labour Courts, constituted under the Act of 2008, on the same analogy, also stood abolished on the repeal of the Act of 2008, and the Industrial Relations Act 2012 ('Act of 2012') having created new forum of NIRC for dealing with the grievances, disputes of workers and employers and matters relating to the Trade Unions and their Federations in the Islamabad Capital Territory and in trans-provincial establishments and industry from 01-05-2010, could only exercise power and jurisdiction for determination of grievances of workers and not the Labour Courts, which ceased to exist on 30-04-2010. Thus, the principles settled in the cases reported as Air League of PIAC Employees through President v. Federation of Pakistan Ministry of Labour and Manpower Division Islamabad and others (2011 SCMR 1254), State Bank of Pakistan through its Governor/Director Human Resources and another v. Presiding Officer, Labour Court (District and Sessions Judge) Islamabad and others (Civil Appeal No. 1150/2012) and Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others (2018 SCMR 802) are in harmony, in so far as they propound the law about the application of the law of Industrial Relations with retrospectivity and also that they can co-exist, for that, in all the three cases, it was found that the forum provided under the Act of 2008 for adjudication of individual grievances of the workers ceased to exist on the repeal of the Act of 2008 and the respective forums provided under the new Industrial Relations laws made by the Provincial Governments shall have the jurisdiction to determine the individual grievances of the workers while by the Act of 2012, specific forum of NIRC was created for determination of the individual grievances of the workers in Islamabad Capital Territory and for trans-provincial establishments and industry and it would alone have jurisdiction to deal with the cases of individual grievances of workers. The parties to the proceedings under the repealed Act of 2008, have no vested right to have their cases heard and decided by the forum created under the Act of 2008 i.e., the Labour Court rather on promulgation of the Act of 2012, whereby the forum of NIRC has been created and such having been given retrospective effect from 01-05-2010, only the forum of NIRC can hear and decide the grievance petitions.

Air League of PIAC Employees through President v. Federation of Pakistan Ministry of Labour and Manpower Division Islamabad and others 2011 SCMR 1254; State Bank of Pakistan through its Governor/Director Human Resources and another v. Presiding Officer, Labour Court (District and Sessions Judge) Islamabad and others (Civil Appeal No.1150/2012) and Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 ref.

(b) De facto, doctrine of---

----Scope---Common and pre-dominant feature of de facto doctrine is in relation to exercise of power by holder of the public office, when it is found to be not legally entitled to exercise or perform such power of public office---Such exercise of power is saved on principle of de facto doctrine on the sound principles of public policy and to maintain regularity in conduct of public business and to save the public from confusion and to protect the right which a person may have acquired as a result of exercise of power by holder of public office not entitled to perform or exercise such power---Necessary ingredients for de facto exercise of power by the holder of public office is that the office should exist in the first place---If there is no public office in existence then there is no concept in law of holder of public office---Holder of public office will remain until the public office remains---Where there is no public office in existence, there remains nothing on which de facto doctrine could be applied.

Qazi Shehryar Iqbal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in both cases).

Muhammad Munir Piracha, Advocate Supreme Court for Respondents (in both cases).

Sajid Ilyas Bhatti, Additional Attorney General for Pakistan for the Federation.

2022 S C M R 515

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Amin-ud-Khan, JJ

SALMAN KHAN---Petitioner

Versus

The STATE---Respondent

Criminal P. No. 127-Q of 2021, decided on 13th January, 2022.

(Against the order dated 09.10.2021 passed by the High Court of Balochistan, Quetta in Criminal Bail Application No.633 of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(1)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 302, 319, 322, 324 & 34---Qatl-bis-sabab, qatl-i-khata---Bail, grant of---Four members of the law enforcement agency, including the accused, allegedly signaled the car of the complainant to stop but he continued to drive on, whereupon the accused fired at the car, which ended up in causing injuries to the complainant and death of his cousin, who was also seated in the car---Accused and other members of the law enforcement agency were on their routine duty of maintaining law and order in the city, at the time of incident---Nothing was available on record to show that there was a background of any enmity between the parties, or the incident was the result of some provocation, or the accused fired at the car that had tainted glasses, with the intention to cause death of the complainant and his cousin---From the contents of the crime report, it appeared that an offence of qatl-bis-sabab punishable under S. 322, P.P.C. was made out other than qatl-i-khata punishable under S. 319, P.P.C.---However, qatl-i-amd under S. 302 did not appear to be made out in the present facts and circumstances of the case---Section 322, P.P.C. fell outside the prohibitory clause of S. 497(1), Cr.P.C. while S. 319, P.P.C. was bailable---Detention of the accused pending trial could only be justified if the case fell within the scope of any of the exceptions stated in the cases of Tariq Bashir v. State PLD 1995 SC 34, Muhammad Tanveer v. State PLD 2017 SC 733 and Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488---However, nothing was available on record that may attract any of the said exceptions and justify denial of post arrest bail to the accused---Petition for leave to appeal was converted into appeal and allowed, and the accused was admitted to bail.

Manzoor v. State 1992 PCr.LJ 1374; Muhammad Nadeem v. State 1998 MLD 1537; Yousuf Khan v. State 2000 PCr.LJ 203; Aamir v. State 2006 PCr.LJ 1236; Tariq Bashir v. State PLD 1995 SC 34; Muhammad Tanveer v. State PLD 2017 SC 733 and Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488 ref.

Kamran Murtaza, Senior Advocate Supreme Court for Petitioner.

Qazi Mushtaq Ahmed, Additional P.G. Balochistan for the State.

Amir Muhammad Lehri, Advocate Supreme Court for the Complainant.

2022 S C M R 518

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

MUHAMMAD ANWAR---Petitioner

Versus

CHAIRMAN WAPDA and others---Respondents

Civil Petition No. 231-K of 2020, decided on 19th January, 2022.

(Against the judgment dated 22.01.2020 passed by the Federal Service Tribunal, Islamabad (Karachi Bench) in Appeal No.7(K)CS/2019)

(a) Civil Service Regulations (CSR)---

----Art. 486---Emoluments and Average Emoluments-- Pensionary benefits, calculation of---Scope---Consistent with Civil Service Regulations (CSR), Art. 486, emoluments are to be calculated upon what the officer was receiving immediately before his retirement i.e. Basic Pay, Senior Post Allowance, Special Pay of all types and nature, Personal Pay, Technical Pay, Index Pay, Increments accrued during leave preparatory to retirement (LPR), and any other emoluments which may be specially classed as Pay---Term "emoluments" as is defined by CSR 486 apparently seems to be all inclusive and though the word "include" has been used but it does not seem to enlarge the scope from the one that is enumerated in items (a) to (h) of CSR 486---Term "include" as appearing in CSR 486 will not include alien and extraneous elements for calculation of emoluments rather it will confine itself to the incidence attached to or connected with enumerated items (a) to (h).

Federation of Pakistan through Secretary v. Sultan Ahmed Shams and 17 others 2014 SCMR 570 ref.

(b) Civil service---

----Conditional or qualified grant---Scope----No vested right can be claimed on the basis of a conditional or qualified grant unless its conditions are fulfilled.

Petitioner in person.

Dr. Raana Khan, Advocate Supreme Court/Advocate-on-Record along with Mukhtar Ahmed, Director Finance for Respondents Nos. 1 - 4.

2022 S C M R 523

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

MUHAMMAD NAEEM HASSAN---Petitioner

Versus

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

Criminal Petition No. 1443 of 2021, decided on 1st February, 2022.

(Against the order dated 18.11.2021 of the Lahore High Court, Lahore passed in Crl. Misc. No. 48041- B/2021)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Complainant claimed that he was an eye-witness of the crime yet he did not nominate anyone in the FIR, and only did so through the supplementary statement, by simply stating that he had forgotten to do so earlier---Furthermore, one of the co-accused had obtained bail and neither the State nor the complainant had moved to cancel it, and the other co-accused was declared innocent in the investigation, which undermined the supplementary statement of the complainant---Such facts taken together made present case one of further inquiry---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

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

----Ss. 161, 173 & 497---Bail---Common practice in courts of prosecution department/law officers turning to the Investigation Officer for answers on every query put to them by the Court---Supreme Court deprecated such practice and observed that it was expected that once notice had been issued, the law officer attending to the case would have the relevant information with him, and not continuously ask the Investigation Officer in Court; that in this day and age with cellular phones in nearly every pocket, for the Investigation Officer to physically bring the police file may also not be required; that copies of challan, statements recorded under S. 161, Cr.P.C, forensic, medical and other reports could be transmitted digitally/electronically and printed out for the consideration of the Court.

Mushtaq Ahmad Mohal, Advocate Supreme Court (through video-link from Lahore) and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Muhammad Jaffar, Additional Prosecutor General, Punjab and Ahmed Sher, SI/IO for the State.

Complainant in person.

2022 S C M R 526

[Supreme Court of Pakistan]

Present: Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

ABDUL REHMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 167-P of 2021, decided on 9th December, 2021.

(Against the order dated 22.10.2021 passed by the Peshawar High Court Peshawar in Cr. M. No.3206-P of 2021)

Criminal Procedure Code (V of 1898)---

---S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 3, 4 & 21---Constitution of Pakistan, Art. 185(3)---Cyber stalking, transmitting objectionable images of a woman---Bail, refusal of---Plea of accused that offences alleged did not fall within prohibitory clause of S. 497, Cr.P.C.---Held, that ordinarily, upon conclusion of investigation in criminal cases falling outside the remit of "prohibition", motions for release on bail are favourably received, nonetheless, such practice is not without limitations---In the present case, privacy of a young lady had grievously been intruded to the utter embarrassment of her family; even her marriage went into peril---Incident was reported by her father-in-law and, thus, in the facts and circumstances of the case, the concurrent view of the Courts below in denying bail to the accused was correct---Petition for leave to appeal was dismissed, leave was declined and accused was refused bail.

Muhammad Tariq Shah, Advocate Supreme Court for Petitioner.

Sayyed Nayyab Hassan Gardezi, Deputy Attorney General with Tariq I.O. for the State.

2022 S C M R 528

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ZAHID and others---Applicants

Versus

PROVINCE OF SINDH through Chief Secretary and others---Respondents

C.M.As. Nos. 849-K of 2020 and 423-K of 2021 in Constitution Petition No. 9 of 2010, decided on 28th January, 2022.

(Application of Intervener under Order V, Rule 2(ii) read with Order XXXIII, Rule 6 of the Supreme Court Rules, 1980)

(a) Constitution of Pakistan---

----Arts. 184(3) & 190---Administrative Committee of the Supreme Court, functions of---Implementation of directions/orders of the Supreme Court passed in its jurisdiction under Art. 184(3) of the Constitution---Nothing in law prevents the Supreme Court to hold administrative meetings with concerned agencies/functionaries to ensure that orders passed in public interest are being implemented---Executive functions of the Supreme Court inter alia include implementation of its orders and require executive functionaries to do so as per requirements of Art. 190 of the Constitution---If a judgment of the Court is not executed without reason, it has the effect of stagnating the law and in effect, impeding the system of administration of justice---For this reason the Supreme Court oversees its proceedings and their end result, especially those under Art. 184(3) of the Constitution owing to their nature and, due to the questions of public importance involved therein---As such, the directions issued in the Administrative Committee meeting of the Supreme Court are meant to oversee proper and timely implementation.

(b) Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance (VIII of 2002)---

----S. 5---Karachi Building and Town Planning Regulations, 2002, Regln. 18-14.4---Constitution of Pakistan, Art. 184(3)---Matter concerning marriage halls on Main Korangi Road, Karachi, constructed illegally on residential plots and encroached land---Directions issued by the Supreme Court for demolition of such marriage halls---Applicants/interveners (owners of marriage halls) were unable to show the Court anything from the record which could establish that the plots/Marriage halls were regularized/converted after due process and in accordance with law and the applicable rules and regulations---Fact that the applicants/interveners did not have their regularization letters was enough to hold that the marriage halls were illegally constructed upon residential plots and were liable to be demolished---Marriage halls built upon residential plots and encroached lands were liable to be demolished in terms of orders of the Supreme Court and the conversions (of use of land) undertaken were liable to be reverted back to their original residential use.

Admittedly the land in question is residential in nature. The only claim of the applicants/interveners is that they had acquired necessary permissions/NOCs from the housing society/ authorities before they started constructing the marriage halls. The applicants/interveners have admitted that they did not receive any letters of regularization in respect of their properties stating that the same had been regularized as marriage halls or, that their residential land was converted to commercial land

Applicants/interveners relied upon an advertisement/notification issued by the Sindh Building Control Authority inviting the public to make applications for conversion of their residential plots into commercial/marriage halls. However, the applicants/interveners did not bring any material on record to show that their plots fulfilled the conditions and minimum qualifying area of plots prescribed in the said notification.

Applicants/interveners knew that their buildings/marriage halls were wrongly built and so, attempted to get the same regularized. Such fact is sufficient to hold that the marriage halls were illegally built on residential plots, in violation of clear orders of the Supreme Court which provide that the Master Plan of Karachi city cannot be changed and all changes made thereto must be reverted and illegal buildings demolished.

Abdul Karim v. Nasir Aslam Baig 2020 SCMR 111 ref.

Counsel for the applicants/interveners argued that the land on which the marriage halls were built was barren land with no habitation or residential/commercial construction in sight, and that they were pressurized by the housing societies to construct on the land and as a consequence thereto, the applicants/interveners constructed marriage halls to save the land from encroachers. Contrary to such stance the written synopsis presented by the counsel for the applicants/interveners mentioned about the economic utility of marriage halls and the growing need for a change in town planning. As such, the fact that the applicants/interveners conceded that the growing economic need of marriage halls needed to be met shows that they did not merely construct marriage halls upon the land in question to save the same from encroachers. This is further established from the fact that the applicants/interveners actively approached their respective housing societies to acquire NOCs so that their lands could be converted for use from residential to commercial. This too was done after paying meagre fees in comparison to the price of commercial properties in the area(s). It is for this reason that most of the residential plots in Karachi city were ordered to be reverted to their original form by the Supreme Court, because residential properties were indiscriminately being converted to commercial properties without due regard to fundamental questions and regard for town planning, environmental impact, stress on basic amenities and availability of basic infrastructure and services.

Even otherwise, the allotment letters given to the applicants/interveners by the housing societies did not permit them to build marriage halls on their plots. The applicants/interveners could have complained to the Registrar of Cooperative Housing Societies regarding any pressure exerted against them. However, no such complaint was on the record. There is nothing on the record to show that any FIR or complaint was registered to bring to the notice of the concerned authorities that there were any encroachers operating in the area who were trying to occupy the land of applicants/interveners prompting them to construct marriage halls. If the applicants/interveners were apprehensive about encroachments, they ought to have approached the concerned authorities so that their legitimate interests were adequately safeguarded.

The applicants/interveners were unable to show the Court anything from the record which could establish that the plots/marriage halls were regularized/converted after due process and in accordance with law and the applicable rules and regulations.

Regulation 18-14.4 of the Karachi Building and Town Planning Regulations, 2002 makes it clear that the applicants/interveners needed to have the regularization letters regarding the marriage halls. The fact that the applicants/interveners did not have their regularization letters is enough to hold that the marriage halls were illegally constructed upon residential plots and are liable to be demolished

The marriage halls built upon residential plots and encroached lands are liable to be demolished in terms of orders of the Supreme Court and the conversions (of use of land) undertaken are liable to be reverted back to their original residential use.

Anwar Mansoor Khan, Senior Advocate Supreme Court assisted by Asim Mansoor Khan, Advocate Supreme Court and Ms. Umaimah Anwar Khan, Advocate Supreme Court for Applicant (in C.M.A. No. 849-K of 2020).

Faisal Siddiqui, Advocate Supreme Court for Applicant (in C.M.A. No. 423-K of 2021).

Salman Talibuddin, Advocate General, Sindh, Dr. Raana Khan, Advocate-on-Record, Syed Jamil Ahmed, Advocate Supreme Court, Shamsuddin Soomro, Director General, SBCA, Waqar Memon, Senior Director Master Plan and Faisal Abdullah Chachar, SSP Korangi for Respondents.

2022 S C M R 544

[Supreme Court of Pakistan]

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

ABDUL GHANI---Appellant/Petitioner

Versus

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

Criminal Appeal No.3-Q and Criminal Petition No.29-Q of 2021, decided on 3rd November, 2021.

(Against the judgment dated 22.02.2021 passed by the High Court of Balochistan, Sibi Bench in Crl. Revision and Appeal Nos. (S) 30 and 114 of 2019)

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

----S. 376(1)---Rape of minor---Reappraisal of evidence---Juvenile accused---Sentence of ten years' rigorous imprisonment awarded by Trial Court enhanced to imprisonment for life by the High Court---Whether justified---Plea of accused that negative forensic report cast shadow on the reliability of prosecution case, benefit whereof cannot be withheld from the accused---Validity---Child victim being in tender nubility was clinically established to have been violated, a circumstance that required no further forensic corroboration---Negative reports do not reflect upon the veracity of prosecution case for reasons more than one---D.N.A. profile generation though a most meticulous method with unfailing accuracy, nonetheless, requires an elaborate arrangement about storage and transportation of samples, a facility seldom available---Even a slightest interference with the integrity of samples may alter the results of an analysis and, thus, the fate of prosecution case cannot be pinned down to the forensic findings alone, otherwise merely presenting a corroborative support, hardly needed in the face of overwhelming evidence, presented by the prosecution through sources most unimpeachable---Crime was reported with a remarkable promptitude; accused being a close family relation, the timeframe does not space any hypothesis of consultations or deliberations---Given the violence inflicted upon the child, enhancement of accused's sentence by the High Court, his juvenility notwithstanding, cannot be viewed as excessive or harsh---Petition for leave to appeal and appeal were both dismissed.

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

----S. 376---Rape---Penetration---Penetration is sufficient to constitute the offence (of rape) and there are many factors, physical as well as psychological, that may intervene during a carnal assault, impeding complete consummation of carnal assault---Such subsequent failures do not redeem the enormity of initial assault.

Ahsan Rafiq Rana, Advocate Supreme Court for Appellant/ Petitioner (in both cases).

Abdul Razzaq Sher, Advocate Supreme Court for the State (in both cases).

Noor Jahan Kahor, Additional Prosecutor General Balochitan for the Complainant (in both cases).

2022 S C M R 547

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Sayyed Mazahar Ali Akbar Naqvi and Jamal Khan Mandokhail JJ

GUL NAWAB---Petitioner

Versus

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

Criminal Petition No. 172-P of 2021, decided on 25th January, 2022.

(On appeal against the judgment dated 15.11.2021 passed by the Peshawar High Court, Peshawar in Cr. M. B.A. No. 3288-P of 2021)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, grant of---Further inquiry---Case of counter version FIRs---Only a general role of firing had been ascribed to the accused without any specification qua kind of weapon, part of the body which had been hit, and any recovery of the empties from the place of occurrence specifying the accusation against the accused---Though four empties were taken into possession by the Investigating Officer, however, no recovery had been effected from the accused after he was taken into custody---Perusal of the crime report clearly reflected that the complainant had not mentioned any overt act towards the opposite party whereas it was clear stance of the accused that in-fact the complainant party had shown aggression and initiated the occurrence---In this regard, separate FIR had been registered on the same day and time---Two versions of the occurrence invited the provisions of S. 497(2), Cr.P.C. calling for further probe into the occurrence---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(2)---Penal Code (XLV of 1860), S. 302---Bail---Further inquiry---Counter-version FIRs for the same occurrence---When there were two versions of the occurrence, it squarely invited the provisions of S. 497(2), Cr.P.C. calling for further probe into the occurrence.

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

----S. 497---Bail---Abscondment of accused---Effect---Mere absconsion cannot be a ground to discard the relief sought for as it is established principle of law that disappearance of a person after the occurrence is natural if he is involved in a murder case, rightly or wrongly---Mere absconsion is not a proof of guilt, hence, cannot be made sole ground to discard the relief sought for.

Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Moundar and others v. The State PLD 1990 SC 934 and Muhammad Tasaweer v. Hafiz Zulkarnain PLD 2009 SC 53 ref.

Syed Abdul Fayaz, Advocate Supreme Court for Petitioner.

Complainant in person.

Arshad Hussain Yousafzai, Advocate Supreme Court and Akbar Rehman, I.O. for the State.

2022 S C M R 550

[Supreme Court of Pakistan]

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

ABDUL SATTAR JATOI---Appellant

Versus

CHIEF MINISTER SINDH through Principal Secretary, Chief Minister Secretariat, Karachi and others---Respondents

Civil Appeal No. 1167 of 2020, decided on 10th January, 2022.

(Against the judgment dated 22.09.2020, passed by the Sindh Service Tribunal, Karachi in Appeal No.1009 of 2019)

(a) Sindh Service Tribunals Act (XV of 1973)---

----S. 4, proviso (b)---Appeal to Tribunal---Jurisdiction of Tribunal---Scope---Proviso (b) of S. 4 of the Sindh Service Tribunals Act, 1973 ('Act of 1973'), bars filing of a service appeal before the Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade---Said provision deals with a situation that the departmental authority has dealt with the matter of promotions of all the employees eligible for promotion to a post and having found a certain employee to be fit for promotion, promoted him---Remaining civil servants whose case for promotion was considered but found not fit to be promoted, such civil servants' service appeals before the Tribunal would not lie.

Proviso (b) of section 4 of the Sindh Service Tribunals Act, 1973 ('Act of 1973'), bars filing of a service appeal before the Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade. This provision deals with a situation that the departmental authority has dealt with the matter of promotions of all the employees eligible for promotion to a post and having found a certain employee to be fit for promotion, promoted him. The remaining civil servants whose case for promotion was considered but found not fit to be promoted, such civil servants' service appeals before the Tribunal would not lie. In the present case, no such order or decision, determining the fitness or otherwise of a person to be appointed, has either been made by the departmental authority nor the question of fitness of the appellant to be promoted has at all been raised. The grievance, in the service appeal filed by the respondent before the Tribunal was that the departmental authority did not at all consider the case of the appellant's own batch-mates including the respondent who were working in the post of BPS-19 in the Health Department for promotion to the post of BPS-20, in that, only the appellant was picked up by the departmental authority for grant of promotion to him in BPS-20 and the senior batch-mates of the appellant have altogether not been considered for granting of promotion to the post of BPS-20. Had the departmental authority considered the case of promotion of all the batch-mates of the appellant working in BPS-19 in the Health Department and the respondent having been found not fit for promotion to the post of BPS-20 by the departmental authority, the service appeal on such question would have been barred before the Tribunal, but such is not the case in hand before the Court. Thus, the Tribunal had jurisdiction to entertain the service appeal filed by the respondent.

Shafi Muhammad Mughal v. Secretary Establishment Division and others 2001 SCMR 1446; Zafar Iqbal v. M.G.O. M.G.O. Branch, GHQ Rawalpindi and 3 others 1995 SCMR 881 and Miss Zubaida Khatoon v. Mrs. Tehmina Sajid Sheikh and others 2011 PLC (C.S.) 596 distinguished.

(b) Civil service---

----Promotion---Merit---Competent authority is bound to consider all eligible candidates for promotion on merit---In the matter of civil service, there should not at all be any instance where the competent authority is found to be accommodating any one civil servant for grant of promotion by not considering or ignoring all other equals and even seniors.

Competent authority while considering grant of promotion is duty bound and obliged under the law to consider merit of all the eligible candidates and after due deliberations, to grant promotion to such eligible candidates who are found to be most meritorious among them. The law does not permit the competent authority to just pick one specific person and amend the rules for him and then create a post and oblige and grant promotion to that one person. Competent authority is bound to consider all eligible candidates for promotion on merit.

Right to promotion is not an illusionary nor a perfunctory right which could be ignored casually. Non-considering of an officer being equally eligible for promotion is a serious matter and not only undermines discipline but creates serious bad blood and heart burning amongst the rank and file of civil service. In the matter of civil service, there should not at all be any instance where the competent authority is found to be accommodating any one civil servant for grant of promotion and availing of better service benefits leaving all other equals and even seniors abandoned.

(c) Civil service---

----Person specific post, creation of---Illegal.

Creation of a specific post for the benefit of one specific civil servant was illegal.

Secretary Agriculture, Government of the Punjab, Lahore v. Muhammad Akram 2018 SCMR 349; In the matter of Contempt of Court Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752 and Baz Muhammad Kakar and others v. Federation of Pakistan and others PLD 2012 SC 870 ref.

M. M. Aqil Awan, Senior Advocate Supreme Court for Appellant.

Syed M. Saulat Rizvi, Additional Advocate General, Sindh (via video link from Karachi) for Respondents Nos.1 - 4.

Respondent No. 5 in person.

2022 S C M R 566

[Supreme Court of Pakistan]

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

DEPUTY DIRECTOR FINANCE AND ADMINISTRATION FATA through Additional Chief Secretary FATA, Peshawar and others---Appellants

Versus

Dr. LAL MARJAN and others---Respondents

Civil Appeals Nos. 231, 233, 235, 236, 238, 241, 242, 243, 256, 260, 262, 263, 264, 266, 278, 279, 281, 286, 287, 290, 291, 292, 293, 294, 295, 296, 297, 299, 300, 304 and 306 of 2020, decided on 28th January, 2022.

(Against judgment dated 14.10.2014 of Peshawar High Court, Peshawar passed in Writ Petitions Nos. 390-P of 2012 etc.)

(a) Interpretation of statutes---

----'Casus omissus', principle of---Scope---Said principle provides that, where the legislature has not provided something in the language of the law, the Court cannot travel beyond its jurisdiction and read something into the law as the same would be ultra vires the powers available to the Court under the Constitution and would constitute an order without jurisdiction.

(b) Civil service---

----Contractual employees---Regularization in service---Regularization is not a vested right but requires a statutory basis---Where a contractual employee wishes to be regularized, he must demonstrate statutory basis for such a claim.

(c) Civil service---

----Contractual employees---Regularization in service---Long service is no ground for regularization---Regularization has to be supported by legislation and is not an automatically accruing right.

Shumail Ahmad Butt, Advocate General Khyber Pakhtunkhwa, Atif Ali Khan, Additional A.G. Khyber Pakhtunkhwa, Barrister Qasim Wadood, Additional A.G. Khyber Pakhtunkhwa with Erum 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, Asstt. Secretary, BOR, Khyber Pakhtunkhwa, Fahim Ullah Khan, Sr. Law Officer, KPPSC, Assad Ullah Khan, SO, P&D Department and Amanat Ullah Qureshi, Dy. Secy., Finance Deptt. Khyber Pakhtunkhwa for Appellants.

Khalid Rahman, Advocate Supreme Court for Respondents (in C.A. 286/2020).

Respondent No. 2 in Person (in C.A. 231/2020).

Haji Muhammad Zahir Shah, Advocate-on-Record for Respondents (in C.A. 233/2020).

Afnan Karim Kundi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.A. 235/2020).

Liaquat Ali Tareen, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.As. 241 and 300/2020).

Saleem Ullah Ranazai, Advocate Supreme Court for Respondents (in C.As. 242/2020 and 243/2020).

Nasir Mehmood-P, Advocate Supreme Court for Respondents (in C.A. 264/2020).

Muhammad Asif Yousafai, Advocate Supreme Court for Respondents (in C.A. 252/2020 and C.A. 282/2020).

Waseem ud Din Khattak, Advocate Supreme Court for Respondents (in C.A. 278/2020 and C.A. 279/2020).

Muzammil Khan, Advocate Supreme Court and Syed Haziq Ali Shah, Advocate Supreme Court for Respondents (in C.A. 260/2020).

Respondent No. 1 in person (without enter appearance) (in C.A. 263/2020).

Muhammad Asif, Advocate Supreme Court for Respondents (in C.A. 266/2020).

Muhammad Munir Paracha, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.A.281/2020).

Asad Jan, Advocate Supreme Court for Respondents (in C.A. 299/2020).

Nemo for Respondents (in C.A. 236/2020, C.A. 238/2020, C.A.281/2020, C.As.290-297/2020, C.A.304/2020 and C.A. 306/2020).

2022 S C M R 576

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel, Qazi Muhammad Amin Ahmed

and Amin-ud-Din Khan, JJ

IKRAM ULLAH KHAN YOUSAFZAI, EXCISE AND TAXATION OFFICER, PESHAWAR and others---Petitioners

Versus

Dr. RIZWAN ULLAH and others---Respondents

Civil Petition No. 2420 of 2015, decided on 10th February, 2022.

(Against the judgment dated 24.06.2015 passed by the Peshawar High Court Peshawar in W.P. No. 2052/2008)

(a) Public functionary---

----Exercise of authority---Scope---State authority is a sacred trust; it vests in its functionaries (the authority) to accomplish purposes designated by law and no doubt while exercising such authority within remit thereof, the functionaries must act in a manner most benign with a degree of restraint, expedient to avoid transgression---At the same time, a reasonable freedom for the functionaries is most essential to effectively perform the duties they are tasked with---Any obstruction with the performance of State business is interference with the writ thereof and cannot be countenanced without grievously undermining its authority.

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

----Ss. 22-A & 154---Constitution of Pakistan, Art. 199---High Court issuing directions for registration of FIR in its Constitutional jurisdiction against officials of Excise and Taxation department---Legality---Petitioners (officials of Excise and Taxation department) while executing a non-bailable warrant of arrest purportedly issued by the competent authority took the respondent in custody, who was alleged to have been a defaulter of property tax---Allegedly the respondent claimed he was not in default but the raiding party kept him in confinement till the evening, when some advocates got him released---Respondent approached the police for registration of a criminal case against the excise officials and upon refusal filed a petition under S. 22-A, Cr.P.C, which was declined by a Justice of Peace---However Judge-in-Chamber of the High Court vide impugned order directed registration of a criminal case---Held, that record showed issuance of multiple notices for the recovery of outstanding assessment of property tax, predating the incident---Warrant issued by an Assistant Collector, though disputed as fake was, nonetheless, mainstay of the petitioners' case who in their official capacity were tasked to collect the assessed amount and, thus, prima facie, within the bounds of law to execute the impugned warrant---Rowdy behavior and inappropriate selection of time and venue for the execution of the warrant as alleged by the respondent though despicable, nonetheless, by itself did not expose the petitioners to criminal consequences---Nothing was available on the record to view the purported non-bailable warrant as a fake instrument---Similarly, it was not open for the respondent to unilaterally dispute the vires of impugned assessment, reportedly stalled till date---Furthermore it was not understandable under what authority of law, the rescuing team that included some lawyers took away the respondent from custody apparently sanctioned by law, which was a criminal offence in itself---Issues highlighted in the present case hinged upon factual controversies and as such could not have been attended to by the High Court in exercise of its Constitutional jurisdiction in the face of multiple alternate statutory remedies available to the respondent---Petition for leave to appeal was converted into appeal and allowed; impugned direction/order of High Court was set aside, with the observation that the respondent was at liberty to dispute the vires of impugned assessment before the competent forum in accordance with law as well as to avail alternate remedy of private complaint to be attended on its own merits.

Syed Hammad Ali Shah, Advocate Supreme Court for Petitioners.

Abdul Samad Khan, Senior Advocate Supreme Court and Muhammad Arif, SI for Respondents Nos. 1-2.

2022 S C M R 580

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ

COMMISSIONER OF INLAND REVENUE---Petitioner

Versus

Messrs MUGHAL BOARD INDUSTRY---Respondent

Civil Petition No. 1026-L of 2019, decided on 2nd November, 2021.

(Against the order dated 13.02.2019 of the Lahore High Court, Lahore passed in STR No. 8160 of 2019)

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

----S. 34A---Illegally adjusted input tax---Default surcharge and penalties---Amnesty Scheme---Purpose and scope---Purpose of an amnesty scheme is to incentivize payment and collection of stuck-up revenue---Taxpayer who had made voluntary payment before the cut-off date under the amnesty scheme can avail the amnesty scheme.

Plain reading of SRO No. 606(I)/2012 dated 01.06.2012 ("amnesty notification") shows that if the default surcharge and penalties payable by a registered person are outstanding on account of illegally adjusted input tax, the registered person may avail exemption against default surcharge and penalties provided the whole of the principal amount of illegally adjusted input tax is deposited by 25th June, 2012 and any case or complaint filed by the registered person against the department is withdrawn by the said date.

The contention of the (tax) department that the amount of sales tax must be outstanding against the person on 01-06-2012 for the amnesty notification to apply, is not convincing. The spirit and object of the amnesty notification is to incentivize quick recovery of stuck up tax revenue, hence the notification offers that if only the principal amount of illegally adjusted sales tax is deposited by 25th June, 2012 the default surcharge and penalties stand exempted. The importance is of the cut-off date i.e. 25th June, 2012. There appears to be no bar in the notification and no possible disadvantage caused to the department, if the principal amount of sales tax is deposited prior to the date of the amnesty notification. In fact it is advantageous for the department as the stuck up tax revenue has been voluntarily deposited by the taxpayer, which is in line with the scheme of the amnesty being offered by the department. The other condition is the withdrawal of any case or complaint filed by the registered person against the department in this regard. Admittedly, the respondent (tax payer) deposited the principal amount of sales tax before 01-06-2012, and the respondent has not filed any case, etc against the department except the present case, hence the respondent successfully meets the conditions of the amnesty notification and is, therefore, entitled to the benefit of it.

The main purpose of the amnesty scheme is to incentivize payment and collection of stuck up tax revenue and, therefore, what matters is the payment by or before the cut-off date. The government must actually welcome any voluntary payment made by a taxpayer before the cut-off date. In any case, extension of the benefit of the amnesty notification to the tax payer ensures level playing field, creasing out any trace of discrimination amongst taxpayers who have already paid the principal amount of tax before the cut-off date.

There was no justification to deny the benefit of the amnesty notification to the respondent taxpayer. Petition for leave to appeal was dismissed.

(b) Sales tax---

----Amnesty scheme--- Notification--- Interpretation--- Amnesty notification being beneficial subordinate legislation must be viewed liberally in favour of the taxpayer in order to achieve the solitary fiscal objective of quick recovery of stuck up tax revenue.

Ms. Kausar Parveen, Advocate Supreme Court (video-link from Lahore) along with Naeem Hassan, Secy (Lit.) FBR for Petitioner.

Nemo for Respondent.

2022 S C M R 584

[Supreme Court of Pakistan]

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

Messrs MARDAN WAYS SNG STATION---Petitioner

Versus

GENERAL MANAGER SNGPL and others---Respondents

C.P.L.A. No. 2063 of 2020, decided on 22nd November, 2021.

(Against the order dated 05.06.2020 passed by the Peshawar High Court, Peshawar in R.F.A. No. 290-P of 2015)

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

----O. I, R. 9---Specific Relief Act (I of 1877), Ss. 42 & 55---Suit for declaration and mandatory injunction---Disconnection of gas supply---Non-impleading of gas company in the suit---Effect---Admittedly, the contract of the petitioner-consumer for supply of gas was with Gas Supply Company but said Company had not been arrayed as defendant in the suit---Such defect of non-impleading of company as party to the suit, was fatal and went to the root of the case---Suit was not proceedable without impleading the company---Petition for leave to appeal was dismissed and leave was refused.

Sh. Shajar Hussain v. Haji Abdul Majeed and others 2006 SCMR 913 ref.

(b) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 6(2)(q), 11, 12 & 43---Specific Relief Act (I of 1877), Ss. 42 & 55---Suit for declaration and mandatory injunction---Consumer of natural gas accused of tampering with gas meter---Disconnection of gas supply---Suit filed by consumer before the civil court for restoration of gas connection---Maintainability---Petitioner's (consumer's) civil suit before the Civil Court was not maintainable as under the Oil and Gas Regulatory Authority Ordinance, 2002 (the "Ordinance") the Oil and Gas Regulatory Authority (the "Authority") had the exclusive jurisdiction to determine the matters in its jurisdiction as set out in the Ordinance and the jurisdiction of the Civil Court was barred---In the present case when it was found that the meter was tampered, the gas supply company ('the company') had charged the average bill, and detection and evaluation committee of the company fixed a fine, which action was within the jurisdiction of the company, therefore, the bar contained in the Ordinance against filing of civil suit was applicable and civil court had no jurisdiction in the matter---Petition for leave to appeal was dismissed and leave was refused.

General Manager, SNGPL, Peshawar v. Qamar Zaman 2021 SCMR 2094 ref.

(c) Jurisdiction---

----Bar of jurisdiction of civil court mentioned in a statute---Scope---If in any statute there was a bar of plenary jurisdiction of civil court, the bar would be applicable if the authority acted in accordance with the said statute and its acts, orders did not violate the jurisdiction conferred upon that authority under the said statute---However if the authority acted or passed any order in violation of the jurisdiction vested in it under the statute and transgressed jurisdiction, or the orders or action when scrutinized, keeping in view the jurisdiction available under the said statute, were found without jurisdiction, then certainly the bar contained in the said statute on the plenary jurisdiction of the civil court was not applicable and the suit would be competent.

(d) Punjab Civil Courts Ordinance (II of 1962)---

----S. 18(1)--- Suits Valuation Act (VII of 1887), Preamble---Consolidated suits on the same subject matter having different jurisdictional values---Trial Court passing separate decrees---Appeal against---Forum---Jurisdictional value fixed by the plaintiff-petitioner in its suit was Rs.10,000 which was never changed, therefore, in accordance with the jurisdictional value of the lis, the forum of appeal was to be determined---Admittedly, when the jurisdictional value of the suit of the plaintiff-petitioner was Rs. 10,000, the appeal was competent before the District Judge and not before the High Court though both the suits were consolidated---Value for the purposes of jurisdiction in the suit filed by the respondents was Rs. 4,94,82,480, therefore, against that decree an appeal was competent before the High Court and said appeal was filed rightly---When two suits were consolidated, the judgment could be consolidated but in each suit a separate decree was passed and an appeal was against a decree and not the judgment, therefore, the Regular First Appeal (RFA) filed against the consolidated judgment could be presumed only against the decree in the suit filed by the respondents for recovery of money in which the jurisdictional value was Rs. 4,94,82,480---Hence, the High Court had no jurisdiction to entertain and decide the appeal against a decree whereby the jurisdictional value was fixed as Rs.10,000 when the jurisdiction was with the District Judge to hear and decide the appeal---When the High Court was having no pecuniary jurisdiction and the District Judge was having jurisdiction, wrong filing of appeal before the High Court did not give the High Court the jurisdiction if in a consolidated judgment appeal against a decree in the other suit was competent before the High Court---Petition for leave to appeal was dismissed and leave was refused.

Zahid Zaman Khan and others v. Khan Afsar and others PLD 2016 SC 409 ref.

Mudassar Khalid Abbasi, Advocate Supreme Court for Petitioner.

Asad Jan, Advocate Supreme Court for Respondents.

2022 S C M R 592

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Sayyed Mazahar Ali Akbar Naqvi and Jamal Khan Mandokhail, JJ

ABDUL SABOOR---Petitioner

Versus

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

Criminal Petition No. 1384 of 2021, decided on 25th January, 2022.

(On appeal against the order dated 25.10.2021 passed by the Peshawar High Court, Peshawar in Cr. M. B.A. No. 3012 -P/2021)

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

----S. 497(2)---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---As per the contents of the crime report, the accused was running a business of poultry; he borrowed some amount from the complainant and to settle the same, he issued the cheque in question to the complainant, which had been dishonored---Accused was behind bars for the last six and half months whereas the maximum punishment provided under the statute for the offence under S. 489-F, P.P.C. was three years and the offence did not fall within the prohibitory clause of S. 497, Cr.P.C.---Case of the accused squarely fell within the ambit of S. 497(2), Cr.P.C. calling for further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed, and accused was allowed bail.

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

----S. 497---Bail, grant of---Offences not falling within the prohibitory clause---Scope---Grant of bail for such offences was the rule and refusal thereof an exception.

Muhammad Tanveer v. The State and another PLD 2017

SC 733 ref.

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

----S. 489-F--- Civil Procedure Code (V of 1908), O. XXXVII---Section 489-F of P.P.C---Purpose---Prima facie S. 489-F of P.P.C. is not a provision which is intended by the Legislature to be used for recovery of an alleged amount; it is only to determine the guilt of a criminal act and award of a sentence, fine or both as provided under S. 489-F, P.P.C.---On the other hand, for recovery of any amount, civil proceedings provide remedies, inter alia, under O. XXXVII of C.P.C.

Ch. Riasat Ali Gondal, Advocate Supreme Court for Petitioner.

Abdul Fayyaz Khan, Advocate Supreme Court for Respondents.

Zahid Yousaf Qureshi, Additional A.G. and Ziaullah, I.O. for the State.

2022 S C M R 595

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SINDH IRRIGATION AND DRAINAGE AUTHORITY---Appellant

Versus

GOVERNMENT OF SINDH and others---Respondents

Civil Appeals Nos. 10-K to 17-K of 2019, decided on 24th March, 2021.

(Against judgment dated 28.08.2018 of Sindh Service Tribunal at Karachi, passed in Appeals Nos. 1015, 1063, 1156 to 1159, 1161 and 1164 of 2015)

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

----S. 2(1)(b)---"Civil servant"---Meaning---Civil servant is someone who has been employed by the competent authority i.e., either the Provincial or Federal Public Service Commission, in the prescribed manner after following due process of law and having gone through the process of competition.

Muhammad Mubeen us Salam and others v. Federation of Pakistan PLD 2006 SC 602 ref.

(b) Sindh Water Management Ordinance (XL of 2002)---

----Ss. 3 & 12(1)--- Employees of Sindh Irrigation and Drainage Authority ("SIDA")---Said employees were not civil servants; they were not employed by the Provincial or Federal Public Service Commission neither is there any notification or any other document on the record that confers on them the status of civil servants.

(c) Sindh Water Management Ordinance (XL of 2002)---

----Ss. 12(1) & 16---Employees of Sindh Irrigation and Drainage Authority ("SIDA")---Appointment---Power of Board of Management---Scope---Powers to appoint the staff of SIDA vests with the Board of Management of SIDA since the Board has powers as per S. 12(1) of the Sindh Water Management Ordinance, 2002 ('the Ordinance') to administer all matters of SIDA including employment of its staff---Section 12(1) read with S. 16 of the Ordinance clearly indicates that any and all appointments shall be made by the Board of Management of SIDA---As such, no other authority/person could exercise such powers without express authorization given by the Board.

(d) Civil service---

----Government official, powers of---Scope---Such an official can only exercise as much power as is granted to him/her by law.

(e) Civil service---

----Public functionary---Fiduciary duty---Scope---Public functionaries owe a fiduciary duty to act in good faith and discharge their duties with honesty and in accordance with law---If a public functionary does not exercise such power in good faith and with honesty, the principle of merit gets compromised which damages the superstructure of merit, competence and good governance.

(f) Sindh Civil Servants Act (XV of 1973)---

----S. 5(2)---Civil Procedure Code (V of 1908), S. 12(2)---Application under S. 12(2), C.P.C.---Sindh Service Tribunal, jurisdiction of---Scope---Said Tribunal had jurisdiction to decide an application filed under S. 12(2), C.P.C.

Rahat Naseem Malik v. President of Pakistan and others 2003 PLC (C.S.) 759 ref.

(g) Fraud---

----Fraud vitiates the most solemn of proceedings.

Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others PLD 2013 SC 364 ref.

Malik Naeem Iqbal, Advocate Supreme Court, Sh. Khurram Aziz, Secy, SIDA and Altaf Hussain, Law Officer (via Video Link Karachi) for Appellant.

Mukesh Kumar G. Karara, Advocate Supreme Court, Mansoor ul Haq Solangi, Advocate Supreme Court, Muhammad Ali Zardari, AWB Ghotki, Sibtain Mehmood, Additional A.G. Sindh, Sikandar Hassan, DS Irrigation Sindh, Khadim Hussain, DS Irrigation Sindh and Abdul Hafeez Memon, SO Irrigation Sindh (via Video Link Karachi) for Respondents.

2022 S C M R 609

[Supreme Court of Pakistan]

Present: Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

Mst. KAINAT BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1303 of 2021, decided on 9th December, 2021.

(Against the order dated 01.10.2021 passed by the Islamabad High Court Islamabad in Criminal Misc. No. 931-S of 2021)

Criminal Procedure Code (V of 1898)---

----Ss. 167(5) & 497---Penal Code (XLV of 1860), Ss. 379, 380 & 381---Theft by female house maid---Bail, grant of---Offences alleged do not fall within the prohibitory clause of S. 497, Cr.P.C.---Doors for release of accused, being a female with no past record, were statutorily wider and, thus, her continuous detention, was serving no useful purpose---Evidentiary value of the stolen gold ornaments, allegedly recovered on disclosure of the accused, could best be adjudged during the trial---Furthermore the accused was held in police custody in violation of S. 167(5), Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

Mir Afzal Malik, Advocate Supreme Court for Petitioner.

Niaz Ullah Khan Niazi, Advocate General, Islamabad with Nawaz, I.O. for the State.

Khurram Masood Kiani, Advocate Supreme Court for Respondents.

2022 S C M R 611

[Supreme Court of Pakistan]

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

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY (NEPRA) through Chairman---Appellant

Versus

AIJAZ AHMED and others---Respondents

Civil Appeals Nos. 1576 and 1577 of 2019, decided on 8th January, 2020.

(Against the order dated 27.10.2016 of the Islamabad High Court, Islamabad passed in Writ Petitions Nos. 1448 and 1593 of 2015)

Civil service---

----Probationary employees---Unsatisfactory performance during probation period---Termination of service---In case of a probationary employee the competent authority is possessed of powers to terminate his services at any time and it may do so for any reason relatable to the exigencies of service--- No show cause notice is required in such cases---Probationer has no vested right to continue in service.

Respondents were probationary employees of National Electric Power Regulatory Authority (NEPRA), whose services were terminated due to their unsatisfactory performance during the probation period. Their appointment on probation for a period of one year is an admitted fact. Further, the preparation of their evaluation report by the officials of the appellant-department is also admitted. The contention that the officials of the appellant-department were not competent to make evaluation for the reason that they were not regular employees of the appellant, although raised but could not be substantiated. More so, for the reason that even though they may not be regular employees of the appellant they have the technical capacity skill know how and competence to evaluate the performance of the respondents. Nothing was brought on record to indicate any restriction or bar on the power of the appellant-department or its officials from getting the performance of its officials who are on probation from any source. Such evaluation could also be obtained by the appellant otherwise than by its own employees through outside professional sources consultants.

In case of a probationary employee the competent authority is possessed of powers to terminate his services at any time and it may do so for any reason relatable to the exigencies of service. No show cause notice is required in such cases. A probationer has no vested right to continue in service.

Rehan Saeed Khan and others v. Federation of Pakistan and others 2001 PLC (C.S.) 1275 ref.

Respondents have neither alleged nor do their termination letters state that their services have been terminated on account of misconduct. Consequently, neither any constitutional protection nor issuance of show cause notice or an opportunity to respond to the same is available to them.

Pakistan (Punjab Province). v. Riaz Ali Khan 1982 SCMR 770 and Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 ref.

There was no merit in the argument of the counsel for the respondents that their rights have been prejudiced by termination of their services without issuing a show cause notice or giving them an opportunity of personal hearing during the period when they were under probation. The only ground on the basis of which their services were dispensed with was their unsatisfactory performance which does not constitute stigma. Appeals were allowed, and impugned judgment of High Court was set aside.

Ejaz Ahmed Dar v. Director General Pakistan Rangers PLD 2003 SC 913 ref.

Barrister Umer Aslam, Advocate Supreme Court for Appellant (in both cases).

Muhammad Ramzan Khan, Advocate Supreme Court for Respondent No. 1 (in C.A. No. 1576 of 2019).

Ms. Shireen Imran, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.1 (in C.A. No. 1577 of 2019).

2022 S C M R 616

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Munib Akhtar, JJ

DOST MUHAMMAD---Appellant

Versus

Mian RIAZ HUSSAIN and others---Respondents

Civil Appeal No. 1154 of 2015, decided on 10th January, 2022.

(On appeal against the judgment dated 08.09.2015 passed by the Lahore High Court, Multan Bench, Multan in R.S.A. No. 12 of 2009)

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of an agreement to sell immoveable property---Agreement to sell---Proof---To prove the agreement to sell, respondent-vendee appeared as a witness and reiterated all facts that had been narrated in the plaint; he was subjected to lengthy cross-examination which did not shake his testimony---Marginal witness, the stamp vendor and the petition writer were also produced as witnesses by the respondent-vendee---All said witnesses stood firm on their testimony and duly supported the case of the respondent---On the other hand, the appellant-vendor opted to appear as the sole witness; he never produced any corroborative evidence to show that possession had forcibly been taken from him nor could he establish that the agreement to sell which constituted the basis of the suit for specific performance was forged---If appellant-vendee was forcibly dispossessed of his property, question was as to why he did not initiate any proceedings for retrieval of possession of the same before any forum---Appellant-vendee admitted that he had worked as a Patwari in the Revenue Department, therefore, it was not believable that despite having been forcibly dispossessed he did not initiate proceedings before any forum and no explanation had been offered as to why he silently accepted forcible possession of his property---Lack of action on part of appellant-vendee lent support to the stance of respondent that possession was voluntarily handed over to him as part performance of the agreement and on receipt of a substantial portion of the sale consideration of the property---On basis of the case record it stood established that a sum of Rs.6,25,000 had been paid by respondent as part payment of the sale consideration and a sum of Rs.3,75,000 remained outstanding which was also deposited in the Trial Court on directions of the High Court---Suit for specific performance of an agreement was rightly decreed---Appeal was dismissed.

M. Shahid Kamal Khan, Advocate Supreme Court for Appellant.

Barrister Umar Aslam, Advocate Supreme Court for Respondent No. 1.

Ex parte for Respondents Nos. 2 - 12.

2022 S C M R 620

[Supreme Court of Pakistan]

Present: Mushir Alam and Munib Akhtar, JJ

BASHER AHMED (DECEASED) through LRs.---Petitioners

Versus

MEMBER (CONSOLIDATION) BOARD OF REVENUE, LAHORE and others---Respondents

Civil Petition No. 769 of 2016, decided on 26th October, 2020.

(Against the judgment dated 13.1.2016 passed by Lahore High Court, Lahore in W.P. No. 6635 of 2009)

Punjab Board of Revenue Act (XI of 1957)---

----S. 8---Board of Revenue ('the Board')---Power of review---Scope---Jurisdiction to review a judicial order is conferred by law---Power to review in Revenue jurisdiction is vested in the Board of Revenue by S. 8 of the Punjab Board of Revenue Act, 1957---Suo motu power to review does not vest in the Board of Revenue.

Member (Colonies) Board of Revenue Punjab, Lahore and others v. Muhammad Shafi and others 2008 SCMR 589 ref.

Barrister Umer Aslam Khan, Advocate Supreme Court for Petitioners.

Malik Noor Muhammad Awan, Advocate Supreme Court for Respondents Nos. 5 - 7.

Shaukat Rauf Siddiqui, Additional P.G. Punjab and Sagheer Ahmed Bajwa, Tehsildar Consolidation Officer on Court's Notice.

2022 S C M R 624

[Supreme Court of Pakistan]

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

IHTISHAM ALI CHEEMA---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 927-L of 2021, decided on 21st October, 2021.

(On appeal against the order dated 22.06.2021 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 31992/B of 2021)

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

----S. 498---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail---Scope---Premium of pre-arrest bail was to be extended sparingly---However, if the facts and circumstances did warrant that the person seeking such relief was falsely implicated and there was likelihood of injustice being done upon him, the Court was under an obligation to come to the rescue of innocent persons while granting the said extraordinary relief.

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

----Ss. 324, 337-D, 148 & 149---Constitution of Pakistan, Art. 185(3)---Murderous assault---Ad interim pre-arrest bail, confirmation of---Present case was registered after a lapse of 24 hours whereas the distance between the place of occurrence and the police station was hardly four miles on a metal road---Although the accused was assigned the role of causing firearm injury on the right side of chest of the complainant's brother but this aspect had been found false during the course of investigation, which remained unchallenged---During the course of investigation, it was further found that in-fact it was a co-accused who fired at the injured and as such he was taken into custody and pistol had also been recovered from him; that though the accused was present at the place of occurrence but he was empty handed and no overt act was ascribed to him---Petition for leave to appeal was converted into appeal and allowed, and ad-interim pre-arrest bail granted to the accused was confirmed.

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

----Ss. 497 & 498---Constitution of Pakistan, Art. 185(3)---Bail stage---Benefit of doubt---Scope---Benefit of doubt could even be extended at bail stage.

Khurram Latif Khan Khosa, Advocate Supreme Court for Petitioner along with Petitioner.

Mirza Muhammad Usman, D.P.G. and Muhammad Zahid, SI for the State.

2022 S C M R 627

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Muhammad Ali Mazhar, J

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and others---Petitioners

Versus

SHABIR HUSSAIN and others---Respondents

Civil Petition No. 3455 of 2020, decided on 1st December, 2021.

(Against the judgment dated 12.10.2020 Islamabad High Court, Islamabad in W.P. No.3200 of 2013)

(a) Capital Development Authority Employees (Service) Regulations, 1992---

----Reglns. 4.04, 4.17 & 4.18---Employees of Capital Development Authority (CDA)---Promotion order, withdrawal of---Legality---Vested right to promotion---Scope---Locus poenitentiae, principle of---Applicability---Respondents were regular employees of CDA; they were considered for promotion on the basis of their seniority, and their promotion to the post of Assistant Directors in BS-17 was recommended by the Departmental Promotion Committee (DPC) after due consideration of credentials and ACRs---Competent authority approved the promotion of respondents to the post of Assistant Director (BS-17) in Engineering Cadre on acting charge basis with immediate effect---Subsequently the promotion of the respondents was regularized vide an office order but the said office order was withdrawn/cancelled vide another office order without assigning any reason or notice---Held, that in the present case, on the face of it, neither any fault or defect of respondents was pointed out by CDA nor any oversight or error on the part of DPC members or its composition or jurisdiction which could result in an unceremonious withdrawal of promotion order after considerable period---In these set of circumstances, the doctrine of vested right was applicable which provided that once a right was lawfully created, its existence should be recognized and acknowledged, therefore the benefit of promotions earned on DPC recommendations had become an undeniable and incontrovertible right of the respondents which could not be cancelled or withdrawn---Another shortcoming and unlawfulness was that no prior notice or justification was even shown in the cancellation letter which was flagrant violation of well settled principle of natural justice---Further more it was not the case of CDA that promotion was accorded to the respondents due to some misunderstanding, error, misconception of law or without sanction of competent authority therefore, the principle of locus poenitentiae was also attracted to ameliorate and ventilate the sufferings of the respondents---Petition for leave to appeal was dismissed, leave was refused and order of High Court was upheld whereby CDA's order for withdrawal/cancellation of promotion of respondents was set aside.

Chairman, Central Board of Revenue and another v. Muhammad Malook and 11 others 1999 SCMR 1540 and Province of Sindh through A.G., Sindh, Karachi v. Kazi Siraj Ahmad 2002 SCMR 862 ref.

(b) Civil service---

----Promotion---Departmental Promotion Committee, role of---As a rule, the Departmental Promotion Committee (DPC) was constituted by the competent authority to consider promotion and making recommendations---Promotions of employees/civil servants were generally decided on the basis of recommendations made by the Departmental Promotion Committee which was entrusted an onerous and arduous task to judge the suitability of officers for promotions to selection and or non-selection posts after assessment of performance, conduct, aptness and qualification with certain guidelines to standardize and synchronize the assessment benchmarks of all contenders in a fair, unbiased and transparent manner keeping in view the "dossier" (detailed record and information with regard to an officer; a collection of documents concerning a particular person or matter) or working paper including Annual Confidential Reports (ACRs) of every individual officer/employee.

(c) Natural justice, principles of---

----Scope---Principles of natural justice were firmly established and deep rooted in the judicial conscience and was entrenched and embedded in every decision making function either judicial, quasi-judicial or administrative and as a fundamental rule of law, no decision must be taken affecting the right of any person without first being informed of the case and affording an ample opportunity of defence.

Warid Telecom (Pvt.) Limited v. Pakistan Telecommunication Authority 2015 SCMR 338 ref.

Hafiz Arfat Ahmad, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2022 S C M R 634

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

COMMISSIONER INLAND REVENUE, LTO, KARACHI---Petitioner

Versus

PACKAGES LIMITED---Respondent

Civil Petition No. 4-K of 2021, decided on 13th January, 2022.

(Against the order dated 05.11.2020 of the High Court of Sindh at Karachi passed in I.T.R.A. No. 67 of 2015)

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

----S. 66A---Show cause notice issued under S. 66A of the Income Tax Ordinance, 1979---Barred by time---Frivolous litigation by tax Department---Before the High Court the Department had relied upon S. 66-A of the Income Tax Ordinance, 1979 ('the 1979 Ordinance) and not S. 66---Under the said S. 66A, a notice could only be issued within a period of four years by an Inspecting Additional Commissioner of income tax from the date of an order passed by the Deputy Commissioner---In the present case the Deputy Commissioner passed his order on 16th March 1998---Subject show cause notice dated 23rd May 2011 was issued more than thirteen years after the said order and as such was time-barred as it was well beyond the prescribed period of four years---Petition for leave to appeal was dismissed with costs in the sum of twenty thousand rupees, and leave was refused with the observations that the Income Tax Department, which was now the Federal Board of Revenue, must act fairly in dealing with taxpayers and to abide by the law governing it; if any benefit accrued to taxpayers under the law, it must not be withheld and the assessee's and its own time and resources should not be needlessly wasted, and the present frivolous litigation also wasted the time of the Tribunal, the High Court and of the Supreme Court; time which would have been better spent in resolving legitimate disputes.

Irfan Mir Halepota, Advocate Supreme Court, Mazhar Ali B. Chohan, Advocate-on-Record and Abdul Wahid, Additional Commissioner for Petitioner.

Ejaz Ahmed Zahid, Advocate Supreme Court and K. A. Wahab, Advocate-on-Record for Respondent.

2022 S C M R 636

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

The CHAIRMAN AGRICULTURE POLICY INSTITUTE, MINISTRY OF NATIONAL FOOD SECURITY ANDRESEARCH, GOVERNMENT OF PAKISTAN, ISLAMABAD and another---Petitioners

Versus

ZULQARNAIN ALI and another---Respondents

Civil Petition No. 2892 of 2020, decided on 13th December, 2021.

(Against the judgment dated 02.09.2020 Federal Service Tribunal, Islamabad in Appeal No. 327(R)CS/2019)

(a) Civil service---

----Termination of service---Verbal order of termination---Legality---Termination of service by a verbal order was alien to the labour and service laws of the country and also against the principles of good governance and natural justice.

There was no provision under the Labour Laws or the Service Laws permitting the employer to terminate the services verbally without a written order containing the explicit reasons or cause of termination even in the case of termination simpliciter and for disciplinary proceedings on account of misconduct, obviously separate procedure was laid down which accentuated the issuance of show cause notice, holding inquiry unless dispensed with by the competent authority considering all attending circumstances of the case and after personal hearing, appropriate action may be taken in accordance with the law. The termination of service by a verbal order was alien to the labour and service laws of the country and also against the principle of good governance which was a process of gauging whether the Government, its departments/institutions and authorities were conducting their affairs lawfully and performing their duties honestly, conscientiously and transparently including their process of decision making in accordance with rules and regulations.

Verbal termination order was otherwise against the principles of natural justice.

(b) Civil service---

----Natural justice, principles of---Scope---Before taking any adverse action, the affected party must be given a fair opportunity to respond and defend the action---Principles of natural justice did not lay down any differentiation or inequality between a quasi-judicial function and or an administrative function/action for applying evenly and uniformly to secure justice and prevent miscarriage of justice---Before taking any punitive or adverse action, putting to end the services of any employee/workman or civil servant, the precept of fairness and reasonableness commanded that an evenhanded opportunity to put forth the defence should be afforded.

(c) Civil service---

----Appointment and termination of service orders---Written orders---Due to negligent and unprofessional practice or conduct of issuing verbal termination orders of service, the action of employer was often defeated and non-suited in the court of law without touching the merits of the case despite having sometimes valid grounds for termination of service, therefore, in order to avoid such anomalies and eventualities, even in the case of contractual or temporary engagements, the employees should be issued appointment letters in writing with the terms and conditions of engagement and in the case of termination, explicit reasons of termination should be assigned.

Sohail Mehmood, Additional Attorney General for Petitioners.

Nemo for Respondents.

2022 S C M R 640

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

Syed HAMAD RAZA---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1269 of 2020, decided on 16th November, 2021.

(Against the judgment dated 12.10.2020 passed by the Lahore High Court, Multan Bench in Crl. Misc. No.4045-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 302, 324 & 337-A(i)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifa---Bail, cancellation of---Accused prominently figured in the array of assailants in the crime report with a specific role supported by the witnesses in their statements recorded under S. 161, Cr.P.C.---Medical evidence, prima facie, confirmed the role assigned to the accused and, thus, there was no justification for the High Court to extend judicial protection to the accused merely on the ground that "he was related to the co-accused or that probability of his false implication as a result of wider net and exaggeration being possible factors constituted mala fide intention and ulterior motive"---Such sweeping findings (of the High Court) with far-reaching consequences for the prosecution at the initial stage of the case, that too, structured subjectively on a premise lacking evidential foundations could not be approved---Similarly, the argument that the accused could only be saddled with the mischief of S. 337-A(i), P.P.C. as the injury allegedly caused by him was medically opined as shajjah-i-Khafifa was not convincing for the plain reason that role of a participant in a non-bailable offence could not be quantified to stretch out space for his admission to pre-arrest bail nor could be viewed as a factor to dispense with the requirement of reasonably demonstrating mala fide behind the intended arrest; such matters were part of a post-arrest bail agenda, and not a substitute for pre-arrest bail---Petition for leave to appeal was converted into appeal and allowed, and pre-arrest bail granted to the accused by the High Court was cancelled.

Khuram Masaud Kiyani, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Altaf Ibrahim Qureshi, Advocate Supreme Court, Sanaullah Zahid, Advocate Supreme Court and Anis M. Shahzad, Advocate-on-Record with accused for Respondents.

Mirza Abid Majeed, Deputy Prosecutor General with M. Ashraf, I.O. for the State.

2022 S C M R 643

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

HUMAN RIGHTS COMMISSION OF PAKISTAN through Chairperson and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Ministry of Education and others---Respondents

C.M.A. No. 4821 of 2018 in S.M.C. No. 1 of 2014, C.M.A. No. 5602 of 2021 in C.M.A. No. 4821 of 2018 in S.M.C. No. 1 of 2014, C.M.A. No. 516 of 2019 in Constitutional Petition No. 62 of 2017, Constitutional Petitions Nos. 62, 63 of 2017, C.M.A. No. 1507 of 2021 in C.M.A. No. 4821 of 2018 in S.M.C. No. 1 of 2014 and C.M.A. No. 1123-K of 2021, decided on 14th January, 2022.

Constitution of Pakistan---

----Art. 184(3)---Minority rights---Matters relating to illegal occupation over Government properties resulting in registration of FIRs against officials of Evacuee Trust Property Board, other government officials and private individuals; preventing demolition of Dharamshala located at Plot No.32, NP-04 Napier Quarters, Saddar Town-I Karachi; rehabilitation and restoration of Jain Mandir and Neela Gumbad Mandir in Lahore, and Gori Temple-Jain Mandir in Nagarparkar; conditions of the Government Hospitals in the province of Khyber Pakhtunkhwa and availability/provision of a hospital in Teri, District Karak---Supreme Court issued relevant directions to the concerned authorities and officials to file their reports on the next date of hearing with regard to the matters highlighted so as to address them.

In Attendance:

Sohail Mahmood, Additional Attorney General of Pakistan, Niazullah Khan Niazi, A.G. Islamabad, Dr. Shoaib Suddle, Chairman, One-Man Commission, Dr. Rumesh Kumar, MNA, Syed Junaid Akhlaque, Joint Secretary Ministry of Federal Education, Sohail Bin Aziz, AEA Ministry of Federal Education, Dr. Maryum Chughtai, DG NCC Ministry of Federal Education, Dr. Agha Ghulam Haider, DD (Legal) Ministry of Federal Education, Samual Payara, Chairman, IMRF, Ms. Qurat-ul-Ain Malik, Additional Commissioner-ICT, Zubair Siddiqui, Additional DG FIA, Waqas Rasool, Acting Director Law FIA and Qaiser Masood, Additional Director (Law) FIA.

Muhammad Ikram Chaudhry, Senior Advocate Supreme Court, Raja Qasit Nawaz, Advocate Supreme Court and Dr. Aamir Ahmed, Chairman, ETPB for ETPB.

Barrister Qasim Ali Chohan, Additional A.G. Punjab for Government of the Punjab.

Fauzi Zafar, Additional A.G. Sindh for Government of Sindh.

Shumail Aziz, Advocate General, Khyber Pakhtunkhwa and Dr. Shahzad Khan Bungash, Chief Secretary, Khyber Pakhtunkhwa for Government of the Khyber Pakhtunkhwa.

2022 S C M R 647

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

MUHAMMAD SHIFA and others---Appellants

Versus

MEHERBAN ALI and others---Respondents

Civil Appeal No. 1389 of 2014, decided on 3rd February, 2022.

(On appeal from the judgment dated 27.06.2014 of the Peshawar High Court, Peshawar passed in Civil Revision No. 119/2007 along with C.M. No. 114/07)

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

----Ss. 11 & 12---Muslim Personal Law (Shariat) Application Act (V of 1962), Preamble---Res judicata, doctrine of---Applicability---Muslim Personal Law---Doctrine of res judicata was applicable with regard to Muslim Personal Law (Shariat) Application Act, 1962.

Muhammad Zubair v. Muhammad Sharif 2005 SCMR 1217; Salehon v. Sardaran 1994 SCMR 1856 and Fatima Bibi v. Province of Punjab 2012 SCMR 72 ref.

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

----Ss. 11 & 12---Res judicata, doctrine of---Scope---Public policy requires that disputes once finally decided should not be reopened.

Syed Nayab Hassan Gardezi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Haji Muhammad Zahir Shah, Advocate Supreme Court/ Advocate-on-Record for Respondents.

2022 S C M R 650

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

MUNIR HUSSAIN and 3 others---Petitioners

Versus

PROVINCE OF SINDH and others---Respondents

Civil Petition No. 404-K of 2019, decided on 28th October, 2021.

(Against judgment dated 24.04.2019 of the High Court of Sindh Court at Karachi, passed in C.P. No. D-5009 of 2014)

(a) Civil service---

----Vacant posts, filling of---After the process of written test and interview a merit list was prepared by the Provincial Public Service Commission ('the Commission) for appointment against the advertised posts---Some of the candidates who had been recommended by the Commission had either not joined or after joining quit the posts in question with the result that a few posts fell vacant and were available to be filled---Petitioners who were neither recommended nor their names appeared on the merit list, claimed that they had also passed the written test and interview but secured lesser marks than those recommended for appointment against the available posts; that the vacant and available posts should have been filled by going down the merit list and the petitioners should have been appointed against the said posts---Held, that there is no obligation on the Commission to prepare a list of the candidates who had failed to meet the merit or a waiting list to cater for a situation where a candidate otherwise qualified but having scored less marks than the other candidates may be appointed in case a seat became available in the future---In the absence of any provision in the law requiring the Commission to maintain a complete list of successful candidates whether or not they were recommended for appointment or obligating the Commission to maintain a waiting list, no legal or constitutional right accrued in favour of the petitioners to claim appointment and use the mode of approaching the High Court seeking to invoke its constitutional jurisdiction to grant relief---Petition for leave to appeal was dismissed and leave was refused.

Government of NWFP v. Qasim Shah 2009 SCMR 382 distinguished.

Musa Wazir v. NWFP Public Service Commission 1993 SCMR 1124 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---High Court lacked jurisdiction or power to create rights which were not provided by the Constitution or a validly enacted law.

(c) Constitution of Pakistan---

----Art. 185(3)---Leave refusing order of the Supreme Court---Such order did not constitute precedent.

(d) Civil service---

----Vacant posts, filling of---Advertised posts falling vacant either due to selected candidates (appearing on merit list) not joining service or quitting their posts after joining---Principles for filling such vacant posts stated.

Following are the principles to be followed for filling vacant posts that fall vacant either due to selected candidates (appearing on merit list) not joining service or quitting their posts after joining:

(i) In matters of competitive examination held by Public Service Commissions all vacancies were required to be filled up in one go. Even if the filling up was staggered the competitive examination was one and had to be treated as one selection for the purpose of recruitment;

(ii) In posts remaining vacant on account of non-availability of suitable candidates, failure of the recommended candidates to occupy or falling vacant by reason of the qualified candidates quitting the posts after joining needed to re-advertised and subjected to open competition;

(iii) The practice in the matter of recruitment/promotion, etc must always be fair, transparent and open to competition in order to hire the best available human resource to foster, competence, excellence and efficiency in public service; and

(iv) Only in exceptional cases and provided the rules and regulations provided for waiting list of the qualified candidates who did not in the first place meet the merit, to be maintained for a limited time (maximum of three months) on the request of the department by the relevant Public Service Commission or the department (in case recruitment was made by the department under the law, rules and regulations through an open and transparent recruitment process involving test and interview) in order to ensure that in case of an urgent need to fill the vacancies, the qualified candidates may be recommended and offered the available seats from such "waiting list" strictly following the rule of merit. However, such practice must always be limited to exceptional circumstances and provided the laws, rules and regulations of the Public Service Commissions and/or the concerned departments so permitted.

Musa Wazir v. NWFP Public Service Commission 1993 SCMR 1124 ref.

M. Aqil Awan, Senior Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Petitioners.

Sibtain Mehmood, Additional A.G. Sindh, Syed Atta Ullah Shah Bokhari, Secretary SPSC and M. Yousaf Alvi, Law Officer, SPSC for Respondents.

2022 S C M R 660

[Supreme Court of Pakistan]

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

Syed JAWAD SHAH---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 701-L of 2021, decided on 15th October, 2021.

(On appeal against the order dated 17.11.2020 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 25623-CB of 2020)

Criminal Procedure Code (V of 1898)---

----S. 498---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 324 & 34---Murderous assault---Pre-arrest bail, grant of---Pre-arrest bail was granted to the accused by the High Court---Subsequently accused failed to appear before the Trial Court because of which his non-bailable arrest warrants were issued and bail bonds were cancelled---Complainant sought cancellation of bail granted to accused, which was allowed by the High Court---Contention of accused that he was resident of a far flung area and due to various unavoidable circumstances, he could not appear before the Trial Court, and that he was prepared to appear before the Trial Court and undertook not to absent himself from the proceedings---Held, that as pre-arrest bail had been granted by a superior court, which could not be recalled by the Trial Court, hence, the only requirement of law was to furnish fresh bail bonds---Admittedly accused hailed from a far flung area and the argument advanced by the counsel for the accused that he could not appear before the Trial Court due to unavoidable circumstances could not be ignored altogether---Even otherwise, the accused had made out a case on merits as he was taken into custody by the local police and he remained behind the bars for more than 4 ½ months in a case of ineffective firing---Counsel for the complainant categorically stated before the Court that apart from the conduct of the accused, on merits he had made out a case and even before the High Court the complainant had made a statement that he has no objection if bail was granted to the accused---Petition for leave to appeal was converted into appeal and allowed, impugned order of High Court was set-aside, and accused was admitted to pre-arrest bail with the direction to join the trial proceedings and remain present on each and every date.

Humayun Rashid, Advocate Supreme Court for Petitioner along with Petitioner.

Azar Latif, Advocate Supreme Court for the Complainant.

Muhammad Jaffer, Additional P.G. and Javed, ASI for the State.

2022 S C M R 663

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Sayyed Mazahar Ali Akbar Naqvi, JJ

Chaudhry NADEEM SULTAN---Petitioner

Versus

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

Criminal Petition No. 852 of 2021, decided on 12th November, 2021.

(Against the order dated 17.06.2021 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Cr. M. No. 1127-B of 2021)

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

----S. 497(2)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 302, 324, 34, 449 & 109---Murderous assault---Bail, grant of---Further inquiry---Admittedly there was delay of more than 5 hours in lodging of the FIR for which no explanation had been rendered by the prosecution---Whereas the inter-se distance between the place of occurrence and the police station was 06 kilometers---Accused was ascribed direct role of causing fire-arm injury to the deceased, however, he pleaded plea of alibi and during the course of investigation the same was found to be correct and as such the name of the accused was placed in column No.2 of the report submitted under S. 173, Cr.P.C. as no recovery had been effected from him during the course of investigation---Opinion given by the Investigating Officer was based upon the Call Details Record (CDR) of the cell phone of the accused which showed his presence away from the place of occurrence---Senior police official, who was summoned by the Court, appeared and stated that about 100 persons appeared before the Investigating Officer and amongst those 18 persons furnished their duly verified affidavits, that at the time of occurrence the accused was present in chehlum of a co-villager and even the son of deceased had furnished affidavit in such regard wherein he specifically stated that at the time of occurrence accused was present at the chehlum---Case of accused squarely fell within the ambit of S. 497(2), Cr.P.C. calling for further inquiry into his guilt---Petition for leave to appeal was converted into appeal, and allowed and accused was granted bail.

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

----Ss. 155 & 156---"Accused"---Definition---Any person against whom an accusation was made could not be dubbed as an accused unless and until he was found involved by the Investigating Officer and in this regard a specific order for his arrest was made by him.

Brig. (Retd.) F. B. Ali and another v. The State PLD 1975 SC 506 ref.

Muhammad Ramzan Chaudhry, Senior Advocate Supreme Court for Petitioner.

Abid Majeed, DPG, Athar Ismail, CPO, Syed Ghazanfar Shah, SSP, Ms. Shazia, DSP, Sikandar, IO and Mukhtar, Ex. I.O. for the State.

Malik Waheed Anjum, Advocate Supreme Court for the Complainant.

2022 S C M R 667

[Supreme Court of Pakistan]

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

Ch. RIAZ AHMAD---Appellant

Versus

MUNIR SULTAN MALIK---Respondent

Civil Appeal No. 1798 of 2016, decided on 12th November, 2021.

(Against the judgment dated 10.06.2016 passed by the Lahore High Court, Rawalpindi Bench in Civil Revision No. 174-D of 2010)

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

----Ss. 5 & 13--- Suit for pre-emption--- Pre-requisites---Talbs, performance of---Proof---To succeed in a suit for pre-emption the first and foremost condition was that plaintiff had to plead that before filing of suit he had fulfilled the requirements of Talabs and thereafter he had to prove the performance of Talb-e-Muwathibat and Talb-e-Ishhad---For proving Talb-e-Muwathibat there must be specific time, date and place of knowledge pleaded in the plaint as well as in the notice of Talb-e-Ishhad---Thereafter plaintiff was required to prove the same by proving the gaining of knowledge at specific place, time and date followed by sending of notice attested by two truthful witnesses through registered post where the postal facilities were available and thereafter to prove the delivery of notice to the addressee/vendee/­defendant or its refusal by producing a Postman in the Court while producing evidence to prove the pleadings.

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

----S. 13---Suit for pre-emption---Talbs, performance of---Defects---Contradictions in date of Talb-e-Muwathibat pleaded in the plaint and in the statement of the pre-emptor---Postman not produced---In the present case there were two defects; the date mentioned in the pleadings for gaining knowledge was 2-4-2003 but plaintiff/pre-emptor himself when appearing as his own witness stated the said date was 2-8-2003 while son of the plaintiff narrated it as 2-3-2003---Moreover, the postman had also not been produced to prove the delivery of notice of Talb-e-Ishhad or its refusal by the addressee---Pre-emptor argued that the contradiction in date of Talb-e-Muwathibat was due to a slip of tongue, however he could not answer as to what stopped him from moving the Trial Court for correction of the dates mentioned in his statement and that of his son---Nothing on record was shown that any effort was made in such regard by the pre-emptor before the Trial Court or even before the first appellate court, thus, the interpretation by the first appellate court that it was either a slip of tongue or wrongly recorded testimony was based on findings not permissible under the law---First appellate court did not have the jurisdiction to record such like findings when there was no material for declaring so---Suit for pre-emption was rightly dismissed---Appeal was dismissed.

Pervaiz Hussain and another v. Arabian Sea Enterprises Limited 2007 SCMR 1105 and Bashir Ahmad v. Ghulam Rasool 2011 SCMR 762 ref.

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

----O. XVIII, R. 5---Evidence of witness, recording of---Slip of tongue, correction of---Scope---Court in order to declare any fact deposed by a witness as a slip of tongue as required to look into the material available on record---When evidence of a witness was taken down in appealable cases, the procedure was provided under O. XVIII, R. 5 of the C.P.C.---After recording statement it was read over to a witness and that was the time when the witness could tell that any recorded information was a slip of tongue or it was wrongly recorded---In case any information or any portion of statement was recorded wrongly, the party had a right to move for correction of the same before the completion of the proceedings of the said date---When a statement was recorded, at the end it was read over to the witness and a witness had a right to move for correction if any part of the statement was wrongly recorded.

Maulvi Anwar Ul Haq, Advocate Supreme Court for Appellant.

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

2022 S C M R 672

[Supreme Court of Pakistan]

Present: Mushir Alam and Munib Akhtar, JJ

ASADULLAH KHAN and others---Appellants

Versus

ABDUL GHAFOOR KHAN and others---Respondents

Civil Appeals Nos. 4-K and 5-K of 2021, decided on 21st May, 2021.

(Against the order dated 09.11.2020 passed by High Court of Sindh Bench at Sukkur in R.As. Nos. S-215 and S-214 of 2010).

Constitution of Pakistan---

----Arts. 185(2) & 185(3)---Practice of filing a Petition for Leave to Appeal under Art. 185(3) of the Constitution, where an appeal is competent under Art. 185(2) or under the statute but has become time barred---Supreme Court deprecated such practice and observed that it amounted to hoodwinking the spirit of the law and that such practice must be brought to an end.

Abdul Qadir Khan, Advocate-on-Record/Advocate Supreme Court for Appellants.

Jamshed Ahmed Faiz, Advocate Supreme Court for Respondent No.1.

2022 S C M R 673

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J.and Muhammad Ali Mazhar, J

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

versus

Dr. LIAQAT ALI and others---Respondent

Civil Appeal No. 835 of 2021, decided on 6th January, 2022.

(Against the judgment dated 14.11.2017, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Appeal No.34 of 2014)

Khyber Pakhtunkhwa Service Tribunals Act (I of 1974)---

----S. 7(1)--- Power of Tribunal to modify punishment imposed by the competent departmental authority---Scope---Provincial Service Tribunal reducing penalty of removal from service imposed by competent authority into that of compulsory retirement with retirement benefits considering 24 years' of service put in by the respondent---Legality---Imposition of penalty was in the domain of the competent authority, for that, the competent authority was fully empowered to impose such penalty upon its employee on finding him guilty of commission of misconduct as it considered appropriate and normally the Court did not interfere in such exercise of power by the competent authority---Conversion of penalty imposed by the competent authority would require a strong justifiable reasons beyond what was stated by the Tribunal in the impugned judgment---Court was not empowered to arbitrarily and whimsically find the penalty imposed by the competent authority to be harsh merely, on the ground that the respondent had put in 24 years' of service and was entitled to grant of retirement benefits---Quantum of punishment had to be left with the competent authority and the Court cannot without any strong reason interfere with the same---Interference in the matter of punishment would be without jurisdiction when strong reasons were not assigned to support the same---Tribunal was not justified in reducing the penalty imposed by the competent authority of removal from service on the respondent into compulsory retirement, as the same was not supportable in law---Consequently, while allowing the appeal, the impugned judgment to the extent of modifying the penalty of removal from service into compulsory retirement was set aside and the penalty of removal from service was restored.

Government of the Punjab through Chief Secretary v. Muhammad Arshad and 2 others 2020 SCMR 1962; Deputy Postmaster General, Central Punjab Lahore and another v. Habib Ahmed 2021 SCMR 584; Director General Federal Directorate and another v. Tanveer Muhammad and another 2021 SCMR 345 and Divisional Superintendent, Postal Services, Faisalabad and others v. Muhammad Zafarullah 2021 SCMR 400 ref.

Mian Shafaqat Jan, Additional Advocate General, Khyber Pakhtunkhwa and Zia Ullah, Deputy Secretary, Health Department, Khyber Pakhtunkhwa for Appellants.

Sh. Riazul Haque, Advocate Supreme Court for Respondent No.1.

2022 S C M R 676

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Sayyed Mazahar Ali Akbar Naqvi, JJ

ABDUL MAJID AFRIDI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 632 of 2021, decided on 8th November, 2021.

(On appeal against the order dated 24.05.2021 passed by the Peshawar High Court, Peshawar in Crl. M. B.A. No. 1148-P of 2021)

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

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 302, 324, 148, 149, 109, 427, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Murderous assault resulting in death of a judge of the subordinate judiciary---Petition for pre-arrest bail filed directly before the High Court without first approaching the Sessions Court---Propriety---Held, that jurisdiction of the Sessions Court and the High Court was concurrent in nature---High Court while adjudicating the matter of pre-arrest bail had given cogent reasons especially when it was admitted that one of the deceased was himself a District and Sessions Judge, therefore, any order passed either way would have been considered prejudicial because of the reason that the deceased was member of the district judiciary---Even otherwise, the accused had not availed the remedy before the Session Court, which was available to him while agitating his grievance before the High Court, therefore, he lost one opportunity causing no prejudice to the complainant party---Petition for pre-arrest bail filed by the accused directly before the High Court was competent.

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

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 302, 324, 148, 149, 109, 427, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Murderous assault, conspiracy to murder---Petition for cancellation of pre-arrest bail, dismissal of---Complainant while lodging crime report had not mentioned specific date, time and place where the conspiracy was hatched---Even name and number of witnesses to that extent was not incorporated while lodging the FIR---One of the co-accused, who was taken into custody, made a confessional statement under S. 164, Cr.P.C., wherein he stated that the accused being head of the family instigated others to commit the occurrence---However said statement of co-accused except being a statement at most did not advance the prosecution case---Petition seeking cancellation of pre-arrest bail granted to accused was dismissed and leave was refused.

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

----Ss. 497 & 498--- Constitution of Pakistan, Art. 185(3)--- Bail---Confessional statement of co-accused, relevance of---Statement of one accused could not be used against the other in absence of any attending material produced by the prosecution.

Nouman Khan v. The State 2020 SCMR 666 and Muhammad Sarfraz Ansari v. The State PLD 2021 SC 738 ref.

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

----Ss. 497, 497(5) & 498---Constitution of Pakistan, Art. 185(3)---Bail and cancellation of bail---Distinct considerations---Considerations for the grant of bail and cancellation thereof were entirely on different footings---Generally speaking, the Courts were reluctant to interfere in the order of grant of bail and even in cases where it was apparently found that the bail granting order was not sustainable in the eyes of law, the Courts restrain to interfere in such matters if it was found that there was nothing to show that the accused had misused the concession of bail.

Shahid Arshad v. Muhammad Naqi Butt 1976 SCMR 360 and Samiullah v. Laiq Zada 2020 SCMR 1115 ref.

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

Anis Muhammad Shahzad, Advocate Supreme Court and Namir, I.O. for the State.

2022 S C M R 682

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

FEDERATION OF PAKISTAN and others---Appellants

Versus

MUHAMMAD FARHAN---Respondent

Civil Appeal No. 3-K of 2021, decided on 28th December, 2021.

(Against the judgment dated 16.12.2019 passed by the Federal Service Tribunal, Islamabad (Karachi Bench) in Appeal No.63 (K)CS/2019)

(a) Administration of justice---

----Production of evidence before the Court/tribunal---Purpose and scope---Court decisions were to be based on truth founded on evidence which was an indispensable obligation---Purpose of producing all material evidence was to assist the Court or Tribunal for reaching just conclusion in the matter, hence it was crucial for the parties to put forward all relevant and convincing evidence in support of case for meeting the standards of proof---Court or Tribunal had to examine whether the evidence led in the matter was confidence inspiring or not.

(b) Civil service---

----Misconduct---Major penalty---Court/tribunal, duty of---Scope---Where a matter reached the Tribunal arising out of the case of misconduct in which major penalty had been imposed, the Court or Tribunal had to see in depth whether the charges against the delinquent had been proved in the inquiry or the inquiry was conducted in cursory or slipshod manner or in violation of principles of natural justice.

Nishat Warsi, D.A.G. for Appellants.

Syed Shoa-un-Nabi, Advocate Supreme Court for Respondent.

2022 S C M R 685

[Supreme Court of Pakistan]

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

FARHAD ALI---Petitioner

Versus

The STATE through A.A.G. Khyber Pakhtunkhwa---Respondent

Criminal Petition No. 1056 of 2021, decided on 1st October, 2021.

(Against the order dated 06.09.2021 passed by the Peshawar High Court, Peshawar in Criminal Misc. No. 2918-P of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 9(1)(d), 11(c), 12 & 13---Juvenile Justice System Act (XXII of 2018), S. 6--- Preparation of crystal methamphetamine (ICE) at a factory--- Bail, grant of--- Further inquiry--- Juvenile accused--- Mere presence at site of narcotics preparation---According to FIR the factory of ICE was being run by a co-accused---Upon raid on the said factory the accused was found present whereas 24 packets of ICE weighing 24000 grams and four packets of chemical weighing 106 kilograms were recovered from the possession of another co-accused---According to prosecution, presence of accused was shown at the spot but nothing was recovered from him or on his pointation---According to matriculation certificate the accused was about sixteen years and five months of age at the time of incident and apparently, he was a juvenile---Since as per prosecution's own case, nothing was recovered from the possession or on the pointation of accused, therefore, the Trial Court shall determine whether case of accused came within the mischief of Ss. 12 & 13 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 after recording evidence---Presently 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 granted bail.

Noor Alam Khan, Advocate Supreme Court for Petitioner.

Anis Muhammad Shahzad, Advocate Supreme Court (State counsel) along with Zia Ullah, S.I. for the State.

2022 S C M R 687

[Supreme Court of Pakistan]

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

Mian HIKMATULLAH JAN---Petitioner

Versus

CHAIRMAN AND MEMBERS OF SELECTION BOARD CONSTITUTED FOR SELECTION AND INTERVIEW FOR THE POST OF ADDITIONAL DISTRICT AND SESSIONS JUDGES FOR DISTRICT SUBORDINATE JUDICIARY KHYBER PAKHTUNKHWA, PESHAWAR HIGH COURT, PESHAWAR and another---Respondents

Civil Petition No. 4740 of 2017, decided on 22nd December, 2021.

(Against the judgment dated 23.10.2017, passed by the Peshawar High Court, Peshawar in W.P. No. 524-P of 2016 with C.Ms. Nos.1023-P of 2016 and No. 425-P of 2017]

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

----S.24---Additional and District Sessions Judge, post of---Eligibility---Name of candidate struck off from the Roll of Advocates by the Provincial Bar Council---Document/letter of Provincial Bar Council, which was available on record, specifically mentioned that the petitioner's/candidate's name was struck off from the Roll of Advocates---Name of an advocate being struck off from the Roll of the Advocates, apparently, meant that he was no more a practicing advocate under the Legal Practitioners and Bar Councils Act, 1973, and cannot claim himself to be a practicing advocate---Advertisement for appointment to the post of Additional District and Sessions Judges specifically required the candidate to be a practicing advocate, which condition was not fulfilled by the petitioner---High Court in the impugned judgment had correctly addressed this very aspect of the matter and found that the petitioner was not a practicing advocate when he applied for being appointed as an Additional District and Sessions Judge---Petition for leave to appeal was dismissed and leave was refused.

Ghulam Mohy-ud-Din Malik, Advocate Supreme Court (via video link from Peshawar) for Petitioner.

Nemo for Respondents.

2022 S C M R 690

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD SADIQ---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 794 of 2017, decided on 9th November, 2021.

(On appeal against the judgment dated 06.10.2017 passed by the Lahore High Court, Lahore in Murder Reference No. 340 of 2014 and Criminal Appeal No. 508-J of 2014)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Sentence, reduction in---Accused was alleged to have murdered his real son, whereas his wife (complainant), who happened to be mother of the deceased, implicated him in the case---Accused could not point out any reason as to why his wife would falsely involve him in the present case and let off the real culprit---Substitution in such like cases was a rare phenomenon---Complainant would not prefer to spare the real culprit who murdered her son and falsely involve the accused, who happened to be her husband, without any rhyme or reason---Both prosecution witnesses, which included the wife of accused, were subjected to lengthy cross-examination by the defence but nothing favourable to the accused or adverse to the prosecution could be produced on record---Both witnesses remained consistent on each and every material point inasmuch made deposition exactly according to the circumstances that happened in the case, therefore, it could safely be concluded that the ocular account furnished by the prosecution was reliable, straightforward and confidence inspiring---Medical evidence available on the record fully corroborated the ocular account so far as the nature, locale, time and impact of the injuries on the person of the deceased was concerned---Witnesses were residents of the same locality where the occurrence took place and they had duly explained their presence at the scene of occurrence---High Court had already taken a lenient view while converting the penalty of death into imprisonment for life---No further leniency could be shown to 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---Complainant/ prosecution witness directly related to the deceased---Effect---Mere relationship of the prosecution witnesses with the deceased could not be a ground to discard the testimony of such witnesses unless previous enmity or ill will was established on the record to falsely implicate the accused in the case.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Testimony of a solitary eye-witness--- Such testimony was sufficient to sustain conviction of an accused if the same rang true and inspired confidence---Quality of the testimony of a witness had to be weighed and not the quantity of witnesses.

Tariq Mehmood Butt, Advocate Supreme Court for Petitioner.

Ch. Muhammad Sarwar Sandhu, Additional P.G. for the State.

2022 S C M R 694

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Muhammad Ali Mazhar, J

UZMA MANZOOR and others---Petitioners

Versus

VICE-CHANCELLOR KHUSHAL KHAN KHATTAK UNIVERSITY, KARAK and others---Respondents

Civil Petitions Nos. 2913, 3224 and 3628 of 2021, decided on 29th November, 2021.

(Against the judgment dated 30.03.2021 Peshawar High Court, Bannu Bench, in W.P. No.709-B of 2020)

(a) Civil service---

----Recruitment process---Selection criteria---Scope---Mere submitting of an application for joining recruitment process in response to an advertisement did not create any vested right to claim the job---Before finalizing a fit candidate by the competent authority or Selection Board, the testimonials and antecedents of each candidate were to be considered in accordance with the prescribed benchmarks but in order to maintain level playing field and even-handed competition amongst all candidates, the qualification and competency in all fairness should be considered and adjudged in accordance with the qualification notified to apply in the advertisement and to extend any preference or favourable treatment, the settled terms and conditions could not be disregarded---Selection process should be within the specified spectrum and attributes (mentioned in the advertisement) and breach of such protocol attracted the doctrine of legitimate expectation, which sought to rescue and ventilate the sufferings of candidates who are under the bona fide belief that their applications for appointment would be considered (in terms of the qualifications notified in the advertisement).

(b) Legitimate expectation, doctrine of---

----Scope and connotation---Doctrine of legitimate expectation connoted that a person may have a reasonable expectation of being treated in a certain way by administrative authorities owing to some uniform practice or an explicit promise made by the concerned authority---In fact, a legitimate expectation ascended in consequence of a promise, assurance, practice or policy made, adopted or announced by or on behalf of government or a public authority---When such a legitimate expectation was obliterated, it afforded locus standi to challenge the administrative action and even in the absenteeism of a substantive right, a legitimate expectation may allow an individual to seek judicial review of a wrongdoing---In deciding whether the expectation was legitimate or not, the courts may consider whether the decision of public authority had breached a legitimate expectation and, if it was proved so, then the court may annul the decision and direct the concerned authority/person to live up to the legitimate expectation--- Said doctrine was basically applied as a tool to watch over the actions of administrative authorities and in essence imposed obligations on all public authorities to act fair and square in all matters encompassing legitimate expectation.

Judges Pension's case PLD 2013 SC 829; Halsbury's Laws of England, Volume 1(1), 4th Edition, paragraph 81, at pages 151-152; R. v. Secretary of State of Transport Exporte Greater London Council (1985) 3 ALL.ER 300 and Union of India v. Hindustan Development Corporation (1993) 3 SCC 499 ref.

Raja Muhammad Farooq, Advocate Supreme Court for Petitioner (in C.P. No. 2913 of 2021).

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioner (in C.P. No. 3224 of 2021).

Ghulam Mohyuddin Malik, Advocate Supreme Court for Petitioner (in C.P. No. 3268 of 2021).

Nemo for Respondents (in C.P. No. 2913 of 2021).

Raja Muhammad Farooq, Advocate Supreme Court for Respondent No. 1 (in C.Ps. Nos. 3224 and 3628 of 2021).

2022 S C M R 703

[Supreme Court of Pakistan]

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

Pir FAZAL RABBANI and others---Appellants

Versus

GHULAM AKBAR and others---Respondents

Civil Appeal No. 1421 of 2015, decided on 30th November, 2021.

(On appeal from the judgment dated 06.05.2015 passed by the Peshawar High Court, D.I. Khan Bench in C.R. No. 334-D of 2012)

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Dispute over ownership of land---Mutation for sale of land entered into Record of rights but subsequently cancelled---Cause of action for filing the suit was that mutation for sale of the suit land in favour of, predecessor of respondents, by predecessor of the appellants, was entered on 3-6-1969 and subsequently as per endorsement in the said mutation, the mutation was cancelled on the basis that the event of transaction of sale had been cancelled---Plaintiffs-respondents produced 08 witnesses including the plaintiff---Original plaintiff appeared as a witness and produced the documentary evidence to prove the transaction of sale and entrance of mutation by Patwari as well as subsequent proceedings conducted by the revenue officials whereby it was endorsed that "bund sawal" in accordance with the procedure for 6th June 1969 had been issued in the name of the seller---Further there was an endorsement that on the request of, Member Union Council, the "bund sawal" was ordered to be issued by the Naib Tehsildar---Member Union Council appeared as a witness and stated his version, which confirmed the endorsement and proceedings of the said mutation---In copy of Register Haqdaran Zameen for the year 1967-1968 predecessor of respondents was not recorded as tenant or in possession over the suit land---In one khasra number, predecessor of the appellants, was recorded in possession whereas upon all the other khasra numbers other persons were recorded as cultivators (tenants) and in Column No. 12 which was "Khana Kaifiyat" it contained the endorsement that mutation was entered on 3-6-1969 whereas it was cancelled on 29-12-1971---Register Haqdaran Zameen produced for the year 1983-1984 contained the entry of ownership of predecessor of the appellants whereas predecessor of the respondents had been mentioned in possession as cultivator as "Ghair Dakheel Kaar"---If the case of the appellants was admitted that predecessor of respondents was cultivator as tenant at the time of alleged entrance of mutation that fact was not confirmed by the documentary evidence, whereas after the entrance of mutation the entry of possession of the predecessor of plaintiffs-respondents at least confirmed that they were put to possession though it was mentioned as "Ghair Dakheel Kaar", that was why the revenue officials did not mention the entry of possession on the basis of any agreement because for mentioning of that entry under any agreement they were required to attest a mutation first of that event that may be the transfer of possession under any agreement, thereafter, they could endorse the entry of possession on the basis of any mutation or agreement---Supreme Court observed that it was normal practice that revenue officials took the easy way, and normally mentioned the entry as tenant instead of attesting the mutation for any other event and mentioned that endorsement in the column of possession---Suit filed by the respondents was rightly decreed---Appeal was dismissed.

Syed Mastan Ali Zaidi, Advocate Supreme Court and Mahmood Ahmed Sheikh, Advocate-on-Record for Appellants.

Syed Abid Hussain Shah, Advocate Supreme Court for Respondents.

2022 S C M R 707

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ISMAIL---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 275 of 2021, decided on 17th November, 2021.

(Against the judgment dated 22.02.2021 passed by the Lahore High Court, Multan Bench in Crl. Misc. No.1185-CB of 2021)

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

----S. 498---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail---Scope---Relief of pre-arrest bail was a judicial protection rooted into equity---Person accused of a cognizable offence scheduled as non-bailable can only claim protection of anticipatory bail by reasonably demonstrating that his intended arrest was contemplated by considerations that were mala fide and sinister, designed to abuse the process of law.

(b) Criminal trial---

----Administration of justice---Incriminatory material discovered pursuant to disclosures by accused in custody---Relevance---For effective administration of criminal justice, it was most important that prosecution was allowed a meaningful opportunity to carry out and conclude the investigative process, as apart from readily available evidence in the aftermath of an incident, it may find incriminatory material that may possibly become available pursuant to disclosures in custody.

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

----Ss. 497 & 498---Constitution of Pakistan, Art. 185(3)---Pre-arrest and post-arrest bail---Scope---Pre-arrest bail was not to be used as a substitute or as an alternative for post arrest bail.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 ref.

Ejaz Ahmed Toor, Advocate Supreme Court for Petitioner.

Muhammad Bilal Butt, Advocate Supreme Court along with accused for Respondents.

Mirza Abid Majeed, Deputy Prosecutor General with Hammad, DSP and M. Hanif, I.O. for the State.

2022 S C M R 710

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Jamal Khan Mandohail and Muhammad Ali Mazhar, JJ

PRESIDENT, ZARAI TARAQIATI BANK LIMITED, ISLAMABAD and others---Petitioners

Versus

AGHA HASSAN KHURSHEED---Respondent

Civil Petition No. 1165 of 2021, decided on 3rd January, 2022.

(Against the order dated 18.2.2021, passed by the Lahore High Court, Lahore, in W.P. No.53502 of 2019)

(a) Civil service---

----Government owned Bank---Degree of employee not recognized by Higher Education Commission (HEC)---Regular inquiry against employee---Association of appointing authority i.e. ex-President of the Bank in the regular inquiry on directions of the High Court---Legality---Held, that direction to the Bank to obtain presence of ex-President in the enquiry being conducted against the respondent-employee, was an order which inherently was not equitable rather on its face appeared to be not consistent with the well-recognized legal principles of law and therefore, lacked any legal support---Such direction had been passed by the High Court merely on the asking of the respondent, which in itself would pollute the enquiry and also rob it of being independent and transparent---Supreme Court set-aside the direction of the High Court of associating the person who had appointed the respondent, and gave relevant directions for completing the enquiry against the respondent and passing a final order.

Observation of the High Court that the person who appointed the respondent-employee shall be associated in the, enquiry, apparently, was not sustainable in law, for that, the enquiry was to be conducted by the Bank, and whosoever was to be associated in such enquiry, was a matter which only the Bank was competent to decide. In case the respondent wanted to contest the enquiry and produce any personas a witness before the Enquiry Committee, he was well entitled to do so, but under no legal norms the Bank could have been directed to associate a person in the Enquiry Committee who had appointed the respondent. The very direction given by the High Court was not supported by any law nor by any precedent and apparently, such direction had been passed merely on the asking of the respondent, which in itself would pollute the enquiry and also rob it of being independent and transparent. The constant presence of the appointing authority i.e. ex-President of the Bank would unnecessarily bring influence on Enquiry Committee which was also likely to cause embarrassment and serious prejudice.

The direction to the Bank to obtain presence of ex-President in the enquiry being conducted against the respondent, was an order which inherently was not equitable rather on its face appeared to be not consistent with the well-recognized legal principles of law and therefore, lacked any legal support. Thus, while exercising power under Article 187 of the Constitution, the direction of the High Court of associating the person who had appointed the respondent, therefore, was set aside. Supreme Court directed that the Bank shall continue the enquiry and pass an order within 15 days after complying with all codal formalities; the respondent shall be called by the Bank, who will appear before the relevant authority, and no further opportunity to the respondent shall be provided by the Bank for concluding and passing of the final order.

(b) Constitution of Pakistan---

----Art. 187---Under Art. 187 of the Constitution, the Supreme Court had been given power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it---Such power of the Supreme Court was very much inherent and could be exercised without being handicapped by any technicality or rule or practice, nor exercise of such power was dependent upon any application being filed by a party to the case; it was enough that it was brought to the notice of the Court, while hearing a case, that an order had been passed by a forum below which had bearing on the case and caused injustice to one of the parties, and the Court would not be hesitant for a moment to correct such injustice.

The State through Director General, FIA, Islamabad v. Alif Rehman 2021 SCMR 503; Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another PLD 2020 SC 146 and Imran Ahmad Khan Niazi v. Mian Muhamad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 9 others PLD 2017 SC 265 ref.

Adnan Ahmed Khawaja, Advocate Supreme Court, Jawaid Masood Tahir Bhatti, Advocate-on-Record (absent) and Hassan Raza, Head Legal, ZTBL Muhammad Jibran, Law Officer for Petitioners.

Respondent in person.

2022 S C M R 718

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Mazhar Alam Khan Miankhel and Muhammad Ali Mazhar, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Communication and Works Department, Peshawar and another---Petitioners

Versus

BACHA ALAM KHAN and another---Respondents

Civil Petition No. 132-P of 2021, decided on 16th December, 2021.

(Against the judgment dated 23.12.2020 Peshawar High Court, Peshawar, in W.P. No.3990-P of 2020)

(a) Khyber Pakhtunkhwa Public Service Commission Regulations, 2017---

----Regln. 19(f)(ii)--- Advertised post--- Prescribed qualification---Candidate possessing higher qualification than the one prescribed for the post---In view of clear provision incorporated in Regln. 19(f)(ii) of Khyber Pakhtunkhwa Public Service Commission Regulations 2017, it was within the dominion of Khyber Pakhtunkhwa Public Service Commission to forward the recommendations of a candidate who possessed qualification higher than the prescribed qualification.

Government of Punjab through Secretary (S&GAD) Lahore and another v. Zafar Maqbool Khan and others 2012 SCMR 686 ref.

(b) Khyber Pakhtunkhwa Public Service Commission Ordinance (XI of 1978)---

----S. 7---Public Service Commission---Purpose---Recommendations for appointment forwarded by the Public Service Commission---Scope---Purpose of establishing Public Service Commission was to ensure that the recruitment process should be see-through and transparent and only competent persons ought to give way to serve rather than incompetent and unskillful persons---No doubt the recommendations forwarded by the Public Service Commission did not infer the appointment automatically unless approved by the competent authority but at the same time it could not be inferred that the recommendations of Public Service Commission should be divested without any justifiable or justiciable reasons---If the recommendations of Public Service Commission were taken in a cavalier or perfunctory manner, then the entire purpose of constituting the Commission and its infrastructure under the law to regulate recruitment process and undertake burdensome and time-consuming exercise of scrutinizing the applications, conducting tests and interviews, then forwarding recommendations to the competent authority which requisitioned the recruitment process, would be a futile and worthless exercise.

Shumail Aziz, Additional A.G. Khyber Pakhtunkhwa along with Malik Muhammad Ali, S.O. (PW. KP) for Petitioners.

Nemo for Respondents.

2022 S C M R 722

[Supreme Court of Pakistan]

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

CIVIL APPEALS NOS. 717 TO 722 OF 2013

(On appeal from the judgment/order dated 06.10.2011 of the Lahore High Court, Lahore passed in STR's Nos. 107, 105, 106/2011, W.Ps. Nos. 11835/2011, 13170/2011 and 19106 of 2011)

AND

CIVIL APPEAL NO. 1108 OF 2013

(On appeal from the judgment/order dated 21.05.2013 of the Peshawar High Court, Peshawar passed in STR No. 5-P/2012)

ISLAMABAD ELECTRIC SUPPLY COMPANY LTD. (IESCO) and 3 others---Petitioners

Versus

COMMISSIONER INLAND REVENUE ISLAMABAD and others---Respondents

Civil Appeals Nos. 717 to 722 of 2013 and Civil Appeal No. 1108 of 2013, decided on 15th February, 2021.

Sales Tax Special Procedures Rules, 2007---

----R. 58H (as it existed between July 2008 to December 2010)---Sales Tax Act (VII of 1990), S. 7(1)---Output tax of Electricity Distribution Supply companies (DISCOs)---Scope---Appellants (DISCOs) at the relevant time purchased electricity from WAPDA and the Pakistan Electric Power Company Ltd. (PEPCO) and supplied the same to their consumers---Sales tax paid by the appellants on the purchase of electric power was their input tax and that charged by them from the consumers was the output tax---Applicable rate of tax at the relevant time, both on the input tax and the output tax was 17%---In the present case the consumers were steel-melters, steel re-rollers and composite units of steel melting and re-rolling ("the consumers")---As to the sales tax charged by the appellants from these consumers for the supply of electricity, i.e., 17% there was no dispute that this constituted appellants' output tax---Dispute was regarding the amount charged by the appellants from the consumers under R. 58H of the Sales Tax Special Procedures Rules, 2007, which amount also appeared on the electricity bills of the consumers and was so paid by the latter, and was claimed by the appellants to be part of the output tax---Held, that appellants had conflated their own tax payment/liability (insofar as the output tax was concerned) with the tax liability of the consumers; the two were separate and distinct and the mere fact that, for purposes of administrative convenience, the Federal Government had considered it expedient to utilize the mechanisms of, and available through, the appellants (i.e., the electricity bills issued by them) to charge and collect the tax payable by the consumers did not, and could not, alter the position in law---Tax liabilities of the appellants and the consumers were separate and distinct---Amount collected under R. 58H of the Sales Tax Special Procedures Rules, 2007 was not part of the output tax of the appellants---Appeals were dismissed.

Shahbaz Butt, Advocate Supreme Court for Petitioners (in C.As. Nos. 717-722 of 2013via Video Link, Lahore).

Nemo for Petitioners (in C.A. No. 1108 of 2013).

Mian Yousaf Umer, Advocate Supreme Court (via Video Link, Lahore), Dr. Farhat Zafar, Advocate Supreme Court, Ghulam Zhoaib, Jally, Advocate Supreme Court and Ibrar Ahmed, Advocate Supreme Court for Respondents.

2022 S C M R 726

[Supreme Court of Pakistan]

Present: Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

JAHANZEB KHAN---Petitioner

Versus

UMER ZAHID and another---Respondents

Criminal Petition No. 203 of 2021, decided on 30th November, 2021.

(On appeal against the order dated 12.01.2021 passed by the Peshawar High Court, Bannu Bench in Cr. Misc. B.A. No. 651-B of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Bail, cancellation of---Accused was nominated in the crime report, which was promptly lodged against him wherein a specific accusation of causing firearm injury to the brother of the complainant was made which resulted into his death---Admittedly, the occurrence had taken place on the rooftop of the house of the complainant and the matter was reported to the police after lapse of 1 hour and 45 minutes whereas the inter se distance between the place of occurrence and the police station was 18-19 kilometers---Such aspect lent support to the fact that the matter was reported to the police without any inordinate delay---Previous enmity between the parties was not denied---Occurrence had taken place in broad daylight whereas the parties were known to each other, therefore, there was no chance of any mis-identification, which further gave strength to the prosecution case---Locale of injury ascribed to the accused was fully supported by medical evidence---Petition for leave to appeal was converted into appeal and allowed, and bail granted to accused was cancelled.

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

Sher Afzal Khan Marwat, Advocate Supreme Court and Shahid Qayyum, Advocate Supreme Court for Respondent No. 1 along with Respondent No. 1.

Anis Muhammad Shahzad, State Counsel and Yar Muhammad, ASI for the State.

2022 S C M R 729

[Supreme Court of Pakistan]

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

Syed ARSHAD ALI---Appellant

Versus

SECRETARY MINISTRY OF HOUSING AND WORKS, ISLAMABAD and others---Respondents

Civil Appeal No. 799 of 2021, decided on 22nd December, 2021.

(Against judgment dated 12.11.2018 passed by the Federal Service Tribunal, Islamabad in Appeal. No.1208(R)(CS)/2016.)

Civil Servants (Seniority) Rules, 1993---

----R. 6 (as it existed before being amended by SRO No. 572(I)2009, dated 16-06-2009)---Inter-se seniority---'Person appointed by transfer' and 'person appointed by promotion' in the same calendar year---According to R. 6 of the Civil Servants (Seniority) Rules, 1993 (as it existed before being amended by SRO No. 572(I)2009, dated 16.6.2009) persons appointed by transfer in a particular calendar year shall as class be senior to those appointed by promotion or by initial appointment to such post in that year---In the present case, the appellant was promoted on 6.8.2003 with effect from 04.08.2003 to the post of an Assistant while the respondents were appointed as Assistants by transfer on 6.8.2003---Since such transfer and promotion took place in the same Calendar Year 2003, the respondents appointed by transfer would be senior to the appellant who was appointed by promotion---Appeal was dismissed.

Abdul Qadeer v. Government of Pakistan and another 2005 SCMR 1560 and Director General Intelligence Bureau v. Amir Mujahid Khan 2011 SCMR 389 distinguished.

Tikka Khan and others v. Muzaffar Hussain Shah and others 2018 SCMR 332 and Secretary Revenue Division/Chairman, FBR and another v. Muhammad Arshad Hilali 2019 SCMR 980 ref.

Muhammad Ramzan Khan, Advocate Supreme Court for Appellant.

Sohail Mehmood, Additional A.G.P. and Abdul Razzaq, S.O. Ministry of H&W for Respondents Nos. 1 - 4.

Rashid Hafeez, Advocate Supreme Court for Respondents Nos.5 - 6

2022 S C M R 733

[Supreme Court of Pakistan]

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

RABIA AHMAD---Petitioner

Versus

BILAL EJAZ---Respondent

C.M.A. No. 6458 of 2020, decided on 1st December, 2020.

(For transfer of family suit from one province to another)

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

----S. 25-A(2b)---Constitution of Pakistan, Art. 187---Transfer of execution proceedings under a decree passed by a Family Court---Whether such proceedings in a Family Court located in a Province could be transferred to a Family Court in Islamabad Capital Territory (ICT)---Held, that S. 25-A(2b) of the Family Courts Act, 1964 (Act) does not provide for the transfer of cases from the Courts in ICT to the Courts of another Province and vice versa---To fill in the said lacuna in the Act, the Supreme Court has power under Art. 187 of the Constitution to do complete justice by transferring proceedings to and from the ICT in deserving cases.

Section 25-A (2b) of the Family Courts Act, 1964 (the Act) provides that all parties before a Court in proceedings under the Act have a remedy to seek the transfer of such proceedings to a competent Court in another Province on the ground of, inter alia, expeditious disposal and convenience of the parties, particularly females and minor children. However, the said statutory remedy is not available to litigants seeking transfer of their proceedings to and from the Islamabad Capital Territory (ICT). Section 25-A(2b) of the Act does not provide for the transfer of cases from the Courts in ICT to the Courts of another Province and vice versa. There is no ground to justify the denial of this relief to litigants in ICT, especially when litigants in other parts of the country are entitled to it. Therefore, to fill in the said lacuna in the Act, the Supreme Court has power under Article 187 of the Constitution to do complete justice by transferring proceedings to and from the ICT in deserving cases.

(b) Constitution of Pakistan---

----Art. 187---Power of the Supreme Court to issue directions, orders or decree as may be necessary for doing complete justice---Scope---Such power of the Supreme Court has intentionally been left undefined to ensure that it can cater to any and all situations where the law as it exists leads to injustice---Such power can in fact even be used to cover up gaps in the legislation.

Dossani Travels Pvt. Ltd. v. Messrs Travel Shop (Pvt.) Ltd. PLD 2014 SC 1 ref.

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

Sohail Mehmood, Additional A.G. for the Federation.

Nemo for Respondent.

2022 S C M R 737

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

SHAHID ASLAM---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 1319-L of 2021, decided on 5th January, 2022.

(Against the order dated 5.8.2021 passed by the Lahore High Court Lahore in Crl. Misc. No. 450305-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Judge-in-Chamber of High Court granting bail to accused after the latter pledged to compensate the complainant and submitted a cheque of the disputed amount---Legality---Judge-in-Chamber denied post arrest bail to the accused on his failure to keep his pledge to compensate the complainant, when the cheque presented by the accused bounced on presentation---Such an arrangement, seemingly under the sword of Damocles could not be approved, inasmuch as, the Court being a neutral arbiter owed responsibility to none except the law---Parameters for grant of bail were authoritatively well settled, and were to be followed faithfully and, thus, there was no space to be allocated to the accused to barter his freedom, in derogation thereof---Furthermore accused was charged with an offence that did not attract the statutory bar of denial of bail---Accused was in custody since more than six months, continuation whereof, was not likely to serve any useful purpose preceding final adjudication---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

Mazhar Iqbal Sidhu, Advocate Supreme Court for Petitioner.

Rana Abdul Majid, Additional Prosecutor General Punjab with Bilal Mehmood Sulehri, ASP and Javed, I.O. for the State.

Ch. Abdul Wahid, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for the Complainant.

2022 S C M R 739

[Supreme Court of Pakistan]

Present: Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF PUNJAB through Secretary Cooperative Societies Department, Lahore and others---Petitioners

Versus

ASAD ABBAS---Respondent

Civil Petition No. 1948-L of 2021, decided on 27th December, 2021.

(Against the judgment dated 20.09.2021 passed by the Lahore High Court, Lahore in Writ Petition No. 55270 of 2020)

(a) Civil service---

----Appointment---Candidates on waiting list---Advertised posts falling vacant after selected candidate/s refusing to join---When some of the selected candidates did not join service, and such posts remained vacant, it was imperative for the department to consider the remaining candidates (on the waiting list) for appointment against the said posts because these posts could not be kept vacant till the next process of recruitment, if some selected candidates were still available on the waiting list.

Government of NWFP v. Qasim Shah 2009 SCMR 382 ref.

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

----Art. 91---Judicial proceedings, sanctity of---Judicial proceedings had sanctity---Presumption of correctness was attached to such proceedings before a judicial forum.

Muhammad Ramzan v. LDA 2002 SCMR 1336; Fayyaz Hussain v. Akbar Hussain 2004 SCMR 964 and Waqar Jalal Ansari v. National Bank of Pakistan 2008 CLD 1202 ref.

Rana Shamshad Khan, Additional A.G. for Petitioners.

Nemo. for Respondent.

2022 S C M R 743

[Supreme Court of Pakistan]

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

Jamal Khan Mandokhel, JJ

ABDUL GHANI and others---Petitioners

Versus

Haji ABDUL FATAH and others---Respondents

Civil Petition No. 78-Q of 2016, decided on 1st November, 2021.

(Against the judgment dated 06.05.2016 passed by the High Court of Balochistan in C.R No. (S)32 of 2013)

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

----Art. 100---Presumption as to documents thirty years old---Kabin-nama---Transfer of land as dower---In the present case the Kabinnama being a document antedating a period far beyond 30 years, surfacing on the record from the custody of the deceased lady's son i.e. plaintiff was to be considered as proper by all means---Such circumstances nullified the hypothesis of residual bequeathal or the sale of subject property to the residual successors i.e. petitioners as they could not possibly acquire a better title after the land was once invested in the deceased mother of the plaintiff---Regarding the genuineness of the Kabinnama, in the totality of circumstances and admitted nuptial bond between the plaintiff's mother and her second husband, there was no doubt that the disputed land was parted by the latter as a dower to her better half as far back as on 29-06-1949 on an official stamp paper---Any manipulation, given the timeframe, was inconceivable---Petition for leave to appeal was dismissed and leave was refused.

Syed Ayaz Zahoor, Senior Advocate Supreme Court and Gohar Yaqoob Yousafzai, Advocate-on-Record for Petitioners.

Ghulam Mustafa Buzdar, Advocate Supreme Court for Respondent No. 1.

Liaqat Ali Jatoi, Advocate Supreme Court for Respondent No. 2.

2022 S C M R 745

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

USMAN GHANI---Appellant

Versus

The CHIEF POST MASTER, GPO KARACHI and others---Respondents

Civil Appeal No. 1-K of 2021, decided on 28th December, 2021.

Against the judgments dated 06.11.2019 passed by Federal Service Tribunal Islamabad (Karachi Bench) in Appeal No. 12(K)CS/2019 respectively)

(a) Civil service---

----Departmental inquiry---Purpose---Foremost aspiration of conducting departmental inquiry was to find out whether a prima facie case of misconduct was made out against the delinquent officer for proceeding further---Guilt or innocence could only be thrashed out from the outcome of inquiry and at the same time it was also required to be seen by the Service Tribunal as to whether due process of law or right to fair trial was followed or ignored which was a fundamental right.

(b) Civil service---

----"Regular inquiry" and "preliminary/fact finding inquiry"---Distinction---Regular inquiry was triggered after issuing show cause notice with statement of allegations and if the reply was not found suitable then inquiry officer was appointed and regular inquiry was commenced (unless dispensed with for some reasons in writing) in which it was obligatory for the inquiry officer to allow evenhanded and fair opportunity to the accused to place his defence and if any witness was examined against him then a fair opportunity should also be afforded to cross-examine the witnesses--- Whereas a discrete or fact finding inquiry was conducted at initial stage but internally to find out whether in the facts and circumstances reported, a proper case of misconduct was made out to initiate disciplinary proceedings.

(c) Civil service---

----Misconduct---Departmental inquiry and criminal trial---Distinct standards of proof---Standard of proof looked for in a departmental inquiry deviated from the standard of proof required in a criminal trial----In the departmental inquiry conducted on the charges of misconduct, the standard of proof was that of "balance of probabilities or preponderance of evidence" but not a "proof beyond reasonable doubt", which strict proof was required in criminal trial.

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

----S. 5(1)---Service Tribunal, powers of---Scope---Where the order of the competent authority based on inquiry report was challenged before the Service Tribunal then it was the legal duty of the Service Tribunal to give some reasons and there should be some discussion of evidence on record which was necessary to deliberate the merits of the case in order to reach just conclusion before confirming, reducing or setting aside the penalty.

Sanaullah Noor Ghouri, Advocate Supreme Court for Appellant.

Nishat Warsi, D.A.G. for Respondents.

2022 S C M R 750

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

GHULAM QADIR---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 143-K of 2021, decided on 25th November, 2021.

(Against the judgment dated 22.10.2021 passed by the High Court of Sindh Karachi in Cr. Bail Application No. S-733 of 2021)

Criminal Procedure Code (V of 1898)---

----S. 498---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), S. 324---Murderous assault---Pre-arrest bail, refusal of---Contents of the First Information Report (FIR) supported by the statements of the witnesses and findings recorded by the Medical Officer ran counter to the plea of denial and mala fides raised by the accused---Though the formal FIR was recorded on 17-8-2021, however, the injured with extensive injuries were medically examined under police dockets on 13-8-2021---According to the provisional medico legal certificates, they had reached hospital on 12-8-2021 at 6:00 p.m. just half an hour after the incident and, thus, delay in formal registration of the case, a phenomena hardly unusual, did not raise eyebrows---Even otherwise, in the absence of any apparent mala fide on part of the complainant or the local police, the accused could not claim extraordinary/equitable concession of pre-arrest bail in a criminal case wherein no less than three persons endured multiple injuries, one being an incised wound on the back of neck with exposed bone---Courts below had rightfully denied relief of pre-arrest bail to the accused---Petition for leave to appeal was dismissed and leave was refused.

Ms. Abida Parveen Channar, Advocate Supreme Court/ Advocate-on-Record for Petitioner with Petitioner.

Nemo for the State.

2022 S C M R 752

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

WORLD HEALTH ORGANIZATION, (WHO), ISLAMABAD---Petitioner

Versus

MUHAMMAD ANSAR IQBAL---Respondent

Civil Petition No. 1840 of 2016, decided on 15th December, 2021.

(Against the judgment dated 22.03.2021 passed by the Islamabad High Court, Islamabad in Civil Revision No. 349 of 2015)

State Immunity Ordinance (VI of 1981)---

----S. 4---Constitution of Pakistan, Art. 201---Incorrect application of law by the High Court in its judgment---No precedential value of such judgment---World Health Organization (WHO)---Whether civil court had jurisdiction to try suit against the 'WHO'---Plea on behalf of WHO that civil court had no jurisdiction to entertain and try the suit against it, under the contract between the parties in the light of Clause 16 of General Conditions of Contract which contained amicable settlement between the parties in accordance with the practice and through conciliation in accordance with the conciliation rules of the United Nations Commission on International Trade Law ("UNCITRAL") and through the mode of arbitration in accordance with the UNCITRAL Arbitration Rules, therefore, the civil court was having no jurisdiction---Held, that stance of the petitioner/WHO held ground that the law had incorrectly been applied while dismissing the petition filed before the High Court---Determination of scope, limits and extent of diplomatic and state immunity clauses of various statutes needed further deliberations---However, since the matter between the parties stood resolved out of court, it would become an academic exercise to give any finding on the issue of state/ diplomatic immunity---Petition for leave to appeal was converted into appeal and allowed, impugned judgment of High Court was set-aside with the direction that the said judgment shall have no precedential value in term of Art. 201 of the Constitution.

Ch. Muhammad Ashraf Gujjar, Advocate Supreme Court for Petitioner.

Sajid Ilyas Bhatti, Additional A.G., Asad Burki, Legal Advisor MOFA and Syed Faraz Raza, Legal Advisor on Court's Notice.

Nemo for Respondent.

2022 S C M R 754

[Supreme Court of Pakistan]

Present: Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

ZILLA MUHAMMAD and others---Appellants

Versus

KIFAYAT ALI---Respondent

Civil Appeals Nos. 653 to 656 of 2014, decided on 30th December, 2021.

(Against the judgment dated 10.03.2014 passed by the High Court of Peshawar in Civil Revisions Nos.275, 281, 284 and 285 of 2003)

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

----S. 13(2)---Suit for possession through pre-emption---Performance of Talb-i-muwathibat doubtful---According to the informant he acquired knowledge about the first two sales at 11:00 a.m. in the village and went to the district courts, located 70 miles away from the village, to inform the pre-emptor---In his evidence the informant mentioned that he informed the pre-emptor at 11:00 a.m., which meant he needed to travel at the speed of light to reach the district courts at the same time as getting information about the impugned sales---Moreover disclosure of all three sales through the same source and conveyance of information to the pre-emptor in the same bar room of the district courts presented a story that may not find a prudent buyer---Civil court had rightly dismissed the pre-emption suits---Appeals were allowed.

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

----S. 31(c)--- Suit for possession through pre-emption--- Suit filed outside the mandated period of limitation---Sale was transacted by the vendee through a Court decree and he was judicially declared to be owner in possession of the suit land with effect from 12-5-1995 and, thus, the suit ought to have been filed by the pre-emptor within a period of 120 days therefrom as was mandated by clause (c) of S. 31 of the Khyber Pakhtunkhwa Preemption Act, 1987---Since the pre-emptor failed to file his suit within such mandated time period, he was rightly non-suited by the courts below for his failure to perform Talb-i-Khasumat within the prescribed period of time---Appeals were allowed.

Muhammad Nazeef Khan v. Gulbat Khan and others 2012 SCMR 235 and Mst. Rooh Afza v. Aurangzeb and others 2015 SCMR 92 ref.

Zia-ur-Rehman, Advocate Supreme Court, Nasir Mehmood, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants.

Khalid Mehmood, Advocate Supreme Court and M. Ijaz Khan Sabi, Advocate Supreme Court for Respondents.

2022 S C M R 757

[Supreme Court of Pakistan]

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

COMMISSIONER INLAND REVENUE, ZONE-I, LAHORE---Petitioner

Versus

Messrs PAK ELEKTRON LTD. and others---Respondents

Civil Petition No. 1817-L of 2017, decided on 4th February, 2021.

(Against the judgment dated 24.04.2017 of the Lahore High Court, Lahore passed in STR No. 1 of 2011)

Sales Tax Act (VII of 1990)---

----S. 4---Electricity meters---Equipment eligible for zero rating of sales tax under SRO No. 530(I)/2005 dated 6-6-2005 ('the SRO')---Plea by tax department that electricity meters are consumer durables and are not eligible for classification as equipment and hence not covered by the SRO---Held, that metering equipment can be used for different purposes---In relation to machinery, equipment that measures temperature, speed, pressure etc. are also in the nature of metering equipments---Undeniably power supply is a crucial factor for the operation of plant and machinery, therefore, electricity meters are classifiable as equipment used in the operation of the industrial process at the taxpayer's premises---High Court and the Tribunal had rightly found that electricity meters are equipment eligible for zero rating under the terms of SRO No. 530(I)/2005 dated 6-6-2005---Petition for leave to appeal was dismissed and leave was refused.

Sindh Institute of Urology v. Federation of Pakistan 2017 PTD 603 ref.

2022 S C M R 759

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Sajjad Ali Shah and Munib Akhtar, JJ

PROVINCE OF PUNJAB through DO(R) Sheikhupura and others---Petitioners

Versus

JAVED AKBAR and others---Respondents

Civil Petitions Nos. 2338-L and 2258-L of 2017, decided on 19th November, 2021.

(Against judgment dated 22.06.2017 of Lahore High Court, Lahore passed in Civil Revision No. 2937 of 2014)

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Construction of pillars and boundary wall on a main road by Provincial Government---Plea of respondents that erection of pillars and construction of the wall in front of their land would not only block the view and exposure of their land but also cause hindrance in approaching the main road, and that as a consequence the land of the respondents would become valueless---High Court in its revisional jurisdiction gave directions that the Provincial Government shall provide a passage of 20 ft. to the respondents excluding the passage of Rajbah for transportation and exposure---Legality---Land whereupon the Provincial Government was constructing pillars and erecting a wall was owned by the Provincial Government having acquired the same from the predecessors of the respondents---Such predecessors had challenged the assessment of price made by the Land Acquisition Collector upto the Supreme Court and the matter stood concluded, and at no stage was any other relief sought---Respondents were aware of the modes of access to their land which had not in any manner been blocked by the Provincial Government---Just by reason of fact that the respondents had decided to construct a commercial building/plaza/ market on their land did not create any additional rights in their favour---Land in question was agricultural in nature and no commercial building/shopping plaza or offices, etc existed on the same---When no such commercial activity was being undertaken on the land of the respondents, there was no ground for them to raise an objection relating to blockage of view of the same---Further, the Provincial Government, which was the owner of the land abutting the road, could not be stopped from utilizing it in a manner for which it was specifically acquired and the Court could not carve out a passage in the land of another person specially when no right of easement was claimed or asserted---Respondents failed to discharge the onus of proving the fact that the passage of the respondents' land was being closed by raising pillars and a wall on the land acquired by the Provincial Government, and that such construction was being illegally done and with mala fides to block access to the land of the respondents---Examination of real time .photographs of the area and other related documents on record showed that the land of the respondents was at a considerable distance from the main road, and by no definition of the term did the land of the respondents abut the road---Substantial distance existed between the land of the respondents and the boundary of the land belonging to Provincial Government where pillars had been installed and a boundary wall was being constructed---Further, there was a passage besides the canal through which the land of the respondents could be accessed---High Court exceeded its jurisdiction in issuing a direction that the Provincial Government shall provide a 20 ft. passage to the respondents excluding the passage of Rajbah for transportation and exposure to the main road---Such a direction was neither supported by law nor did it fall within the jurisdiction of the High Court as a revisional Court---Impugned judgment of the High Court to the extent of such direction was not sustainable and was accordingly set aside---Petition for leave to appeal was converted into an appeal and allowed.

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

----S. 42---Suit for declaration---Scope---Courts can issue declarations relating to existing rights and cannot create fresh/new rights in favour of either party.

Qasim Ali Chauhan, Additional A.G. Punjab for Petitioners (in C.P. No. 2338-L of 2017).

Syed M. Kaleem A. Khurshid, Senior Advocate Supreme Court for Petitioners (in C.P. No. 2258-L of 2017).

Qasim Ali Chauhan, Additional A.G. Punjab for Respondents (in C.P. No. 2258-L of 2017).

Syed M. Kaleem A. Khurshid, Senior Advocate Supreme Court for Respondents (in C.P. No. 2338-L of 2017).

2022 S C M R 765

[Supreme Court of Pakistan]

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

NAUBAHAR BOTTLING COMPANY (PVT.) LIMITED and others---Appellants

Versus

FEDERATION OF PAKISTAN through Revenue Division Ministry of Finance

and others---Respondents

Civil Appeal 1153 of 2015, decided on 20th January, 2022.

(Against judgment dated 15.09.2015 of the Lahore High Court, Lahore passed in I.C.A. No. 363 of 2013)

(a) Judgment---

----Scope---Judgment is an authority only in respect to what it decides, and only with regard to the proposition of law raised, in that case, and therefore point not argued before the Court cannot be considered to have been dealt with by its judgment.

Quinn v. Leathern" 1901 Appeal Case 495 at 506; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 and Mst. Muhammadi and others v. Ghulam Nabi 2007 SCMR 765 ref.

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

----Ss. 2(27) & 3(2)---Federal Excise Act (VII of 2005), S. 12(4)---Aerated water---Determination of value for the purposes of duty---Retail price---Scope---Excise duty in the context of S. 3(2) of the Sales Tax Act, 1990 and S. 12(4) of Federal Excise Act, 2005, cannot be counted towards "retail price"---Law does not permit levy of excise duty on the amount of excise duty, yet to be 'charged', to be included in the "retail price".

Question raised in the present case was whether the retail price as described by subsection (27) of section 2 of the Sales Tax Act, 1990 ("STA, 1990"), and subsection (4) of section 12 of the Federal Excise Act, 2005 ("FEA, 2005"), respectively, includes the amount of excise duty leviable in terms of section 12 of FEA, 2005. A charge which is yet to be levied and realized on something (in the present case that something being "retail price"), cannot possibly be included in/or counted towards that very thing. Law does not permit levy of excise duty on the amount of excise duty, yet to be 'charged', to be included in the "retail price".

Pakistan through Secretary Finance and others v. Messrs Lucky Cement and another 2007 PTD 1656 ref.

There is yet another practical difficulty, rather an impossibility in the way of including excise duty in the retail price, as in terms of section 3 of FEA, 2005 excise duty is charged on "retail price". The same can therefore only be charged after "retail price" has been finally calculated/determined and has become known. Crystallization of "retail price " is therefore an essential prerequisite, and serves as a trigger for levying excise duty. "Retail price" can therefore not include the levy itself and only such duties, charges and taxes which are applicable and already levied on the "retail price" prior to the charge under the FEA, 2005 can be included in the "retail price" for the purpose of such a charge. The word "duties" as employed in section 12(4) of FEA, 2005 cannot therefore be construed as referring to excise duty. [p. 773] C

Charge of excise duty on notional excise duty is clearly illegal and unconstitutional. [p. 777] G

PLD 2017 SC 99 and PLD 1976 Kar. 1238 ref.

(c) Taxation---

----Levy/charge/tax, imposition of--- Scope--- Tax, levy or charge can only be imposed under a clear mandate and sanction of law.

PLD 2017 SC 99 ref.

(d) Taxation---

----Levy of tax---Scope---Measure of a tax must have a reasonable nexus with it, the subject matter, and that a tax cannot be levied on the basis of arbitrary valuation.

2015 SCMR 595 ref.

Khalid Anwar, Senior Advocate Supreme Court (through video link from residence) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Sohail Mehmood, D.A.G., Barrister Ahmed Pervaiz, Advocate Supreme Court, Mrs. Kausar Parveen, Advocate Supreme Court, Syed Ghulam Abbas Kazmi, Member (L), Masood Akhter, Chief (L), Naeem Hassan, Secy. (L), Amjad Farooq, Commissioner, Aftab Alam, Commissioner, Sarmad Qureshi, Commissioner and Ch. M. Anwar, Commissioner for Respondents.

2022 S C M R 778

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Syed ATHAR HUSSAIN SHAH---Petitioner

Versus

Haji MUHAMMAD RIAZ and another---Respondents

Civil Petition No. 1831 of 2017, decided on 24th November, 2021.

(Against the judgment dated 12.04.2017 passed by Lahore High Court, Lahore in C.R. No.1209 of 2010)

(a) Limitation Act (IX of 1908)---

----S. 9, First Sched., Arts. 91, 113 & 120---Specific Relief Act (I of 1877), Ss. 12, 39 & 42---Civil Procedure Code (V of 1908), O.XXIII, R. 2---Transfer of Property Act (IV of 1882), S. 53-A---Suit for specific performance of agreement, cancellation of agreement and declaration---Limitation period, commencement of---Adding relief to a suit to primarily save it from the consequence of having been filed beyond the period of limitation---In the present case, the petitioner's (plaintiff's) conduct in filing the first suit, not paying requisite court fee, which resulted in the rejection of the plaint, filing the second suit, withdrawing it, and then filing the third suit was inexplicable---Rejection of plaint in the first suit and the withdrawal of the second suit would not help avoid the period of limitation as made clear from R. 2 of O. XXIII of the C.P.C.---First suit had sought the specific performance of the agreement and the second suit also the cancellation of the sale deed---For both these causes of action the prescribed period of limitation was three years as respectively provided under Art. 113 and Art. 91 of the First Schedule of the Limitation Act, 1908---Petitioner's third suit had sought the specific performance of the agreement, the cancellation of the sale deed, which was executed when there was no suit pending, and a declaration with regard to the ownership of the land---Third suit was filed after three years and was time-barred with regard to seeking the specific performance of the agreement and for the cancellation of the sale deed---Petitioner had primarily sought the specific performance of the agreement, then the cancellation of the sale deed and had added the declaratory relief to primarily save the third suit from the consequence of having been filed beyond the period of limitation---Linking or combining of S. 53-A of the Transfer of Property Act, 1882 with the petitioner's suit would not benefit him by extending the period of limitation and save the third suit as said section could not be used as a weapon of offence---Third suit filed by the petitioner was belatedly filed---Petition for leave to appeal was dismissed and leave was refused.

Taj Muhammad v. Yar Muhammad Khan 1992 SCMR 1265; Hikmat Khan v. Shamsur Rehman 1993 SCMR 425 and Fazla v. Mehr Din 1997 SCMR 837 distinguished.

(b) Limitation Act (IX of 1908)---

----S. 9---Limitation period, commencement of---Once the period of limitation commences it cannot be stopped or be avoided by introducing another cause of action or relief in the suit or by reformulating them---Substance of the relief has to be seen, and if a relief is added for which there is a longer period of limitation it would not save the suit.

Janki Kunwar v. Ajit Singh 15 Cal. 58 and Muhammad Javaid v. Rashid Arshad PLD 2012 SC 212 ref.

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

----S. 53-A---Possession of property obtained in part performance of a contract---Section 53-A does not confer or create a right, and its use is defensive.

Shamim Akhtar v. Muhammad Rasheed PLD 1989 SC 575; Muhammad Yousaf v. Munawar Hussain 2000 SCMR 204; Amirzada Khan v. Ahmad Noor PLD 2003 SC 410; Taj Muhammad v. Yar Muhammad Khan 1992 SCMR 428 and Hikmat Khan v. Shamsur Rehman 1993 SCMR 428 ref.

Azmat Ullah Chaudhry, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Aftab Alam Yasir, Advocate Supreme Court for Respondent No. 1.

Mrs. Kausar Iqbal Bhatti, Advocate Supreme Court/Advocate-on-Record for Respondent No. 2.

2022 S C M R 785

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

NIAMATULLAH KHAN and others---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.M.A. No. 906-K of 2020 and C.M.As. Nos. 445-K and 446-K of 2021, decided on 29th October, 2021.

(Under Order 5, Rule 2 read with Order XXXIII, Rule 6 of Supreme Court Rules, 1980)

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

----S. 182--- Power of Attorney---Interpretation---Authority of attorney/ agent---Scope---Power of attorney must be strictly construed and proved, and must be strictly interpreted to ascertain the authority of the agent, acting on behalf of the principal.

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

(b) Constitution of Pakistan---

----Art. 184(3)---Matter relating to construction of a multi-storey building "Tejori Heights"---Said building was illegally constructed upon land owned by Pakistan Railways and was liable to be demolished---Applicant-Interveners were unable to establish their title and ownership of the disputed land on which the building was constructed---Supreme Court issued relevant directions for demolition of the building "Tejori Heights"; for clearing its debris, and for compensating the persons who had booked units in the said building.

In Attendance:

Mian Raza Rabbani, Senior Advocate Supreme Court, Saleem Salam Ansari, Advocate Supreme Court, Ms. Abida Parveen Channar, Advocate-on-Record, Abid S. Zuberi, Advocate Supreme Court, Raja Qasit Nawaz Khan, Advocate Supreme Court, Abdul Qadir Khan, Advocate-on-Record, Raza Ali, Law Officer and Iqbal Memon, Commissioner Karachi.

2022 S C M R 797

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

MUHAMMAD AMJAD---Appellant

Versus

The DIRECTOR GENERAL, QUETTA DEVELOPMENT AUTHORITY and nother---Respondents

Civil Appeal No. 202 of 2021, decided on 27th January, 2022.

(Against the judgment passed by High Court of Balochistan at Quetta on 24.10.2019 in C.P. No. 833 of 2015)

(a) Civil service---

----Promotion---'Eligibility' and 'fitness' of candidate---Scope---Though promotion is not a vested right, but it depends on the eligibility as well as fitness of the candidate---Concept of eligibility implies a qualification to be appointed or promoted, whereas determination of fitness encompasses a person's competence to be chosen or selected for appointment or promotion subject to the availability of post on which the credentials and antecedents of person could be examined for examining his merits and worthiness for promotion---Neither promotion can take place automatically, nor seniority alone is the deciding factor as a number of factors constitute fitness for promotion.

(b) Civil service---

----Promotion---Not a vested right---Promotion to a certain post is never considered to be a vested right of a civil servant---In case of non-selection post, the promotion is made on the basis of seniority-cum-fitness and no civil servant can ask for or claim a promotion as a matter of right as it is within the exclusive domain of the government.

Abdul Hameed v. Ministry of Housing and Works, Government of Pakistan through Secretary and others PLD 2008 SC 395 ref.

(c) Civil service---

----'Upgradation of post'---Scope---Expression up-gradation is disparate and incongruent to the term promotion which is resorted to in order to ventilate the sufferings of employees from stagnation who are stuck up in some isolated posts without any pathway or probability of promotion despite satisfactory length of service in a particular post---Upgradation cannot be claimed as a matter of right but it is in fact based on a policy decision of the competent authority for its implementation across the board for the particular categories of employees jotted down in the scheme/notification who fulfill the required qualification which is normally a particular length of service in a particular pay scale.

Fida Muhammad v. Government of Khyber Pakhtunkhwa 2021 SCMR 1895 ref.

(d) Civil service---

----'Upgradation of post' and 'promotion'---Distinction---Promotion involves advancement in rank, grade or a footstep enroute for advancement to higher position, whereas the facility or benefit of upgradation simply confers some monetary benefits by granting a higher pay scale to ventilate stagnation.

(e) Civil service---

----'Upgradation of post'---Scope---Upgradation cannot be made to benefit a particular individual in terms of promoting him to a higher post or further providing him with the avenues of lateral appointment or transfer or posting---In order to justify the upgradation, the Government is required to establish that the department needs restructuring, reform or to meet the exigency of service in public interest---In the absence of said pre-conditions, upgradation is not permissible.

Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; 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.

(f) Civil service---

----Promotion---No vested right can be claimed on the basis of promotion issued without any legal sanction or authority---Wrong benefit extended beyond the scope of law and rules/policy cannot be claimed in perpetuity or eternity.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Appellant.

Ayaz Khan Swati, Additional A.G. Balochistan along with Mehmood A. Shaikh, Advocate-on-Record for Respondents.

2022 S C M R 806

[Supreme Court of Pakistan]

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

Sardar MUHAMMAD KAMAL-UD-DIN KHAN---Petitioner

Versus

Syed MUNIR SYED and others---Respondents

Civil Petition No. 4222 of 2018, decided on 18th February, 2022.

(On appeal against the judgment dated 26.09.2018 passed by the Islamabad High Court, Islamabad, in C. R. No. 193 of 2017)

(a) Constitution of Pakistan---

----Arts. 185(2) & 185(3)---Supreme Court Rules, 1980, O. XII, R. 2---Petition for leave to leave filed before the Supreme Court under Art. 185(3) of the Constitution when an appeal is competent under Art. 185(2)---Petition for leave to appeal converted into an appeal---Scope---In the present case an appeal was maintainable as of right, but mistakenly the petitioners filed a petition for leave to appeal, but did so within the prescribed period of thirty days for filing an appeal---Conversion of the petition into an appeal also does not undermine any right or benefit of any of the respondents---Therefore, present petition was converted into an appeal.

Gul Jan v. Naik Muhammad PLD 2015 SC 421 ref.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Power of revision cannot be used by a higher court to substitute its own opinion, discretion or authority.

Hadayat Ullah v. Murad Ali PLD 1972 SC 69 ref.

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

----S. 115---Revision petition---Scope---No right of appeal provided---Not necessary that whenever an appeal is not provided for a revision would lie---Revision can only be filed if the order/judgment which has been impugned comes within clauses (a), (b) and/or (c) of subsection (1) of S. 115 of C.P.C.

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

----Ss. 20(1), 31 & 33---Specific Relief Act (I of 1877), Ss. 12, 42, 54 & 55---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for specific performance of agreement, declaration, permanent and mandatory injunction---After said suit was dismissed for non-prosecution, plaintiff-respondent invoked arbitration and proceeded before the Arbitrator---Defendant-appellant filed an application before the Trial Court under S. 31 of the Arbitration Act, 1940, which was allowed and arbitration proceedings were stayed---Order of Trial Court was maintained by the Appellate Court, however High Court in its revisional jurisdiction set-aside concurrent orders of courts below, and ordered the Arbitrator to proceed with the reference---Legality---Respondent-plaintiff had instituted a suit with respect to the subject-matter of the agreement, and having done so he could not, after the dismissal of his suit, resort to arbitration unilaterally and by disregarding the procedure prescribed by S. 20 of the Arbitration Act, 1940---High Court incorrectly held in the impugned judgment that an application under S. 33 of the Arbitration Act, 1940 should have been filed by the defendant-appellant instead of S. 31---Defendant-appellant had filed his application 'under S. 31 and all other enabling provision[s] of the Arbitration Act, 1940', and S. 31 vests in the court jurisdiction to determine 'the validity, effect or existence' of 'an arbitration agreement'---View of the High Court with regard to holding that the application was not maintainable under S. 31 was not correct---In the facts and circumstances of the case, the High Court could not have invoked its powers of revision to set aside the concurrent findings of the courts below---Appeal was allowed and impugned judgment of High Court was set aside.

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

----S. 14--- Constitution of Pakistan, Arts. 4 & 10A---Arbitration award---Award passed in undue haste and in disregard of requirements of due process and fair trial---In the present case the Award did not state that a written claim was submitted by the plaintiff-respondent; that he led evidence, let alone the Arbitrator having discussed it; did not state that the defendant-appellant was given an opportunity to reply to the claim; that the defendant-appellant was provided an opportunity to lead evidence and allowed to cross-examine the plaintiff-respondent and his witnesses---Contents of the Award showed that it was passed in undue haste and in disregard of the requirements of due process and fair trial, respectively, mandated by Art. 4 & Art. 10A of the Constitution---Such an Award was not sustainable---Appeal was allowed.

Hassan Rashid Qamar, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

M. Shehzad Siddique, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 1.

Nemo for Respondent No. 2.

M. Nazir Jawwad, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondent No. 3.

2022 S C M R 815

[Supreme Court of Pakistan]

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

CIVIL APPEAL NO. 756 OF 2021

(Against the judgment dated 25.09.2018 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1332(R)CS of 2016)

AND

CIVIL REVIEW PETITION NO. 11 OF 2021 IN CIVIL APPEAL NO. 493 OF 2020

(Against the order dated 04.12.2020 passed by this Court in Civil Appeal No. 493 of 2020)

DIVISIONAL ACCOUNTS OFFICER, PAKISTAN RAILWAYS, RAWALPINDI and another---Appellants/Petitioners

Versus

MUHAMMAD YASEEN (DECEASED) through LRs and others---Respondents

Civil Appeal No. 756 of 2021, Civil Review Petition No. 11 of 2021 in Civil Appeal No. 493 of 2020, decided on 23rd December, 2021.

Civil service---

----Medical allowance for pensioners---Employee of Pakistan Railways allowed move over to BS-16 claiming benefit of medical allowance for BS-15 employees on the basis that his substantive grade at time of his retirement was BS-15---Held, that respondent-employee had opted for move-over to BS-16 in which he chose to retire and was granted pension on the basis of last drawn pay of BS-16 and medical allowance of 20% of the pension permissible to those in BPS-16---Medical allowance was payable on the pension drawn---In view of the fact that the respondent admittedly drew pension calculated on the basis of his last drawn pay which was that of BS-16, he was correctly paid medical allowance @ 20% of the pension drawn---Respondent was actually claiming two benefits; while on the one hand he was drawing pension calculated on the basis of his last drawn pay in BS-16 and on the other hand he claimed benefit of a higher medical allowance at the rate of 25% of pension payable to persons retiring in BS-15, which is contrary to the plain language of the relevant Office Memorandum---Appeal was allowed, and impugned judgment of Service Tribunal allowing respondent medical allowance of 25% of the pension was set aside.

Jawad Mehmood Pasha, Advocate Supreme Court (via video link from Lahore) for Appellants (in C.A. No. 756 of 2021).

Ch. Aamir Rehman, Additional A.G.P. and Sajid Javed, Assistant (Legal) Finance Division for Petitioner (in C.R.P. No. 11 of 2021).

Asim Yasin (son of respondent) for Respondents.

2022 S C M R 819

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

ABDUL GHAFOOR---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 114 of 2018, decided on 11th October, 2021.

(Against the judgment dated 17.01.2018 of the High Court of Sindh, Sukkur Bench passed in Criminal Appeal No.D-99 of 2016)

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

----S. 9(c)---Possession and transportation of 500 kilograms of cannabis---Reappraisal of evidence---Safe transmission of samples to office of Chemical Examiner not established---Heinousness of the charge and huge quantity of the alleged contraband, notwithstanding, the prosecution was under a bounden responsibility to drive home the charge by proving each limb of its case that essentially included production of the witness, tasked with the responsibility of transmitting the samples to the office of Chemical Examiner---Failure of the prosecution in such regard cast away the entire case---Petition for leave to appeal was converted into appeal and allowed; the impugned judgment was set aside; and accused was acquitted of the charge.

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

Raja Inaam Amin Minhas, Special Prosecutor ANF for Respondents.

2022 S C M R 821

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Sayyed Mazahar Ali Akbar Naqvi and Jamal Khan Mandokhail, JJ

MUHAMMAD KASHIF IQBAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1255 of 2021, decided on 12th January, 2022.

(On appeal against the order dated 22.10.2021 passed by the Lahore High Court, Lahore in Crl. Misc. No. 40770-B/2021)

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Using forged signatures on a cheque---Ad interim pre-arrest bail, confirmation of---Further inquiry---As per the contents of the crime report, the accused and the complainant were maintaining a joint Bank account---Allegation against the accused was that he made forged signatures of the complainant on a cheque and issued the said cheque to his co-accused---When the cheque was presented to the Bank, it returned the same due to insufficient funds and mismatch of the signatures of the complainant---Plea of accused that the cheque book was in the custody of the complainant; ten cheques from the same cheque book have already been encashed at the behest of the complainant and the accused never issued the disputed cheque---Held, that no forensic test of the alleged forged signatures of the complainant had been conducted so far to ascertain as to whether the signatures were forged or real---Amount for which the cheque was given had not been mentioned in the crime report---Admittedly co-accused of the accused had been granted post-arrest bail by the court of competent jurisdiction which remained unchallenged by the complainant---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 upto the arrest of the accused because of the reason that soon after his arrest he would become entitled for the concession of post-arrest bail on the plea of consistency---In such circumstances case of the accused squarely fell within the purview of S. 497(2), Cr.P.C. requiring 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.

Muhammad Ramzan v. Zafarullah 1986 SCMR 1380 ref.

Mian Ismat Ullah, Advocate Supreme Court for Petitioner along with Petitioner.

Mirza Muhammad Usman, D.P.G., Tausif, DSP and Zubair, ASI for the State.

Munawar Iqbal Duggal, Advocate Supreme Court for Respondent No. 2.

2022 S C M R 824

[Supreme Court of Pakistan]

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

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA), WAPDA HOUSE, LAHORE---Petitioner

Versus

The COMMISSIONER INLAND REVENUE and others---Respondents

Civil Petition No. 467-L of 2019, decided on 26th March, 2021.

(On appeal against order dated 19.12.2018 passed by Lahore High Court, Lahore in Writ Petition No. 134878 of 2018)

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

----S. 122A---Income Tax Ordinance (XXXI of 1979) [since repealed], S. 138---Constitution of Pakistan, Art. 199---Order in revision made by the Commissioner under section 122A of the Income Tax Ordinance, 2001 or section 138 of the erstwhile Income Tax Ordinance, 1979---Such an order is not appealable before the Appellate Tribunal---Only way therefore to challenge the same was and is by way of a Constitutional petition before the High Court.

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

----S. 138---Constitution of Pakistan, Art. 199---Order in revision made by the Commissioner challenged before the High Court by way of a Constitutional petition---High Court to consider all grounds and questions of law raised in the memo of petition---In the present case, the petitioner took various legal grounds before the High Court challenging the order-in-revision and in respect of the same certain questions of law had also been raised---High Court ought to have considered all the various grounds and questions of law as set out in the memo of petition before it, rather than simply dismissing the Constitutional petition solely on the basis of one ground/submission---To this extent the matter had not been properly dealt with---High Court ought to have applied itself to the other grounds and questions of law as specifically taken in the memo of petition and given its findings on the same---In such circumstances it was appropriate that the matter be remanded to the High Court to consider those other grounds and questions of law as had been taken by the petitioner in its memo of petition---However the (sole) ground (on basis of which the Constitutional petition was rejected) that the order-in-revision by the Commissioner was non-speaking or was a simple recycling of the earlier order or had been made without proper application of mind (or any other similar ground) could not be agitated or taken by the petitioner and to such extent the determination made by the High Court must be regarded as having attained finality---Respondent department would be entitled to take all such objections and defences as were available to it in accordance with law---Petition for leave to appeal was converted into appeal and the matter was remanded to the High Court.

Mian Ashiq Hussain, Advocate Supreme Court for Petitioner.

Ibrar Ahmed, Advocate Supreme Court for Respondents.

2022 S C M R 828

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

KASHIF alias WAJID alias WAJU---Petitioner

Versus

The STATE and another ---Respondents

Criminal Petition No. 1225 of 2021, decided on 27th January, 2022.

(Against the order dated 14.10.2021 passed by the Lahore High Court Lahore in Criminal Misc. No. 51549-B 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)---Murderous assault---Bail, grant of---Further inquiry---Prosecution case initially set up in the crime report by the deceased's nephew, was diametrically different from the version advanced by the deceased's daughter through her supplementary statement---Plea of deceased's daughter that she being a Pardanashin lady stayed away from the investigative process as well as evidentiary value of her supplementary statement to implicate the accused were issues that squarely brought accused's case within the purview of subsection (2) of section 497, Cr.P.C, and, thus, would best be settled after recording of evidence during the trial---Furthermore it would be unconscionable to keep the accused in custody, particularly when it was not serving any useful purpose, relative to the investigation---Petition for leave to appeal was converted into appeal and allowed; and the accused was released on bail.

Aurangzeb Maral, Advocate Supreme Court for Petitioner.

Ch. Muhammad Sarwar Sidhu, Additional P.G. Punjab along with Ghulam Muhammad, DSP, M. Irfan, SI and Nadeem, SHO for the State.

Complainant in person.

2022 S C M R 830

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Yahya Afridi and Jamal Khan Mandokhail, JJ

PROVINCE OF PUNJAB through Secretary Housing and Physical Planning Department, Government of the Punjab, Lahore and others---Appellants

Versus

Syed ZIA UL HASSAN ZAIDI and others---Respondents

Civil Appeal No. 401 of 2015, decided on 19th January, 2022.

(Against the judgment dated 12.12.2014 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision Petition No. 437-D of 2001)

(a) Punjab Acquisition of Land (Housing) Act (VIII of 1973) [since repealed]---

----S. 4(1)---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Acquisition proceedings---Legality---Notification for acquisition of the disputed land ('the notification') was issued under section 4(1) of the Punjab Acquisition of Land (Housing) Act, 1973 ('the Act')---Said notification stated that land in the locality mentioned in the schedule to the notification was being acquired for the development of a scheme---Perusal of said schedule showed that it mentioned various khasra numbers which were acquired in the locality, however, the disputed land was not mentioned anywhere in the said schedule---Entire acquisition for the scheme was carried out based on the notification which had no mention of the disputed land---On the contrary, there was a subsequent notification ('the subsequent notification') on the record issued by the relevant Office of the Deputy Commissioner which established two facts; that the land mentioned in the notification was no longer required for the purpose mentioned in the notification, and, that the notification was withdrawn by the competent authority i.e., the Deputy Commissioner, as provided in section 4(1) of the Act---Nothing was available on the record to show that the subsequent notification was ever challenged by the Provincial Government authorities or, that a further notification was issued in supersession of the subsequent notification---Fact that a subsequent notification withdrawing the earlier notification was issued further showed that possession of the land sought to be acquired was not taken by the Provincial Government authorities---In the absence of any material suggesting that the subsequent notification was challenged, the Court under Article 129(e) of the Qanun-e-Shahadat Order, 1984 may presume the existence of the fact that the disputed land was not required by the Provincial authorities---Moreover various letters on record including from the revenue authorities and the Director of Provincial Housing and Physical Planning Department showed that the disputed land was in possession of respondents and Department itself excluded it from the scheme--- Appeal was dismissed.

(b) Punjab Acquisition of Land (Housing) Act (VIII of 1973) [since repealed]---

----S. 4(1)---Acquisition proceedings---Publication of notification in Official Gazette---Mandatory requirement---Section 4(1) of the Punjab Acquisition of Land (Housing) Act, 1973 uses the word "shall" making it obligatory upon the authorities to publish any and all notifications in respect of acquisition under section 4(1) of the said Act---Requirement of publication of a notification under section 4 is an essential requirement in acquisition proceedings because it is likely that the rights and interests of landowners will be adversely affected.

Saghir Ahmed through Legal Heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others PLD 2004 SC 261 ref.

(c) Punjab Acquisition of Land (Housing) Act (VIII of 1973) [since repealed]---

----Ss. 4(1) & 6---Acquisition proceedings---Publication of notification in Official Gazette---Purpose and scope---Notification issued by the Government essentially reveals its intention---One of the purposes of publishing a notification is so that those who may be affected by it can know the intention of the Government as mentioned in the notification itself---Essentially, a notification is a means used by the Government to communicate with the general public regarding inter alia, any projects etc. that it might prospectively undertake---Intent behind the notification or, the purpose for issuing the same must be mentioned because the rights of different stakeholders are involved, which was one of the reasons that there are various safeguards provided in the Punjab Acquisition of Land (Housing) Act, 1973 such as section 6 which by using the word "shall", requires the publication of a notice to make the intention of the Government to possess a certain piece of land clear---Acquisition of the land does not ipso facto mean that the Government Department can use the acquired land for any purpose that it considers appropriate---Acquiring agency/department/entity is restricted in its use of the land to the purpose mentioned in the notification and for no other purpose---Further, no additional land can be included in the award which was not mentioned in the notification under S. 4 without any addendum or fresh notification issued after fulfilling all legal and procedural formalities required to be fulfilled in this regard.

Barrister Qasim Ali Chohan, Additional A.G., Punjab, Zaheer Ahmed, Dy. Director (PHATA) and Ismail Ch., Head Draftsman for Appellants.

Syed Moazam Ali Rizvi, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondents.

2022 S C M R 840

[Supreme Court of Pakistan]

Present: Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD YOUSAF and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petitions Nos.1088 to 1090, 1111 and 1136 of 2021, decided on 7th December, 2021.

(Against the order dated 2.8.2021 passed by the Lahore High Court Multan Bench in Cr. Misc. Nos. 3156-B, 3157-B, 2596-B, 2597-B and 3801-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan, Art. 185(3)---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Recovery of 56.4 kgs of cannabis concealed in cavities of a truck---Bail, refusal of---Considerable cache comprising 56.4 kgs cannabis was concealed in different cavities of the truck, discovered pursuant to piecemeal disclosures by the accused persons through elaborate investigate efforts involving steel cutters and, thus, it was humanly not possible for the police contingent to conclude the exercise in one go; they proceeded with the registration of cases as and when the recoveries became available and this certainly did not allow, within the limited space of tentative assessment, to entertain any manner of doubt for imposition of such a huge cache as in the given facts and circumstances of the case, there was no smarter way to better systematize the conclusion of investigative proceedings---Material collected coupled with the statements of the witnesses clearly attracted the mischief of S. 51 of the Control of Narcotic Substances Act, 1997, standing as an impediment to release of accused persons on bail---Petition or leave to appeal was dismissed, and accused persons were refused bail.

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

Ch. M. Sarwar Sidhu, Additional P.G. Punjab with Imran, DSP, Shoukat, SI, Rehmat Ali, Excise SI for the State.

2022 S C M R 842

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

ABDUL AZIZ---Appellant

Versus

ABDUL HAMEED (DECEASED) through L.Rs.---Respondents

Civil Appeal No. 219 of 2016, decided on 8th December, 2021.

(Against the judgment dated 01.10.2014 passed by the Lahore High Court, Bahawalpur Bench in Civil Revision No. 249-D of 2010/BWP)

(a) Administration of justice---

----Judicial proceedings---Presumption of correctness---Scope---Strong presumption of correctness and sanctity of high order is attached to judicial proceedings and records and to outweigh the same, strong and unimpeachable evidence is required.

Waqar Jalal Ansari v. National Bank of Pakistan and another 2008 SCMR 1611; Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964; Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336 and Syed Ali Asghar and 3 others v. Creators (builders) and 3 others 2001 SCMR 279 ref.

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

----Art. 72---Contents of document---Proof---Article 72 of Qanun-e-Shahadat Order, 1984 provides that contents of documents may be proved either by primary or secondary evidence---Best evidence about the contents of a document is, therefore, the document itself and it is the production of the document that is required by law in proof of its content.

Abdullah v. Shaukat 2001 SCMR 60 ref.

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

----Ss. 35, 47 & 60---Qanun-e-Shahadat (10 of 1984), Art. 90---Registered document---Presumption of correctness---Scope---Registered document carries presumptions attached to it under sections 35, 47 & 60 of the Registration Act, 1908 and under Article 90 of the Qanun-e­-Shahadat Order, 1984---Court will presume correctness of the registered document in accordance with the presumptions attached unless the same are disputed or rebutted.

Muhammad Siddique (deceased) v. Mst. Noor Bibi (deceased) 2020 SCMR 483; Abdul Razaq v. Abdul Ghaffar 2020 SCMR 202; Anjuman-e-Khuddam-ul-Qurtan, Faisalabad v. Lt. Col (R) Najam Hameed PLD 2020 SC 390; Muhammad Idrees v. Muhammad Pervaiz 2010 SCMR 5 and Rasool Bukhsh and another v. Muhammad Ramzan 2007 SCMR 85 ref.

Muhammad Shahid Kamal Khan, Advocate Supreme Court for Appellant.

Mian Shahid Iqbal, Advocate Supreme Court for Respondent No. 1(i).

2022 S C M R 849

[Supreme Court of Pakistan]

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

MUHAMMAD AURANGZEB---Petitioner

Versus

KARIM KHAN alias ABDUL KARIM KHAN and others---Respondents

Criminal Petition No. 280 of 2021, decided on 2nd December, 2021.

(Against the judgment dated 18.02.2021 passed by the Peshawar High Court Bannu Bench in B.A. No.49-B of 2021)

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

----S. 497---Bail---Discretionary relief---Scope---Grant of bail is a discretionary relief, however, it is most essential that exercise of discretion is structured upon sound judicial principles, in conformity with statutory parameters.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Bail, cancellation of---Prima facie, prosecution evidence comprising statements of the complainant, eyewitnesses and autopsy report, squarely constitute "reasonable grounds" insurmountably standing in the way of accused's' admission to bail in the absence of any consideration calling for further probe---One of the grounds entertained by the High Court for granting bail was that the accused persons were real brothers and complainant party may have cast a wider net, however such ground was contradicted by the different parentage of the accused mentioned in the crime report---Petition for leave to appeal was converted into appeal and allowed, and bail granted to accused persons was cancelled.

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

----S. 497(5)--- Bail, cancellation of--- Grounds--- Grant of bail in disregard to the settled principles of law or on a premise factually incorrect, by itself, presents a conscionable justification to recall the concession.

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

Ms. Aisha Tasneem, Advocate Supreme Court for the State.

Malik Nouman Khalid, Advocate Supreme Court for Respondents with Respondent No.2.

2022 S C M R 852

[Supreme Court of Pakistan]

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

Rana MUHAMMAD HANIF KHAN (DECEASED) through LRs.---Appellants

Versus

SADDIQ KHAN (DECEASED) through LRs.---Respondents

Civil Appeal No. 997 of 2010, decided on 14th February, 2022.

(On appeal against the order dated 15.09.2010 passed by the Lahore High Court, Multan Bench, Multan in R.F.A. No. 198 of 2003)

Civil Procedure Code (V of 1908)---

----Ss. 16 & 20---Suit for recovery of compensation/damages---Ouster of jurisdiction of Civil Courts in Pakistan---Plaintiffs-appellants had admitted in the plaint that the property in respect of which the suit for rendition of accounts and recovery was filed, was situated in a foreign country; that the defendant-respondent was permanently residing in the foreign country and was a citizen there, and visited Pakistan occasionally---Amount claimed in the plaint was income generated from property inherited by the plaintiffs, which was situated in the foreign country---Nothing was available on record which showed that the defendant was actually and voluntarily residing in Pakistan when the suit in question was filed---Alleged breach of the agreement was purportedly on part of the defendant who at all relevant times resided in the foreign country---Alleged cause of action also arose in the foreign country when the plaintiffs found out about the money which they claimed was owed to them by the defendant---Even otherwise the presence of a defendant within the territorial jurisdiction of Pakistan does not ipso facto grant jurisdiction to Pakistani Courts on the touchstone of section 16 or 20 of the C.P.C. when the property in question was situated outside Pakistan---High Court had therefore correctly come to the conclusion that in light of the averments made in the plaint read with the requirements of sections 16 & 20 of C.P.C., the Civil Courts of Sahiwal (in Pakistan) lacked personal and subject matter jurisdiction in the matter.

Subject matter of the suit was situated in a foreign county (United States of America). This fact is admitted in the plaint of the appellants-plaintiffs that the property in respect of which the suit for rendition of accounts and recovery was filed, is situated in a foreign country. Section 16 of the C.P.C. clearly stipulates that all suits in respect of immovable property shall be filed in the Court within the local limits of whose jurisdiction the property in question is situated. The only exception to this rule is suits filed under section 16(c) of C.P.C. There is nothing on the record to establish that the suit in question was related to redemption of a mortgage or charge regarding the property in question. Even according to the averments made in the plaint the suit of the appellants did not fall within the parameters of section 16 of the C.P.C.

Section 20 of the C.P.C. clearly provides that every suit shall be filed in a Court within the local limits of whose jurisdiction the defendant or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain. It is a fact stated by the appellants in their plaint that the respondent-defendant was permanently residing in the foreign country. It is for this reason that an agreement was reached between the brothers to the effect that the respondent would manage the property inherited by the appellants, situated in the foreign country. The fact that the respondent was a foreign citizen is further admitted in the plaint. It is the case of the appellants that the respondent neither permanently resides nor works for gain anywhere within the jurisdiction of the Civil Courts of Sahiwal, (Pakistan). However, in an attempt to create jurisdiction, it has been stated in the plaint that Civil Courts of Pakistan have jurisdiction since the suit does not involve any question regarding immovable property and involves rendition of accounts and recovery of money. Such argument of the appellants is erroneous and misconceived since the amount claimed is income generated from the land in question is inextricably related to the property inherited by the appellants, which is situated in the foreign country. The language of section 16(d) clearly provides that, for the determination of any right or interest in respect of immovable property, a suit must be filed in a Court within the territorial jurisdiction of which the property is situated.

Even if the averments made in the plaint are taken on their face value the Civil Courts of Sahiwal (Pakistan) lacked jurisdiction in the matter. High Court has therefore correctly come to the conclusion that in light of the averments made in the plaint read with the requirements of sections 16 and 20 of C.P.C., the Civil Courts of Sahiwal lacked personal and subject matter jurisdiction in the matter. There is nothing on the record which shows that the respondent was actually and voluntarily residing in Pakistan when the suit in question was filed. On the contrary, it has been admitted that the respondent permanently resides in the foreign country and is a citizen there and visits Pakistan/Sahiwal occasionally. The understanding with the respondent was also in respect of the property inherited by the appellants, situated in a foreign country. The alleged breach of the agreement was purportedly on part of the respondent who at all relevant times resided in the foreign country. Thus, the alleged cause of action also arose in the foreign country when the appellants found out about the money which the appellants claim is owed to them by the respondent. Even otherwise, presence of a respondent within the territorial jurisdiction of Pakistan does not ipso facto grant jurisdiction to Pakistani Courts on the touchstone of section 16 or 20 of the C.P.C. when the property in question is situated outside Pakistan. Appeal filed by the plaintiffs was dismissed.

Muhammad Ramzan (deceased) v. Nasreen Firdous PLD 2016 SC 174 ref.

Rana M. Zahid, Advocate Supreme for Appellants Court (via Video-link from Lahore).

Nemo for Respondents Nos. 1(1-11).

Ex parte for Respondent No. 2.

2022 S C M R 859

[Supreme Court of Pakistan]

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

MUHAMMAD IQBAL---Appellant

Versus

MATI UR REHMAN and others---Respondents

Civil Appeal No. 180 of 2015, decided on 9th February, 2022.

(On appeal form the judgment dated 23.12.2013 passed by the Peshawar High Court, Abbottabad Bench in C.R. No. 138 of 2006)

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

----Ss. 9, 42 & 54---Suit for possession and permanent injunction---Maintainability---Dispute over ownership of property---Plaintiffs and defendant both claiming title to disputed property---In such circumstances, the plaintiffs were supposed to establish their title first by filing a suit for declaration along with possession of the property as a consequential relief as the defendant was admittedly in possession of the plot and further establish the fact that the plot in possession of the defendant was situated in the khasra claimed by the plaintiffs---Merely filing a suit for permanent injunction, in the given circumstances, was not maintainable and could not encompass the claim of plaintiffs---Appeal was allowed.

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

----S. 117---Land Revenue Rules, 1968, R. 67-A---Dispute over ownership of property---Plaintiffs and defendant both claiming title to disputed property---As per report of the Local Commissioner, the suit house was situated in Khasra mentioned by the plaintiffs but record of the case reflected that the said conclusion by the Local Commissioner was made on the basis of statement/version of the Patwari Halqa accompanying him at the time of spot inspection---Such type of oral version, in absence of proper proof of the fact, could in no way be considered as a poof required under the Land Revenue Act, 1967---If it was established that the suit house admittedly owned, possessed and constructed by the defendant was situated in the khasra claimed by the plaintiffs then that khasra as per revenue record produced by the Patwari was part and parcel of Shamlat Deh which was jointly owned by the persons whose names appeared in the proprietary body of the village (proprietary body of the village is a body of persons who are already owners of the agricultural land in the village)---Plaintiffs could lay hand on this khasra number as owner if it was established on the record that their names appeared in the proprietary body and they are/were in physical possession of this khasra number prior to the purchase of defendant; they would also be obliged to prove their dispossession either by the vendor of the defendant or the defendant himself---Besides, it should also have been established through cogent and reliable evidence that the property in dispute was part and parcel of Shamlat Deh---Entire exercise done by the Local Commissioner as well as the evidence produced by the plaintiffs during trial did not reflect that the suit house was situated in the khasra mentioned by the plaintiffs being part of Shamlat land---No proper demarcation of the property was carried out comprising Shamlat Deh and specifically the khasra in question---Revenue record produced by the Patwari Halqa and Sadar Office Qanungo during the trial, would in no way help out the plaintiffs to establish their case unless the facts were established through demarcation on the spot---In absence of such evidence, the documents so produced would have no evidentiary value---Original mutation of the vendor of the plaintiffs had not been produced---Mere reference of the mutation in the record of rights, was not sufficient to establish title of plaintiffs---Record produced by the defendant from the proper lawful custody with his possession at the spot was sufficient to hold him owner of the house in question---Such exercise could have been done by the revenue officer to define the boundaries of a estate or khasra number under section 117 of the Land Revenue Act, 1967 or demarcation of the property in question under Rule 67-A of Land Revenue Rules, 1968---Proper location of a khasra number was not possible without such exercise---Record of the case would reflect that no such exercise was made in the present case---Appeal was allowed and suit filed by the plaintiffs was dismissed.

Ch. Afrasiab Khan, Advocate Supreme Court for Appellant.

Muhammad Munir Piracha, Advocate Supreme Court for Respondents.

2022 S C M R 864

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Sayyed Mazahar Ali Akbar Naqvi and Jamal Khan Mandokhail, JJ

ZAFAR KHAN and another---Petitioners

Versus

The STATE---Respondent

Jail Petition No. 42 of 2017, decided on 11th February, 2022.

(On appeal from the judgment of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat dated 19.12.2016 passed in Cr. A. No. 231-M of 2014)

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

----S. 9(c)---Possession of narcotics---Recovery memo, preparation of---Scope and purpose---In the cases of narcotic substances, recovery memo is a basic document, which should be prepared by the Seizing Officer, at the time of the recovered articles, containing a list thereof, in presence of two or more respectable witnesses and memo has to be signed by such witnesses---Main object of preparing the recovery memo at the spot and with signatures of the witnesses is to ensure that the recovery is effected in presence of the marginal witnesses, honestly and fairly, so as to exclude the possibility of false implication and fabrication---Once the recovery memo is prepared, the next step for the prosecution is to produce the same before the Trial Court, to prove the recovery of the material and preparation of the memo through the scribe and the marginal witnesses.

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

----S. 9(c)--- Possession and transportation of 25 kilograms of cannabis---Reappraisal of evidence---Recovery memo, witness of---Doubtful and contradictory testimony---Complainant (police official) when appearing as a prosecution witness before the Trial Court stated that the contraband material was taken into possession through the recovery memo but did not mention the name of the witnesses in whose presence, the recovery memo was prepared nor did he mention their signatures upon it---However, another police official, claiming to be the recovery witness, appeared before the Trial Court, and contended that he signed the recovery memo, but did not give details about the document, which he claimed to have signed nor produced the same in the Court; he did not refer to the recovery memo, which was produced by the complainant---Alleged recovery witness was not even confronted with the recovery memo at the time of recording his statement to confirm the contents of the same and his signatures upon it---Moreover, complainant did not say about the signatures or identification mark of any of the recovery witness upon any parcel allegedly prepared at the place of the occurrence---Recovery witness also did not utter a single word with regard to the preparation of the parcels of the contraband material in his presence at the spot nor did he mention signing or putting mark of identification upon any of the parcels, which showed that if any parcel was prepared by the complainant, it was not witnessed by the recovery witness---Under such circumstances, it was not safe to believe that the material contained in these parcels, relied upon by the complainant was the same, which was alleged to have been recovered from the accused persons---Complainant and the only alleged witness of the recovery did not corroborate each other on material points, therefore, their statements did not inspire confidence about the reliability of the recovery memo, as such, the prosecution had not been able to establish the recovery of the contraband material from the accused persons---Jail petition was converted into appeal and allowed, and accused persons were acquitted of the charges against them.

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

----S. 9(c)--- Possession and transportation of 25 kilograms of cannabis--- Reappraisal of evidence--- Contradictory stance of complainant (police official) and recovery witness (police official) with respect to secret cavities of the vehicle---Complainant alleged that beneath the switch board of the vehicle, secret cavities were found---To the contrary, the recovery witness, stated before the Trial Court that one packet of charas was recovered from beneath the switch board and upon opening the switch board, secret cavities were found there and the remaining packets were recovered therefrom---Record also showed that there was space only for the air conditioner under the switch board, wherefrom the recovery of charas had been alleged---Therefore, the witnesses were not certain about the exact location of the cavities and recovery of the contraband material therefrom---Jail petition was converted into appeal and allowed, and accused persons were acquitted of the charges against them.

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

----S. 9(c)---Possession and transportation of cannabis---Reappraisal of evidence---Samples---Safe custody of samples and their transmission to the Chemical Examiner--- Significance--- Prosecution had the responsibility to prove the recovery of the contraband material from the accused, its safe custody and sending the samples for chemical analysis without undue delay to avoid any possibility of substitution---Where the recovered contraband material, including the pieces deducted for the purpose of chemical analysis were not in safe custody and transmission of the samples to the Chemical Examiner was doubtful, possibility of their tampering could not be ruled out.

Complainant (police official) and rest of the witnesses did not say anything about the custody of the parcels of the contraband. The complainant in his cross examination, replied that the recovered material remained at the place of the occurrence for about 45 minutes, whereafter, he handed it over to a Moharrar, present at the check post near the place of the occurrence, but did not mention name of the said Moharrar nor explained as to what happened to the parcels thereafter. Admittedly, the prosecution did not produce the Moharrar to whom the contraband was allegedly handed over, nor has it come on the record as to whether the same was deposited in the Malkhana. The (recovery) witness did not explain as to where the contraband material and the samples separated for chemical analysis were lying before sending the same to the office of the Forensic Science Laboratory (FSL). According to the complainant, he sent the sample of the contraband material for chemical analysis through an application but did not explain as to when he sent the same. Perusal of the application would reveal that it was written on 6th of March, 2014, but the report of the chemical expert reveals that the contraband material was received on 10th of March, 2014. Even the person who delivered the sample to the office of Chemical Examiner, has not been produced to prove the contention of the complainant with regard to sending of the samples. The period between 6th March 2014 when according to the complainant, the samples were sent and till its receipt by the FSL on 10th March 2014 remained unexplained. It is the responsibility of the prosecution to establish safe custody of the recovered material and immediate transmission of its samples to the examiner to avoid any possibility of substitution. The complainant did not give any reason for sending the samples to the office of the FSL after the delay of four days, therefore, it cannot be said with certainty that the samples which were sent for chemical examination, were actually the same, which were alleged to have been recovered from the petitioners. Thus, it is evident that the alleged recovered contraband material, including the pieces deducted for the purpose of chemical analysis were not in a safe custody and transmission of the samples to the examiner was doubtful, as such, possibility of its tampering cannot be ruled out. Jail petition was converted into appeal and allowed, and accused persons were acquitted of the charges against them.

Imam Bakhsh's case 2018 SCMR 2039; Mst. Razia Sultana's case 2019 SCMR 1300; Zahir Shah's case 2019 SCMR 2004 and Mst. Sakina Ramzan's case 2021 SCMR 451 ref.

Arshad Hussain Yousafzai, Advocate Supreme Court for Petitioners.

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa for the State.

2022 S C M R 870

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Amin-ud-Din Khan, JJ

Mst. BIBI FATIMA---Appellant

Versus

MUHAMMAD SARWAR---Respondent

Civil Appeal No. 1683 of 2014, decided on 7th February, 2022.

(Against the judgment dated 21.11.2014 passed by the Peshawar High Court, Abbottabad Bench in C.R. No. 181-A of 2008)

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

----S. 13(3)---Suit for possession through pre-emption---Performance of notice of Talb-i-Ishhad not proved---Plaintiff/respondent claimed that he sent the notice of Talab-i-Ishhad through registered post with acknowledgment due---Since the appellant/defendant denied such fact in his written statement, it was the duty of the plaintiff/respondent to prove not only the issuance of notice of Talab-i-Ishhad in accordance with law and sending of notice to the vendee/defendant through registered post, acknowledgment due but also the service of notice upon vendee/defendant or refusal thereof by producing the Postman and acknowledgment receipt---Admittedly the plaintiff/respondent has not produced the original postal envelope if returned to him on refusal to receive the same by vendee/defendant, neither the receipt of acknowledgment of delivery of notice was produced nor the postman---Plaintiff failed to prove the performance of Talab-i-Ishhad in accordance with law.

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

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Art. 129---General Clauses Act (X of 1897), S. 27---Suit for possession through pre-emption---Performance of notice of Talb-i-Ishhad---Proof --- Burden of proof---Scope---In terms of Article 129 of the Qanun-e-Shahadat, 1984 read with section 27 of the General Clauses Act, 1897, a presumption of service does arise if a notice sent through registered post with acknowledgement due is received back with the endorsement of "refused" by the postal authorities but if the addressee appears in Court and makes a statement on oath disowning receipt of notice, the presumption under the said provision shall stand rebutted and the onus is on the party which is relying on such an endorsement to prove the same by producing the postman who made the endorsement.

Muhammad Bashir v. Abbas Ali Shah 2007 SCMR 1105; Bashir Ahmed v. Ghulam Rasoor 2011 SCMR 762; Allah Ditta v. Muhammad Anar 2013 SCMR 866; Dayam Khan v. Muslim Khan 2015 SCMR 222; Basharat Ali Khan v. Muhammad Akbar 2017 SCMR 309 and Sultan v. Noor Asghar 2020 SCMR 682 ref.

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

----O. XLI, R. 33---Cross-objection or cross-appeal against a finding of the Trial Court---Question as to whether in every case when some findings are recorded against a defendant and ultimately the suit is dismissed by the Trial Court, the defendant is required to file cross-appeal or cross-objection or he can argue against the findings recorded against him without filing cross-appeal or cross-objection before the appellate court---Held, that when no part of decree is against the defendant, he can argue against the said findings before the appellate court in the appeal filed by the plaintiff without filing cross-appeal or cross-objection---In case a partial decree is passed against the defendant and rest of the suit is dismissed, if the plaintiff files appeal against the portion of dismissal of suit then it is incumbent upon the defendant to file cross-appeal or cross-objections to challenge the part of grant of decree against him.

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

----S. 151 & O. XLI, R. 33---Appellate Court, powers of---Appropriate relief for non-appealing parties---Appellate Court is empowered, in the interest of justice, to allow appropriate relief to non-appealing parties where the appeal is with regard to whole of the decree in terms of Order XLI, Rule 33, C.P.C.---Court also has inherent powers under section 151, C.P.C., to make such orders, as may be necessary for the ends of justice and to prevent the abuse of the process of the Court---Said provisions are enabling provisions; the powers thereunder can be exercised by the Court to cover ostensibly impossible situations, for complete dispensation of justice, for which C.P.C. has been designed---Where despite the best efforts of the draftsman, to cater for all possible situations, if the C.P.C. is found lacking in meeting some eventualities, the Court can act ex delicto justiciae, supply the omission in the procedure, and adopt such methodology, for effectually carrying out the purpose.

North-West Frontier Province v. Abdul Ghafoor Khan PLD 1993 SC 418 and Muhammad Nawaz v. Mst. Ahmad Bibi 1995 SCMR 266 ref.

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

----S. 6(a)---Suit for possession through pre-emption---Co-sharer/co-owner in khata---Proof---"Fard Intikhab" of Register Haqdaran Zameen is not a substitute of the complete Register Haqdaran Zameen which carries the presumptions of correctness.

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

----S. 5---Suit for possession through pre-emption---Right of pre-emption---In a suit for pre-emption, plaintiff is required to prove his right of pre-emption at the time of sale of land, at the time of filing of suit and at the time of decree.

Muhammad Munir Paracha, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

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

2022 S C M R 877

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

INTELLIGENCE BUREAU EMPLOYEES COOPERATIVE HOUSING SOCIETY through Secretary---Appellant

Versus

SHABBIR HUSSAIN and others---Respondents

Civil Appeals Nos. 1079 and 1080 of 2015, decided on 18th March, 2022.

(Against the judgment dated 22.05.2015 of the Islamabad High Court, Islamabad passed in C.Rs. Nos. 475 and 552 of 2001)

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

----Ss. 8, 42 & 54---Transfer of Property Act (IV of 1882), S. 41---Suit for possession, declaration, and permanent injunction---Dispute over inheritance mutations---Suit filed belatedly beyond period of limitation---Inaction in claiming rights equating to acquiescence and waiver of rights---In the present case, the plaintiff was at least 17 years of age when the impugned inheritance mutations were recorded in favour of his father, and his grandmother---Address of the plaintiff in the record throughout was the same as that of his father, and his grandmother also lived in the same village---Suit lands were situated where the plaintiff had lived throughout---Plaintiff attained majority at the most, a year after the impugned inheritance mutations were recorded and had become legally capable and competent to seek enforcement of his legal rights---Even at the time of impugned mutations, he was, by all accounts, of a sensible age---If the said plaintiff was truly and genuinely aggrieved by the impugned mutations dated 14.4.1970, he ought to have challenged the same within three years of his attaining majority---However he filed the suit as late as on 27.6.1990---Although in his plaint, the plaintiff claimed that he came to know about the inheritance mutations only a month before filing of the suit---However, neither had he disclosed as to on what date, how, and through whom he acquired the knowledge as claimed---Plaintiff further claimed that having known about the mutations, he requested his father and grandmother to transfer the suit land in his favour, but they refused---However in such regard also neither had he given any details, nor produced any evidence or material---Subject lands, after being sold by the plaintiff's father and grandmother to the defendant-society, had, way back in the year 1988, been developed into a housing society, and the plots so created had been allotted to the members of the society, who had built their houses/buildings thereon---Roads had been built and basic amenities had been provided in the housing society so developed---Living in the same village where the lands were situated, it was inconceivable that the plaintiff would not have noticed the fact that not only the physical possession of the lands were delivered to his father and grandmother but the usage/status of the land was also changed from agricultural to residential/commercial, and developed into a housing society---Plaintiff's inaction, indifference and indolence in the circumstances could not be interpreted as anything but his acquiesce in his father's and grandmother's title in the suit lands and manifestation of waiver of his rights---Plaintiff acquiesced in the title of his father and grandmother, and having waived his right to the lands, led the defendant-housing society to believe that the said vendors were in fact the owners of the lands---Defendant society thus having purchased the lands for valuable consideration, without knowledge of plaintiff's purported entitlement were/are entitled to protection under section 41 of the Transfer of Property Act, 1882---Appeals were allowed, impugned judgment was set-aside with the consequence that suit filed by the plaintiff was dismissed.

Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446; Mst. Grana v. Sahib Kamala Bibi PLD 2014 SC 167; Dilbar Jan v. Sohrab Khan 1992 SCMR 743 and Lal Khan v. Mohammad Yousaf PLD 2011 SC 657 ref.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 52---Land revenue record---Presumption---In terms of section 52 of the West Pakistan Land Revenue Act 1967, presumption of truth is attached to the land revenue record.

Muhammad Shamim v. Mst. Nisar Fatima 2010 SCMR 18; Lal Khan v. Muhammad Yousaf PLD 2011 SC 657 and Mst. Phaphan through LRs. v. Muhammad Bakhsh 2005 SCMR 1287 ref.

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

----S. 41---Transfer by ostensible owner---Protection for transferee under section 41 of the Transfer of Property Act, 1882---Scope and pre-requisites---Section 41 of the Transfer of Property Act, 1882 underpins the principle of equity that whenever one of the two innocent persons has to suffer by the act of third person, he who has enabled that person to occasion the loss, must sustain it, or where one of the two innocent persons suffer from the fraud of third party, the loss should fall on him who has created, or could have prevented the opportunity for fraud---However in order to invoke the protection of the provisions of section 41, a transferee is essentially required to demonstrate that; first, the transferor is the ostensible owner; second, he was so by consent, express or implied, of the real owner; third, the transfer is for consideration; and fourth, the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

Syed Nayab Hassan Gardezi, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Appellant.

Malik Attat Hussain Awan, Advocate Supreme Court for Respondent No. 1.

Agha Muhammad Ali, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 6.

Ex-parte for other Respondents.

2022 S C M R 885

[Supreme Court of Pakistan]

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

Major (R) MUHAMMAD IFTIKHAR KHAN---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No. 1184 of 2021 in Criminal Petition No. Nil of 2021, decided on 2nd February, 2022.

(For entertaining the criminal petition)

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

----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss. 324, 429, 148, 149, 337-D & 337-F(v)---Murderous assault---Bail, refusal of---Delay in conclusion of the trial attributable to the accused---Report of the Trial Court about the day to day proceedings of the trial showed that the delay in conclusion of the trial was mostly attributable to the accused as he kept on moving numerous applications i.e. for acquittal under section 249-A, Cr.P.C, discharge, medical examination of injured, constitution of medical board for re­-examination of the injured, stay of proceedings, summoning of roznamcha and original record of re-examination of injured etc---Report of the Trial Court clearly showed that the trial was being concluded by not only taking the matter almost on day to day basis but deciding the applications filed by the parties on almost daily basis---Prosecution evidence was almost complete barring two Investigating Officers and the Doctor, who were yet to be examined---Moreover the accused was specifically nominated in the crime report with a specific allegation of causing fire arm injury on the shoulder of the injured and he was arrested from the spot with the weapon of offence---Application was dismissed and accused was refused bail.

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

----S. 497(1), third proviso---Bail---Scope---Delay in conclusion of trial---Bail cannot be claimed as a matter of right even if delay is not attributable to the accused.

Mrs. Bushra Qamar, Advocate Supreme Court for Applicant.

Danyal Ijaz Chadhar, Advocate Supreme Court for Respondent No.2.

Mirza Abid Majeed, D.P.G., Naveed, ASI and Ahsan., DSP, Circle City Kasur for the State.

2022 S C M R 888

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

ROOH ULLAH and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No. 1316 of 2016, decided on 3rd January, 2022.

(Against the judgment dated 06.10.2016 passed by the Peshawar High Court Peshawar in Criminal Appeal No. 602-P of 2013)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Reappraisal of evidence---Statements of eye-witnesses that included an injured were in comfortable unison both on the salient features of the case as well as matters collateral thereto---No doubt, injuries on the person of a witness were not a passport into the realm of truth, however, the counsel for accused had not been able to point out even a single circumstance to suspect testimony of the injured eye-witness---Incident, which was a daylight affair, was reported with remarkable promptitude followed by examination of the injured as well as autopsy, circumstances that cumulatively excluded possibility of consultations or deliberations---Investigating Officer's failure to recover a weapon from one of the accused did not overshadow the preponderance of prosecution evidence that included recovery from the principal accused---Petition for leave to appeal was dismissed, and convictions and sentences passed against the accused persons were maintained.

Muhammad Ilyas Siddiqi, Advocate Supreme Court for Petitioners.

Zahid Yousaf Qureshi, Additional Advocate General, Khyber Pakhtunkhwa for the State.

Talat Mahmood Zaidi, Advocate Supreme Court for Respondents.

2022 S C M R 890

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Ayesha A. Malik, JJ

Syeda NASREEN ZOHRA (DECEASED) through LRs. and others---Petitioners

Versus

GOVERNMENT OF THE PUNJAB through Secretary Communication and Works Department, Lahore and others---Respondents

Civil Petitions Nos. 5718 to 5720 and 5799 of 2021 and Civil Petition No. 2018-L of 2021, decided on 7th February, 2022.

[Against the order dated 29.9.2021, passed by the Lahore High Court, Multan Bench, Multan, in F.A.Os. Nos.93, 117 of 2018, 25, 24 of 2019, respectively]

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

----Ss. 18, 31 & 34---Compensation not paid or deposited in Court---Payment of interest---Mandatory requirement---After the Award has been made, the Collector is bound to tender the payment in question---If the Collector is prevented from doing so, he is, required to tender the same in Court---In case the Collector does not make the payment, the landowner becomes entitled to interest as provided in section 34 of the Land Acquisition Act, 1894---Payment of such interest is mandatory in nature and its payment cannot not be denied.

Sheikh Muhammad Ilyas Ahmed and others v. Pakistan through Secretary Ministry of Defence, Islamabad and others PLD 2016 SC 64 ref.

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

----Ss. 31 & 34---Compensation not paid or deposited in Court---Compound interest, payment of---Scope---Compound interest would continue to accrue till such time that the entire compensation is paid in its entirety---Once the original amount has been deposited (in court), the matter goes out of the penal consequences of section 34 of the Land Acquisition Act, 1894---However, it would be unfair, unjust and contrary to the policy of the law to put a landowner at an unfair disadvantage for recovery of the accrued amount of compensation and give an unfair advantage to the acquiring department which can delay payment of accrued compound interest indefinitely; this would lead to an absurd situation and could not be the intent of the law---Thus, in such an event, simple interest would be payable on the amount that has accrued by way of compound interest till such time that the accrued and outstanding compound interest is paid to the person who is entitled to receive compensation for his/her acquired land.

Shezada Mazhar, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.Ps. Nos. 5718 to 5720 and 5799 of 2021).

Rana Shamshad, Additional Advocate General, Punjab and Tahir Shah, Sr. LO, C&W Deptt. for Respondents (in CPs. 5718 to 5720 and 5799 of 2021).

Rana Shamshad, Additional Advocate General, Punjab along with Tahir Shah, Sr. LO, C&W Deptt. for Petitioners (in C.P. 2018-L of 2021).

Shezada Mazhar, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondents (in C.P. 2018-L of 2021).

2022 S C M R 897

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

PROVINCE OF PUNJAB through Chief Secretary, Lahore and others---Appellants

Versus

Prof. Dr. JAVED IQBAL and others---Respondents

Civil Appeal No. 966 of 2020, decided on 14th July, 2021.

(Against order dated 26.06.2019 of Lahore High Court, Lahore passed by in Writ Petition No. 23925 of 2016)

(a) Civil service---

----Appointment---Court cannot step into the shoes of the appointing authority.

(b) Civil service---

----Contractual employees--- Regularization in service--- Scope---Regularization takes effect prospectively, from the date when a regularization order is passed---In the absence of any law/order/policy providing for retrospective regularization, contractual employees cannot claim regularization of their services based on past service rendered on contract basis as well as the period during which they are out of service---Employee has no automatic right to get his/her past service rendered on contract basis counted towards regular service or regularization---Employee also cannot choose the date when he/she wishes to be regularized---Regularization is the prerogative of the Executive and it cannot be arbitrarily interfered with by the Court.

Khushal Khan Khattak University v. Jabran Ali Khan 2021 SCMR 977 ref.

(c) Constitution of Pakistan---

----Art. 199---Civil service---Constitutional jurisdiction of the High Court---Scope---High Court in exercise of its constitutional jurisdiction has no power to extend expired contracts or order reinstatement of contractual employees.

(d) Civil service---

----Contractual employees---Regularization in service---Scope---Long and satisfactory contractual service does not confer any right on an employee to claim regularization at all or for that matter from an earlier date.

Government of Khyber Pakhtunkhwa and others v. Saeed ul Hassan and others 2021 SCMR 1376 ref.

Ch. Faisal Fareed, Additional A.G. Punjab and Abbas Ali, Law Officer, Health Department, Punjab for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Hifz-ur-Rehman, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondents.

2022 S C M R 905

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Sayyed Mazahar Ali Akbar Naqvi and Jamal Khan Mandokhail, JJ

FAISAL SHAHZAD---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 95 of 2017, decided on 14th March, 2022.

(On appeal against the judgment dated 15.12.2016 passed by the Lahore High Court, Multan Bench in Criminal Appeal No. 319 of 2014)

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

----S. 9(c)---Possession of 10 kilograms of charas and 5 kilograms of opium---Reappraisal of evidence---Case was lodged with promptitude on the basis of spy information, which was supplied to the law enforcing agency prior to conducting raid by the raiding party comprising of number of police officials and it had already established a picket at the particular place on the basis of the said information---Accused was caught red handed in broad daylight by the police and a huge quantity of contraband charas and opium was recovered from him, which was contained in a sack/gatoo in fifteen separate packets---Police officials separated 10 grams of charas and 10 grams of opium from each packet in the prescribed manner and put the samples in 15 separate packets and then sent the same to the office of Chemical Examiner for its analysis---Safe chain of custody of the recovered narcotics was not compromised at all---Reports of the Chemical Examiner showed that all the 15 packets contained contraband charas and opium---Prosecution case hinges upon the statements of police officials, who narrated the prosecution story in a natural manner and remained consistent throughout and their testimony despite lengthy cross-examination---Said witnesses had no enmity with the accused to falsely implicate him in the present case---Even otherwise a huge quantity of contrabands could not be planted by the Investigating Officer of its own---Petition for leave to appeal was dismissed, leave was refused, and conviction and sentence of accused was maintained.

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

----S. 9(c)---Narcotic cases---Testimony of police officials, reliance upon---Scope---Testimony of police officials is as good as any other private witness unless it is proved that they have animus against the accused---Reluctance of general public to become witness in such like cases has become judicially recognized fact and there is no impediment to consider statement of official witnesses, as no legal bar or restriction has been imposed in such regard---Police officials are as good witnesses and can be relied upon, if their testimonies remain un-shattered during cross-examination.

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

----S. 77---Control of Narcotic Substances (Government Analysts) Rules, 2001 ('the Rules')---Said Rules are directory and not mandatory in nature---Any lapse (in compliance with the Rules), would not automatically discard the whole prosecution case.

Control of Narcotic Substances (Government Analysts) Rules, 2001 ('the Rules') are stricto sensu directory and not mandatory in any manner. It does not spell out that if there is any lapse (in following the Rules), it would automatically become instrumental to discard the whole prosecution case. The Rules cannot control the substantive provisions of the Control of Narcotic Substances Act, 1997 and cannot in any manner frustrate the salient features of the prosecution case, which otherwise hinges upon (i) receipt of information, (ii) action by the concerned law enforcing agency, (iii) recovery of contraband narcotics, (iv) the report of chemical examiner regarding analysis of the recovered contraband, (v) the finding of fact by the courts below after recording of evidence i.e. witnesses of the raiding party, the recovery witnesses, and the Investigating Officer and all other attending circumstances. If the series of acts which ultimately result into recovery of contraband narcotic are kept in juxtaposition with the alleged violation of the Rules, it cannot by any stretch of imagination be considered reasonable in law to set-aside the whole prosecution case on its salient features.

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

----S. 9(c)---Possession of 10 kilograms of charas and 5 kilograms of opium---Reappraisal of evidence---Sack/gatoo containing the recovered narcotic not produced in evidence---Not relevant---In the present case the accused was carrying narcotics in a sack/gatoo, which is usually made of polythene/cloth/plastic and is commonly used by the people in the society to carry heavy things and the same can easily carry a weight of 15 kilograms (equivalent to the weight of the narcotics recovered from the accused)---Gatoo is just a cloth or plastic bag, so the real thing to consider at in the present case was that the accused was carrying a huge quantity of narcotics in it, therefore, non-production of the gatoo was of no avail to the accused---Petition for leave to appeal was dismissed, leave was refused, and conviction and sentence of accused was maintained.

Amjad Ali v. The State 2012 SCMR 577 distinguished.

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

----S. 9---Narcotic cases---Conviction---Scope---When the prosecution is able to prove its case on its salient features then un-necessary technicalities should not be allowed to hamper the very purpose of the law on the subject.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court, Syed Iqbal Hussain Shah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Muhammad Jaffer, Additional P. G. Punjab for the State.

2022 S C M R 912

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

CHAIRMAN, FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION---Petitioner

Versus

KUMAIL KHAN---Respondent

Civil Petition No. 2847 of 2018, decided on 22nd February, 2022.

(Against the judgment dated 10.5.2018 passed by the High Court of Balochistan in C.R. No. 162 of 2016)

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration seeking change in date of birth---Preference given to date of birth recorded in matriculation certificate--- First document on record was respondent's/plaintiff's Grade VI School Leaving Certificate issued on 30-6-2009 containing respondent's date of birth as 05-06-1994 and the second one was the admission form whereby his admission in Grade VI was approved on 24-6-2009, which also contained the respondent's date of birth as 05-06-1994---Additionally, the respondent himself while filling up the examination form of Matric, had again given the same date of birth---In his suit he stated that after he passed the Secondary School Certificate (SSC), he came to know about the fact that incorrect date of birth was mentioned in his educational record and consequently, he filed the suit---However, such claim was negated by the fact that prior to SSC result, he had on 27-11-2013 applied to his academy for correction of his date of birth on the basis of his birth Certificate issued by NADRA on 19-11-2013---High Court had committed gross error of upsetting concurrent findings of the Courts below in directing the Educational Board to change respondent's date of birth merely on the basis of birth certificate issued by NADRA almost 19 years after respondent's birth and that too without supportive form 'B' which could not have been given preference over the date of birth recorded in respondent's matriculation certificate---Coming to the oral evidence, the respondent in support of his case besides official witness who produced the record, examined two witnesses, the first one was just 22 years of age whereas the other was 21 years old---Both witnesses were respondent's cousin and their statements were nothing but hearsay and could not be safely relied upon---High Court remained oblivious of the fact that such evidence, documentary as well as oral could not be made basis of changing the record maintained by the Board---Petition for leave to appeal was converted into appeal and allowed, impugned judgment of High Court was set-aside with the consequence that suit filed by respondent seeking change in his date of birth was dismissed.

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

Rashad Javed Lodhi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2022 S C M R 915

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

ASHFAQUE alias SHAKA---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 684 of 2016, decided on 4th January, 2022.

(Against the judgment dated 29.11.2016 passed by the Lahore High Court Lahore in Cr. A. No. 168-J of 2013 with M.R. No.202 of 2013)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Reappraisal of evidence---Prosecution case vis-à-vis the accused was firmly structured on the foundations un-trembled by the defection of an injured witness; he was medically examined under a police docket even before the autopsy was conducted; in those agonizing moments, he supported the prosecution case in his statement recorded by the Investigating Officer; it was much late in the day that he opted to part ways with the prosecution for reasons best known to him and, thus, his mysterious departure, though embarrassing to the prosecution, nonetheless, by itself, did not cast away its case in the presence of witnesses named in the crime report faithfully supporting their case---Counsel for accused despite detailed survey of the evidence had not been able to point out any flaw or infirmity in the statements of the witnesses that may reflect upon their presence at the spot having seen the solitary fatal shot singularly assigned to the accused costing the deceased her life in broad daylight---Investigation though somewhat controversial, nonetheless, pointed towards culpability of accused, further supported by recovery of weapon which matched with the casing---Autopsy could not be viewed as delayed as after initially gasping for life, the deceased breathed her last later and it was for this reason, the autopsy was conducted the following day---Petition for leave to appeal was dismissed, and conviction and sentence passed against the accused was maintained.

Mian Liaqat Ali, Advocate Supreme Court for Petitioner.

Mirza Muhammad Usman, Deputy Prosecutor General for the State.

Complainant in person.

2022 S C M R 918

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Qazi Muhammad Amin Ahmed, JJ

Mst. NOOR JEHAN and another---Appellants

Versus

SALEEM SHAHADAT---Respondent

Civil Appeal No. 601 of 2019 and C.M.A. No. 2953 of 2019, decided on 1st March, 2022.

(Against the judgment dated 13.02.2019 of the Lahore High Court, Lahore passed in R.S.A. No. 42077 of 2017)

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

----S. 12---Suit for specific performance of an agreement to sell immoveable property---Token receipt---Whether the token receipt qualified as an agreement to sell---Held, that document titled "token receipt" contained all the necessary ingredients essential for it to qualify as a valid and lawfully enforceable contract---Said document unambiguously contained the identity of the seller and the purchaser; the property to be sold had been described accurately in a well-defined manner; it spelled out the agreed sale consideration amount, and stipulated the manner of payment thereof---Parties who executed the document were at consensus ad idem---Document clearly manifested the intention of the appellants to sell and that of the respondent to purchase the subject property---Nothing crucial was left to be settled which could have adversely affected the validity of the contract---Specific performance of the document titled token receipt in the circumstances could not have been avoided on the pretext that it provided for executing a formal agreement---In the present case, the "token receipt" was in itself a complete, and a lawfully enforceable agreement to sell---Appeal was allowed.

Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 ref.

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

----Art. 75---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of an agreement to sell immoveable property---Balance consideration instalment---Pay order---Proof---Vendee had not been able to prove that he tendered to the vendors the payment due, as in the first place neither has he been able to prove that he in fact obtained the pay order, or that he offered the same to the vendors---Neither had the vendee produced the original pay order in his evidence as required in terms of Article 75 of Qanun-e-Shahadat, 1984 nor had he laid before the Court any other evidence, or material that he in fact obtained the pay order from the Bank as claimed, and/or that the same was lost or destroyed, though it was imperative for the vendee to have proved the loss of the original, as an essential prerequisite for seeking to produce a photocopy of the pay order---Vendee also did not move an application for permission to produce and exhibit a photostat copy of the pay order before the Court; he also did not bother to explain, as to when, how and under what circumstances the pay order was lost, destroyed or misplaced---Vendee could have summoned the relevant record and the concerned officer from the payer Bank which he choose not to; he had also not claimed having lodged any complaint or FIR regarding the loss or theft of the pay order---Document which was not lawfully produced and exhibited in the Court was not worthy of being considered as evidence/proof of a fact---Even otherwise the vendee's evidence with regard to his tendering the pay order to the vendors did not sound credible as there were contradictions in the statements of vendee and his witnesses regarding the date and person/s who went to deliver the pay order to the vendors---Not only the vendee failed in proving that he tendered the payment due, but also did not deposit the balance sale consideration in court, or even the instalment due at the time of filing of his suit for specific performance---Contents of an application filed by the vendee before the High Court to restrain the vendors from alienating or encumbering the suit property showed that the vendee never had the money to pay or deposit in court as required of him---Vendee was not entitled to the discretionary relief of specific performance sought by him---Appeal was allowed, suit for specific performance filed by the vendee was dismissed and the vendors were directed to refund the token/earnest money paid by the vendee.

State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal 2011 SCMR 1013 and Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418 ref.

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

----S. 12---Suit for specific performance of an agreement to sell immoveable property---Vendor refusing to accept the sale consideration amount from the vendee---In such circumstances, the vendee seeking specific performance of the agreement to sell is essentially required to deposit the amount in the Court---Vendee has to demonstrate that he is and has at all relevant times been ready and willing to pay the amount, and to show the availability of the amount with him---Vendee cannot seek enforcement of reciprocal obligations of the vendor, unless he is able to demonstrate, not only his willingness, but also his capability to fulfil his obligation under the contract.

Muhammad Jamil and others v. Muhammad Arif 2021 SCMR 1108; Muhammad Yousaf v. Allah Ditto 2021 SCMR 1241; Muhammad Yaqub v. Muhammad Nasrullah Khan and others PLD 1986 SC 497; Hamood Mehmood v. Mst. Shabana lshaque and others 2017 SCMR 2022; Inayatullah Khan and others v. Shabir Ahmad Khan 2021 SCMR 686; Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171 and Muhammad Shafiq Ullah and others v. Allah Bakhsh (decd.) through LRs and others 2021 SCMR 763 ref.

Syed Najamul Hassan Kazmi, Advocate Supreme Court for Appellants.

Maulvi Anwar-ul-Haq, Advocate Supreme Court for Respondent.

2022 S C M R 929

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

Mst. KALSOOM BIBI and others---Appellants

Versus

MUHAMMAD AMIN AGHA (DECEASED) through LRs and others---Respondents

Civil Appeal No. 822 of 2014, decided on 13th October, 2021.

(Against the judgment dated 28.02.2014 passed by the Lahore High Court, Lahore, in Civil Revision No. 273 of 2009)

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

----S. 9---Suit for possession with regard to a portion of allotted property---Plea of defendants/appellants that portion of suit property that the plaintiffs/respondents sought to possess was not the part of the property allotted by the settlement authorities, but instead was in the ownership of the appellants---Held, that no allotment order existed on the file in favour of the appellants/defendants or conferment of proprietary rights in their favour with regard to suit property whereas they have claimed in the written statement that they were owner of the suit property and simultaneously they had raised another plea that on the basis of adverse possession they were the owner of the suit property---In the present case, there was no adverse hostile possession of the appellants because from a long time the matter was in litigation between the parties---Even otherwise now the ownership on the basis of adverse possession being contrary to the Islamic Injunctions was not available to the appellants---Claiming the ownership on the basis of allotment in their favour at one stage and raising the plea of adverse possession at the other were self-destructive---Party could not be allowed to blow hot and cold in the same breath---When admittedly no title document of the suit property in favour of the appellants was available, their stance disputing that the suit property was not the part of the property allotted to the plaintiffs-respondents did not find support from the record---Documentary evidence in the shape of orders of the settlement authorities which confirmed that the suit property was the part of the property which was allotted and confirmed in the name of the plaintiffs-respondents was not challenged by the defendants before the appropriate forum---High Court had rightly decreed the suit for possession filed by the respondents/plaintiffs---Appeal was dismissed.

(b) Adverse possession---

----Claim---Pre-requisites---For claiming an adverse possession a party claiming adverse possession admits the ownership of other side, but on the basis of long uninterrupted hostile possession claims the adverse possession.

Mian Muhammad Hanif, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants.

Malik Sana Ullah, Advocate Supreme Court for Respondents.

2022 S C M R 933

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

KHUDADAD---Appellant

Versus

Syed GHAZANFAR ALI SHAH alias S. INAAM HUSSAIN and others---Respondents

Civil Appeals Nos. 39-K to 40-K of 2021, decided on 7th April, 2022.

(Against the judgment dated 30.09.2019 passed by the High Court of Sindh in R.As. Nos. 134 and 135 of 2013)

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

----S. 54---Agreement to sell immoveable property---Proof---Record reflected that no independent witness was examined by the appellant/alleged vendee---One of the witnesses was brother of appellant whereas the other was stamp vendor, who deposed that agreement was written by his son---However, it was clear that the alleged agreement to sell did not bear the signatures of the stamp vendor or the person who had written the agreement to sell---Agreement to sell did not bear the CNIC numbers of attesting witnesses---Further there is no endorsement of the Assistant Mukhtiarkar, who was alleged to have attested the said agreement to sell for which the parties appeared before him and put their signatures in his presence---Appellant also failed to examine Assistant Mukhtiarkar and marginal witness as well as the person in whose presence Faisla (arbitration) was held between the parties to prove the veracity of the letters produced by the appellant in support of his case---Appellant tried to prove the payment of sale consideration which he made allegedly through cheques for which he only produced some counter foils which could not be treated as evidence of payment---Neither the appellant produced any Bank statement to prove encashment of said cheques, nor called any person from Bank to verify such payments, if any, made against the alleged cheques---Suit for specific performance of agreement to sell filed by appellant was rightly dismissed---Appeal was dismissed.

(b) Limitation Act (IX of 1908)---

----First Sched., Art. 113---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell immoveable property, filing of---Limitation period for filing such suit explained.

The starting point of limitation under Article 113 of Limitation Act, 1908 for institution of legal proceedings enunciates two limbs and scenarios. In the first segment, the right to sue accrues within three years if the date is specifically fixed for performance in the agreement itself whereas in its next fragment, the suit for specific performance may be instituted within a period of three years from the date when plaintiff has noticed that performance has been refused by the vendor. Obviously, the first part refers to the exactitudes of its application when time is of the essence of the contract, which means an exact timeline was fixed for the performance arising out of contract/agreement, hence in this particular situation, the limitation period or starting point of limitation will be reckoned from that date and not from date of refusal, however, if no specific date was fixed for performance of agreement and time was not of the essence, then the right to sue will accrue from the date of knowledge about refusal by the executant.

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

----S. 44---Transfer by one co-owner---Co-sharer entering into an agreement to sell the entire immoveable property without consent of other co-sharers---Effect---Co-sharer cannot bind other co-sharers of the property and if a co-sharer enters into any deal or agreement for the entire land without the consent and authority of other co-sharers, then any such agreement would be illegal to the extent of the shares of the rest of the co-sharers.

(d) Limitation Act (IX of 1908)---

----S. 3---Limitation---Court, duty of---Court is obligated independently rather as a primary duty to advert to the question of limitation and make a decision on it, whether such question is raised by a party or not.

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

----S. 107---Appellate Court, powers of---Scope---Appeal is continuation of proceedings wherein entire proceedings are again opened for consideration by the Appellate Court---Powers of Appellate Court mentioned under section 107, C.P.C. are co-extensive with the powers and obligations conferred upon the Courts of original jurisdiction in respect of suits.

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

----Art. 84---Comparison of signature, writing or seal with others admitted or proved---Powers of the Court under Article 84 of the Qanun-e-Shahadat, 1984 to conduct a comparison of signatures or handwriting on documents stated.

Though it is undesirable that a Presiding Officer of the Court should take upon himself the task of comparing signature in order to find out whether the signature/writing in the disputed document resembled that of the admitted signature/writing but Article 84 of the Qanun-e-Shahadat Order, 1984 does empower the Court to compare the disputed signature/writing with the admitted or proved writing.

Ghulam Rasool and others v. Sardar-ul-Hassan and another 1997 SCMR 976; Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others 1985 SCMR 214 and Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and others 1999 SCMR 85 ref.

Article 84 of the Qanun-e-Shahadat, 1984 is an enabling stipulation entrusting the Court to reassure itself as to the proof of handwriting or signature. The Court has all the essential powers to conduct an exercise of comparing the handwriting or signature to get to a proper conclusion as to the genuineness of handwriting or signature to effectively resolve the bone of contention between the parties. The real analysis is to ruminate the general character of the inscriptions/signatures for comparison and not to scrutinize the configuration of each individual letter. It is an unadorned duty of the Court to compare the writings in order to reach a precise conclusion but this should be done with extreme care and caution. From the dissimilarity and discrepancy of two signatures, Court may legitimately draw inference that one of the signatures is not genuine and when the Court is satisfied that the signature is forged and feigned then nothing prevents the Court from pronouncing decision against the said document.

Ghulam Rasool v. Sardar-ul-­Hassan 1997 SCMR 976; Messrs Waqas Enterprises v. Allied Bank of Pakistan and 2 others 1999 SCMR 85 and Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 361 ref.

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

----Art. 79---Attestation of a document---Scope---Attesting witnesses---Fundamental and elemental condition of valid attestation of a document is that two or more witnesses signed the instrument and each of them has signed the instrument in presence of the executants---Said stringent condition mentioned in Article 79 of the Qanun-e-Shahadat, 1984 is uncompromising---So long as the attesting witnesses are alive, capable of giving evidence and subject to the process of Court, no document can be used in evidence without the evidence of such attesting witnesses---Provisions of Article 79 are mandatory and non-compliance therewith will render the document inadmissible in evidence---If execution of a document is specifically denied, the best course is to call the attesting witnesses to prove the execution---When the evidence brought forward by a party to prove the execution of a document is contradictory or paradoxical to the claim lodged in the suit, or is inadmissible, such evidence would have no legal sanctity or weightage.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241 ref.

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

----S. 115---Revisional powers of the High Court---Scope---High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the courts below while exercising power under section 115, C.P.C.---Said power has been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities---Such power cannot be invoked against conclusion of law or fact which does not in any way affect the jurisdiction of the court but it is confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law---Interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of appellate and revisional jurisdiction must not be mixed up---Interference in the revisional jurisdiction can be made only in the cases in which the order passed or a judgment rendered by a subordinate Court is found to be perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law.

Syed Shahenshah Hussain, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellant.

Ghulam Mustafa Lakhani, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondent No. 1.

Ex-Parte Respondents Nos. 2 - 9.

2022 S C M R 946

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Sayyed Mazahar Ali Akbar Naqvi, JJ

Mst. LUBNA BIBI---Petitioner

Versus

AZHAR JAVED ABBASI and another---Respondents

Criminal Petition No. 577 of 2021, decided on 11th November, 2021.

(Against the order dated 20.04.2021 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal M. No. 555-B of 2021)

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-A(iv), 147 & 149---Shajjah-i-mudihah, shajjah-i-munaqqillah, rioting, unlawful assembly---Petition for cancellation of pre-arrest bail, dismissal of---Possibility of fabrication of injury---Discrepancy between opinion of doctor who first examined the injured and the subsequently constituted Medical Board comprising of senior and better qualified doctors---Preference to be given to opinion of Medical Board---Held, that a 'Three Tier Structure' for conducting medico legal work had been established in the Province by the Provincial Health Department---Hierarchy of the medical examination as notified by the Health Department clearly reflected that against the opinion of the initial medical officer, the Medical Board would be constituted---Prior to the constitution of the said Medical Board, a judicial order had to be passed by the Magisterial Court---In the present case, according to the Medical Board, the injured witness was re-examined by four doctors including a Medical Superintendent, fully equipped with knowledge and expertise and also better in experience than the earlier expert who examined the injured witness soon after the occurrence---Argument of the complainant side that preference had to be given to the earlier examination by the medical officer could not be agreed with because the expert's opinion depended upon many factors including, physical examination, qualification, experience and finally collective wisdom of the members of the Board---In the report of the Medical Board, which comprised of four senior doctors having superior qualification and experience, it had been observed that the Board was of unanimous opinion that regarding the subject injury, the possibility of fabrication could not be ruled out---When there was conflict in opinions of the medical experts, the expert having better qualification, insight, experience, and more particularly the joint consensus of richly equipped members had more weightage, hence it had to be given precedence over the first examination conducted by a junior doctor, especially, when members of Board were four in number, whereas the first doctor who examined the injury at the first instance was only a single member assigned the duty to examine the injured person---Petition for cancellation of pre-arrest bail granted to accused was dismissed, and leave was refused.

Muhammad Ejaz v. The State and another 2021 SCMR 387 and Hussain v. The State 1968 PCr.LJ 167 ref.

Syeda Hifza Bukhari, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Mirza M. Usman, Additional P.G. for the State.

2022 S C M R 951

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Ayesha A. Malik, JJ

SECRETARY TO GOVERNMENT OF THE PUNJAB, SCHOOL EDUCATION DEPARTMENT, LAHORE and others---Appellants

Versus

Syed ZAKIR ALI---Respondent

Civil Appeal No. 1694 of 2021, decided on 21st March, 2022.

(Against the impugned judgment dated 03.11.2020 passed by Punjab Service Tribunal, Lahore in Appeal No. 1649 of 2020)

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

----Ss. 4(1)(b)(vi) & 7---Wilful absence from duty---Dismissal from service---Inquiry---In cases where willful absence from duty is an admitted fact, no regular inquiry was required before dismissing the employee from service.

Respondent-employee did not dispute the fact that he was absent from duty for 16 years and that he worked during this time in a foreign country; and that his request for extension of his Ex-Pakistan Leave and request for conversion of leave into deputation was rejected twice. Respondent while relying on multiple letters that he had written to the department admitted his absence from duty on account of the fact that he had been working in a foreign country for a period of 16 years. This admission alone, was sufficient to take action against the respondent. In cases of wilfull absence from duty no inquiry is required. Since respondent's absence from duty is not a disputed fact thus, there was no need to hold a regular inquiry in the matter. Appeal was allowed.

Secretary Elementary and Secondary Education Department, Government of Khyber Pakhtunkhwa, Peshawar and others v. Noor-ul-Amin 2021 SCMR 959 and National Bank of Pakistan and another v. Zahoor Ahmad Mengal 2021 SCMR 144 ref.

Raja Muhammad Arif, Additional Advocate-General, Punjab for the Appellant.

Respondent in person.

2022 S C M R 955

[Supreme Court of Pakistan]

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

WAQAS NAZIR and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 1581 of 2021, decided on 21st February, 2022.

(Against the order dated 13.12.2021 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeals Nos.2126-B and 2045 of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497---Anti-Terrorism Act (XXVII of 1997), S. 7---Penal Code (XLV of 1860), S. 337-A(i)---Firing and destruction of property within District Court Complex---Bail, refusal of---Admittedly on the day of the event large number of supporters of each side had gathered in the court premises in connection with a bail hearing---Recovery memos confirm seizure of crime empties as well as two vehicles carrying offensive weapons with munitions from inside the court premises---Damaged nameplates, broken benches and other installations removed during the occurrence were also part of the inventory---In such circumstances High Court had correctly exercised its discretion in refusing bail to the accused persons---Petition for leave to appeal was dismissed, leave was declined and accused persons were refused bail with the observations that District/Trial Courts constituted the most important tier of the judicial system, where parties braced each other face to face at close blank with the Judge and advocates within physical reach; that these temples of justice, by necessary implications, were required to be most guarded by law; that it was essential that all those who manned the first rung of judicial ladder attended their pursuits with the satisfaction of being safe and secure; that it was equally important that even the mightiest should not dare to contemplate a transgression without a backlash sanctioned by law.

Shaukat Aziz Siddiqi, Advocate Supreme Court, Pir Muhammad Masood Chishti, Advocate Supreme Court, Ch. M. Safdar Bhatti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Muhammad Jaffar, Additional P.G. Punjab with Muhammad Saqlain Naeem, DSP, Zeeshan Haider, SHO and M. Imran Khalid, ASI for the State.

Malik Waheed Anjum, Advocate Supreme Court for Respondents.

2022 S C M R 958

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Sayyed Mazahar Ali Akbar Naqvi and Jamal Khan Mandokhail, JJ

MUHAMMAD ARIF CHATTHA and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, GUJRANWALA and others---Respondents

Civil Petition No. 1540 of 2018, decided on 11th February, 2022.

(On appeal from the order of the Lahore High Court, Lahore dated 12.03.2018 passed in W.P. No. 10068 of 2012)

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

----S. 48---Second execution application/petition, filing of---Limitation period, commencement of---If a decree, sought to be executed, is conditional, specifying the date for performance of certain act(s), the period for execution of the same shall be reckoned from the date of default of performance of the act(s), mentioned in the decree, instead of counting from the date of passing of the decree---In other cases, second application/petition shall be filed within the period prescribed by section 48 of the C.P.C., which period shall be counted from the date of the decree.

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

----O. XX, R. 14---Limitation Act (IX of 1908), First Sched., Art.181---Decree in pre-emption suit---Execution application/petition, filing of---Limitation period, commencement of---Principles relating to commencement of limitation period for filing an execution application/ petition in respect of a decree in a pre-emption suit stated.

The provision of Order XX, Rule 14 of the C.P.C. are mandatory in nature. The decree for pre-emption is a conditional decree, wherein, the plaintiff/decree holder has to fulfill two conditions; he has to deposit in Court (i) the purchase-money together with the cost, if any, decreed against him and (ii) the deposit must be made on or before the date fixed by the Court. This provision of the C.P.C. contains a penal consequence of dismissal of the suit, in case the plaintiff/decree holder fails to make payment of the purchase-money in Court on or before the date fixed in the decree. Once, the plaintiff/decree holder performs his part of obligation as per the directions contained in the decree, then he automatically becomes owner of the property, as such, he becomes entitled for possession. At the same time, the concerned revenue authorities are bound to implement the decree for the purpose of record of right, without an order from an Executing Court. However, in case the authorities concerned fail to do the needful, then the decree holder can file an application for execution of the decree. In such circumstances, the time for the purpose of limitation would be reckoned from the date of default in performance of obligation by the authorities.

A pre-emption decree imposes reciprocal obligation on both the sides. Thus, after performance of part of obligation by the decree-holder, it is then the responsibility of the defendant/judgment debtor to deliver possession of the property to the decree holder. In case of failure to deliver possession of the property, a pre-emption decree can be executed through an application, which shall be made within the period prescribed by Article 181 of the Limitation Act, 1980. It is only after the first (execution) application is made, the subsequent application can be filed within the period provided by section 48 of the C.P.C. The time for filing of subsequent execution application shall be reckoned from the date of delivery of possession, specifically mentioned in the decree sought to be executed. In case, no date for the delivery of possession is mentioned in the decree, the period of limitation would then be counted from the date of default in making delivery of possession of property.

Khalid Ishaq, Advocate Supreme Court and Syed Rifaqat Hussan Shah, Advocate-on-Record for Petitioners.

Agha Muhammad Ali, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos. 3, 5, 6, 10, 11, 13 to 17.

2022 S C M R 964

[Supreme Court of Pakistan]

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

DEPUTY COMMISSIONER UPPER DIR and others---Appellants

Versus

Mst. NUSRAT BEGUM---Respondent

Civil Appeal No. 275 of 2020, decided on 1st February, 2022.

(Against the order dated 04.04.2018 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat, passed in Writ Petition No. 120-M of 2015 with C.M. No. 1021 of 2017)

(a) Civil service---

----Contractual employment---Project post---Regularization in service---Grounds---Long service is no ground for regularization.

Government of Khyber Pakhtunkhwa v. Saeed ul Hassan 2021 SCMR 1376 ref.

(b) Civil service---

----Time bound projects---Contractual employee---Regularization in service---Employees of time bound projects have no automatic right of regularization.

Province of Punjab through Secretary Agriculture Department, Lahore v. Muhammad Arif 2020 SCMR 507 ref.

Shumail Ahmad Butt, Advocate General Khyber Pakhtunkhwa, Atif Ali Khan, Ad. A.G. Khyber Pakhtunkhwa, Barrister Qasim Wadood, Ad. A.G. Khyber Pakhtunkhwa with Anjum 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, Assistant Secretary, BOR Khyber Pakhtunkhwa, Faheem Ullah Khan, Senior Law Officer, KPPSC, Ahsan Ullah Khan, SO, P&D Deptt. and Amanatullah Qureshi, Dy. Secretary, Finance Department, Khyber Pakhtunkhwa for Appellants.

M. Asif Yousafzai, Advocate Supreme Court for Respondent.

2022 S C M R 970

[Supreme Court of Pakistan]

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

ALI ASGHAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1282-L of 2021, decided on 11th March, 2022.

(On appeal against the order dated 26.08.2021 passed by the Lahore High Court, Lahore in Criminal Misc. No. 4395-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prevention of Electronic Crimes Act (XL of 2016), Ss. 9 & 10---Penal Code (XLV of 1860), Ss. 109 & 419---Constitution of Pakistan, Art. 185(3)---Inciting the general public against the victim by posting fake posts on social media about desecration of Holy Quran---Bail, grant of---Further inquiry---Statutory delay in conclusion of trial---Accused was behind the bars and despite lapse of more than three and half years, the conclusion of trial was not in sight in near future---Report requisitioned from the Trial Court clearly revealed that the delay occurred due to pandemic of COVID-19, law and order situation and filing of miscellaneous applications by the co-accused and by the complainant---Judicial Magistrate had categorically held responsible the co-accused of the accused for the delay---Said report clearly showed that the delay was not attributable to the accused in any manner---Moreover the co-accused, who happened to be the father of the accused, and was ascribed a somewhat similar role had been granted post-arrest bail by the High Court, which had not been challenged by the complainant, therefore, the accused was entitled for the concession of post-arrest bail on this score as well---Taking into consideration all the facts and circumstances, the case of the accused squarely fell within the ambit of S. 497(2), Cr.P.C. calling for further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

Malik Matee Ullah, Advocate Supreme Court for Petitioner.

Ch. Masood Ahmad Zafar, Advocate Supreme Court for Respondent No. 2.

Syed Nayab Hassan Gardezi, D.A.G. and Yasir Ramzan, SI for the State.

2022 S C M R 973

[Supreme Court of Pakistan]

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

MUHAMMAD IFTIKHAR---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 15-Q and 16-Q of 2020, decided on 1st November, 2021.

(Against the judgment dated 03.09.2018 passed by the High Court of Balochistan, Quetta in Cr. A. No. 390 of 2016)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Possibility of suicide---Complainant was not an eye-witness of the crime nor anyone else came forward to disclose the circumstances leading to the unnatural death of the deceased---Accused not only took the deceased to the hospital but also informed the complainant at an odd hour of the night of the death of deceased---Locale of injury being the face below the right eye with blackened margins was a possible choice for a person wanting to take his own life---No positive opinion of medical officer was on record that ruled out the possibility of suicide---Mystery of the occurrence was fraught with doubts and, thus, it would be unsafe to maintain the conviction of accused---Appeal was allowed, and the accused was acquitted of the charge.

Syed Ayaz Zahoor, Senior Advocate Supreme Court and Gohar Yaqoob Yousafzai, Advocate-on-Record for Appellant.

Mushtaq Ahmed Qazi, Additional A.G. Balochistan for the State.

Ahsan Rafique Rana, Advocate Supreme Court for the Complainant.

2022 S C M R 976

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Amin-ud-Din Khan and Sayyed Mazahar Ali Akbar Naqvi, JJ

ZAFAR IQBAL---Petitioner

Versus

STATE through Prosecutor General Punjab and another---Respondents

Criminal Petition No. 601-L of 2021, decided on 18th November, 2021.

(Against the order dated 15.07.2020 of the Lahore High Court, Lahore passed in Criminal Misc. No. 27091-B of 2020)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 34, 147 & 109---Qatl-i-amd, common intention, rioting, abetment---Bail, grant of---Further inquiry---During the course of investigation, the contents of the crime report were contradicted and an entirely different story surfaced on the record---Investigating Officer gave a definite finding of fact that the deceased had illicit intimacy with the daughter of the accused and he with an intent to fulfil his lust trespassed into the house of the accused, where he was overseen by the male members of the family resulting into his torture which proved fatal---Fact that prosecution witnesses, mentioned in the crime report, were actually present at the spot at the odd hours of the night to observe the occurrence as given in the crime report, was a fact difficult to digest---Furthermore another question requiring probe was whether at that odd hour of the night, the attempt of the deceased to trespass in the house was bona fide on his part which ultimately resulted into his death---Sufficient grounds were available to believe that present case was one of further inquiry entitling accused for the concession of bail---Petition for leave to appeal was converted into appeal and allowed, and the accused was granted bail.

(b) Criminal trial---

----Diminished responsibility, concept of---Scope---If a crime is committed due to mental or psychological compulsion, it squarely falls within the ambit of "diminished liability"---Diminished responsibility is a legal doctrine that absolves an accused person of part of the liability for his criminal act if he suffers from such abnormality of mind as to substantially impair his responsibility in committing or being a party to an alleged criminal act---Act which is committed under the impulses of ghairat, the doctrine of diminished liability would be squarely attracted providing mitigation/defence to avail the same in suchlike cases.

Akhtar Nawaz Raja, Advocate Supreme Court for Petitioner.

Muhammad Jaffar, Additional P.G. for the State.

Sarfraz Khan Gondal, Advocate Supreme Court for the Complainant.

2022 S C M R 979

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD MULTAZAM RAZA---Petitioner

Versus

MUHAMMAD AYUB KHAN and others---Respondents

Civil Petition No. 3795 of 2021, decided on 8th November, 2021.

(Against the judgment dated 26.02.2021 of the Islamabad High Court, Islamabad passed in F.A.O. No. 57 of 2020)

(a) Intellectual Property Organization of Pakistan Act (XXII of 2012)---

----Ss. 17(4), 18 & 39---Trade Marks Ordinance (XIX of 2001), Ss. 24(5) & 40---Civil Procedure Code (V of 1908). O. VII, R. 10---Co-ownership of trademark---Infringement of registered trademark---Passing off---Intellectual Property Tribunal ('the Tribunal'), jurisdiction of---One of the co-owners (respondent) of the registered trademark "Ranchers", without consent of the other co-owner (petitioner) entered into a tripartite Joint Venture Agreement (JVA) and allowed use of the registered trademark "Ranchers"---Petitioner contended that his partnership firm with the respondent could not have participated in the said JVA without the consent of the petitioner; that by having agreed to extend to a third party, the right of master franchising "Ranchers" unilaterally, and without the consent of the petitioner, the third party had clearly infringed the registered trade mark jointly owned by the petitioner and respondent, against the clear restriction imposed by subsection (5) of section 24 of the Trade Marks Ordinance, 2001 ('the Ordinance 2001"); that respondent and the third party had incorporated a Private Limited Company by the name of "Ranchers Cafe (Pvt.) Ltd.", mainly for the same business as was being conducted by partnership of petitioner and respondent under its trade mark "Ranchers"; that use of the trade mark/name, "Ranchers", by the said company, would create an impression and lead to a belief that the entity was not different from, "Ranchers" jointly owned by the petitioner and respondent, and such would "amount to passing off the trade mark registered in the name of the partnership---Tribunal returned the plaint under Order VII, Rule 10, C.P.C., on the grounds that since the trade mark had not been physically used by the third party in the course of trade, the suit was not maintainable within the meaning of section 46(1) & (2) of the Ordinance 2001, and that since the dispute was between the respondent and petitioner, as co-owners of a trade mark, any violation of section 24(5) read with section 69 of the Ordinance 2001 could not be agitated before the Tribunal---Held, that respondent without the petitioner's consent granted master franchise rights in respect of the subject trade mark to the third party, which was clearly violative of section 24(5) of the Ordinance 2001 and clearly entitled the aggrieved co-proprietor i.e. the petitioner to initiate infringement proceedings---Furthermore use of the name "Ranchers Café (Pvt.) Ltd." by the company incorporated by the respondent and a third party was clear infringement of the trade mark "Ranchers" as described/explained by section 40 of the Ordinance 2001---Both acts complained of by the petitioner before the Tribunal had in clear terms been described by sections 24 & 40 of the Ordinance 2001, respectively, as infringement of registered trademark and as provided therein were actionable thereunder---Petitioner's case thus undoubtedly fell within the exclusive jurisdictional ambit of the Tribunal as laid down by sections 17, 18 & 39 of the Intellectual Property Organization of Pakistan Act, 2012 ('IPO Act 2012')---Petition for leave to appeal was converted into appeal and allowed, and the case was remanded to the Tribunal to proceed in accordance with law.

(b) Trade Marks Ordinance (XIX of 2001)---

----Ss. 24 & 40---Infringement of registered trademark---Passing off---Scope---Use of trade mark can also be attributed to the person who has got to the stage where he can be seen objectively to have committed himself to use the mark that is to carrying his intension to use the mark into effect---Use of trade mark can therefore be demonstrated also through the intention to offer the goods and services and/or services which are manifested through preparatory steps which show an objective commitment to using the trade mark.

(c) Intellectual Property Organization of Pakistan Act (XXII of 2012)---

----Ss. 17(4) & 18---Trade Marks Ordinance (XIX of 2001), S. 40---Infringement of registered trademark---Passing off---Intellectual Property Tribunal ('the Tribunal'), jurisdiction of---Passing off action may either be a passing off action simplicitor or an action of infringement of trade mark coupled with passing off---Where the case of passing off action is based on infringement of trade mark, such suit shall necessarily require determination of the question whether there had been any infringement of the trade mark and where infringement of trade mark is alleged the suit must, in view of sections 17, 18 & 39 of the Intellectual Property Organization of Pakistan Act, 2012, be instituted before the Tribunal notwithstanding that the allegations in the suit were coupled with the allegation of passing off.

Afnan Karim Kundi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Zia ur Rehman Tajik, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Respondents.

2022 S C M R 986

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Sayyed Mazahar Ali Akbar Naqvi and Jamal Khan Mandokhail, JJ

BASHIR MUHAMMAD KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 293 of 2020, decided on 7th February, 2022.

(On appeal against the judgment dated 09.03.2016 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 19-J of 2012 and Murder Reference No. 16 of 2012)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Prosecution witnesses resiling from their S. 161, Cr.P.C. statements---Perusal of the record clearly revealed that the complainant had not seen the occurrence and had nominated the accused and co-accused in the crime- report for committing murder of his son by firing upon him on the basis of information received from three alleged witnesses---One of the said witnesses was not produced as a prosecution witness while the other two subsequently resiled from their earlier statement recorded under section 161, Cr.P.C. and testified that the co-accused persons had not fired upon the deceased---Complainant in his supplementary statement recorded after one and half month of the occurrence had also exonerated the two co-accused persons---Keeping in view the conduct of the prosecution witnesses it would not be safe to only rely upon their statements to sustain conviction of the accused and there must be some independent corroboration to the extent of his involvement in commission of the crime---As per the report of the Forensic Science Laboratory the crime empties did not match with the recovered pistol, therefore, recovery of weapon from the accused was inconsequential---Medical evidence was inconsistent with the ocular account as regards injury on the right hip of the deceased, which in-fact was an exit wound but according to the prosecution witnesses of ocular account the same was an entry wound---Appeal was allowed, and accused was acquitted of the charge against him.

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

----S. 161---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Delayed recording of statement of witness under section 161, Cr.P.C.---Effect---Such delay reduces value of the statement to nil unless and until it is explained with justifiable reasonings.

Abdul Khaliq v. The State 1996 SCMR 1553 and Noor Muhammad v. The State 2020 SCMR 1049 ref.

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

----S. 342---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Abscondence of accused for a period of about six months---Where question of abscondence was not put to the accused in his statement under section 342, Cr.P.C., the same cannot be used against him.

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

----S. 302(b)--- Qatl-i-amd--- Benefit of doubt--- Scope--- Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right---Conviction must be based on unimpeachable, trustworthy and reliable evidence---Any doubt arising in prosecution's case is to be resolved in favour of the accused.

Raja Muhammad Rizwan Ibrahim Satti, Advocate Supreme Court for Appellant.

Muhammad Jaffer, Additional P.G. for the State.

2022 S C M R 991

[Supreme Court of Pakistan]

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

PAKISTAN ELECTRIC POWER COMPANY---Appellant

Versus

Syed SALAHUDDIN and others---Respondents

Civil Appeal No. 749 of 2021, decided on 21st December, 2021.

(On appeal from order dated 16.07.2020 of High Court of Balochistan at Quetta, passed in C.P. No. 1233 of 2017)

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Employees of Quetta Electric Supply Company (QESCO)---Non-statutory rules of service---Master and servant relationship---Constitutional jurisdiction of High Court barred---Fact that QESCO had adopted the existing rules of WAPDA i.e. Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, for its internal use does not make such rules statutory in the context of QESCO---In view of the fact that QESCO did not have statutory rules governing the terms and conditions of service of its employees, the relationship between the Pakistan Electric Power Company (PEPCO) and its employees was governed by the principle of "master and servant" and such employees cannot invoke the constitution jurisdiction of the High Court for redressal of their grievances.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction of the High Court---Scope---Employees of a Government Corporation---Non-statutory rules of service---Constitutional jurisdiction of High Court barred---Where conditions of service of employees of a statutory body are not regulated by rules/regulations framed under the Statute but only by rules or instructions issued for its internal use, any violation thereof could not normally be enforced through constitutional jurisdiction and they would be governed by the principle of "master and servant"---In case of an employee of a Corporation where protection cannot be sought under any statutory instrument or enactment, the relationship between the employer and the employee is governed by the principle of "master and servant" and in such case the constitutional jurisdiction of the High Court under Article 199 of the Constitution cannot be invoked.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Pakistan Tele-communication Company Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 and Pakistan International Airlines Corporation and others v. Tanveer ur Rehman and others PLD 2010 SC 676 ref.

Munawar Iqbal Duggal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Kamran Murtaza, Senior Advocate Supreme Court (via video link from Quetta) for Respondents Nos. 1 and 2.

Nemo for Respondents Nos. 3 and 4.

2022 S C M R 998

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Sayyed Mazahar Ali Akbar Naqvi and Jamal Khan Mandokhail, JJ

MUHAMMAD SAMIULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 91-K of 2020, decided on 9th February, 2022.

(On appeal against the judgment dated 12.05.2020 passed by the High Court of Sindh, Karachi in Criminal Appeal No. 183 of 2019)

(a) Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), S. 409---Misappropriation of machinery/equipment by government employee---Reappraisal of evidence---Lack of direct evidence---Record reflected that there was no direct evidence available on the record, which could connect the accused with the commission of the crime---Prosecution's case mainly hinged upon the testimonies of four prosecution witnesses, who belonged to the same department as the accused---Crux of the testimonies of the said four witnesses was that during the inquiry proceedings the accused had confessed his guilt and had submitted an application seeking time to return the articles---However, a specific question in that regard was put to the accused while recording his statement under section 342, Cr.P.C. but he categorically denied the filing of any such application or his signatures on the said application---Neither the disputed signatures of the accused were sent to the handwriting expert nor the forensic test of the same was done to get them verified in a scientific manner and the Trial Court of its own compared the admitted signatures of the accused with the disputed signatures on the alleged application filed by him---At the time of registration of the crime report neither the inventory of the alleged stolen articles nor their description was given --- 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. 84---Power of Trial Court to compare signatures on disputed documents---Scope---Article 84 of the Qanun-e-Shahadat, 1984 empowers the Courts to compare the disputed signatures in order to ascertain whether the same is that of the person by whom it purports to have been written or made---However, in matters where no direct evidence is available and the prosecution case exclusively rests on indirect evidence or where the prosecution's case is solely based upon the alleged admission of the accused then as an abundant caution the Courts while convicting an accused must adopt the safest way, which furthers the true spirit behind the safe administration of criminal justice.

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

----Art. 61---Handwriting expert, opinion of---Reliance on such opinion---Scope---In absence of sufficient evidence available on the record in the shape of oral or documentary evidence, the evidence of handwriting expert is always considered to be most unsatisfactory, weak and decrepit to deserve a place in the system of jurisprudence and the courts are not to base their findings merely on the expert's opinion.

Rubina Jamshed v. UBL 2005 CLD 50; Abdul Hamid v. Deputy Commissioner 1985 SCMR 359; Shabbir Hussain v. The State 1968 SCMR 1126 and Anwar Ahmad v. Nafis Bano 2005 SCMR 152 ref.

(d) Criminal trial---

----Reasonable doubt, benefit of---Scope---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right---Conviction must be based on unimpeachable, trustworthy and reliable evidence---Any doubt arising in prosecution's case is to be resolved in favour of the accused.

Anis Muhammad Shahzad, Advocate-on-Record for Petitioner.

Hussain Bux Baloch, Additional P.G. Sindh for the State.

2022 S C M R 1002

[Supreme Court of Pakistan]

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

NOOR ZAMAN---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 406 of 2017, decided on 22nd February, 2022.

(Against the judgment dated 24.02.2017 of the Lahore High Court, Rawalpindi Bench passed in Cr. A. 404/2011 and M.R. No. 66 of 2011)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Triple murder---Death sentence on three counts---Accused was alleged to have murdered his real brother, his sister-in-law and a relative---Litigation between the accused and his deceased brother was admitted---Both eye-witnesses were members of the same clan as the accused and they pointed their fingers singularly upon the accused as being the sole perpetrator of the crime---Statements of said eye-witnesses were in a comfortable unison on all the salient details of the occurrence as well as issues collateral therewith---Being resident of the same neighbourhood, their presence could not be doubted---Similarly, old age and weak eye sight of the one of the eye-witnesses, with frail health did not reflect upon his credentials as a truthful witness at the age of 65 to hypothesize mistaken identity of a close relative (i.e. the accused), figuring singularly on the scene---Preponderance of ocular account, being consistent with medical evidence and durations given therein, in itself constitute "proof beyond doubt" inescapably pointing towards culpability of accused---Three innocent persons including two women in their prime youth had been done to death with repeated fire shots, two in the safety of their home, in the most callous and brute manner, thus, the death sentence on three counts awarded to the accused was conscionable in circumstances---Petition for leave to appeal was dismissed and leave was refused.

(b) Administration of justice---

----Inconsequential lapse or failure on part of prosecution to observe a procedural formality---Where such lapse or failure did not cause prejudice or handicap to an accused in his defence, the same cannot be allowed to deny justice to the victim of crime.

Ch. Afrasiab Khan, Senior Advocate Supreme Court, Sh. Ahsan ud Din, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Muhammad Jaffar, Additional P.G. Punjab for the State.

2022 S C M R 1006

[Supreme Court of Pakistan]

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

MUHAMMAD SHOAIB and another---Petitioners

Versus

The STATE---Respondent

Criminal Petition No. 496 along with Jail Petition No. 441 of 2018, decided on 8th March, 2022.

(On appeal against the judgment dated 26.02.2018 of the Peshawar High Court, Peshawar passed in Crl. A. No. 387-P of 2015)

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

----S. 9(c)---Possession and transportation of narcotics---Reappraisal of evidence---Safe custody and safe transmission of samples to the Forensic Science Laboratory not established---Benefit of doubt---Police official/witness claimed that the complainant/police official had handed over the sample parcels to him which he further handed over to Moharrar Investigation for safe custody for sending them to Forensic Science Laboratory---Said Moharrar Investigation who allegedly kept the sample parcels in safe custody was never produced by the prosecution---Safe custody of sample parcels was not established by the prosecution---Police constable, who allegedly took the sample parcels to the concerned laboratory was also not produced---In such eventuality, prosecution failed to establish safe custody and safe transmission of the sample parcels to the concerned quarter and the prosecution could not give any plausible explanation for not producing said important witnesses---Said defect in the prosecution case went into the root of the case creating serious doubt regarding the narcotics and its recovery---Petitions for leave to appeal were converted into appeals and allowed, and while extending benefit of doubt to them, the accused persons were acquitted of the charge.

Khair-ul-­Bashar v. The State 2019 SCMR 930; The State through Regional Director ANF v. Imran Bakhsh and others 2018 SCMR 2039; Taimoor Khan and another v. The State and another 2016 SCMR 621; Ikramullah and others v. The State 2015 SCMR 1002 and Amjad Ali v. The State 2012 SCMR 577 ref.

Ahsan Hameed Lilla, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Criminal Petition No.496 of 2018).

Arshad Hussain Yousafzai, Advocate Supreme Court for Petitioner (in Jail Petition No. 441 of 2018).

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa for the State.

2022 S C M R 1009

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Mst. RABIA GULA and others---Appellants

Versus

MUHAMMAD JANAN and others---Respondents

Civil Appeal No. 139-P of 2013, decided on 25th February, 2022.

(Against the judgment dated 17.05.2013 of the Peshawar High Court, Peshawar in Civil Revision No. 68 of 2012)

(a) Limitation Act (IX of 1908)---

----S. 18 & First Sched., Art. 120---Specific Relief Act (I of 1877), S. 42---Gift mutation---Suit for declaration challenging a gift mutation on grounds of fraud---Limitation period, commencement of---Scope---Date of knowledge of donor and not of his legal heir as the starting point for computing period of limitation---In the present case, bar of limitation applied to the challenge made by the respondent to the gift mutation of 1977 after a period of 32 years---Respondent was claiming his right over the suit property based on his inheritance from the estate of his father, and challenged the gift mutation, essentially on the ground that the same was the result of fraud, and asserted that he gained knowledge thereof some days before the institution of the suit---However, neither in the plaint nor in the evidence, did the respondent assert that his father, the purported donor, who remained alive for about 23 years after sanction of the gift mutation, was not aware of the gift mutation and thus could not challenge the same during his lifetime---Such omission on the part of the respondent, was crucial and in fact, defeated the very legal basis upon which he could have saved his claim from the bar of limitation---In the present case, the "person injuriously affected" by the alleged fraud (if it were committed) in getting the gift mutation sanctioned was the respondent's father(the purported donor)---Respondent derived his right to institute the suit to challenge the gift mutation from his father, being his legal heir, therefore, it was the date of the knowledge of his father, not of the respondent that was the starting point for computing the limitation period of six years provided in Article 120 of the Schedule to the Limitation Act, 1908 - the residuary Article applicable to suits instituted, under section 42 of the Specific Relief Act 1877 for declaration of any right as to any property---Furthermore the respondent (plaintiff) did not assert in the plaint that the appellants (defendants), by means of fraud, kept, his father (the person injuriously affected) from the knowledge of his right to institute the suit to challenge the gift mutation, during his life, nor did he give the particulars thereof---Respondent (plaintiff) did not assert any such fraud of the appellants even against himself, and give any date of his attaining knowledge of such fraud and his right to institute the suit---Therefore, the benefit of section 18 of the Limitation Act, 1908 for computing the limitation period for instituting the suit to challenge the gift mutation could not be extended to the respondent (plaintiff)---Appeal was partially allowed.

(b) Limitation Act (IX of 1908)---

----Ss. 2(8), 9 & 18---Civil Procedure Code (V of 1908), O. VI, R. 4---Fraud---Right to sue---Limitation period, commencement of---Principles relating to commencement of limitation period where a person(or his legal heir)claim to be deprived of the knowledge of his right to sue based on the fraud of the other party stated.

Section 18 of the Limitation Act, 1908 ('the Limitation Act") postpones the commencement of the limitation period in cases where a person is by means of fraud kept from the knowledge of his right to institute a suit. In such circumstances, the period of limitation commences from the date when the fraud first became known to the "person injuriously affected". Such injuriously affected person can, therefore, institute a suit within the limitation period specified for such suit in the First Schedule ("Schedule") to the Limitation Act, but computing it from the date when he first had knowledge of the fraud, whereby he was kept from knowledge of his right to institute the suit. Thus, section 18 of Limitation Act is an umbrella provision that makes the limitation period mentioned in the Articles of the Schedule, begin to run from the time different from that specified therein.

Bashir Ahmed v. Muhammad Hussain PLD 2019 SC 504 ref.

The "fraud" stated in section 18 of the Limitation Act must not be confused with the fraud that constitutes cause of action, and creates a right to institute the suit for the relief prayed therein. The "fraud" envisaged in section 18 only relates to concealing, not creating, the right to sue, and thus affects only the limitation period, and has nothing to do with the cause of action and the relief prayed.

In Re: Marappa Goundar AIR 1959 Mad 26 and Yeswant Deorao v. Walchand Ramchand AIR 1951 SC 16 ref.

When despite obtaining knowledge of such fraud and his right to sue, as mentioned in section 18, the injuriously affected person does not institute the suit within the prescribed limitation period, no fresh period of limitation can be available to his legal heir(s) or any other person who derives his right to sue from or through him (the injuriously affected person); for once the limitation period begins to run, it does not stop as per section 9 of the Limitation Act.

Noor Muhammad v. Muhammad Miskeen 2009 SCMR 731 ref.

Further, the definition of the term "plaintiff", as given in section 2(8) of the Limitation Act also has the effect of barring the fresh start of the limitation period for the legal heir(s) or any other person, who derives his right to sue from or through such injuriously affected person, as it provides that "plaintiff" includes any person from or through whom a plaintiff derives his right to sue.

Therefore, it is the date of knowledge of the "person injuriously affected" of the fraud mentioned in section 18, and of his right to sue that is relevant for computing the limitation period, not of his legal heir(s), unless he asserts and prove that his predecessor (the person injuriously affected) never came to know of the fraud, whereby his right to institute the suit was concealed, in his lifetime; in the latter eventuality, it is, of course, the knowledge of the present plaintiff (his successor) that would be the starting point for the limitation to run.

A plaintiff who wants to avail the benefit of section 18 of the Limitation Act must assert the commission of such fraud by the defendant, in the plaint, and should also give the particulars thereof, and the date of knowledge, as required under Rule 4 of Order VI of the Code of Civil Procedure 1908, and then prove the same through positive evidence.

Naeem Finance Ltd v. Bashir Ahmad PLD 1971 SC 8; Izzat Bakhsh v. Nazir Ahmad 1976 SCMR 508; Faizum v. Nander Khan 2006 SCMR 1931 and Bashir Ahmed v. Muhammad Hussain PLD 2019 SC 504 ref.

(c) Limitation Act (IX of 1908)---

----First Sched. Art. 120---Specific Relief Act (I of 1877), S. 42---Right to sue--- Limitation period, commencement of--- Principles for ascertaining when the right to sue accrues to a donor or owner of property, to seek a declaration of his ownership right over the property stated.

Article 120 of First Schedule to the Limitation Act, 1908 ('the Limitation Act') clearly declares that for computing the limitation, the period of six years would commence from the date of accrual of right to sue, but it does not state when such right accrues. To ascertain, when does the right to sue accrue to a donor, to seek a declaration of his ownership right over the property shown to have been gifted and of his such right not to be affected by the gift mutation, section 42 of the Specific Relief Act, 1877 ('the Specific Relief Act") has to be considered.

Joint reading of Article 120 of First Schedule to the Limitation Act and section 42 of the Specific Relief Act shows that right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. It thus postulates two actions that cause the accrual of right to sue, to an aggrieved person: (i) actual denial of his right or (ii) apprehended or threatened denial of his right.

An important question to consider next was as to what "actions" can be termed as an "actual denial of right", and what a mere "apprehended or threatened denial of right", in the context of adverse entries recorded in the revenue record. It is important to note that a person may ignore an "apprehended or threatened denial" of his right taking it not too serious to dispel that by seeking a declaration of his right through instituting a suit, and may exercise his option to institute the suit, when he feels it necessary to do so, to protect his right. For this reason, every "apprehended or threatened denial" of right gives a fresh cause of action and right to sue to the person aggrieved of such apprehension or threat. However, this option to delay the filing of the suit is not available to him in case of "actual denial" of his right; where if he does not challenge the action ofactual denial of his right, despite having knowledge thereof, by seeking declaration of his right within the limitation period provided in the Limitation Act, then his right to do so becomes barred by law of limitation.

Admittedly, entries in the revenue record do not create or extinguish proprietary rights. Such an entry may at most be termed as a mere "apprehended or threatened denial" of right, and not an "actual denial" of right. Accordingly, every new adverse entry in the revenue record relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person, a fresh cause of action to institute the suit for declaration.

The situation is, however, different in a case where the beneficiary of an entry in the revenue record also takes over the possession of the land on the basis of sale or gift transaction, as the case may be, recorded in that entry. His action of taking over possession of the land in pursuance of the purported sale or gift is certainly an "actual denial" of the proprietary rights of the purported seller or donor. Therefore, in such a case, if the purported seller or donor does not challenge that action of "actual denial" of his right, within the prescribed limitation period, despite having knowledge thereof, then his right to do so becomes barred by law of limitation.

(d) Gift---

----Proof---"Reasonable" and "natural gift"---In the present case the gift transaction recorded in the impugned gift mutation appeared to be reasonable and natural in the facts and circumstances of the case; where a father (donor), whose son had contracted a second marriage, transferred some of his property to his first daughter-in-law (donee), who also happened to be his niece, and to his granddaughters (donees) to ensure their financial security, out of his love and affection for them---Impugned gift mutation was held to be valid---Appeal was partially allowed.

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

----S. 54---Agreement to sell and sale mutation---Genuineness and validity---Purported vendee was unable to prove the essential ingredients of the sale transaction and the due sanction of the sale mutation that recorded it---Record showed that there were inconsistencies and clear contradictions in the testimony of the purported vendee's two witnesses on material particulars of the sale transaction and of the sale mutation recording the same in the revenue record---No independent witnesses, in particular, the patwari who entered, and the revenue officer who sanctioned the sale mutation were examined in evidence---In fact, no cogent, reliable evidence was produced by the purported vendee to prove payment of the sale-consideration, the most essential ingredient of a valid sale, to the purported vendor---High Court had rightly found the alleged sale and sale mutation as invalid---Appeal was partially allowed.

Amin Khattak Lachi, Advocate Supreme Court for Appellants.

Nemo for Respondents.

2022 S C M R 1021

[Supreme Court of Pakistan]

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

FEDERATION OF PAKISTAN through Secretary Finance, Islamabad and another---Petitioners

Versus

E-MOVERS (PVT.) LIMITED and another---Respondents

Civil Petition No. 280-K of 2019, decided on 30th December, 2021.

(Against the judgment dated 12.02.2019 of the High Court of Sindh at Karachi passed in Constitution Petitions Nos. D-7687 and 8172 of 2017)

(a) Tracking and Monitoring of Cargo Rules, 2012 [issued under S.R.O. 413(I)/2012, dated 25.04.2012]---

----Rr. 4, 6(2), 7(2), 7(3) & 7(4)---Public Procurement Rules, 2004, R. 17---Qualification of suppliers and contractors---Federal Board of Revenue (FBR) awarded contract for tracking and monitoring imported cargo to NLC Construction Solutions (Private) Limited ('NCSPL')---Legality---NCSPL did not possess the requisite licence under the Tracking and Monitoring of Cargo Rules, 2012 ('the Rules'), nor was it compliant with the requirements of the Rules---NCSPL had no experience to track and monitor cargo nor did it have the requisite technical skills---FBR violated the Rules and the Expression of Interest which it had itself made---FBR contravened the bidding procedures and binding legal precedents, expounding on the procurement laws, were also disregarded---NCSPL was brought in through the backdoor without having participated in the bidding process---Material bidding terms were changed, diluted and retailored for NCSPSL and this was done to enable the FBR to award it the contract---FBR was supposed to safeguard the interest of the exchequer and of the citizens but it subverted them to benefit a highly conflicted company.

'Request for Expression of Interest' was published by the Federal Board of Revenue (FBR) inviting companies who could track and monitor imported cargo and ensure that the imposition of applicable customs duties and other taxes were not circumvented, and that the cargo was safely transported without going astray, being removed or pilfered along the way ('the Project'). The interested companies were required to be technically capable of tracking and monitoring cargo on a real-time basis, possessing requisite licences and having the financial capability to undertake the Project. The company which had the requisite technical and technological skills, ability, and financial standing, as determined through a competitive bidding process, was to be awarded the contract to undertake the Project ('the Contract'). The FBR awarded the Contract for the Project to NLC Construction Solutions (Private) Limited ('NCSPL'). The award of Contract to NCSPL was successfully challenged in the High Court, and the Contract was set aside.

'Request for Expression of Interest' was published by the FBR inviting expression of interest from companies licenced under the Tracking and Monitoring of Cargo Rules, 2012 ('the Rules') and possessing requisite technical and financial capabilities to submit their proposals. Thereafter, a 'Letter of Invitation' was issued by the Government of Pakistan, Model Customs Collectorate of Preventive, Custom House, Karachi (hereinafter referred to as 'the first Letter of Invitation'), to two companies fulfilling the requisite criteria, and they were called upon to submit in sealed envelopes their respective technical and financial proposals. However, just seven days after the issuance of the first Letter of Invitation a 'Revised' 'Letter of Invitation' was issued ('the second Invitation Letter'). The second Invitation Letter added NCSPL to the already listed two companies which had already been issued the first Invitation Letter.

Material bidding terms were changed, diluted and retailored for NCSPSL and this was done to enable the FBR to award it the Contract. The FBR is supposed to safeguard the interest of the exchequer and of the citizens but it subverted them to benefit a highly conflicted company.

The NCSPL is stated to be fully owned by the National Logistics Cell ('NLC'). And, NLC itself is owned by Federal Government and is operated by Army personnel. As regards to what NCSPL does, is revealed on its website: 'is a concrete products manufacturing plant including blocks, pavers and kerb stones.' And, that it 'is committed to meet the growing needs of concrete blocks, pavers and kerb stones. Its daily production capacity is one of the biggest in the region. The products are in demand and use of multiple commercial and domestic clients.' NCSPL, a manufacturer of blocks, pavers and kerb stones, and which had no experience in the tracking and monitoring of cargo was awarded the Contract by the FBR, and this was done after the cut-off date for the submission of bids.

The law does not absolve either NCSPL or NLC from the public procurement laws. Rule 17 of the Public Procurement Rules, 2004 does not permit a company, in this case NCSPL, who had not participated in the bidding process, to be invited, and without meeting the stipulated criteria in the Expression of Interest to be awarded the Contract. And, Rule 17 certainly does not permit a company which did not possess requisite technical skills and ability to undertake a project and to award it a contract for the same. The NCSPL was brought in through the proverbial backdoor without having participated in the bidding process. In awarding the Contract to NCSPL also disregarded the legal precedents pertaining to procurement laws

Shaheen Construction Co. v. Pakistan Defence Officers Housing Authority PLD 2012 Sindh 434 ref.

In the present case the FBR did not plead State security in awarding the contract to NCSPL. However, assuming that this was pleaded then too the award of the contract to NCSPL would have been illegal. State security did not permit the contract awarding agency to disregard the law.

Mujahid Muzaffar v. Federation of Pakistan 2012 SCMR 1651 ref.

The Tracking and Monitoring of Cargo Rules, 2012 ('the Rules') stipulated that no company shall carry out tracking and monitoring of cargo unless it has obtained a licence under these rules, and prescribed the criteria for grant of a licence. The Rules mandated the monitoring and tracking, on real time basis, of containers and vehicles carrying the cargo and required the use of latest technology to prevent the massive loss of revenue and theft. The Rules also spelt out the components of tracking and monitoring that companies seeking licences must have, and the functions that the companies must be able to perform. Nothing was brought on record before the High Court, or even before the Supreme Court, to show that NCSPL fulfilled thecriteria for functions or grant of licence or had the ability to undertake the Project, let alone to do so competently. NCSPL manufactured blocks, pavers and kerb stones, which had no nexus with what was required to be done by the FBR, that is, the tracking and monitoring of cargo. NCSPL had never undertaken any of the Project works, the performance of which it had to establish, and did not have the ability and wherewithal to carry them out.

There was nothing on record before the High Court, nor was any material submitted before the Supreme Court, to show that NSPCL complied with or fulfilled any of the preconditions for obtaining a licence prescribed under Rule 6(2) of the Rules. Rule 7(2) also stipulated additional preconditions for obtaining a licence, but NCSPL did not produce any evidence that it met any of these conditions.

A significant aspect of the present case is that NCSPL would be considered to be the aggrieved party because the Contract awarded to NCSPL was set aside. However, NCSPL did not challenge the judgment of the High Court. Instead the FBR took it upon itself to do so. This is a further indication of complicity between officers of the FBR and NCSPL, and severely undermines the credibility and standing of both.

There is another important aspect that needed to be considered. NCSPL is stated to be a fully owned subsidiary of NLC, and NLC claims to be the single largest transporter of cargo in the country. NLC apparently is the alter ego of the Federal Government therefore NCSPL would constitute NLC's alter ego. This raises the question of whether NLC (an alter ego of the Federal Government) could itself own a company. What is apparent is that granting the Contract to NSCPL, an entity fully owned by NLC, constituted a momentous conflict of interest. The Rules were made to ensure that cargo disembarked at its proper destination and the vehicles carrying it were tracked and monitored throughout their journey, and to ensure that containers were not opened before reaching their destination and cargo removed or pilfered there from. In granting the Contract to the largest transporter of containers in the country, the very purpose of the Rules was negated. And, all the more so when seriously documented allegations were noted against NLC by the Federal Tax Ombudsman.

To hand over the responsibility of the tracking and monitoring of cargo to a fully owned subsidiary of NLC removed the necessary distinction, which had to be maintained, between carrier and the tracking-monitoring company. What the Rules prohibited, the FBR facilitated.

The award of the Contract to NCSPL was an act 'done or taken without lawful authority and of no legal effect' in terms of Article 199(a)(ii) of the Constitution, and as such by exercising its power of judicial review of executive action the High Court could, and was justified, to undo the Contract. Supreme Court observed that the Government is well advised to initiate an inquiry to ascertain the officers of FBR who were responsible and complicit in awarding the Contract to NCSPL, and take appropriate action against them in accordance with law.

Karachi Electric Supply Corporation Limited v. Karachi Electric Supply Corporation Ltd. Labour Union PLD 1967 SC 513 ref.

(b) Administration of justice---

----When the law stipulates that something has to be done in a particular manner that is how it should be done.

(c) Constitution of Pakistan---

----Art. 10A---'Due process'---Scope and meaning---Due process requirement must be met in the determination of rights and obligations---Constitution does not define due process, therefore, it would not be appropriate to limit its scope by defining it, but this does not mean that the due process requirement is a meaningless concept---Rather due process incorporates universally accepted standards of justice and is not dependent upon any law or laws; it is an all encompassing expression which may not be curtailed with reference to particular laws---Due process is to be understood holistically by keeping in mind the entire Constitution, which excludes arbitrary power, authoritarianism and autocratic rule.

Muhammad Khalil Dogar, Advocate Supreme Court and K. A. Wahab, Advocate-on-Record for Petitioners.

Haider Waheed, Advocate Supreme Court and Syed Mahmood Abbas, Advocate-on-Record (absent) for Respondent No. 1.

Respondent No. 2 not represented.

2022 S C M R 1052

[Supreme Court of Pakistan]

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

SUBHANULLAH---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 765 of 2017, decided on 8th March, 2022.

(On appeal against the judgment dated 05.03.2015 of the Peshawar High Court, Peshawar in Criminal Appeal No. 241-P of 2012)

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

----S. 9(c)---Possession and transportation of narcotics---Reappraisal of evidence---Safe custody and safe transmission of samples to the Forensic Science Laboratory not established---Benefit of doubt---Prosecution had failed to establish the safe custody of sample parcels in the Malkhana as the Moharar Malknana was not produced---Police official who allegedly transmitted the sample parcels to the concerned laboratory, was also not produced, hence prosecution failed to prove safe transmission of sample parcel to concerned laboratory---No explanation was provided for withholding such important piece of evidence---In view of such defect on the part of the prosecution it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused beyond any reasonable doubt---Petition for leave to appeal was converted into appeal and allowed, and while extending benefit of doubt, the accused was acquitted of the charge.

Amjad Ali v. The State 2012 SCMR 577; Ikramullah and others v. The State 2015 SCMR 1002; Taimoor Khan and another v. The State and another 2016 SCMR 621; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

Arshad Hussain Yousafzai, Advocate Supreme Court for Petitioner.

Ms. Aisha Tasneem, Advocate Supreme Court for Respondent (as State Counsel, Khyber Pakhtunkhwa).

2022 S C M R 1054

[Supreme Court of Pakistan]

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

NASIR ALI---Petitioner

Versus

MUHAMMAD ASGHAR---Respondent

Civil Petition No. 3958 of 2019, decided on 2nd February, 2022.

(Against the judgment dated 25.09.2019 Lahore High Court, Lahore, in Civil Revision No.140 of 2016)

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

----S. 42---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Dispute over authenticity of a mutation document---Impugned document of mutation mentioned the name, signature and Identity Card (ID) numbers of the respondent as vendor and the petitioner as vendee---Signature and ID card number of marginal witness as well as the identifying Lambardar were also mentioned therein, while the Naib Tehsildar attested the mutation---In evidence Lambardar who identified the parties before the Revenue Officer recorded his statement---Patwari produced the record and also confirmed the factum of entry of relevant Rapt Number by the then Patwari---Revenue Officer also confirmed and verified the physical appearance of the parties before him including the identification of parities by the Lambardar and appearance of Pattidar; he also testified that the respondent/plaintiff admitted before him the sale transaction, receipt of sale consideration and alienation in favour of petitioner/defendant---Testimony of respondent/plaintiff was based on falsehood and deceptiveness---On one hand he deposed that at the relevant time when the impugned mutation was recorded or attested he was bed ridden due to a leg fracture, hence his personal appearance before the Officers of Revenue Authority was not possible for signing the document, while on the same date another mutation was recorded duly signed by him which was never challenged by him and he failed to dispute said mutation recorded on the same date without any plea of hospitalization or being bed ridden on account of leg fracture---No proof of his indisposition was produced on record along with medical record or otherwise---According to respondent/ plaintiff, Revenue Officers defrauded him but he failed to mention as to what legal action was taken by him against the said Revenue Officers---At the time of institution of suit, he claimed to be in possession but he failed to prove his possession while the petitioner/defendant discharged his burden of proof---Section 42 of Specific Relief Act, 1877 expressly permitted the plaintiff to ask for further relief but in the present case neither relief of possession was claimed nor the cancellation of mutation document as a consequential relief---Hence, mere suit for declaration without claiming the consequential relief of possession and cancellation of mutation entry was otherwise not maintainable---Petitioner/defendant had established the transaction, its execution as well as the genuineness of impugned mutation.

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

----Art. 117---Burden of proof---Scope---"Onus probandi", meaning of---If no evidence is produced by the party on whom the burden is cast, then such issue must be found against him.

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

----S. 42--- Qanun-e-Shahadat (10 of 1984), Art. 117---Deceitful transaction---Burden of proof on plaintiff---Burden of proof for a deceitful transaction rests normally on the person who impeaches it---In a suit for declaration alleging that the sale was fictitious, the onus is on the plaintiff to prove the same---Where the evidence of plaintiff is self-contradictory and not confidence inspiring then he must fail and where the case is doubtful, the decision must be given in favour of defendant rather than the plaintiff.

(d) Administration of justice---

----Plaintiff must succeed on the strength of his own case rather than the weakness of the defendant.

(e) Evidence---

----Witness, credibility of--- Quality of evidence--- Credibility and trustworthiness of a witness mandates to be tested with reference to the quality of his evidence which must be free from suspicion or distrust and must impress the court as natural, truthful and convincing.

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

----S. 42---Dispute over authenticity of a mutation document---Suit for declaration---Consequential relief---Scope---Mere declaration of title cannot be sought without asking for possession as a consequential relief---Consequential relief means a substantial remedy in accordance with the decree of declaration, if prayed for---Consequential relief denotes the relief which is an essential outcome to the declaratory relief prayed for---Plaintiff is not permitted to seek a mere declaration without consequential relief when it is necessary for the full and complete enjoyment of the property---Object of this condition is to avoid the multiplicity of suits and litigation.

Secretary to Government (West Pakistan) now N.W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil PLD 1978 SC 242; Ali Muhammad and another v. Muhammad Bashir and another 2012 SCMR 930 and Dr. Faqir Muhammad v. Maj. Amir Muhammad and others 1982 SCMR 1178 ref.

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

----O. II, R.2---Omission to sue for one of several reliefs---Effect---Law does not permit a second suit if a right to the plaintiff is available at the time of filing of the suit---Second suit in such like situation is otherwise barred under Rule 2 of Order II, C.P.C.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law---High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the courts below while exercising powers under section 115, C.P.C.

Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309 and Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 ref.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Scope of appellate and revisional jurisdiction must not be confused since there is a difference between the misreading, non-reading and mis-appreciation of the evidence---Care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law.

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

----S. 42---Mutation---Scope and Burden of proof---Any person who is acquiring title through mutation, the burden of proof of proving transaction embodied in the mutation is upon him---Mutation itself does not confer or extinguish any right or title and the persons deriving title thereunder have to prove that the transferor did part with the ownership of the property, the subject of mutation in favour of the transferee and that the mutation was duly entered and attested---If the mutation on the basis of which right in the property is claimed, is disputed, the onus of proving the correctness of mutation and genuineness of the transaction contained therein would be on the party claiming right on the basis of such mutation.

Hakim Khan v. Nazeer Ahmed Lughmani and 10 others 1992 SCMR 1832 and Niaz Ali and 16 others v. Muhammad Din through Legal Heirs and 13 others PLD 1993 Lah. 33 ref.

Mian Muhammad Hussain Chotya, Advocate Supreme Court for Petitioner.

Mian Muhammad Hanif, Advocate Supreme Court for Respondent.

2022 S C M R 1066

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

DILAWAR ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1268-L of 2021, decided on 27th January, 2022.

(Against the order dated 17.08.2021 passed by the Lahore High Court Lahore in Crl. Misc. No. 23255-B of 2021)

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

----S. 497---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)---Husband accused of strangling his wife to death inside their matrimonial house---Bail, refusal of---Medical evidence ruling out suicide---Contention of accused-husband that his wife committed suicide---Validity---With an infant baby girl of 9 months, it was rather hard to entertain hypothesis of suicide by a feeding mother---Medical Officer noted a ligature mark around the neck seemingly a complete scar, between both ears; it was thick and hard with parchment, without there being any obliquity, that inevitably occurred in a case of voluntary suicide on account of sudden fall through gravitational pull---External as well as internal petechial hemorrhage unmistakably suggested application of manual compression, a sign diametrically inconsistent with the plea of suicide, further confirmed by an intact hyoid bone---Petition for leave to appeal was dismissed, leave was refused and accused was refused bail.

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

----S. 497---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qanun-e-Shahadat (10 of 1984), Art. 122---Husband accused of strangling his wife to death inside their matrimonial house---Bail, refusal of---Instead of taking the police on board, accused preferred to avail remedy of ad interim pre-arrest bail, a protection hardly available to him under the law, and finally when the same was recalled, it was thereafter that he came up with the plea of suicide, a circumstance nugatory in itself---Joint abode of the spouses was a common ground and, thus, a statutory burden within the contemplation of Article 122 of the Qanun-e-Shahadat, 1984 was cast upon the accused to explain as to what befell upon his wife who spent the preceding night with him under the same roof; his failure to vindicate his position was further aggravated by the statements of witnesses, suggesting an ongoing acrimony between the spouses and, thus, constituted "reasonable grounds" within the contemplation of section 497 of the Cr.P.C.---Petition for leave to appeal was dismissed, leave was refused and accused was refused bail.

Javed Imran Ranjha, Advocate Supreme Court (via video link Lahore) for Petitioner.

Ch. Muhammad Sarwar Sidhu, Additional P.G. Punjab along with Shirjeel Awan, SI and M. Usman, SI for the State.

2022 S C M R 1068

[Supreme Court of Pakistan]

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

HAQ NAWAZ and others---Appellants

Versus

BANARAS and others---Respondents

Civil Appeal No. 221 of 2018, decided on 15th September, 2021.

(Against the judgment dated 28.11.2017 of the Lahore High Court, Multan Bench passed in R.S.A. No. 8 of 1998)

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

----S. 215---Power of Attorney---Purported agent transferring property to his own sons without consent of principal---Illiterate village and pardanasheen lady deprived of her immoveable property---Father of plaintiffs, acting as an attorney for an old illiterate village lady, transferred her land (suit land) to the plaintiffs through a purported oral sale mutation---Legality---Purported vendor was an old illiterate village dweller, with ill health; she was not able to even move on her own, and had been carried to the Registrar's office for the execution of the power of attorney by someone---Plaintiffs' father i.e. the purported attorney, while deposing before the Trial Court, also has not denied the suggestion that she was a pardanashin lady; it was not even pleaded that she received any independent advice and/or that contents of the power of attorney were read over and explained to her before she executed it---Stance of the lady throughout had been that she appointed the plaintiffs' father, who was her tenant in occupation, as her attorney, merely to manage the affairs of her land and for nothing more, and therefore, given the status of the lady, it was imperative for the plaintiffs to have demonstrated and proved that at the time of the execution of the power of attorney, she was fully conscious of the fact that the document also contained power to sell and that the entire document was read out and explained to her fully and truly, and further that she executed it under an independent advice---Plaintiffs also had to prove that the lady was fully aware and conscious of the consequences and implications of executing the said document---However neither did they prove, nor even pleaded any of it, therefore, it could not be held that plaintiffs' father was in fact authorized by the lady to sell the suit land---Attorney could not lawfully make transfer of a property under agency in his own name, or for his benefit, or in favour of his associates, without explicit consent of the principal, and in the event he did so, the principal, under the mandate of section 215 of the Contract Act, 1872 had a right to repudiate such transaction---In any case the power of attorney, whatever its worth was admittedly revoked by the lady through revocation deed dated 05-9-1974, thus on 14.10.1974, the date on which plaintiffs' father purportedly transferred the suit land, he no more remained attorney of the lady, and stood denuded of whatever power he purportedly enjoyed thereunder---Transfer of the suit land by plaintiffs' father was without authority and was of no legal effect, thus, the same was rightly annulled by the revenue authorities---Appeal was dismissed.

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

----S. 12---Suit for specific performance---Agreement to sell immoveable property---Proof---Purported vendee failed to mention the date and venue of the purported transaction---Two witnesses in whose presence the sale consideration was paid to the purported vendor, contradicted each other on material details---Neither the relevant roznamcha rapt, nor the purported sale mutation, made mention of any written agreement---Stamp paper did not bear the name of the purported vendee and was purchased in the name of someone else---Neither the said purchaser was produced nor was the vendor of the stamp paper examined---Relevant register of the stamp vendor was also never summoned, and more crucially the witnesses examined in respect of the said agreement did not mention the date thereof---Suit for specific performance of agreement to sell was dismissed---Appeal was dismissed, in circumstances.

Moulvi Anwar-ul-Haq, Advocate Supreme Court for Appellants.

Ex parte for Respondent Nos. 1 - 7.

Anwar Mobin Ansari, Advocate Supreme Court for Respondents Nos.8 - 10.

2022 S C M R 1074

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

MUHAMMAD IFTIKHAR ABBASI---Petitioner

Versus

Mst. NAHEED BEGUM and others---Respondents

Civil Petitions Nos. 2608 and 609 of 2019, decided on 11th February, 2022.

(Against the judgment of the Lahore High Court, Rawalpindi Bench dated 14.03.2019 in Civil Revisions Nos. 1165-D and 1166-D of 2017)

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

----S. 12---Limitation Act (IX of 1908), S. 3 & Art. 113---Contract Act (IX of 1872), S. 62---Suit for specific performance of an agreement to sell, filing of---Limitation---Novation of contract not established---No extension in time of limitation---In the present case the agreement to sell was executed on 30-06-2001 wherein specific date of its performance was fixed as 30-06-2002---Suit for specific performance was filed by the petitioner on 4-4-2011---Plea of petitioner that Trial Court wrongly considered the suit time barred under Article 113 of the Limitation Act, 1908; that after death of alleged vendee before expiry of time mentioned in the agreement to sell, the sale deed could not be executed without procuring guardianship certificate of the minor legal heirs, therefore by consent of major legal heirs the time was extended which amounts to novation of contract hence the suit could not be dismissed on the basis of original time fixed in the agreement for execution of sale deed and since no time was fixed in terms of novation, therefore, the limitation for filing suit started from the date of refusal of performance---Validity---Plea of petitioner was not convincing to overlook or relax the starting point of limitation for accrual of cause of action under Article 113 of the Limitation Act, 1908---If there was any novation of contract, the same should have been placed on record in black and white but nothing was available on record that the parties rescinded earlier agreement and agreed to perform on the basis of novation and or the legal heirs executed any further contract represented through their guardian ad litem which superseded the earlier agreement if signed by their predecessor in interest---No legal hindrance or impediment stood in the way of the petitioner to knock the doors of the Court within the period of limitation and implead the legal heirs of the deceased vendee and if some of them were minors then, their mother could be appointed guardian ad litem on an application to the Court but no such efforts were made by the petitioner within time thus on the face of it, the Courts below had rightly held that the suit was time barred---Petitions for leave to appeal were dismissed and leave was refused.

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

----S. 62---Novation of contract---Conditions for novation of contract in terms of section 62 of the Contract Act, 1872 stated.

Doctrine of novation as provided under section 62 of the Contract Act, 1872 elucidates that if the parties to a contract come to an understanding to surrogate a new contract or to rescind or alter it, the original contract need not be performed. The word novation practically and rationally denotes to substitute with a new contract where the obligations under the existing contract are brought to an end or extinguished. Prerequisites and rudiments of section 62 of the Contract Act, 1872 are consensus ad idem amongst the parties; there must be a previous contract between the same parties; recession or alteration of a contract for a new contract and termination of the original contract. This can be done where the obligation under a contract is replaced with a new one or where a party is replaced by another party and if the terms of the contract provides for the replacement of one party to the contract by another party, this creates an obligation for such party in place of another party and new party assumes all the obligations under that contract. If a new contract is subsequently substituted for an existing one, it would be the only way to adjust the remedial rights arising out of the breach of the old contract.

If the parties to the contract agree to substitute a new contract in place of the original one, then the original contract need not be performed. Therefore, performance of original agreement between the parties is dispensed with only where the parties to the contract agree to substitute the original contract by a new contract.

Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 ref.

One of the essential requirements of "novation" as contemplated by section 62 is that there should be complete substitution of a new contract in place of the old. Substitution of a new contract in place of the old contract which would have the effect of rescinding or completely altering the terms of the original contract has to be by agreement between the parties. The substituted contract should rescind or alter or extinguish the previous contract.

Benjamin Scarf v. Alfred George Jardine (1882) 7 AC 345 and Lata Construction and others v. Dr. Rameshchandra Ramniklal Shah and another AIR 2000 SC 380 rel.

Agha Muhammad Ali Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2022 S C M R 1080

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

FAZAL HADI---Petitioner

Versus

YAQOOB ULLAH and another---Respondents

Criminal Petition No. 189-P of 2021, decided on 14th April, 2022.

(On appeal against the judgment dated 16.11.2021 of the Peshawar High Court, Peshawar passed in Criminal Misc. (B.A.) No.2906-P of 2021)

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 497(5)---Penal Code (XLV of 1860), Ss. 302 & 34---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, common intention---Petition for cancellation of bail, dismissal of---Accused was alleged to have strangulated his wife to death---High Court granted post-arrest bail to the accused---Held, that nobody was nominated in the FIR and subsequently complainant made statement under S. 161, Cr.P.C. in which he charged the accused but it was observed by the High Court that in the said statement no source and no material was disclosed by the complainant through which he came to know regarding involvement of the accused in this case---Regarding contention of complainant that there was a ligature mark around the neck of the deceased which negated claim of accused that his wife died after falling in the bathroom, the postmortem report indicated that the ligature mark was only on the front side of the neck and it was mentioned by the lady witnesses, who reached after the occurrence at the spot that they saw the deceased in a naked condition lying in the washroom near a bucket---Trial Court, after recording the statement of the doctor, would determine as to whether the ligature mark was the result of the fall on the said bucket or due to some pressure of a rope around her neck---Presently, due to the said reasons, the case of the accused called for further inquiry---Petition for cancellation of bail was dismissed.

Altaf Samad, Advocate Supreme Court for Petitioner.

Hussain Ali, Advocate Supreme Court (through video link at Peshawar) for Respondent No. 1.

Ms. Aisha Tasneem, Advocate Supreme Court along with Saleh Shah, S.I. for the State.

2022 S C M R 1082

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

COMMISSIONER OF INLAND REVENUE,LAHORE---Petitioner

Versus

Messrs SARGODHA SPINNING MILLS (PVT.) LTD. FAISALABAD and others---Respondents

Civil Petition No.757-L of 2021, decided on 3rd February, 2022.

(Against the judgment dated 01.02.2021 of the Lahore High Court, Lahore passed in S.T.R. No. 17 of 2012)

Sales Tax Act (VII of 1990)---

----Ss. 46 & 47---Sales tax Reference to the High Court---Findings of facts determined by the Tribunal/Appellate Tribunal---Interference by the High Court---Tax Tribunal is the final fact finding body---Only "question of law" is to be examined by the (High) Court in a Sales tax Reference.

Tribunal is the final forum for determination of facts in tax matters. The Appellate Tribunal is therefore the final fact-finding body and its findings of facts are conclusive; the High Court cannot disturb them unless it is shown that there was no evidence on which the Appellate Tribunal could arrive at its conclusion and record such findings, or the same are perverse or based on surmises and conjectures. Further, the High Court cannot go behind any finding of fact recorded by the Appellate Tribunal even on such grounds, unless it has been expressly challenged by raising a 'question of law' relating thereto in the application. Without raising a 'question of law' in the terms, like, 'whether there was evidence to support the finding of the Appellate Tribunal on such and such fact', the High Court is bound by the finding of fact recorded by the Tribunal. Thus, in a case, where no question of law is raised to challenge the finding of fact recorded by the Appellate Tribunal as being not supported by any evidence or being perverse, the finding recorded by the Tribunal attains finality.

Messrs Shah Nawaz v. Commissioner of I.T. 1969 SCMR 123; Commissioner of I.T. v. Messrs Smith, Kline and French 1991 SCMR 2374; Commissioner of I.T. v. Messrs Farrokh Chemical 1992 SCMR 523; Ibrahim Ishaq v. Commissioner of I.T. 1993 SCMR 287; Messrs Irum Ghee Mills v. I.T. A.T. 2000 SCMR 1871; Commissioner of I.T. v. Muhammad Ismail & Co. 1986 SCMR 968 and Oriental investment Co. v. Commissioner of I.T. 1972 PTD 181 ref.

The "question of law" must arise from the decision of the Appellate Tribunal and in the absence thereof, any Reference before the High Court is not maintainable.

Messrs Mohammad Akbar v. I.T.A.T. 1972 SCMR 409; Messrs F.M.Y. Industries v. Deputy Commissioner I. T. 2014 SCMR 907; Messrs PTV Corporation Ltd. v. Commissioner Inland Revenue 2017 SCMR 1136 and Messrs Squibb Pakistan v. Commissioner of I.T. 2017 SCMR 1006 ref.

Sarfraz Ahmed Cheema, Advocate Supreme Court and Naeem Hassan, Secretary (Lit.) FBR for Petitioner.

Anis-ur-Rehman, Legal Advisor for Respondents.

2022 S C M R 1085

[Supreme Court of Pakistan]

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

GUL ZARIN and others---Petitioners

Versus

KAMAL-UD-DIN and others---Respondents

Criminal Petitions Nos. 53-Q and 66-Q of 2020, decided on 9th March, 2022.

(On appeal against the judgment dated 30.06.2020 passed by the High Court of Balochistan, Quetta in Criminal Appeal No. 437/2017 and Murder Reference No. 11 of 2017)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the accused or adverse to the prosecution could be produced on record---Said witnesses remained consistent on each and every material point inasmuch as they made deposition exactly according to the circumstances that happened in the case, therefore, it could safely be concluded that the ocular account furnished by the prosecution was reliable, straightforward and confidence inspiring---Minor contradictions in the statements of the prosecution witnesses were natural as admittedly the accused remained absconder for a period of 12 long years and the trial begun after his arrest---After such a lapse of time, some minor discrepancies may occur but the same were neither dishonest nor were sufficient to discard the testimonies of the witnesses of the ocular account---Medical evidence available on the record was in line with the ocular account so far as the nature, locale, time and impact of the injury on the person of the deceased was concerned---All witnesses had reasonably explained their presence at the place of occurrence---Counsel for the accused could not point out any reason as to why the complainant had falsely involved the accused in the present case and let off the real culprit, who had committed murder of his cousin---Conviction of accused for qatl-i-amd was maintained---Petition for leave to appeal was converted into appeal and partly allowed.

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

----S. 302(b)---Qatl-i-amd---Prosecution witnesses closely related to the deceased, testimony of---Mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Reappraisal of evidence---Spur of the moment occurrence---Single fire shot---Conviction under section 302(b), P.P.C. altered to one under section 302(c), P.P.C.---Sentence of imprisonment for life reduced to fourteen years rigorous imprisonment---High Court itself had observed that the occurrence took place at the spur of the moment over the blockage of a passage and there was no pre­meditation on the part of the accused---Accused fired a single shot and did not repeat the same despite having ample opportunity to do so---No motive had been alleged by the prosecution for the commission of the crime and the recovery of the weapon was inconsequential---In such circumstances the sentence of imprisonment for life was not justified---Conviction of accused under section 302(b), P.P.C. was altered to one under section 302(c), P.P.C., and his sentence of life imprisonment was reduced to fourteen years rigorous imprisonment---Petition for leave to appeal was converted into appeal and partly allowed.

Kamran Murtaza, Senior Advocate Supreme Court for Petitioners (in Cr. P. No. 53-Q of 2020).

Jameel Ramzan, Advocate Supreme Court for Petitioner (in Cr. P. No. 66-Q of 2020).

Syed Pervaiz Bukhari, State Counsel for the State.

2022 S C M R 1091

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Muhammad Ali Mazhar, JJ

COMMISSIONER INLAND REVENUE, LAHORE---Petitioner

Versus

ASIF KAMAL---Respondent

Civil Petition No. 1148-L of 2021, decided on 16th March, 2022.

(Against the order dated 14.04.2021 of the Lahore High Court, Lahore passed in I.T.R. No. 24782 of 2021)

Income Tax Ordinance (XLIX of 2001)---

----Preamble---Revenue cases---Lack of assistance provided by the counsel and officials of the Federal Board of Revenue and its Inland Revenue department---During the hearing before the Supreme Court, the copies of the show cause notice sent to the tax payer, the audit report, the response of the tax-payer and his tax return were not filed before Court by the officials of the revenue department---Counsel for the department and the senior official of the department present in Court were also unable to answer certain queries raised by the Supreme Court relating to the present case resulting in unnecessary wastage of time of the Court---Supreme Court expressed its dismay in the manner the Federal Board of Revenue and its Inland Revenue department was being run with regard to Court proceedings and observed that in an earlier case it had already directed that when revenue cases are fixed in Court a senior officer from the department should be in attendance along with the relevant file/information to attend to any query that may arise during the course of hearing; that though the Additional Commissioner Inland Revenue was in attendance for the present case but he was not in a position to attend to any of the queries the Court put to him; that the Supreme Court has endeavoured to take up revenue matters at the earliest but is not receiving the requisite assistance; that it was expected the Federal Board of Revenue/Inland Revenue would attend to revenue cases with the seriousness that they deserve and relevant documents are filed, and it is ensured that requisite assistance is rendered when cases are fixed in Court---Petition for leave to appeal was dismissed, and leave was refused with the direction that copy of present order be sent to the Chairman and to all Members of the Federal Board of Revenue and also to the Secretary, Ministry of Finance, Government of Pakistan

Ch. Muhammad Shakeel, Advocate Supreme Court along with Naveed Ahmed, Additional Commissioner, FBR for Petitioner.

Respondent not represented.

2022 S C M R 1093

[Supreme Court of Pakistan]

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

MAH JABEEN ASHFAQ---Petitioner

Versus

NOOR MAHI and others---Respondents

Civil Petition No. 3367 of 2018, decided on 21st February, 2022.

(Against the order dated 23.05.2018 passed by the Islamabad High Court, Islamabad in C.R. No. 401/16)

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

----S. 12---Suit for specific performance of an agreement to sell immoveable property---Agreement to sell---Proof---Evidence on the record reflects that the plaintiff/alleged vendee failed to prove the proper execution of the agreement and payment of sale consideration and this very fact had also been admitted by him in his cross-examination---Besides the plaintiff after more than nine years which was barred by time and he failed to give any plausible reason for such delay in filing his suit---High Court had dismissed the suit for specific performance in toto---When the suit was held to fail for want of proof and also being barred by time then orders of the trial Court and Appellate Court burdening the alleged vendor to pay double the sale consideration to the alleged vendee, stood automatically set aside---Petition for leave to appeal was dismissed and leave was refused.

(b) Constitution of Pakistan---

----Art. 187(1)---Power of the Supreme Court to issue directions, orders or decree as may be necessary for doing complete justice---Scope---Supreme Court can clarify a judgment impugned before it, to do complete justice between the parties within the contemplation of Article 187 of the Constitution.

Zaheer Bashir Ansari, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2022 S C M R 1097

[Supreme Court of Pakistan]

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

LIAQUAT ALI and another---Petitioners

Versus

The STATE---Respondent

Jail Petition No. 637 of 2016, decided on 9th March, 2022.

(On appeal against the judgment dated 16.11.2016 passed by the High Court of Sindh, Karachi in Criminal Appeal No. 196 of 2015)

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

----S. 9(c)---Possession and transportation of 59 kilograms of charas---Reappraisal of evidence---Accused persons were caught red handed in broad daylight by the police and a huge quantity of 59 kilograms of contraband charas packed in 58 packets was recovered from secret cavities of the car, which was being driven by the one of the accused, whereas the other accused was sitting on the rear seat---Prosecution's case hinged upon the statements of police officials, who narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered by the defence despite lengthy cross-examination---Said witnesses had no enmity with the accused persons to falsely implicate them in the present case---Even otherwise a huge quantity of 59 kilograms of charas in no circumstances could be planted by the Investigating Officer of his own---Report of the Chemical Examiner showed that from all the 58 packets of recovered charas, 50 grams charas was separated from each packet and consumed in analysis and the same was found to be contraband charas.

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

----S. 9(c)---Narcotic cases---Testimony of police officials, reliance upon---Scope---Testimony of police officials is as good as any other private witness unless it is proved that they have animus against the accused---Reluctance of general public to become witness in such like cases has become judicially recognized fact and there is no impediment to consider statement of official witnesses, as no legal bar or restriction has been imposed in such regard---Police officials are as good witnesses and could be relied upon, if their testimonies remain un-shattered during cross-examination.

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

----S. 77---Control of Narcotic Substances (Government Analysts) Rules, 2001 ('the Rules')---Said Rules are directory and not mandatory in nature---Any lapse (in compliance with the Rules), would not automatically discard the whole prosecution case.

Control of Narcotic Substances (Government Analysts) Rules, 2001 ('the Rules') are stricto sensu directory and not mandatory in any manner. It does not spell out that if there is any lapse (in following the Rules), it would automatically become instrumental to discard the whole prosecution case. The Rules cannot control the substantive provisions of the Control of Narcotic Substances Act, 1997 and cannot in any manner frustrate the salient features of the prosecution case, which otherwise hinges upon (i) receipt of information, (ii) action by the concerned law enforcing agency, (iii) recovery of contraband narcotics, (iv) the report of chemical examiner regarding analysis of the recovered contraband, (v) the finding of fact by the courts below after recording of evidence i.e. witnesses of the raiding party, the recovery witnesses, and the Investigating Officer and all other attending circumstances. If the series of acts which ultimately result into recovery of contraband narcotic are kept in juxtaposition with the alleged violation of the Rules, it cannot by any stretch of imagination be considered reasonable in law to set-aside the whole prosecution case on its salient features.

Liaquat Ali Tareen, Advocate Supreme Court for Petitioner No. 1.

Syed Qalb-e-Hassan, Advocate Supreme Court and Zahoor ul Haq Chishti, Advocate Supreme Court for Petitioner No. 2.

Dr. Faiz Shah, P.G. Sindh, Zafar Ahmed Khan, Additional P.G. Khadim Rind, DIGP and Abdul Qayyum Patafi, SSP for the State.

2022 S C M R 1102

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

GHULAM ABBAS---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 416 of 2020, decided on 18th October, 2021.

(Against the judgment dated 23.04.2015 of the Lahore High Court Bahawalpur Bench passed in Cr. Appeal No. 125 of 2014)

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

----S. 336-B---Qanun-e-Shahadat (10 of 1984), Art. 22---Hurt by corrosive substance (acid)---Test identification parade not required where victim identifies the accused---Plea of accused that muffled description of accused narrated in the First Information Report in the absence of a test identification parade was fatal to the prosecution case---Validity---Occurrence took place inside the mosque and the victim while in the witness-box unhesitatingly pointed his finger on the culpability of the accused---Extensive burn injuries with instant impact certainly debilitated the victim with suspended faculties; it is but obvious that he was not in a position to communicate with the complainant---Absence of accused's name in itself amply demonstrated that no deliberations or consultations were made before registration of the case---Multiple burn injuries, extensive in nature, involving different parts of body rule out the possibility of an accident or self-infliction---Victim survived the assault and, thus, was able to disclose assailant's identity, a circumstance which was confidence inspiring and, thus, required no test identification parade, as he himself identified his assailant---Motive was not a constituent of the crime and the complainant or victim could have trotted out many but they preferred none---View concurrently taken by the trial Judge as well as the High Court on accused's culpability for having targeted the victim with acid was not open to any legitimate exception---Conviction and sentence of accused under section 336-B of P.P.C. was maintained---Appeal was partly allowed.

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

----S. 336-B---Anti-Terrorism Act (XXVII of 1997), S. 7(c)---Hurt by corrosive substance (acid)---Acid thrown on a victim inside a mosque---Conviction of accused under section 7(c) of the Anti-Terrorism Act, 1997 was set-aside, however his conviction under section 336-B of P.P.C. was maintained---Appeal was partly allowed. [p. 1104] B

Fakhar Hayat, Advocate Supreme Court for Appellant.

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

2022 S C M R 1104

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

COMMISSIONER OF INCOME TAX (LEGAL)---Petitioner

Versus

Messrs ASKARI BANK LIMITED, RAWALPINDI and others---Respondents

Civil Petitions Nos.2597 to 2600 of 2020, decided on 1st February, 2022.

(Against the judgment dated 16.07.2020 of the Islamabad High Court, Islamabad passed in I.T.Rs. Nos.24 to 27 of 2009)

Income Tax Ordinance (XLIX of 2001)---

----S. 23---Eligible depreciable asset---Initial allowance, deduction of---Scope---Taxpayer can claim deduction of initial allowance for an eligible depreciable asset (Such as a building) being put to use by the taxpayer for the first time in a tax year, irrespective of the fact that the said building had been in use in the past in the hands of other taxpayers.

Section 23 of the Income Tax Ordinance, 2001 states that "A person who places an eligible depreciable asset into service in Pakistan for the first time in a tax year." It means that the term "first time in a tax year" relates to the first time use of the building by the taxpayer and has no concern with the history of usage of the building prior to it falling in the hands of the taxpayer. The act of placing the eligible depreciable asset into service or use, for the first time in a tax year, is of the taxpayer and it is inconsequential if the same asset/building was earlier put into service or use while it was in the hands of an earlier owner or proprietor. A taxpayer becomes entitled to deduction of initial allowance if he, through his own act, has placed an eligible depreciable asset into service for the first time in a tax year.

The above-mentioned view is fortified from the reading of subsection (5) of section 23 of the Income Tax Ordinance, 2001 which defines "eligible depreciable asset" and specifically excludes a plant or machinery which has been used previously in Pakistan from the definition of "eligible depreciable asset". A previously used building has not been excluded and is therefore an eligible depreciable asset and if put to use by the taxpayer for the first time in the tax year, irrespective of its previous use, the taxpayer is entitled to deduction of initial allowance.

Manzoor Hussain, Advocate Supreme Court for Petitioner.

Muhammad Idrees, Advocate Supreme Court for Respondents.

2022 S C M R 1107

[Supreme Court of Pakistan]

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

RAFAQAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 541 of 2020, decided on 14th February, 2022.

(Against the judgment dated 20.02.2017 passed by the Lahore High Court Lahore in Cr. A. No.356-I/2013 with M.R. No.376/2013)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Complainant prosecuted his case through supplementary statements, subsequently recorded on two different occasions--- Similarly, prosecution's preference for a witness whose name did not figure in the crime report in preference to another witness, abandoned during the trial, was a circumstance that clamoured for explanation---Suppression of multiple firearm punctured wounds endured by a co-accused, examined on the day of occurrence, under a police docket, was another aspect, requiring explanation---Acquittal of identically placed co-accused without challenge was another predicament confronting the prosecution in addition to massive improvements in the statement of the complainant, duly confronted in the witness-box---Argument that occurrence did not take place in the manner as alleged in the crime report could not be dismissed, in circumstances---Prosecution's case contained several doubts, each deducible from prosecution's own evidence, benefit whereof, could not be withheld from the accused---Appeal was allowed, and the accused was acquitted from the charge.

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

----Ss. 154 & 161---Accused not named in the FIR, implicated through supplementary statement of witness---Prosecution, duty of---Though the First Information Report (FIR) is not to be taken as prosecution's last word, nonetheless, a supplementary statement, essentially being a statement under section 161 of Cr.P.C. cannot be read in continuation thereof and, thus, a heavy responsibility is cast upon the prosecution to satisfactorily explain its initial failure to nominate an accused in the crime report and the circumstances improving upon its knowledge so as to justify inclusion of the accused.

Ms. Aisha Tasneem, Advocate Supreme Court for Appellant.

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

2022 S C M R 1110

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

COMMISSIONER INLAND REVENUE, LAHORE---Petitioner

Versus

The BANK OF PUNJAB, LAHORE---Respondent

Civil Petitions Nos. 2143-L, 2144-L and 2145-L of 2020, decided on 4th February, 2022.

(Against the order dated 20.10.2020 passed by the Lahore High Court, Lahore in P.T.Rs. Nos. 131, 132 and 133 of 2006)

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

----First Sched. Part V, Paras. A & D---Income received by a Bank from declared/distributed dividends by Pakistani companies---Such income was to be taxed at the rate mentioned in paragraph D of Part V, 'Rates of Income Tax for Companies', of the First Schedule to the Income Tax Ordinance, 1979 ('the Ordinance') [as applicable at that time].

If a company was entitled to the benefit of a particular provision of the Income Tax Ordinance, 1979 ('the Ordinance') it could not be denied its benefit.

E.F.U. General Insurance Ltd. v. Federation of Pakistan PLD 1997 SC 700 = 1997 PTD 1693 ref.

The precedent of the case reported as E.F.U. General Insurance Ltd. v. Federation of Pakistan (PLD 1997 SC 700 = 1997 PTD 1693) ('the EFU case') is applicable with regard to dividends declared/ distributed by Pakistani companies in terms of paragraph D of Part V of the First Schedule to the Income Tax Ordinance, 1979 ('the Ordinance') in respect of other companies, including a banking company. And, there is no reason to withhold the same from such companies, including a banking company.

In addition, paragraph A of Part V of the First Schedule of the Ordinance states that the rates mentioned therein would only apply provided, amongst others, paragraph D is not applicable. In the present case paragraph D applies. Such unambiguously clear language leaves no room to countenance another interpretation. And, all the more so when the Supreme Court had already given a clear and emphatic answer in the 'EFU case'. Therefore, the rates mentioned in paragraph A would not be applicable in respect of dividend income which has been declared/distributed by Pakistani companies and the applicable rate of income tax on such dividend income would be the one mentioned in paragraph D.

Ch. Muhammad Shakeel, Advocate Supreme Court for Petitioner.

Dr. Ikram-ul-Haq, Advocate Supreme Court for Respondent (in all cases).

2022 S C M R 1115

[Supreme Court of Pakistan]

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

Major REHAN ZIA---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 273-L of 2021, decided on 3rd January, 2022.

(On appeal against the order dated 11.02.2021 passed by the Lahore High Court, Lahore in Crl. Misc. No. 65023-B of 2020)

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

----S. 498---Penal Code (XLV of 1860), Ss. 448 & 380---Constitution of Pakistan, Art. 185(3)---House-trespass, theft in dwelling house---Pre-arrest bail, grant of---Present case was lodged with an inordinate delay of about seven months---Record showed that it was at least the second attempt made by the complainant to proceed against the accused---In earlier round of litigation, the accusation against the accused was found baseless and in this regard a detailed inquiry was carried out by a Superintendent of Police (SP)---After the completion of the inquiry, the Inquiry Officer, a senior police officer was also saddled with the allegation of not conducting the investigation as per law, however such allegation too was found to be baseless after probe by the Senior Superintendent of Police (SSP) (Accountability)---Complainant had made only bald allegations against the accused as time, date and detail of the allegedly stolen articles was not given---Admittedly the accused was the sole proprietor of the house and this had been declared by a court of competent jurisdiction after prolonged litigation---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to pre-arrest bail.

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

----Ss. 154, 494 & 498---Penal Code (XLV of 1860), Ss. 448 & 380---Criminal Law (Second Amendment) Ordinance (VII of 1990), Preamble---House-trespass, theft in dwelling house---Pre-arrest bail, grant of---'Complainant'---Scope---Complainant of FIR passing away during the proceedings---After the moving of application before the Investigating Officer, the complainant of present case passed away---During the course of proceedings a lady claiming herself to be sister-in-law of the deceased complainant tried to take charge as complainant, and was in-fact claiming her status on the basis of a power-of-attorney---Held, that such power of attorney did not exist in the eyes of law as the executant of the same had already passed away---As far as criminal law was concerned, the concept of initiation of prosecution laid with the aggrieved person under section 154, Cr.P.C. and thereafter the same was entrusted to the State whereas under section 494, Cr.P.C. if the proceedings were supposed to be withdrawn, the same was responsibility of the Public Prosecutor---After the promulgation of Criminal Law (Second Amendment) Ordinance, 1990, the scope of aggrieved person had been extended, however, it was only limited to the cases relating to bodily harm---Present case only related to sections 448 & 380, P.P.C., which did not come within the ambit of bodily harm, therefore, the extension of definition of aggrieved person was not available to lady in the given circumstances---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to pre-arrest bail.

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

----S. 498---Penal Code (XLV of 1860), Ss. 448 & 380---Constitution of Pakistan, Art. 185(3)---House-trespass, theft in dwelling house---Pre-arrest bail, grant of---Accused an army official---No chance of absconsion---Accused, who was an officer of the Army had been entangled in the present case on the basis of material, which prima facie did not constitute any offence---Even otherwise, he being a member of the armed services, it seemed that there was no chance of his absconsion, which aspect further lent support in his favour as far as the relief of bail was concerned---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to pre-arrest bail.

Muhammad Anes Ghazi, Advocate Supreme Court for Petitioner along with Petitioner.

Khurram Khan, Additional P.G. Punjab and Nasir, S.I. for the State.

Respondent No. 2 in person.

2022 S C M R 1119

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Muhammad Ali Mazhar, JJ

Messrs T & N PAKISTAN PRIVATE LIMITED---Petitioner

Versus

The COLLECTOR CUSTOMS and others---Respondents

Civil Petition No. 1896-L of 2020, decided on 24th September, 2021.

(Against the Order of Lahore High Court, Lahore dated 16.09.2020 passed in Custom Reference No. 35 of 2013)

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

----S. 19---China-Pakistan Free Trade Area Rules of Origin, 2005 [as notified by S.R.O. No. 1286(I)/2005 dated 24-12-2005], R. 14---Import of "Fiber Manufacturing Plant" from China---Exemption from customs duties under SRO No. 659(I)/2007 dated 30-06-2007 ('the SRO")---Importer failing to produce proper certificate of origin---To avail the benefit of 'S.R.O' in question, the petitioner-importer was required to present Original Certificate of Origin with the given specimen signature of Chinese authorities---Moreover Rule 14 of the China-Pakistan Free Trade Area Rules of Origin, 2005 ('the Rules') provided that a claim that products shall be accepted as eligible for preferential concession shall be supported by a certificate of Origin issued by the government authorities designated by the exporting party and notified to the other party to the agreement in accordance with the Operational Certification Procedures as set out in Attachment-A, which outlined and delineated the procedure on the issuance and verification of the Certificate of Origin (Form-X) and other related administrative matters---Since the petitioner failed to fulfil said mandatory requirements envisioned in the 'S.R.O' and the Rules, his claim for exemption under the 'SRO' was rightly rejected---Even before the High Court, the petitioner was encountered and confronted with the same situation and called upon to show the Original Certificate of Origin but it failed to produce any document---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 196---Reference to High Court---Scope---Factual controversies---Precise intent of remedy of reference provided under section 196 of the Customs Act, 1969 is to resolve and adjudicate only the question of law originating and stemming from the order passed by the Appellate Tribunal---High Court cannot embark upon factual aspects or controversy---High Court while exercising appellate jurisdiction under section 196 of the Customs Act, 1969 is not free to embark upon an unfettered inquiry into factual aspects which have been properly considered and decided by the Tribunal.

Collector of Customs Karachi and others v. Messrs Haji Ismail Co. and others 2015 SCMR 1383; Pakistan State Oil Company Ltd. v. Collector of Custom, E&ST (Adjudication-II) and others 2006 SCMR 425 and Collector of Customs, Port Muhammad Bin Qasim, Karachi v. Messrs Kaghan Ghee Mills (Pvt.) Ltd. 2008 SCMR 1538 ref.

Mia Ashiq Hussain, Advocate Supreme Court (via video link from Lahore) for Petitioner.

Muhammad Khalid Chaudhry, Advocate Supreme Court for Respondents.

2022 S C M R 1124

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

MUHAMMAD IBRAHIM---Petitioner

Versus

FEDERATION OF PAKISTAN through DG NAB, Sindh---Respondent

Civil Petition No. 4599 of 2017, decided on 20th January, 2022.

(Against the judgment dated 23.11.2017 of the High Court of Sindh, Karachi passed in Constitution Petition No.D-881 of 2017)

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

----S. 498---National Accountability Ordinance (XVIII of 1999), S. 9(a)---Constitution of Pakistan, Art. 185(3)---Ad-interim pre-arrest bail, confirmation of---Housing Society---Fraudulent transfer of plots of original allottees to fake persons and illegal sale of plots to builders---Record revealed that the accused was neither an original member of the Housing Society nor a subsequent fake member of the Society as no plot was transferred by the Society to him---Accused had no active role to play in the Managing Committee of the Society---Name of the accused appeared as a nominee of a co-accused, who was the actual transferee of the plots from the Society, and the accused held 25 plots as a sub-lessee of the co-accused---However, on finding out about the illegalities in the transfer of these plots, the accused surrendered the said 25 plots to the Society through a duly registered deed of surrender---Said plots were not transferred to the building project, hence the allegation in the Reference that the plots were illegally procured by the accused and sold for gain to the project was not supported by the record---No material was available on the record, at present stage, to connect the accused with the violations allegedly committed by the Society or with the alleged illegally elected Managing Committee---Petition for leave to appeal was converted into appeal and allowed, and ad-interim pre-arrest bail granted to the accused was confirmed.

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

----Ss. 18(g), 18(e), 24(a) & 24(d)---National Accountability Bureau Reference---Arrest of accused---Pre-requisites---Permission of the Chairman National Accountability Bureau (NAB) or any officer of NAB duly authorized by the Chairman NAB must be obtained by the investigating officer before the accused can be arrested, and there must be reasonable grounds and substance on the basis of which permission to arrest is to be granted.

Under section 24(a) of the National Accountability Ordinance, 1999 ('the Ordinance'), the Chairman National Accountability Bureau (NAB) has the power, at any stage, of the inquiry or investigation under the Ordinance, to direct that the accused be arrested, while under section 24(d) of the Ordinance the officer making the arrest is under an obligation to inform the accused of the grounds and substance on the basis of which he is arrested. The proviso to section 18(e) of Ordinance mandates that no person shall be arrested without the permission of the Chairman NAB or any officer of NAB duly authorized by him. Collective reading of these provisions show that the permission of the Chairman NAB or any officer of NAB duly authorized by the Chairman NAB must be obtained by the investigating officer before the accused can be arrested, and there must be reasonable grounds and substance on the basis of which permission to arrest is to be granted. Mere filing of the Reference by the Chairman NAB or an officer of the NAB duly authorized by him, under section 18(g) of the Ordinance, against the accused does not carry an implied permission to arrest the accused. Arrest and filing of the Reference are two independent actions under the Ordinance. The permission to arrest must be express and based on reasonable grounds and substance.

Munir A. Malik, Senior Advocate Supreme Court for Petitioner along with Petitioner.

Nasir Mehmood Mughal, Special Prosecutor for NAB.

2022 S C M R 1128

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ANWAR and another---Petitioners

Versus

The STATE through A.G. Khyber Pakhtunkhwa and others---Respondents

Criminal Petitions Nos. 513 and 102-P of 2021, decided on 28th January, 2022.

(Against the judgment dated 19.3.2021 passed by the Peshawar High Court, Bannu Bench, Bannu in Crl. A. No. 7-B of 2021)

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

----S. 324---Attempt to commit qatl-i-amd---Reappraisal of evidence---Petition for enhancement in sentence, dismissal of---Occurrence was a daylight affair inside a village mosque at a point of time where the presence of witnesses could not be viewed as improbable---Incident was reported to the police with remarkable promptitude, followed by medical examination that conclusively confirmed receipt of three fire shots with a lethal weapon---Survival of the victim was nothing less than a miracle; he came forward to unambiguously point his finger upon the accused, who was a solitary assailant at the scene---Plea on behalf of accused that three consecutive fire shots hitting different parts of the body did not constitute "intention or knowledge" and circumstances contemplated by section 324 of P.P.C. could not be accepted---Primary punishment for a murderous assault was imprisonment that may extend to 10-years; punishment provided for the injuries was, in addition thereto, so as to monetarily compensate the victim, having no indemnifying effects on the former---Sentence of imprisonment for 4 years as imposed by the High Court with direction to pay monetary compensation in terms of Daman was maintained---Petition for leave to appeal seeking enhancement in sentence of accused was dismissed, and leave was refused.

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

----S. 324---Attempt to commit qatl-i-amd, offence of---Scope---Aftermaths of a deadly assault particularly by a firearm cannot be quantified on the touchstone of degree of concomitant violence experienced by a victim; it is not his perseverance or endurance that determines assailant's culpability nor intervention by providence presents him any extenuating option; it is solely his own conduct that decisively determines the intention regardless of the consequences thereof.

Asghar Ali Khan, Advocate Supreme Court for Petitioner (in Cr. P.513 of 2021).

Tariq Khan Kakar, Advocate Supreme Court for Petitioner (in Cr. P.102-P of 2021).

Zahid Yousaf Qureshi, Additional Prosecution General, Khyber Pakhtunkhwa for the State.

2022 S C M R 1131

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

HASSAN AZIZ and others---Petitioners

Versus

MERAJ UD DIN and others---Respondents

Civil Petition No. 3011 of 2021, decided on 8th February, 2022.

(On appeal against the judgment dated 19.02.2021 passed by the Islamabad High Court, Islamabad in R.F.A. No. 281 of 2020)

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 4--- Inheritance--- Great grandchildren, share of--- For the purposes of section 4 of the Muslim Family Laws Ordinance, 1961 great grandchildren did not fall within the meaning of "children"---Section 4 of the Ordinance applies only to those grandchildren as are living at the time of the death of the propositus---Any extended meaning cannot be given to the said section to cover great grandchildren.

Section 4 of Muslim Family Laws Ordinance, 1961 ("Ordinance"), used the words "the children of [the predeceased] son or daughter, if any, living at the time the succession opens". Said words impose a clear limitation i.e. section 4 applied only to those grandchildren as are alive at the time of death of the propositus. Under the rules of Muslim inheritance, the legal heirs of a predeceased son or daughter do not inherit from the parent of the predeceased. Section 4 of the Ordinance carves out a carefully constructed exception from this rule. It is not without significance that the section does not refer to the legal heirs of the predeceased son or daughter.

Read as a whole, the purpose and intent behind section 4 of the Ordinance is clear. The exception created by it is limited and circumscribed. It applies only to those grandchildren as are living at the time of the death of the propositus. An extended meaning cannot be given to the section to cover great grandchildren.

Mir Afzal Malik, Advocate Supreme Court for Petitioners.

Zulfiqar Abbas Naqvi, Advocate Supreme Court for Respondent No. 13.

2022 S C M R 1135

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Muhammad Ali Mazhar, JJ

COMMISSIONER INLAND REVENUE, ZONE-IV, LAHORE---Petitioner

Versus

Messrs PANTHER SPORTS AND RUBBER INDUSTRIES (PVT.) LTD. and others---Respondents

Civil Petition No. 1691-L of 2018, decided on 21st September, 2021.

(Against the orders of Lahore High Court, Lahore dated 05.03.2018 passed in W.P. No. 133023 of 2018)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 161(1A), 165(2B) & 174(3)---Income Tax Rules, 2002, Rr. 29(4) & 44(4)---Books of account, documents and records to be maintained for a period of six years---Scope of section 174(3) of the Income Tax Ordinance 2001---Taxpayer is obliged to maintain the record under section 174(3) of the Income Tax Ordinance, 2001 for a period of six years and the taxpayer cannot be compelled to produce the record for a tax year beyond the period of six years as stipulated in section 174(3) of the Ordinance---Supreme Court approved the view expressed by the Lahore High Court in the case reported as Maple Leaf Cement Factory Ltd v. Federal Board of Revenue 2016 PTD 2074.

Section 174 of the Income Tax Ordinance, 2001 ('the Ordinance') creates an obligation on the taxpayer to maintain such accounts, documents and records as prescribed for a period of six years, except in case of pending proceedings, where the obligation of a taxpayer to maintain the record is till the final decision of the proceedings, while the same provision protects the taxpayer from being asked to produce the record beyond the said period. The tax department is under an obligation to be vigilant and efficient enough so as to proceed against a taxpayer within the statutory timeframe provided under section 174(3) of the Ordinance.

In the context of the present case even though there is no specific limitation for issuance of notices under section 161(1A) or 165(2B) of the Ordinance or Rule 44(4) of the Income Tax Rules, 2002 ('the Rules') but these provisions cannot be actualized or given effect to unless the record, available with the taxpayer, is examined and verified by the tax authorities. Since the said provisions of law require taxpayer to maintain record for a period of six years, hence notices beyond a period of six years cannot be given effect to. As the taxpayer is under no legal obligation to maintain tax records after the said statutory period, any such notices demanding the taxpayer to furnish such information are inconsistent with the clear provisions of the Ordinance and hence unlawful.

Even though notices under sections 161(1A), 165(2B) of the Ordinance and Rule 44(4) of the Rules have no prescribed period of limitation, the statutory timeframe kicks in the minute the time period under section 174(3) is exhausted rendering such notices ineffective and unenforceable, attracting no penal consequences for the taxpayer. It is however to be noted that the department is only restricted where it seeks record beyond the statutory period under section 174(3) from the taxpayer but is otherwise free to proceed if the action or proceedings under the Ordinance are based on the record already in possession of the department.

Supreme Court approved the view expressed in the case reported as Maple Leaf Cement Factory Ltd v. Federal Board of Revenue 2016 PTD 2074, whereas the view taken in the case reported as Habib Bank Limited v. Federation of Pakistan 2013 PTD 1659 was disapproved.

Habib Bank Limited v Federation of Pakistan 2013 PTD 1659 disapproved.

Maple Leaf Cement Factory Ltd. v. Federal Board of Revenue 2016 PTD 2074 approved.

Ch. Muhammad Zafar Iqbal, Advocate Supreme Court (video-link - Lahore) along with Naeem Hassan, Secy (Lit.) FBR for Petitioner.

Nemo for Respondents.

2022 S C M R 1140

[Supreme Court of Pakistan]

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

The COMMISSIONER INLAND REVENUE, LAHORE and others ---Petitioners

Versus

Messrs PEPSI COLA INTERNATIONAL, LAHORE and others---Respondents

Civil Petitions Nos. 682-L to 684-L and 768-L of 2017, decided on 18th February, 2022.

(Against the judgment dated 19.12.2016 of the Lahore High Court, Lahore passed in Writ Petitions Nos. 24827/12, 10182, 31567/13 and 22891 of 2014)

Sales Tax Act (VII of 1990)---

----Ss. 2(46)(e) & 11---Federal Excise Act (VII of 2005), S. 12(1)---Income Tax Ordinance (XLIX of 2001), S. 122---Constitution of Pakistan, Art. 199---Show cause notices issued under the Sales Tax Act, 1990, the Federal Excise Act, 2005, and the Income Tax Ordinance, 2001---Notices held in abeyance by the High Court in its Constitutional jurisdiction till value/price of concentrate used by tax-payer was determined by a Valuation Committee---Legality---High Court had not decided a factual controversy---Law had provided for determination by a Valuation Committee in cases such as the present when value/price could not be easily ascertained---However, the tax department had arbitrarily determined value, without recourse to the Valuation Committee, and the High Court exercised its constitutional jurisdiction to ensure that the law was followed, and did so by referring the matter for determining value/price to the statutory Valuation Committee.

The show cause notices had conjectured on the value/price of the concentrate used by the respondent-taxpayer. The value was derived on conjectural basis and the High Court held that this did not accord with the law, which envisaged a Valuation Committee under clause (e) of subsection (46) of section 2 of the Sales Tax Act, 1990 and that such Valuation Committee should have determined it. The High Court was correct in holding that clause (a) of subsection (46) of section 2 of the Sales Tax Act did not apply. It is also not correct to state that the High Court had decided a factual controversy. The impugned judgment of the High Court was in accordance with the law and one which had preserved the interest of both sides. The law had provided for determination by a Valuation Committee in cases such as the present when value/price could not be easily ascertained. However, the petitioners-tax department had arbitrarily determined value, without recourse to the Valuation Committee, and the High Court exercised its constitutional jurisdiction to ensure that the law was followed, and did so by referring the matter for determining value/price to the statutory Valuation Committee. The show cause notices issued under the Sales Tax Act, 1990, the Federal Excise Act, 2005 and the Income Tax Ordinance, 2001 were dependent on the correct ascertainment of value/price; the High Court had deferred action, if any, thereon till after the matter had been determined by the Valuation Committee. Petitions for leave to appeal filed by the tax-department were dismissed and leave was refused.

Sarfraz Ahmed Cheema, Advocate Supreme Court, Syed Fayyaz Ahmed Sherazi, Advocate-on-Record (absent) and Naeem Hassan, Secretary (L), FBR for Petitioners (in all cases).

Rashid Anwer, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 1 (in all cases).

2022 S C M R 1145

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD RASOOL---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 762 of 2018, decided on 1st March, 2022.

(Against the judgment dated 06.06.2018 passed by the Lahore High Court Rawalpindi Bench in Crl. A. No.249 of 2013)

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

----S. 9(c)---Possession and transportation of 11.5 kilograms of cannabis---Reappraisal of evidence---Forensic report contained a detailed description of analysis undertaken by the Chemical Examiner by mentioning each test, carried out to confirm the narcotic character of the samples---Relevant witnesses appeared in court to establish safe custody of the contraband as well as transmission of samples to the laboratory---Conviction of accused under section 9(c) of the Control of Narcotic Substances Act, 1997, and sentence of imprisonment for life were maintained---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 9---Narcotic cases---Narcotic sealed in parcels at the time of its seizure and mentioned in the recovery memo---De-sealing of parcels during the course of cross-examination on the request of defence counsel---Plea of discrepancy in the weight and texture of the contraband as mentioned in the recovery memo and that found at the time of de-sealing of parcels during cross-examination---Supreme Court deprecated such practice of defence counsel moving a belated application for de-sealing of parcels to find out such discrepancy, notwithstanding, a plea of denial and false implication from the beginning of the trial, and observed that it was rather intriguing to comprehend as to how an accused pleading innocence, all of a sudden in the midst of the trial, learnt about a change, having occurred in weight or texture of the contraband kept in safe custody; that there was no occasion for the trial Judge, in the absence of any plausible reason, to obligingly accede to such a request for an exercise, manifestly calculated to subvert the prosecution case; that such discrepancy was not possible without connivance of Moharrir Malkhana and the Naib Court, therefore, it was imperative for the prosecution to keep a watchful and vigilant eye upon its unscrupulous functionaries so as to ensure that stream of justice ran pure and clean, and that any attempt or act to destroy or contaminate evidence lawfully collected was a cognizable offence in itself, commission whereof, must be visited with zero tolerance.

(c) Constitution of Pakistan---

----Art. 10-A---Fair trial, right of---Scope---Fair trial is not a one-way affair; it also requires an accused and his agents, pleading innocence, to conduct themselves in a manner above board, in accordance with law; their pursuit is only justified insofar as it is in accordance with the means sanctioned by law.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court for Petitioner.

Raja Inaam Ameen Minhas, Ch. Ehtisham ul Haq, Special Prosecutors, ANF and M. Tariq J.D. Law, ANF for the State.

2022 S C M R 1148

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Sayyed Mazahar Ali Akbar Naqvi and Jamal Khan Mandokhail, JJ

KHALID MEHMOOD alias KHALOO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 437 of 2020, decided on 10th February, 2022.

(On appeal against the judgment dated 18.12.2017 passed by the Lahore High Court, Lahore in Criminal Appeal No. 698 of 2015)

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

----S. 302(b)---Qatl-i-amd---Conviction---Solitary statement of witness---Conviction can be made on the basis of solitary statement of an eye-­witness.

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

----S. 302(b)---Qatl-i-amd---Conviction---Evidence recorded in one case used in another case---Propriety---Every criminal proceeding is to be decided on the material on record of that proceeding---Where post-mortem report and statement of doctor recorded in the trial of co-accused was used in the trial of accused without the same being exhibited, the conviction of accused could not be based on such evidence.

In the present case the Trial Court while convicting the accused had relied upon the medical evidence comprising the postmortem report and the statement of the doctor in the earlier trial of the three co-accused of the accused but the same was never exhibited during the current trial of the accused.

Every criminal proceeding is to be decided on the material on record of that proceeding. Neither the record of a case nor any finding recorded therein should affect the decision of another case. If the court takes into consideration evidence recorded in another case or a finding recorded therein then its judgment is vitiated.

Nur Elahi v. Ikram ul Haq and State PLD 1966 SC 708 and Muhammad Sarwar v. Khushi Muhammad 2008 SCMR 350 ref.

In the present case the Trial Court could not have relied upon the medical evidence that was brought on record in the earlier trial of the three co-accused of the accused. Appeal was allowed and accused was acquitted of the charge against him.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Recovery of weapon---Inconsequential where no empties recovered---In the present case recovery of revolver from the possession of the accused had no impact as no empty was recovered from the place of occurrence---In these circumstances, a dent in the prosecution's case had been created, benefit of which must be given to the accused---Appeal was allowed and accused was acquitted of the charge against him.

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

----S. 302(b)--- Qatl-i-amd--- Benefit of doubt--- Scope--- Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right---Conviction must be based on unimpeachable, trustworthy and reliable evidence---Any doubt arising in prosecution's case is to be resolved in favour of the accused.

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

----S. 302(b)--- Qatl-i-amd--- Abscondment--- Absconsion cannot be viewed as a proof for the crime and only on such basis an accused cannot be convicted.

Agha Muhammad Ali Khan, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Appellant.

Mirza Abid Majeed, D.P.G. for the State.

2022 S C M R 1153

[Supreme Court of Pakistan]

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

NOOR WALI and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition Nos. 1612 of 2021, decided on 16th February, 2022.

(Against the judgment dated 13.12.2021 passed by the Peshawar High Court Peshawar in Crl. M. (B.A.) No. 4124-P of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)---Running over a customs official at a check post---Bail, refusal of---Plea of accused persons that the constable was accidentally run over by their speeding vehicle---Held, that said plea failed to impress as the Customs authorities in anticipation of arrival of the said vehicle with smuggled contraband on board had set up a blockade, calculatedly breached by the accused persons by running over a State functionary, standing in the line of duty, which was a criminal transgression with consequences most serious---Smuggled items, taken into possession in the wake of the incident lent credible support to the prosecution case, set up in the crime report---Material collected by the prosecution constituted "reasonable grounds" within the contemplation of section 497, Cr.P.C. standing in impediment to their release on bail, in the absence of any consideration calling for further probe---Petition for leave to appeal was dismissed and accused persons were refused bail.

Hussain Ali, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record for Petitioners.

Shumayl Aziz, Additional Advocate General Khyber Pakhtunkhwa for the State.

2022 S C M R 1154

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

The POSTMASTER GENERAL SINDH PROVINCE, KARACHI and others---Petitioners

Versus

SYED FARHAN---Respondent

Civil Petition No. 342-K of 2020, decided on 13th May, 2022.

(Against the judgment dated 03.03.2020 passed by Federal Service Tribunal, Islamabad (Karachi Bench) in Appeal No.85(K)CS/2019).

(a) Civil service---

----Punishment---Award and quantum of punishment---Scope---Award of appropriate punishment under the law is primarily the function of the concerned administrative authority and the role of the Tribunal/Court is rather secondary---Court ordinarily would not substitute its own finding with that of the said authority unless the latter's opinion is unreasonable or is based on irrelevant or extraneous considerations or is against the law declared---Law provides for more than one kind of punishments keeping in view the object of such penal provisions and the gravity of the charge in a case---Conceptually punishment to a delinquent public servant is premised on the concept of retribution, deterrence or reformation---In awarding punishments, the competent authority has to keep in mind the underlying object of law and the severity of the misconduct.

Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others 2013 SCMR 817 ref.

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

----S. 5(1)---Service Tribunal, powers of---Scope---'Negligence' and 'gross negligence'---Distinction---Expression "negligence" connotes a dearth of attentiveness and alertness or disdain for duty---Genus of accountability and responsibility differentiates and augments an act of gross negligence to a high intensity rather than an act of ordinary negligence---To establish gross negligence, the act or omission must be of a worsened genre whereas ordinary negligence amounts to an act of inadvertence or failure of taking on the watchfulness and cautiousness which by and large a sensible and mindful person would bring into play under the peculiar set of circumstances---In unison, recklessness is a mental state or state of mind which is adjudged both subjectively and objectively---Gross negligence or recklessness in performing the designated or assigned duty are both flagrant acts of negligence and tantamount to misconduct which is of course subject to realizing and understanding the gravity and seriousness of the allegations of misconduct complained of---Sometimes a little or minor mistake or negligence or inefficiency may cause serious disaster or devastation and have severe ramifications---So, while declaring or weighing any act of negligence or inefficacy vis-à-vis the penalty imposed by the management, either major or minor, and before the conversion of the sentence, the Service Tribunal is bound to revisit the entire evidence available on record with the inquiry findings and report and, if conversion is required in the interest of justice, then it should be with due weightage, commensurate and proportionate to the gravity of charges and act of negligence/inefficiency and not on the basis of an uncontrolled or unbridled exercise of discretionary powers of the Tribunal without any raison d'être.

(c) Civil service---

----Post Office Manual, Vol. IV, Appendix No. 27---Junior Accountant, General Post Office (GPO)---Negligence and inefficiency in supervising subordinate official found guilty of committing fraud---Major penalty of removal from service converted into minor penalty of withholding of promotion for a period of three year---In the present case, the respondent was found guilty of failing to perform his acute and crucial responsibility of checking and supervision---Respondent was not found directly guilty of misappropriation or embezzlement of pension fund for his own benefit, on the contrary, the main accused was convicted by the Court and also repaid the misappropriated amount to the department---In cases where public money and its embezzlement is involved or at stake, the responsible persons cannot be let free or exonerated with low degree of minor penalty---Quantum of punishment should be proportionate and complementary to the charge of misconduct even for the minor act of negligence and inefficiency committed by the delinquent in his duties so that the punishment even in the minor category should be of such kind which may create at least some deterrence for the delinquent and other employees to be more vigilant and attentive to their duties in future rather than performing the tasks with callous attitude---Respondent had failed to perform and fulfill his duties in accordance with the job description of Junior Accountant as prescribed in Post Office Manual, Volume IV, Appendix No. 27---Service Tribunal itself found the respondent inefficient in performing his duties as required under the Rules and further held that, had he performed his duties as prescribed under the Rules, the alleged offence of misappropriation of government money could have easily been anticipated---In such circumstances conversion of sentence of removal of service by the Tribunal into penalty of withholding of promotion for a period of one year only was neither sufficient nor justified---Civil petition for leave to appeal was converted into appeal and allowed, and penalty of withholding of promotion for a period of one year was modified and converted into penalty of withholding of promotion for a period of three years without accumulative effect.

Auditor-General of Pakistan and others v. Muhammad Ali and others 2006 SCMR 60 and Secretary, Ministry of Finance and another v. Kazim Raza PLD 2008 SC 397 ref.

Nishat Warsi, D.A.G. and Rahat Ali, Assistant Superintendent for Petitioners.

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

2022 S C M R 1168

[Supreme Court of Pakistan]

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

MUHAMMAD NADEEM---Petitioner

Versus

MUHAMMAD KHURRAM IQBAL and another---Respondents

Criminal Petition No. 33 of 2021, decided on 17th February, 2022.

(Against the judgment dated 11.01.2021 passed by the Lahore High Court Bahawalpur Bench Bahawalpur in Cr. Misc. No. 4127-B of 2020)

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

----S. 497(5)---Punjab Prohibition of Private Money Lending Act (VI of 2007), Ss. 3 & 4---Constitution of Pakistan, Art. 185(3)---Prohibition on private money lending---Pre-arrest bail, cancellation of---High Court granted pre-arrest bail to accused on basis of an arbitration deed between the complainant/petitioner and the accused, wherein the complainant had stated that the accused was not involved in any money lending and an amount of Rs.44,700/- was still outstanding towards the accused---Said deed confirmed that there was a dispute between the parties over payment of some outstanding amount---Upon a direction issued by the Supreme Court, the concerned District Police Officer confirmed that the impugned deed/affidavit, relied upon by the High Court was secured by the accused, through means stained with duress and coercion, an act by itself constituting an offence under the law---Petition for leave to appeal was converted into appeal and allowed, and pre-arrest bail granted to the accused was cancelled.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail---Scope---Protection of pre-arrest bail is essentially a judicial protection to protect the innocent, being targeted through abuse of process of law for motives, oblique and sinister; it is neither a substitute for post arrest bail nor a treatment to be extended in every run of the mill criminal case; it is an option that warrants caution in its exercise.

Nemo for Petitioner.

Ch. Hafeez Ullah Yaqub, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Respondent No. 1 with Respondent.

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

2022 S C M R 1171

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Mrs. NAILA NAEEM YOUNUS and others---Petitioners

Versus

Messrs INDUS SERVICES LIMITED through Chief Executive and others---Respondents

Civil Petition No. 4296 of 2019, decided on 28th April, 2022.

(On appeal against the order dated 01.10.2019 passed by the Lahore High Court, Lahore, in C. O. No. 31 of 2015)

(a) Companies Act (XIX of 2017)---

----S. 126---Companies Ordinance (XLVII of 1984) [since substituted by the Companies Act, 2017], Ss. 152 & 153---Limitation Act (IX of 1908), First Sched. & Art. 181---Fraudulent transfer of shares---Rectification of company's register, application for---Limitation period---Article 181 of the First Schedule to the Limitation Act, 1908 does not apply to applications filed under the company law including one for rectification of company's register of members or denture-holders---Legislative intent is not to prescribe a period of limitation for filing such rectification application.

Neither the Limitation Act, 1908 nor the Companies Ordinance, 1984 prescribes a particular period within which an application for the rectification of the company's register of members or denture-holders is to be filed.

1 & 2 disting

Fraudulent changes made to the register and omissions therefrom are both categorized as offences in the Companies Ordinance, 1984 ('the Ordinance'). There is no limitation period in Pakistan to prosecute and punish a crime.

When section 152 of the Ordinance is read with the section following it i.e. section 153 it removes all doubts, that the legislative intent was not to prescribe a period of limitation in filing a rectification application, or to make it subject to Article 181, or to any other provision of the Limitation Act, 1908.

Significantly, Article 181 of the Limitation Act, 1908 does not state that it also applies to applications filed under the company law.

(b) Companies Act (XIX of 2017)---

----Preamble---Companies Ordinance (XLVII of 1984) [since substituted by the Companies Act, 2017], Preamble---Companies are governed by their own self-contained law, which special law should not be overridden, or its scope curtailed, unless the legislative intent to do so is evident---Such legislative intent, must be unambiguously clear when adversely affecting proprietary rights.

(c) Interpretation of statutes---

----When more than one interpretation is fairly and reasonably possible, then that which leads to manifest absurdity or injustice must be avoided.

3 ref.

Barrister Khurram Raza, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record for Petitioners along with Petitioner No. 3.

Muhammad Khalid Ch., Advocate Supreme Court for Respondents Nos. 1 - 3.

Barrister Minal Tariq, Assistant Director Litigation, SECP for Respondent No. 4.

2022 S C M R 1185

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD IRSHAD---Petitioner

Versus

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

Criminal Petition No. 1117-L of 2021, decided on 3rd February, 2022.

(Against the judgment dated 23.06.2021 passed by the Lahore High Court Lahore in Crl. A. No. 9865/2021)

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

----Ss. 11EE, 33 & Fourth Sched.---Proscription of person---Accused placed in Fourth Schedule to the Anti-Terrorism Act, 1997 by the Provincial Government---Plea that only the Federal Government had the prerogative to place the name of a person in such list---Validity---Federal Government in exercise of powers vesting in it under section 33 of the Anti-Terrorism Act, 1997 had already delegated its powers to the Provincial Home Secretaries of the each Province as well as Chief Commissioner Islamabad Capital Territory vide notification dated 29th October, 2014; this being so petitioner's placement in the Fourth Schedule by the Provincial Home Secretary was an act well within remit of law---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 11EE(4), 21-L & Fourth Sched.---Proscription of person---Accused placed in Fourth Schedule to the Anti-Terrorism Act, 1997 violating terms of his bond by absconding---Reappraisal of evidence---Subsection (4) of section 11EE of the Anti-Terrorism Act, 1997 unambiguously provided that any person who violated any direction or order or any term of bond executed thereunder shall expose himself to punishment of imprisonment that may extend to three years or with fine or with both and, thus, any violation of bond clearly constituted an offence punishable under the said Act and, as such, the present accused committed an offence under the Act and, therefore, was rightly prosecuted and convicted for his willful absence from law---Moreover the record of the case also showed that the prosecution successfully drove home the charge against the accused on the strength of "proof beyond doubt" comprising oral as well as documentary evidence, leaving no space to entertain any hypothesis other than his guilt---Petition for leave to appeal was dismissed and leave was refused.

Shahid Tabassum, Advocate Supreme Court for Petitioner.

Ahmed Raza Gillani, Additional Prosecutor General Punjab for the State.

2022 S C M R 1187

[Supreme Court of Pakistan]

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

BASHIR AHMED and others---Petitioners/Applicants

Versus

The STATE and another---Respondents

Criminal Petitions Nos. 1371 and 1651-L of 2016 and Criminal Miscellaneous Application No. 1704 of 2017, decided on 26th November, 2020.

(On appeal against the judgment dated 08.11.2016 passed by the Lahore High Court, Bahawalpur Bench in Criminal Appeals Nos. 470 and 471 of 2013 and Murder Reference No. 51 of 2013)

Per Sayyed Mazahar Ali Akbar Naqvi, J.; Umar Ata Bandial, J agreeing; Mazhar Alam Khan Miankhel, J. dissenting.

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

----Ss. 302(a) & 304---Qatl-i-amd liable to qisas---Witness, credibility of---Tazkiya-tul-shahood---Modes to ascertain the credibility of a witness on the touchstone of tazkiya-tul-shahood explained.

The primary/foremost qualification for a person to appear as a truthful witness in a case falling under 'qisas' is that he must fulfill the condition of tazkiya-tul-shahood. In ordinary meanings, it is an accepted rule of tazkiya-tul-shahood, that the credibility of the witness shall be examined through credible person of the same walk of life to which the witness belongs. Tazkiya-tul-shahood also entails an open and confidential inquiry regarding the conduct of the witness to ascertain whether the witness is credible or otherwise. The word 'from the same walk of life' is most essential attribute regarding this aspect. However, there are two modes provided to evaluate tazkiya-tul-shahood, (i) open, (ii) confidential. To ascertain the credibility of a witness on the touchstone of tazkiya-tul-shahood, the Judge is under an obligation to inquire the credentials of the witness proposed to testify during the court proceedings to adjudge his truthfulness. Likewise, he can also adopt the way of secret inquiry to further satisfy his conscience about the credibility of the witness, for which he can delegate/appoint someone else to ascertain the truthfulness of the person claiming acquaintance with the facts and circumstances of the case. There is no constraint that with the changing situation in the advanced era, the modern devices/technical assistance can also be utilized to gauge the piousness of the witness to arrive at a conclusion which endorses the believability qua the character of the witness by the Presiding Officer.

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

----Ss. 302(a), 302(b) & 304---Qanun-e-Shahadat (10 of 1984), Art. 17---Qatl-i-amd---Scope of section 302(b), P.P.C. stated.

There are two sentences provided under the head of section 302(b), P.P.C i.e. death or imprisonment for life as Tazir. There is marked distinction between section 302(a) and 302(b), P.P.C qua consideration and application of sentence which is also based upon other considerations. The parameters are entirely on different benchmark wherein strict compliance of section 304, P.P.C. or applicability of Article 17 of the Qanun-e-Shahadat, 1984 is not required. Likewise, the mode and manner of ascertaining the guilt and execution of the sentence is altogether different. The intention behind this was in-fact to meet the requirements of law and order situation prevailing in the society with an intent not to let any crime unattended/un-addressed and further not to let any criminal escape from the clutches of law.

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

----Ss. 299(l) & 302(b)---Qatl-i-amd---Tazir---Meaning and scope---Literal meaning of word 'tazir' is chastisement---Word 'tazir' means punishment inflicted by the Court other than 'qisas'---As the punishment of 'tazir' is not prescribed by the Holy Quran or Sunnah, therefore, it cannot be as stern and stringent as that of qisas; it includes punishment of imprisonment, forfeiture of property and fine---Discretion has been left with the court assigned with the matter to decide and inflict either of the punishments commensurating with the overt act as surfaced according to facts and circumstances of the case---Court of competent jurisdiction is fully justified to award sentence subject to assigning justiciable reasons to meet the ends of justice.

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

----S. 302(c)---Qatl-i-amd---Scope of section 302(c), P.P.C. stated.

Provision of section 302(c), P.P.C. is somewhat similar to the erstwhile section 304, P.P.C. The provision of Section 302(c) in the original text was an exception of section 302, P.P.C. while following the requirements of erstwhile section 304, P.P.C. This provision covers all those offences which are committed resulting into culpable homicide not amounting to murder and as such cannot be equated with the requirements for application of sentences as provided under section 302(a) or 302(b), P.P.C. Any occurrence though resulting into an act of homicide but it was committed without element of mens rea, pre-meditation or ill design, would squarely attract the provision of section 302(c), P.P.C. The framers of the law while inserting the said provision provided sentence of imprisonment which may extend to 25 years. The sentence of 25 years is clothed with discretionary powers of the court contrary to sentences provided under section 302(a) and 302(b), P.P.C. Broadly speaking this distinction qua the discretionary power to inflict sentence is based upon the fact that the law makers were conscious of the situations like free fight, case of two versions, undisclosed story, sudden affair, question of ghairat, absence of mens rea, self defence and cases initiated due to the element of sudden provocation.

Provisions of section 302(c), P.P.C. can also be equated/adjudged keeping in view the state of mind of the offender, his surrounding circumstances and the mode of commission of the offence. If those are adjudged conjointly, it would certainly imprint a better picture before the court of law to adjudicate the matter, which might commensurate with the allegation.

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

----S. 302(c)---Qatl-i-amd committed due to provocation---Meaning, scope and essentials elements of provocation stated.

In ordinary speech, the meaning of 'provocation' is said to be incitement to anger or irritation. It is a word used to denote much more than ordinary anger. To extenuate the killing of a human being provocation has always needed to be of a special significance. It is something which incites immediate anger or "passion", which overcomes a person's self-control to such an extent as to overpower or swamp his reason. In other words provocation is when a person is considered to have committed a criminal act partly because of a preceding set of events that might cause a reasonable person to lose self-control.

There are mainly four elements which need to be established to avail the defence of provocation i.e. (i) the provoking circumstances, (ii) the accused's loss of self-control resulting from the provoking circumstances, whether reasonable or not; (iii) whether the provocation could have caused an ordinary person to lose self-control, and (iv) the retaliation was proportionate to the provocation. Whether the accused's loss of self-control was a result of the provoking circumstances is a subjective test. To prove the element of provocation, there are two more conditions i.e. it should be prompt, and retaliation is without inordinate delay. Apart from the circumstances narrated above inviting application of section 302(c), P.P.C. another situation has now erupted in our society having direct nexus with such like situations, i.e. a deliberate and malicious act intended to outrage religious feelings of any class of people by insulting its religion or religious rituals by use of derogatory remarks, which further extends the scope of cases falling under the ambit of sudden provocation.

Lee Chun­Chuen v. The Queen 1963 1 All ER 73 ref.

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

----Ss. 34, 148, 149 & 302(b)---Qatl-i-amd---Multiple assailants---Common intention or common object --- Duty of court to ascertain the aspect of common intention or common object at the time of framing of charge and conclusion of trial stated.

A single assailant can commit the offence under section 302(b), P.P.C. but if the number of assailants is more than one and the offence is committed in furtherance of common intention then the provision of section 34, P.P.C. would certainly attract. Similar to that if the tally of the accused is five or more and the offence is committed in furtherance of common object then the provision of sections 148/149, P.P.C. would be applicable. The Trial Court seized of the matter depending upon the number of accused has to render a definite finding qua the applicability of section 34, P.P.C. (common intention) or sections 148/149, P.P.C. (common object). These two legal aspects are to be addressed with the application of the provisions of section 302(b), P.P.C. depending upon the number of assailants. It is bounden duty of the courts to ascertain the aspect of common intention or common object primarily at the time of framing of the charge on the basis of contents of FIR, statements under sections 161 and 164, Cr.P.C., if any, final report under section 173, Cr.P.C. and other attending documents collected by the Investigating Officer during investigation. The Trial Court is equally responsible to give a definite finding qua the applicability of section 34, P.P.C. or sections 148/149, P.P.C. at the time of conclusion of the trial while handing down the judgment.

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

----Ss. 34, 148, 149 & 302(b)---Qatl-i-amd --- Multiple assailants --- Common intention or common object --- Any judgment which concludes the commission of offence falling under section 302(b), P.P.C. in furtherance of common intention or common object but decides the lis on the basis of individual liability would be squarely in defiance of the intent and spirit of law on the subject

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

----Ss. 34, 148, 149 & 302(c)---Qatl-i-amd---Multiple assailants---Common intention or common object---Individual liability---Finding of Trial Court that the offence committed was not in furtherance of common intention or common object, but prosecution otherwise proving its case against accused persons---In such circumstances, the Court is under legal obligation to record conviction and sentence according to the role of every assailant constituting a criminal act according to overt act ascribed to him.

(i) Administration of justice---

----Public confidence in judicial process---Courts of law can gain the confidence by imparting fair, equitable and justiciable dispensation of justice eliminating any possibility of discrimination on the basis of gender, race, religion, colour, caste, creed, status and language etc.---Judges have to discharge such arduous task with utmost care and caution so that public confidence in judicial process is not shattered.

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

----Ss. 34, 148, 149 & 302(c)---Criminal Procedure Code (V of 1898), Ss. 265C, 265D, 340(2), & 342---Constitution of Pakistan, Arts, 189, 190 & 203---Qatl-i-amd---Multiple assailants---Common intention or common object---Guidelines/directions issued by the Supreme Court regarding the steps to be taken by the Trial Court in ascertaining the aspect of common intention or common object during the trial stated.

Per Sayyed Mazahar Ali Akbar Naqvi, J. (Majority view):

Supreme Court issued the following guidelines/directions regarding the steps to be taken by the Trial Court in ascertaining the aspect of common intention or common object during the trial:

(i) The Trial Court seized with the criminal trial is squarely required to adhere to the provision of sections 265-C and 265-D, Cr.P.C for the purpose of initiation of trial, before framing of charge as ordained to meet the spirit of the law;

(ii) The Trial Court is under obligation to fulfill the requirement as stated above, and thereafter to frame charge, while minutely looking into the contents of the crime report, statement of the prosecution witnesses under section 161, Cr.P.C., report under section 173, Cr.P.C. and all other documents appended with the challan with an intent to evaluate whether the criminal act as disclosed has been committed in furtherance of joining hands, which attracts the ingredients of common intention (section 34, P.P.C.) or common object (sections 148/149, P.P.C. read with the substantive offence), if so, the charge would be framed accordingly;

(iii) The Trial Court after recording of evidence, statement of the accused under section 342, Cr.P.C. would provide an opportunity to the accused to lead defence, if any, and further to appear under section 340(2), Cr.P.C. (if he intends to appear) and defence evidence, if any, thereafter, it is obligatory for the courts to give judgment with definite finding qua the element of common intention or common object with reference to the substantive offence; and

(iv) The Court proceeding with the matter, if reaches to the conclusion that the offence committed is an individual liability then the provision of section 302(c), P.P.C. would be squarely applicable and each accused would be dealt with according to the gravity of allegation, if any. The Trial Court while rendering such finding has to disclose judicial reasoning.

[Per Mazhar Alam Khan Miankhel, J. (Minority view):

Issuance of directions to the subordinate Courts to follow a particular course of action in criminal matters is not the domain of the Supreme Court as this would be considered by the courts below to be binding as per the provisions of Article 189 of the Constitution. Every Judge is independent and autonomous within his/her allocated sphere of jurisdiction and such direction would amount to interference in their independence which is not permissible under the law. The Appellate Court indeed can uphold, modify or set aside the judgment of the lower fora but such guidelines/directions cannot be held as an "act in aid" of the Supreme Court as contemplated in Article 190 of the Constitution. Such guidelines/directions being supervisory in nature would also amount to an encroachment upon the supervisory powers of the High Court vesting in it under Article 203 of the Constitution.

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

----Ss. 34, 148, 149, 302(b), 302(c), 324, 337-F(vi) & 337-L(2)---Criminal Procedure Code (V of 1898), Ss. 265C, 265D, 340(2), & 342 --Qatl-i-amd---Reappraisal of evidence---Multiple assailants---Common intention or common object---Trial Court failing to give finding on whether the murderous assault was committed in furtherance of common intention---Effect---Remand of case to Trial Court---In the present case, the accused was convicted under section 302(b), P.P.C. and sentenced to death by the Trial Court, which was altered into imprisonment for life by the High Court---One of the co-accused ('the convicted co-accused') was convicted under sections 337-F(vi) & 337-L(2), P.P.C. for causing injuries to two persons, whereas the three co-accused persons ('the acquitted co-accused persons') were acquitted by the Trial Court, and their acquittal was not challenged---Keeping in view the sentence inflicted to accused under section 302(b), P.P.C. and sentence inflicted to convicted co-accused under section 337-F(vi) and 337-L(2), P.P.C., question was if the Courts below ignored the aspect whether act of both accused and convicted co-accused was committed in furtherance of their common intention, especially when there was no finding to such effect; whether in absence of such finding, the conviction and sentence recorded by the courts below was justified in law; whether when accused was convicted under section 302(b), P.P.C. and convicted co-accused according to his individual role, both their sentences were in consonance with the spirit of sections 302, 324 and 34, P.P.C. (common intention) or (with five or more accused) under sections 302, 148 & 149, P.P.C. (common object)---[Per Sayyed Mazahar Ali Akbar Naqvi, J. (Majority view): Trial Court seized of the matter depending upon the number of accused has to render a definite finding qua the applicability of section 34, P.P.C. (common intention) or sections 148 and 149, P.P.C. (common object)---Said legal aspects are to be addressed with the application of the provision of section 302(b), P.P.C. depending upon the number of assailants---Courts below are bound to ascertain the aspect of common intention or common object primarily at the time framing of the charge on the basis of contents of FIR, statements under sections 161 & 164, Cr.P.C., if any, final report under section 173, Cr.P.C. and other attending documents collected by the Investigating Officer during investigation---Trial Court is equally responsible to give a definite finding qua the applicability of section 34, P.P.C. or sections 148 and 149, P.P.C. at the time of conclusion of the trial while handing down the judgment---Any judgment which concludes the commission of offence falling under section 302(b), P.P.C. in furtherance of common intention or common object but decides the lis on the basis of individual liability would be squarely in defiance of the intent and spirit of law on the subject---Petitions for leave to appeal were converted into appeals and allowed, impugned judgments of High Court and Trial Court were set-aside and matter was remanded to the Trial Court for the limited purpose of re-writing the judgment within two months on the basis of existing judicial record in accordance with law and the guidelines given in the present judgment---[Per Mazhar Alam Khan Miankhel, J. (Minority view): Role of both the accused and convicted co-accused qua the murder and the injuries to the witnesses was quite independent---Remand of the case of accused and convicted co-accused itself would be against the norms of justice when three co-accused had been acquitted, specifically the co-accused with the similar role of firing on witnesses as attributed to the convicted co-accused---Material and evidence available before the Court showed that the provisions of section 34, P.P.C. were not attracted in the present case---In both of the episodes of the occurrence, it appeared to be the individual acts of each accused which took place at the spur of the moment---Causing of injuries to the witnesses and the murder of deceased took place in two separate and independent episodes---In the first episode of the occurrence, the accused and acquitted co-accused did not commit any criminal act with their common intention and they did not cause any injury to witnesses, who, being empty handed, were at their mercy---No overt act falling in the definition of a criminal act was even attributed to them in the FIR---Similarly, during the second episode a single fire shot had been attributed to the accused on the deceased, whereas the convicted co-accused and an acquitted co-accused fired at complainant and a witness, who miraculously escaped but such a story can hardly be believed because if they possessed the common intention to commit the murder of the witnesses, who were at their mercy and reportedly empty handed, they could have easily achieved the same---Role of firing (criminal act) during the second episode though was attributed to an acquitted co-accused and the convicted co-accused but the trial Court not only acquitted both of them of the charge under section 302(b), P.P.C. but also held that there was no evidence of common intention---Such finding of trial Court had also attained finality, hence, there was no legal or moral justification for remand of the case of one of them (i.e. the convicted co-accused) on a matter which had already been decided and attained finality---Sending back the case of the accused and convicted co-accused to the Trial Court after about ten years would be nothing short of increasing their agonies and anguish, and would also be against substantial justice].

Per Mazhar Alam Khan Miankhel, J. dissenting (Minority view)

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

----S. 34---Common intention---Scope---Alleged criminal act should be in furtherance of common intention and not the common intention simpliciter---Mere presence of an accused with another accused who commits the crime would not constitute his common intention unless there is an evidence referring to the criminal act of that accused committed in furtherance of common intention with the other accused. [Minority view]

Syed Asim Ali Bukhari, Advocate Supreme Court for Petitioner (in Cr. P. 1371/2016 and Cr. M.A. 1704/2017).

Ch. Ghulam Murtaza Khan, Advocate Supreme Court for Petitioner (in Cr. P. 1651-L of 2016).

Mirza Abid Majeed, DPG, Punjab for the State.

2022 S C M R 1216

[Supreme Court of Pakistan]

Present: Qazi Faez Isa andAmin-ud-Din Khan, JJ

NAZAR HUSSAIN and another---Petitioners

Versus

Syed IQBAL AHMAD QADRI (DECEASED) through his L.Rs and another---Respondents

Civil Petition No. 2832 of 2018, decided on 18th February, 2022.

(On appeal against the judgment dated 09.02.2018 passed by the Islamabad High Court, Islamabad, in C. R. No. 212/2015)

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

----S. 12---Suit for specific performance of an agreement to sell immoveable property---Balance sale consideration, payment of---Seller/vendor refusing to accept balance sale consideration---Buyer's primary obligation in a contract of sale is to make payment of the balance sale consideration as stipulated in the contract---If the seller refuses to receive payment the buyer must establish that he had the required money which was kept aside for the seller, for instance, by making a pay order or cashier cheque in his name; this would show that the buyer no longer had access to the sale consideration---Alternatively, the buyer could deposit it (the balance sale consideration) in court.

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

----S. 12---Suit for specific performance of an agreement to sell immoveable property---Balance sale consideration not paid in court---Unfair advantage to buyer where suit decreed after a lapse of many years---If a buyer does not fulfil his primary obligation to secure/tender the sale consideration and files suit (for specific performance of agreement to sell), and does so without depositing the sale consideration in court, the buyer is placed in an advantageous position---In the present case, the agreement (to sell) is dated 17 March 2004; and the suit was filed on 17 March 2007; and now in the year 2022, after eighteen years, it would be eminently unfair if the purported buyers (petitioners), are permitted to pay the same amount to the seller---Over time the price of land has increased and the value of the local currency has continuously depreciated, therefore, if the suit was to be decreed now it would give an unfair advantage to the petitioners, who would have got the plot for what effectively would have been a lesser price (in real terms) than what the parties had agreed to in the agreement---Furthermore according to the petitioners own version they had paid to the seller an abysmal 5.8 percent of the total sale consideration---Suit for specific performance of agreement to sell was rightly dismissed by courts below---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 23---Specific Relief Act, (I of 1877), S. 12---Suit for specific performance of an agreement to sell a plot in the Federal Government Employees Housing Foundation Housing Scheme ('the Housing Scheme')---Sale of plot opposed to public policy---In the present case, the agreement to sell the plot in the Housing Scheme was opposed to public policy as the Housing Scheme was meant to provide land to eligible Federal Government employees---Purpose of the Housing Scheme is negated if the purported buyers (petitioners), who were not Federal Government employees, can benefit therefrom, and, to do so by putting forward an eligible Federal Government employee to obtain a plot which they are not otherwise entitled to---Those not eligible and entitled to get such plots could also not do indirectly what they could not do directly, by for instance finance the purchase of a plot which would not go to the Federal Government employee---Suit for specific performance of agreement to sell the plot was rightly dismissed by courts below---Petition for leave to appeal was dismissed and leave was refused.

Zulfiqar Ali Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Nemo for Respondent No. 1.

M. Nazir Jawwad, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record (absent) for Respondents.

2022 S C M R 1220

[Supreme Court of Pakistan]

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

GHULAM MURTAZA---Appellant

Versus

MUHAMMAD RAFIQUE and others---Respondents

Civil Appeal No. 42-L of 2021, decided on 16th February, 2022.

(On appeal from the judgment dated 15.2.2021 passed by the Lahore High Court, Lahore in C.R. No. 3228 of 2011)

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

----S. 13(2)---Suit for pre-emption---Talb-i-Muwathibat---Proof---Details of performance of Talb-i-Muwathibat had been given in the plaint, and the same were proved through producing the informer, the witness before whom the said talab was performed, and the appellant-pre-emptor himself---Suit for pre-emption filed by the appellant had rightly been decreed---Appeal was allowed.

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

----S. 13(3)---Suit for pre-emption---Talb-i-Ishhad, notice of---Proof---For the performance of Talb-i-Ishhad, the attesting witnesses of the Talb-i-Ishhad, along with the appellant-pre-emptor testified and their evidence had not been rebutted---Notices of Talb-i-Ishhad were sent to the respondents-vendees on their given addresses along with acknowledgement due cards but the same were returned un­delivered as the vendees had refused to accept the same---When the addresses appearing on registered envelopes were the same and had not been denied by the vendees then it could safely be held that the same were not accepted intentionally as an attempt to hamper and extinguish the right of pre-emption of the appellant---Available record confirmed that the pre-emptor, as per requirement of law, had performed his legal obligation---Non-acceptance of registered letters, in the given circumstances, would simply mean that the vendees knowingly refused to accept the same and their said act, in no way, could affect the rights of the pre-emptor---When the postal receipts, AD Cards and properly addressed registered envelopes containing the notices of Talb-i-Ishhad were present on file and tendered in evidence in the Court, then this would amount to sufficient compliance of the law---Suit for pre-emption filed by the appellant had rightly been decreed---Appeal was allowed.

Abdul Ashfaq Cheema, Advocate Supreme Court (via Video Link, Lahore) for Appellant.

Malik Matiullah, Advocate Supreme Court (via Video Link, Lahore) for Respondents.

2022 S C M R 1223

[Supreme Court of Pakistan]

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

ALI RAZA---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 339-L of 2022, decided on 6th May, 2022.

(Against judgment dated 24.01.2022 of Lahore High Court, Lahore, passed in Criminal Misc. No. 80679-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 406---Constitution of Pakistan, Art. 185(3)---Criminal breach of trust---Bail, grant of---Further inquiry---Pre-requisites for attracting section 406, P.P.C. absent---Complainant had given his vehicle to the co-accused, who operated a car showroom and rent a car business---Co-accused alleged that the vehicle in question was given to the accused, who misappropriated the same and never returned it----Only material against the accused was the statement of the co-accused which was per se not admissible in evidence---To attract the provisions of section 406, P.P.C., it was necessary to fulfil basic requirements of 'entrustment' and 'misappropriation with 'mens rea'---Both said ingredients of section 406, P.P.C. were totally absent in the present case---Hence, there was no independent evidence or material against the accused which would directly involve him in the offence under section 406, P.P.C.---Further, no recovery had been made from him and the question of his guilt or innocence was a matter which required further inquiry at trial stage---Offence alleged also did not fall within the prohibitory clause of section 497, Cr.P.C.---Petition for leave to appeal was converted into an appeal and allowed, and accused was admitted to bail.

Sh. Sakhawat Ali, Advocate Supreme Court for Petitioner.

Khurram Khan, Additional P.G., Punjab, Naeem Virk, DSP and Saif Ullah, SI for the State.

2022 S C M R 1225

[Supreme Court of Pakistan]

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

SHAH ZAIB and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 324 and 325 of 2021, decided on 17th February, 2022.

(Against the judgment dated 24.10.2017 passed by the Lahore High Court Lahore in Cr. A. No. 962-J of 2012)

Penal Code (XLV of 1860)---

----Ss. 365 & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for ransom---Reappraisal of evidence---Sentence, reduction in---Conviction for kidnapping for ransom reduced to simple kidnapping---Accused persons were arrested red-handed after a police chase with the abductee found handcuffed in the vehicle---One of the captors was also killed in exchange of fire with the police---However the prosecution did not possess enough evidence to conclusively hypothesize the story of abduction for ransom, inasmuch as mere reliance upon a hand-written note in the abandoned vehicle, that too, in an encounter, seemingly unanticipated, and events subsequent thereto were factors more vividly spelling out abduction simpliciter rather than one for ransom---Moreover one of the accused present in the vehicle was a female with a child in her lap---Supreme Court converted convictions of accused persons under section 365-A to section 365, P.P.C. and their sentences of imprisonment for life were reduced to 7-years rigorous imprisonment with fine of Rs.50,000 each, whereas their convictions under section 7(e) of the Anti-Terrorism Act, 1997 were set aside---Appeals were partly allowed.

Barrister Salman Safdar, Advocate Supreme Court for Appellants (in Cr. A. 324 of 2021).

Syed Rifaqat Hussain Shah, Advocate Supreme Court for Appellants (in Cr. A. 325 of 2021).

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

Akram Gondal, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for the Complainant.

2022 S C M R 1229

[Supreme Court of Pakistan]

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

AURANGZEB---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 35 of 2021, decided on 2nd February, 2022.

(On appeal against the order dated 22.12.2020 passed by the Peshawar High Court, D.I. Khan in Cr. MBCA No. 378-D of 2020)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324 & 34---Constitution of Pakistan, Art. 185(3)---Attempt to commit qatl-i-amd, common intention---Bail, cancellation of---Accused was specifically nominated in the crime report wherein a specific accusation of causing firearm injuries on the abdominal region of the complainant was alleged against him---Occurrence had taken place in broad daylight and there was no chance of any misidentification especially when the parties were known to each other---Injuries ascribed to the accused were supported by medical evidence---Mode and manner of the occurrence was fully established from the record---Offence alleged against the accused did fall within the prohibitory clause of section 497, Cr.P.C.---Bail had been granted to the accused against the merits and ignoring the principles for grant of bail---Petition for leave to appeal was converted into appeal and allowed, and bail granted to accused was cancelled.

Petitioner in person.

Burhan Latif Khaisuri, Advocate Supreme Court along with Respondent No. 3 for Respondent No. 3.

Arshad Hussain Yousafzai, Advocate Supreme Court and Said Qamar, S.I. for the State.

2022 S C M R 1231

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

FARID ULLAH KHAN---Petitioner

Versus

IRFAN ULLAH KHAN---Respondent

Civil Petition No. 287 of 2019, decided on 26th April, 2022.

(Against the judgment dated 13.12.2018 of the Peshawar High Court, Bannu Bench, passed in Civil Revision No. 69-B of 2014)

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

----S. 13(2)---Qanun-e-Shahadat (10 of 1984), Art. 71---Suit for possession through pre-emption--- Talb-i-Muwathibat--- Proof---Evidence of witness of Talb-i-Muwathibat must be direct---Person who conveys the information of the fact of sale must be a person who has seen the fact of sale and it is he who can then pass on the said fact to another person(s)---Thus, the chain of the source of information, as to the fact of sale, from the very first person, who has the direct knowledge thereof and passes on the same to the person who lastly informs the pre-emptor, must be complete---Only the complete chain of the source of information of the sale can establish the essential elements of Talb-i-Muwathibat, which are: (i) the time, date and place when the pre-emptor obtained the first information of the sale, and; (ii) the immediate declaration of his intention by the pre-emptor to exercise his right of pre-emption, then and there, on obtaining such information---Where the entire case as to making of Talb-i-Muwathibat is built on the hearsay evidence of a witness, it would raise doubts on the veracity and truthfulness of the witnesses produced by pre-emptor.

Subhanuddin v. Pir Ghulam PLD 2015 SC 69 ref.

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

----S. 13(2)--- Suit for possession through pre-emption--- Talb-i-Muwathibat---Proof---Circumstances contrary to version of Talb-i-Muwathibat---Assertion of a pre-emptor as to having come to know of the sale of the land on a particular date and making of Talb-i-Muwathibat on that date, being his personal and private act, cannot ordinarily be contradicted by the vendee through direct evidence; he can rebut such assertion, mostly by circumstantial evidence---Where two witnesses come up with an oral version of obtaining and conveying the first information of the sale, which are their personal and private acts, the authenticity of it can be examined only by testing the chain of the source of passing on and obtaining such information, as well as by establishing the circumstances that are inconsistent with their such version.

(c) Witness---

----Statement of a witness, reliance upon---Such statement must be consistent with the circumstances of the case before the same is believed and relied upon, as a man can lie but circumstances not.

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

----S. 13(2)---Suit for possession through pre-emption---Talb-i-Muwathibat and Talb-i-Ishhaad---When the first and primary Talb, that is, Talb-i-Muwathibat, is found to have not been proved, the Court need not examine the evidence on the making of the second Talb, that is, Talb-i-Ishhad, as where Talb-i-Muwathibat is not proved to have been made then the performance of Talb-i-Ishhad and all other requirements to successfully enforce the right of pre-emption cannot withstand---Foundation of the right of pre-emption rests on the making of Talb-i-Muwathibat; if it is not made in accordance with the law, the entire superstructure collapses.

Muhammad Khan v. Haider PLD 2020 SC 233 and Subhanuddin v. Pir Ghulam PLD 2015 SC 69 ref.

(e) Constitution of Pakistan---

----Art. 185---Appellate jurisdiction of the Supreme Court---Scope---Concurrent findings of fact---Supreme Court does not normally go behind a concurrent finding of fact, if that finding is not vitiated by any error in point of law, but this rule is not a cast-iron one, and there may be cases of such an unusual nature as will constrain the Court to depart from it in order to prevent a miscarriage of justice---Supreme Court, therefore, does not hesitate to review the evidence in spite of a concurrent finding of the courts below, if it be shown with absolute clearness that some substantial error is apparent in the manner in which the courts below have dealt with the facts, or if the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it would amount to perpetuating a grave miscarriage of justice.

Federation v. Ali Ihsan PLD 1967 SC 249 ref.

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

Salahuddin Malik, Advocate Supreme Court/Advocate-on-Record for Respondent.

2022 S C M R 1240

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

COMMISSIONER INLAND REVENUE,LAHORE---Petitioner

Versus

Messrs HNR COMPANY (PVT.) LIMITED, LAHORE---Respondent

Civil Petitions Nos. 593-L, 594-L and 595-L of 2021, decided on 24th February, 2022.

(Against the order dated 20.01.2021 passed by the Lahore High Court, Lahore in ITR No. 2649 of 2021)

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

----Ss. 120, 121(1)(d) & 122(2) [as they existed prior to the amendments made by Finance Act, 2010]---Best judgment assessment order under section 121(1)(d) of the Income Tax Ordinance, 2001 ("the Ordinance')---Such order cannot be made in cases where deemed assessment order has already been made under section 120 of the Ordinance---In the present case respondent-tax payer had submitted its income tax returns for the Tax Years 2005 and 2006; these returns were deemed to have been accepted under section 120 of the Ordinance and, therefore, section 121 of the Ordinance would not apply---Another additional ground prevented action to be taken against the respondent, which was the 'five years' limitation period provided in section 122(2) of the Ordinance, and since five years had expired action could not be initiated---Respondent had also written to the Deputy Commissioner, Inland Revenue, to identify the 'specific year' but he did not respond to such legitimate query---Instead the Deputy Commissioner, Inland Revenue elected to proceed unilaterally and did so without providing an opportunity of a hearing to the respondent, which was yet another transgression of the law---Petitions for leave to appeal were dismissed and leave was refused.

Commissioner Inland Revenue, Zone-III, RTO Rawalpindi v. Abdullah Khan (Civil Petitions Nos. 526 and 19 other petitions of 2013) ref.

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

----S. 177(10)---Audit---Best judgment assessment---Section 177(10) of the Income Tax Ordinance, 2001---Said section could not be given retrospective effect.

Sarfraz Ahmed Cheema, Advocate Supreme Court, Syed Fayyaz Ahmad Sherazi, Advocate-on-Record (absent) and Naeem Hassan, Secy. (L), FBR for Petitioner (in all cases).

Ms. Sheerin Imran, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record (absent) for Respondent (in all cases).

2022 S C M R 1245

[Supreme Court of Pakistan]

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

ALI RAZA---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1262-L of 2021, decided on 21st March, 2022.

(On appeal against the order dated 05.08.2021 passed by the Lahore High Court, Lahore in Criminal Misc. No. 46159-B of 2021)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 148, 149, 109 & 440---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, grant of---Further inquiry---Admittedly the FIR was registered with an inordinate delay of nine hours for which no plausible explanation had been given---Dimension of the injury sustained by the victim clearly suggested that the allegation levelled against the accused was not fully borne out qua the kind of weapon because the doctor had given the dimension of the injury as 0.5 cm x 0.5 cm, which clearly showed that the injury was caused by a pellet ejected from gunshot and not from the weapon which was alleged against the accused---Admittedly the accused fired only single shot at the non-vital part i.e. wrist of the victim and had not repeated the same despite having ample opportunity to do so, which showed that perhaps the accused had no intention to kill the victim---During the course of proceedings, it transpired that no weapon of offence had been recovered from the accused by the Investigating Officer---Accused was behind bars for more than ten months and there was no likelihood of commencement of his trial in near future---Accused had made out a case for bail as his case squarely fell within the purview of section 497(2) Cr.P.C. calling for further inquiry into his guilt---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---Doubt in the veracity of the prosecution version---Benefit of such doubt can be resolved in favour of the accused even at bail stage.

Samiullah v. Laiqzada 2020 SCMR 1115 and Muhammad Faisal v. The State 2020 SCMR 971 ref.

Humayun Rashid Ch., Advocate Supreme Court for Petitioner.

Khurram Khan, Additional P.G., Hafiz Imtiaz, DSP and Muhammad Majeed, SI for the State.

2022 S C M R 1248

[Supreme Court of Pakistan]

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

Raja EHTISHAM KIYANI---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 83 of 2021, decided on 4th March, 2022.

(Against the judgment dated 01.02.2021 passed by the Lahore High Court Rawalpindi Bench in Crl. A. No.58 of 2020)

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

----Ss. 9(c) & 29---Possession of 1500 grams of heroin---Reappraisal of evidence---Plea of false implication due to previous animosity rejected---Investigation Officer swiftly concluded various investigative steps/requirements to bring the prosecution to its logical end---Attestation of inventories by other members of the police contingent confirmed their presence at the scene of occurrence---Such official business was protected by statutory presumption of being in order/genuine---Insofar as allegation of previous animosity on account of alleged demand of bribe by one of the members of the police party, against whom, the accused claimed to have moved some application was concerned, nothing was brought on the record to even obliquely suggest an ongoing previous animosity, prompting the police to impose false recovery of a substance---Such plea of accused surfaced, surprisingly late in the day without any attempt to take the departmental recourse and, thus, at best could be viewed as an afterthought and at worst a ploy to subvert the prosecution---Even during the trial, the accused did not enter the witness box in disproof of charge or to drive home his plea with a view to discharge adverse statutory presumption provided in section 29 of the Control of Narcotic Substances Act, 1997---Petition for leave to appeal was dismissed, leave was refused and conviction and sentence of accused were maintained.

Syed Hamid Ali Shah Bokhari, Advocate Supreme Court for Petitioner.

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

2022 S C M R 1251

[Supreme Court of Pakistan]

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

COMMISSIONER INLAND REVENUE, PESHAWAR---Appellant

Versus

Messrs PAKISTAN TOBACCO COMPANY (LTD.), ISLAMABAD and others---Respondents

Civil Appeal No. 243 of 2011 and Civil Appeal No. 1136 of 2018, decided on 31st May, 2022.

(On appeal against order dated 23.12.2010 and 05.10.2017 passed by the Peshawar High Court, Peshawar in Custom Reference No.68/2010 with C.Ms. Nos. 29/2010, 108/2010 and Sales Tax Reference No.68-P of 2007)

Sales Tax Act (VII of 1990)---

----Ss. 2(33), 2(39), 2(41), 3(1A) & 3(3)(a)---Sale of Goods Act (III of 1930), Ss. 4 & 19---Constitution of Pakistan, Art. 247 [since omitted]---Taxable supplies made to unregistered persons in erstwhile Provincially Administered Tribal Areas (PATA) and Federally Administered Tribal Areas (FATA) ('the Tribal Areas') [before the 25th Amendment to the Constitution]---Additional sales tax, charging of ---Whether there was any liability for the payment of additional sales tax in terms of section 3(1A) of the Sales Tax Act, 1990 ('Act') in respect of a situation where the person making the taxable supplies was located in Pakistan whereas the recipient of those supplies was located in the erstwhile Tribal Areas---Held, that before the 25th Amendment to the Constitution, federal laws which otherwise applied in the whole of Pakistan nonetheless did not so apply in relation to the Tribal Areas by reason of Article 247 of the Constitution (since omitted)---For a law to apply in the Tribal Areas, there had to be a specific direction in that regard in terms of Article 247(3), and admittedly there was no such direction in relation to the Act at the relevant time---For there to have been a valid levy and charge in terms of section 3(1A), there had to have been a sale of taxable goods in Pakistan---Term "sale" as used in the definition of "supply" in clause (33) of section 2 of the Act could include both a 'sale' and an 'agreement to sell' in terms of the Sale of Goods Act, 1930---Sale between a manufacturer and seller and its dealers had to take place "in Pakistan", in the special sense in which these words were used prior to the 25th Amendment to the Constitution---Simply arguing that the supplier was "in Pakistan" was not enough---Question as to whether the supplies over the relevant tax periods were indeed made "in Pakistan" was essentially one of fact, or at least had significant factual elements---Such aspects had to be properly alleged in any show cause notice issued by the department, and proved or otherwise established from the record---However, in the show cause notices in the present cases there was no such allegation, and when the record was examined there were no relevant factual findings as could result in a conclusion that the supplies over the relevant tax periods were indeed made "in Pakistan"---Although in terms of section 3(3)(a) of the Act the legal liability to pay the tax fell on the person making the taxable supplies---However, the crucial question in the present cases was whether or not the supplies were made "in Pakistan"---Said question was not, as a matter of fact, established from the record and was not even alleged in the show cause notices---Such defect was fatal to the case sought to be made out by the department, and in the absence of any such findings the show cause notices simply could not succeed---Appeals filed by the department were dismissed.

Dr. Farhat Zafar, Advocate Supreme Court and Bahadur Sher Afridi, dditional Commissioner, FBR, Peshawar for Appellant (in both cases).

Farrukh Jawad Panni, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Respondent No. 1 (in C.A. No.243 of 2011).

Masoor ur Rehman, Advocate Supreme Court and Sh. Mahmood Ahmed, Advocate-on-Record for Respondent No. 1 (in C.A. No. 1136 of 2018).

2022 S C M R 1256

[Supreme Court of Pakistan]

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

SUI SOUTHERN GAS COMPANY LIMITED and others---Appellants

Versus

SAEED AHMED KHOSO and another---Respondents

Civil Appeal No. 1477 of 2021, decided on 1st March, 2022.

(On appeal against the judgment dated 19.07.2021 passed by the High Court of Balochistan, Quetta in C.P. No. 950 of 2021)

(a) Master and servant---

----Non-statutory rules of service---Where employment rules are non-statutory in nature, the relationship of employer and employee is governed by the principle of master and servant.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Master-servant---Employee of company registered under the Companies Ordinance, 1984 or the Companies Act, 2017 in which the Government has a shareholding---Not necessary that such company is to be treated at par with statutory Corporations and authorities for purposes of determining whether the Constitutional petition filed by its employee was maintainable.

Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159; Muhammad Rafi v. Federation of Pakistan 2016 SCMR 2146 and Pakistan Defence Officers Housing Authority v. Itrat Sajjad Awan 2017 SCMR 2010 ref.

Faisal Mehmood Ghani, Advocate Supreme Court for Appellants.

M. Shoaib Shaheen, Advocate Supreme Court for Respondent No. 1.

2022 S C M R 1260

[Supreme Court of Pakistan]

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

WASEEM ZEB KHAN---Petitioner

Versus

The CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, NAB HEADQUARTERS, ISLAMABAD and others---Respondents

Civil Petition No. 722-P of 2021, decided on 25th January, 2022.

(Against the order dated 05.10.2021 passed by the Peshawar High Court Peshawar in W.P. No.2622-P of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), S. 9---Constitution of Pakistan, Art. 185(3)---Bail, refusal of---Defrauding and cheating the public at large by way of a fraudulent investment scheme---Perusal of the case record showed a long list of victims deprived of huge amounts, each blaming the accused for soliciting deposits in lieu of regular lucrative profit, a promise that soon turned out as farce---All the victims were from different regions and backgrounds, thus, present case could not possibly be stage-managed to cook up a false case that too without any reason---Investigative details confirmed establishment of an office as was unanimously pointed out by the witnesses in their statements before the Investigating Officer---Small amount statedly deposited by the accused (in the fraudulent company) to project himself as an innocent victim of the scam without any tangible proof, in the face of formidable evidence, did not provide any space to hypothesize his claim of innocence---In this backdrop, refusal by the High Court to release the accused on bail in exercise of its Constitutional jurisdiction was not open to any legitimate exception---Petition for leave to appeal was dismissed, leave was refused, and accused was denied bail.

Barrister Waqar Ali Khan, Advocate Supreme Court for Petitioner.

Akbtar Tarar, Additional P.G. and Nasir Mehmood Mughal, Special Prosecutor with Ansar Butt, I.O. for the NAB.

2022 S C M R 1262

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ

Syed ATIF RAZA SHAH---Petitioner

Versus

Syed FIDA HUSSAIN SHAH and another---Respondents

Civil Petition No. 1998 of 2018, decided on 2nd March, 2022.

(Against the judgment of the Lahore High Court, Lahore dated 22.03.2018 passed in Civil Revision No. 15075/04 of 2017)

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

----Ss. 182 & 215---Power of Attorney---Principal-agent relationship---Duties of an agent---Scope---Agent dealing on his own account without principal's consent and without acquainting him with all material circumstances---Right of principal to repudiate such transaction explained.

Power of attorney is an instrument in writing, conferring authority or power by a principal to his agent to do certain acts in a specific and limited manner. The relation that an agent and a principal share, is a fiduciary one. Under agency, the agent must act in a way that is advantageous and beneficial to the principal and to safeguard his right and interest.

Under an agency, an agent has a pivotal role, as he represents the principal or conducts business on his behalf. While dealing or entering into a transaction in respect of the subject matter of a power of attorney, the duties that an agent has are to use much due skill and due diligence as he can; to communicate with the principal and to obtain his instructions at every stage of the transaction; and to avoid conflict of interest between his duty and interest of the principal.

An agent, while dealing with the third party on his own account in regard to a subject matter, to which he is employed, is subjected to a duty to deal fairly with the principal and to communicate him all the material facts in connection with the transaction, unless the principal manifests that he knows such facts, or that he does not care to know them. The next duty of the agent is to avoid conflict of interest, between his duty and the interest of the principal. Since trust is an essential element of an agency, therefore, under no circumstances, should the agent put himself before the interest of the principal. If a circumstance arises, wherein there is a conflict of interest, that is arising in the transaction, it is the duty of the agent to disclose any understanding that would incur him a gain, from any transaction that is conducted with a third party. If the agent fails to do any of the duties, resulting into either dishonest concealment of any material fact from the principal or the dealing is disadvantageous to him, the principal has the right to repudiate the transaction, that occurred between the third party and the agent, and the Courts can rescind the outcome of the transaction.

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

----Ss. 182 & 215---Power of Attorney---Principal-agent relationship---Dishonest concealment of material facts by agent---Conflict of interest---Misconduct and misuse of authority by the agent---In the present case, the agent by exercising the authority conferred upon him, had transferred the property in question by way of a purported gift deed, in the name of his son (the petitioner), without first disclosing all the material facts and getting permission or consent of the principal---Mutation of the property was effected in the name of the petitioner on 4.9.2012, whereas, the principal had revoked the power of attorney on 5.9.2012, which shows that the principal was no more willing for the agent to continue as his agent---No evidence was available to prove that before entering into the transaction, the agent ever informed the principal in this behalf---Since there was dishonest concealment of material facts, therefore, it resulted into a conflict of interest, as such, the dealing was disadvantageous to the right and interest of the principal---Under such circumstances, the transfer of the property by the agent in the name of his son was a classic example of misconduct and misuse of authority by an agent---Transaction in respect of the plot in question effected between the agent and his son (the petitioner) had rightly been repudiated at the request of the principal---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Yasin and another v. Dost Muhammad through LRs and another PLD 2002 SC 71 and Ahmad and others v. Salman Ali PLD 2003 SC 31 ref.

Mudassar Khalid Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2022 S C M R 1267

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Muhammad Ali Mazhar, JJ

MEERA SHAFI and others---Petitioners

Versus

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

Civil Petition No. 1431 of 2022, decided on 8th June, 2022.

(Against the judgment dated 09.03.2022 of the Lahore High Court, Lahore passed in Writ Petition No. 24397 of 2021)

Prevention of Electronic Crimes Act (XL of 2016)---

----S. 20---Defamation Ordinance (LVI of 2002), Ss. 3 & 5(c)---Constitution of Pakistan, Arts. 10A, 19 & 185(3)---Criminalising defamation---Petition for leave to appeal challenging constitutionality of section 20 of Prevention of Electronic Crimes Act, 2016---Allegation of sexual harassment was made by petitioner on a social networking website---Petitioner's complaint under the Punjab Protection against Harassment of Women at the Workplace Act, 2012 ('the 2012 Act'), was dismissed by the fora below, and appeal against the same was pending before the Supreme Court---Respondent-accused sought damages on account of his alleged defamation at the hands of the petitioner by filing a defamation suit, which was pending adjudication---Counsel for petitioner submitted that to pressurize and harass the witnesses of the petitioner in the pending defamation suit against her, the respondent lodged an FIR under section 20 of the Prevention of Electronic Crimes Act, 2016 ('PECA') against eight persons, including the petitioner and her witnesses, all of whom, had to obtain bail and were facing the ordeal of a criminal trial; that by such tactics the petitioner's complaint under the 2012 Act and her defence in the defamation suit, that what she had written on social media was true, had been jeopardized; that section 20 of PECA violated Article 19 of the Constitution, which enshrines freedom of speech and expression as a Fundamental Right, with defamation not stated as one of the exceptions therein---Supreme Court granted leave to appeal to consider the contentions of the counsel for the petitioner and other connected questions arising from the present case and stayed the proceedings in the case arising out of the FIR lodged by the respondent under section 20 of PECA till the next date of hearing.

Supreme Court stayed the proceedings in the case arising out of the FIR lodged by the respondent under section 20 of the Prevention of Electronic Crimes Act, 2016 ('PECA'), till the next date of hearing, and granted leave to appeal to consider the following issues:

(i) Whether section 20 of PECA, and any other provision thereof, violate Article 19 of the Constitution?;

(ii) Whether the defence of truth is undermined by section 20 of PECA by criminalising defamation?;

(iii) Whether the criminalisation of defamation negates, dilutes, and/or suppresses the Fundamental Right of freedom of speech and expression?;

(iv) Whether an anomalous situation is created if both a civil case, claiming damages on account of defamation, and a criminal prosecution for defamation proceed, and/or do so simultaneously, and whether this would undermine the Fundamental Right of a fair trial and due process enshrined in Article 10A of the Constitution?;

(v) Whether by invoking PECA against victims of sexual harassment, and victims of other crimes, amounts to silencing them, and perpetuates injustice?;

(vi) Whether section 20 of PECA deters the wronged from accusing the wrongdoer and infringes the permission specifically granted to the wronged, that, 'Allah does not like that evil should be uttered in public except by one who is wronged' (Al-Qur'an, surah An-Nisa (4) verse 148)?;

(vii) Whether the petitioners could have recourse to the Supreme Court without having filed an Intra Court Appeal (ICA) against the impugned judgment?;

(viii) Whether there is an exception to the above (not filing an ICA) when Fundamental Rights require enforcement, and when Fundamental Rights of the general public may also be affected, and, if so, whether the constitutionality of a law, which allegedly violates Fundamental Rights, should not be determined at the earliest?

Muhammad Saqib Jillani, Advocate Supreme Court for Petitioners.

Ali Sibtain Fazli, Senior Advocate Supreme Court for Respondent No. 5.

2022 S C M R 1271

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD IJAZ---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 43-L of 2021, decided on 7th March, 2022.

(On appeal against the order dated 13.01.2021 passed by the Lahore High Court, Lahore in Criminal Misc. No. 29939-B of 2020)

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

----Ss. 498 & 497(2)--- Penal Code (XLV of 1860), Ss. 337-A(i), 337-F(vi) & 34---Constitution of Pakistan, Art. 185(3)---Causing a fracture injury by an iron rod---Pre-arrest bail, grant of---Further inquiry---Cross-version FIRs---Possibility of false implication---Prosecution case doubtful---In the present case, admittedly the FIR was registered after a delay of three days for which no plausible explanation had been given---Case of the accused was that the complainant party was the aggressor and in the incident the accused had also sustained injuries on his head, nose and left arm, which were suppressed---Accused was medically examined on the same day and the medico legal examination certificate confirmed the factum of receiving injuries by the accused---Accused immediately approached the police for registration of FIR and after much effort his cross-version was recorded and the complainant's son had been found guilty in cross-version---Complainant's son was medically examined after three days of the occurrence and for such delay no plausible explanation had been given---Previously an FIR was registered against the accused, by the complainant party but the same was cancelled---Keeping in view such aspect of the matter that the previous registration of case was proved to be false and was recommended for cancellation coupled with the fact that the medico legal examination of the complainant's son was conducted after three days of the incident and the injuries caused to the accused were suppressed, the possibility of implicating the accused in the present case with mala fide intention could not be ruled out---Offence under section 337-A(i), P.P.C. was bailable in nature whereas the offence under section 337-F(vi), P.P.C. did not fall within the prohibitory clause of section 497, Cr.P.C.---In these circumstances, a prima facie doubt had arisen qua the authenticity of the prosecution's case---Case of the accused squarely fell within the purview of section 497(2), Cr.P.C. requiring further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed, and accused was granted pre-arrest bail.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail---Merits of the case---Merits of the case can be touched upon while granting pre-arrest bail.

Miran Bux v. The State PLD 1989 SC 347 ref.

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

----Ss. 497 & 498---Constitution of Pakistan, Art. 185(3)---Pre-arrest/post-arrest bail---Benefit of doubt---Scope---Benefit of doubt, if established, can be extended even at bail stage.

Samiullah v. Laiqzada 2020 SCMR 1115 and Muhammad Faisal v. The State 2020 SCMR 971 ref.

Humayun Rasheed, Advocate Supreme Court for Petitioner along with Petitioner.

Khurram, Additional P.G. and Abdul Rasheed, Inspector for the State.

2022 S C M R 1275

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Muhammad Ali Mazhar, JJ

MUHAMMAD AFZAL KHAN---Appellant

Versus

MUHAMMAD ASLAM (DECEASED) through LRs.---Respondents

Civil Appeal No. 176 of 2016 and C.M.A. No. 9246 of 2015, decided on 17th May, 2022.

(Against the judgment dated 26.11.2015 passed by Lahore High Court, Multan Bench, Multan, in C.R. 675 of 2001)

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

----S. 12--- Specific performance of an agreement to sell---

Scope---Buyer/vendee who had not signed the agreement of sale was not disentitled from filing a suit seeking its specific performance.

Muhammad Sattar v. Tariq Javaid 2017 SCMR 98 ref.

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

----S. 12---Civil Procedure Code (V of 1908), S. 11---Limitation Act (IX of 1908), First Sched., Art. 113---Suit for specific performance of an agreement to sell---Maintainability---Suit barred under the principle of res judicata and also filed beyond the prescribed period of limitation---In the present case, the appellant/vendee by his own showing had divested his purported interest in the said land (having statedly sold it to his brothers in 1973); he also did not array his brothers as parties in his suit filed in the year 1992, nor did so later---Brothers also did not come forward themselves to assert their purported rights of ownership in the said land---However, the respondent/vendor had arrayed the appellant/vendee and his brothers in his suit, which was decreed, and the unchallenged judgment with regard to the said land constituted res judicata in terms of section 11 of the C.P.C.---Said unchallenged judgment attained finality as neither the appellant nor his brothers challenged it---Appellant was a party to respondent's suit, and was also aware of the unchallenged judgment, as it was exhibited in the appellant's suit---As regards the point of limitation the appellant had filed the suit in the year 1992, seeking specific performance of a purported sale agreement dated 4th May 1966, that is, after a period of 26 years, which suit he then withdrew and filed the fresh suit in the year 1996, that is after 30 years---Suit seeking specific performance of a contract is required to be filed within three years, as per Article 113 of the First Schedule to the Limitation Act, 1908---Suit filed by appellant was not maintainable in view of the principle of res judicata and for being filed beyond the prescribed period of limitation---Civil Judge and Appellate Court when decreeing the suit of the appellant did not consider the objections of the respondent regarding res judicata and limitation---High Court also did not consider the said objections, but dismissed the suit on other grounds---Appeal was dismissed and suit filed by appellant was held to be not maintainable.

Mrs. Fakhar-un-Nisa Khokhar, Advocate Supreme Court, Qari Abdul Rashid, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Appellant.

Zulfikar Khalid Maluka, Advocate Supreme Court for Respondents.

2022 S C M R 1280

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

GHAFFAR MAHESAR---Petitioner

Versus

The STATE through P.G Sindh and others---Respondents

Criminal Petitions Nos. 100-K and 101-K of 2020, decided on 26th January, 2022.

(Against the order dated 31.01.2020 passed by the High Court of Sindh in Criminal As. Nos. S-11 and 12 of 2019)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence was a daylight affair---Three prosecution witnesses, including the deceased's father, unanimously pointed their finger upon the accused as being one of the assassins---Father of deceased was certainly not expected to substitute the real assassin of his son with a proxy---Statements of said three prosecution witnesses were in a comfortable unison on all the salient aspects of the case as well as details collateral thereto---Being from the same neighbourhood, their presence at the crime scene could not be viewed with suspicion---Medical evidence was consistent with the timeline of the occurrence as well as injuries suffered by the deceased---Preponderance of evidence undoubtedly constituted "proof beyond doubt" and, thus, could be relied upon without any objection to hold the accused guilty of the crime---Petition for leave to appeal was dismissed, and leave was refused.

Abdul Baqi Jan Kakar, Advocate Supreme Court for Petitioner.

Saleem Mangrio, Additional P.G. Sindh for the State.

Complainant in person.

2022 S C M R 1282

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Civil Appeals Nos. 152 and 153 of 2019

(Against the consolidated judgment dated 26.11.2018 passed by the Peshawar High Court, Abbottabad Bench, in Civil Revisions Nos. 182-A/2018 and 145-A of 2018)

AND

Civil Petition No. 472 of 2019

(Against the judgment dated 26.11.2018 passed by the Peshawar High Court, Abbottabad Bench, in Writ Petition No. 521-A/2018)

Haji MUHAMMAD YUNIS (DECEASED) through legal heirs and another-- Appellants

Versus

Mst. FARUKH SULTAN and others---Respondents

Civil Appeals Nos. 152 and 153 of 2019 and Civil Petition No. 472 of 2019, decided on 17th May, 2022.

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

----S. 42---Illegal Dispossession Act (XI of 2005), Ss. 3 & 8---Suit for declaration---Property bought by overseas Pakistanis ('the vendees')---Legal heirs of vendor challenged the sale mutation in favour of vendees as being the result of fraud and forgery---Suit for declaration filed by one of the legal heirs was decreed by the High Court---High Court also dismissed the complaint filed by the vendees against one of the legal heirs under Illegal Dispossession Act, 2005---Held, that during the proceedings of the suit, the male legal heir (one of the plaintiffs) introduced a fictitious attorney of one of the vendees and her purported son, and showed the other vendee to have died; secondly, he got filed the written statement on behalf of the vendees through the said fictitious attorney favouring his stance in the suit; and finally, got half of the suit property alienated through the said fictitious attorney to him---Such crucial facts were recorded by the Trial Court in its orders--Furthermore, the stance of the male legal heir before the trial court, during the proceedings of the suit, also kept wavering---At the initial stage of the proceedings of the suit, he took the plea in his written statement that the suit property had fallen to his share in the family settlement and he was the exclusive owner thereof---Later, he was shown to have purchased half of the suit property vide a sale mutation, and finally, he abandoned all his earlier claims after registration of a criminal case against the fictitious attorney, and joined hands with his sister (one of the plaintiffs), supporting her claim that the suit property had devolved on all children and they all were entitled to their respective share therein as per the Islamic law---Trial Court found that sale mutation in favour of vendees was sanctioned by the Revenue Officer in presence and on the identification of the vendor's husband, therefore, the plea of fraud with the vendor was immaterial---Trial court had also underlined that the vendor died after about 19/20 years of the sanction of the sale mutation but she did not challenge it during her lifetime, and therefore her legal heirs had no right to challenge it independent of their predecessor---Appellate Court cited that part of the statement of the male legal heir in its judgment, wherein he had admitted that the signature of his father on the disputed sale mutation, as identifier of the seller, his mother, matched with his signature on his CNIC and that his mother (vendor) used to make her signature in English, as it was on the disputed sale mutation---High Court did not have, in its revisional jurisdiction, the legal mandate to reverse the concurrent findings of the trial and appellate courts, without first addressing the said reasoning of the trial and appellate courts---Appeals were allowed, impugned judgment of High Court was set-aside, and concurrent judgments of trial and appellate courts dismissing the suit of legal heirs were restored, and the proceedings of the complaint under the Illegal Dispossession Act, 2005 were also restored.

(b) Limitation Act (IX of 1908)---

----First Sched. Art. 120---Specific Relief Act (I of 1877), S. 42---Adverse entry in revenue record (Jamabandi)---Right to sue---Fresh cause of action---'Actual denial of right' and an "apprehended or threatened denial of right"---Limitation period, commencement of---Principles for ascertaining when the right to sue accrues to a donor or owner of property, to seek a declaration of his ownership right over the property stated.

Every new adverse entry in the revenue record, being a mere "apprehended or threatened denial" relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person a fresh cause of action to institute the suit for declaration. The situation is different in a case, where the beneficiary of an entry in the revenue record actually takes over physical possession of the land on the basis of sale or gift mutation. In such a case, the alleged wrong entry in the revenue record coupled with the very act of taking over possession of the land by the alleged buyer or donee, in pursuance of the purported sale or gift, is an "actual denial of the proprietary rights" of the alleged seller or donor and thus, the time period to challenge the said disputed transaction of sale or gift by the aggrieved seller or donor would commence from the date of such actual denial. Therefore, in such a case, if the purported seller or donor does not challenge that action of "actual denial of his right" within the prescribed limitation period, despite having knowledge thereof, his right to do so becomes barred by the law of limitation, and the repetition of the alleged wrong entry in the subsequent revenue record (Jamabandi) does not give rise to a fresh cause of action.

Rabia Gula v. Muhammad Janan, C.A. No. 139-P/2013 decided on 25 February 2022 ref.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 39---Possession follows the title---Unless contrary is proved by cogent evidence, an owner is presumed to be in possession of his property.

----Civil cases---Disputed facts---Standard of proof---Disputed facts in civil cases are ordinarily decided on the evidential standard of preponderance of probability.

(e) Limitation Act (IX of 1908)---

----S. 3---Fresh period of limitation---Scope---When the right to sue of a person from or through whom the plaintiff derives his right to sue has become time barred, no fresh period of limitation can start for such plaintiff.

Rabia Gula v. Muhammad Janan, C.A. No. 139-P/2013 decided on 25 February 2022 ref.

(f) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 54---Transfer of Property Act (IV of 1882), S. 54---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Sale transaction---Onus to prove on beneficiary---When a sale transaction of an immovable property is challenged, the ultimate onus to prove the same is on the "beneficiary" thereof---However, this onus is shifted on the "beneficiary", only when the challenger puts forth some evidence to discharge the initial burden to rebut the legal presumption of truth in favour of the disputed long-standing revenue entries or registered sale deed, as the case may be.

Wajdad v. Provincial Government 2020 SCMR 2046 and Mazloom Hussain v. Abid Hussain PLD 2008 SC 571 ref.

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

----O. XXIII, R. 1(3)---Transfer of Property Act (IV of 1882), S. 54---Withdrawal of suit challenging a sale mutation---Bar to instituting fresh suit to challenge the same sale mutation---Scope---Where a person withdraws his suit challenging a sale mutation, he would lose his cause of action to re-agitate the same matter in a suit filed by another, either as a co-plaintiff or a proforma defendant supporting the plaintiff on the same matter---However such person can defend his stance on such matter as a defendant.

Muhammad Saleem v. Abdul Hakeem 2000 YLR 2888 and Ghulam Haider v. Ahmed Ali 2002 MLD 632 ref.

(h) Constitution of Pakistan---

----Art. 25---Plight of overseas Pakistanis in perusing their legal rights in courts in Pakistan---Special provisions for the protection of lawful rights of overseas Pakistanis---Observations recorded by the Supreme Court detailed.

The disadvantageous position of overseas Pakistanis requires urgent positive attention of all organs of the State. Overseas Pakistanis being not present in Pakistan, cannot pursue their cases as efficiently as can be done by the local residents, and are thus in a disadvantaged position in comparison to the latter. They as such form a class distinct from the local residents, based on an intelligible differentia. The public institutions can, therefore, take affirmative actions and make certain special provisions for the protection of their lawful rights and for the redressal of their genuine grievances. The Lahore High Court has taken certain administrate measures for early decision of the cases of Overseas Pakistanis and to address their complaints regarding undue delay in decision of their cases, and the Legislature of the Province of Punjab has also enacted a law to redress the grievances of Overseas Pakistanis relating to Government Agencies. These actions are appreciable, and it is expect that other Provinces and the Islamabad Capital Territory would follow suit.

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

Agha Muhammad Ali, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in all cases).

Nemo for Official Respondents.

2022 S C M R 1299

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi JJ

MUHAMMAD AMJAD SHAHZAD---Petitioner

Versus

MUHAMMAD AKHTAR SHAHZAD and another---Respondents

Criminal Petition No. 124 of 2022, decided on 30th March, 2022.

(On appeal against the order dated 01.02.2022 passed by the Lahore High Court, Lahore in Crl. Misc. No. 21507-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302 & 109---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, abetment---Bail, cancellation of---Accused was nominated in the crime report with specific accusation of causing firearm injuries on the person of his real father and brother, resulting into their deaths---Matter was reported to the police with a delay of 9 hours but such delay had been caused due to transportation of one of the victims from one hospital to another---Injuries ascribed to the accused were fully supported by medical evidence---Accused after commission of offence absconded himself---Main ground on which the High Court granted post-arrest bail to the accused was that one of the sisters of the accused, who was also a prosecution witness, took a somersault contrary to the earlier statement she had made under section 161, Cr.P.C. and filed a private complaint wherein she has advanced a story altogether different to the story advanced by the prosecution---Such solitary ground, if taken in favour of the accused, would open new avenues, contrary to the safe administration of criminal justice whereby at any stage if one of the witnesses made a divergent statement to the earlier one bringing the case within the ambit of section 497(2), Cr.P.C. then it would transform into mockery in the eyes of law---Such customary practice of a (prosecution) witness coming forward to file a complaint contrary to the prosecution case with an intent just to frustrate the case of the prosecution could not be ordained in any manner---As the accused was involved in a number of cases of similar nature and had a clandestine background, the possibility of fear and undue pressure faced by his sister/witness could not be ruled out---Pistol recovered from the accused was sent to the office of the Forensic Science Agency and all the empties recovered from the place of occurrence were found to be fired from the same---Petition for leave to appeal was converted into appeal and allowed, and the post-arrest bail granted to the accused by the High Court was cancelled.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Shoukat Aziz Siddiqui, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record along with Respondent.

Ahmed Raza Gillani, Additional P.G., Akhtar Nawaz, ASP Wazirabad and Tariq Mehmood, S.I. for the State.

2022 S C M R 1304

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

RASHAD IMRAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1549 of 2021, decided on 26th January, 2022.

(Against the order dated 09.12.2021 passed by the Lahore High Court Lahore in Criminal Misc. No. 66270-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 498---Punjab Food Authority Act (XVI of 2011), Ss. 22, 23 & 24---Punjab Pure Food Ordinance (VII of 1960), Ss. 5(a) & 6---Constitution of Pakistan, Art. 185(3)---Possessing and selling meat unfit for human consumption---Pre-arrest/anticipatory bail, refusal of---Seizure of substandard meat, grievously injurious for human consumption, on a meatless day i.e. Wednesday was established through the inventories of even date---Association of a Magistrate (for destruction of the impounded meat) further lent credence to the procedure adopted---Quantity of confiscation i.e. 500 k.g. beef and 60 kg. mutton was too considerable to be manipulated to set up a fake case, nor there appeared any reason for the complainant, a State functionary tasked with the responsibility of ensuring hygienic livestock supplies to the public, to proceed against the accused with motives, oblique or sinister---Petition for leave to appeal was dismissed, leave was refused and accused was refused pre-arrest bail.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Ahmad Raza Gillani, Additional P.G. Punjab for the State.

Respondent No. 2 in person.

2022 S C M R 1305

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

MANZAR ZAHOOR---Petitioner

Versus

LYARI DEVELOPMENT AUTHORITY and another---Respondents

Civil Petition No. 677-K of 2019, decided on 16th February, 2022.

(Against the Order dated 07.10.2019 passed by the High Court of Sindh, Karachi in C.P. No. D-4379 of 2019)

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

----R. 12A---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 12-A---Sindh Civil Services Rules [C.S.R.] Vol I, R. 171---General Financial Rules of the Federal Government (G.F.R), Vol. I, para. 116---Date of birth, alteration/rectification of---Scope---Civil Servant cannot seek alteration in his date of birth at the verge of his retirement or otherwise in a suit---Mode of correction in the date of birth of a civil servant is provided under Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which is part of the terms and conditions of service of a civil servant and cannot be resorted to through the civil suit---No provision exists in Federal Civil Servant Rules or laws which may permit an alteration in the date of birth except in the case of a clerical error, and no condition is endorsed or jotted down stating that the correction should be applied for within two years.

Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Dr. Muhammad Aslam Baloch v. Government of Balochistan 2014 SCMR 1723; Muhammad Khaliq Mandokhail v. Government of Balochistan through Chief Secretary, Civil Secretariat Quetta and another 2021 SCMR 595 and Inspector General of Police, Balochistan, Quetta and others v. Mohibullah 2022 SCMR 9 ref.

Naveed Ahmed Khan, Advocate Supreme Court and Ms. Abida Parveen Channar, Advocate-on-Record for Petitioner.

Miran Shah, Additonal A.G. Sindh, K.A. Wahab, Advocate-on-Record, Irfan Ali Abro, Law Officer and Ali Gul Jalbani, S.O. for Lyari Development Authority/Respondent No. 1.

2022 S C M R 1323

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

JANAB ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 407 of 2022, decided on 12th May, 2022.

(Against the order dated 21.03.2022 passed by the Peshawar High Court, Peshawar in Cr. Misc. B.A. No. 508-P of 2022)

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

----S. 302(b)--- Murder of a woman on the pretext of honour---Investigation---Lack of lady police officers to investigate crimes in Province of Khyber Pakhtunkhwa---Observations recorded by the Supreme Court about the importance of lady police officers for investigating crimes of honour killing and the need for Standard Operating Procedure for investigating crimes committed against women on the pretext of honour.

A lady police officer should be associated with cases involving murder of a woman on the pretext of honour particularly where the complainant and/or the witnesses are ladies, who may not be forthcoming before male police officers, are intimidated and/or actively conceal the truth of the matter. In such cases, usual methods in investigating crimes may also not reveal the truth. And, the emphasis placed on the complainant's statement needs careful and proper consideration. Circumstantial evidence and the stated motive be tested for veracity, and it be explored whether behind the crime there was another motive.

In the investigation of rape cases the Province of Punjab has formulated 'Standard Operating Procedure (SOP) for Investigation of Rape Cases' dated 20 August 2013. If something similar is done in the Province of Khyber Pakhtunkhwa with regard to rape cases and in respect of crimes committed against women on the pretext of honour it will help to better investigate and prosecute those who commit such crimes.

Babar v. The State 2020 SCMR 761 ref.

The concerned functionaries should reflect upon and consider how the investigation and prosecution of crimes against women can be better investigated and prosecuted, and to make requisite rules, regulations and/or issue requisite instructions in this regard. This may also have a salutary effect to ensure that womens' name and character is not unnecessarily slandered and besmirched.

Surah An-Nur (24) verse 24 ref.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)---Murder of a woman on the pretext of honour---Bail, grant of---Further inquiry---Prosecution case against the accused was that he came to the house of the complainant, where the deceased had moved to because of a disagreement with her husband (principal accused) and that both he and her husband shot and killed her---Counsel for accused submitted that the three spent bullet casings recovered from the crime scene had been forensically tested, which revealed that they were fired from one firearm; that accused was roped in merely because he was the uncle of the principal accused; that subsequent investigation conducted by the police with regard to a recorded conversation between sister of the deceased and principal accused did not implicate the accused; that no firearm was recovered from the accused; that the accused was an elderly man of seventy plus years and keeping him incarcerated whilst the trial continued would deprive him of the few more years that may be left of his natural life, before the trial was concluded---Held, that the contentions raised by the counsel for the accused made present case one of further inquiry---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

Astaghfirullah, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record for Petitioner.

Mian Shafaqat Jan, Additional A.G., Yaseen Farooq, R.P.O. Muhammad Fayyaz, S.P., Syed Jameel, D.S.P. and Numair Khan, Inspector for the State.

Muhammad Usman Turlandi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Complainant.

2022 S C M R 1328

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Munib Akhtar and Sayyed Mazahar All Akbar Naqvi, JJ

MUHAMMAD ASHRAF alias NIKKA---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 943 of 2017, decided on 12th May, 2022.

(On appeal against the judgment dated 18.10.2017 passed by the Lahore High Court, Lahore in Criminal Appeal No. 442-J/2013 and Criminal PSLA No. 18/2014 and Murder Reference No. 15/2014)

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

----Ss. 302(b), 302(c) & 337-F(vi)---Murderous assault---Reappraisal of evidence---Conviction, alteration of---Case of sudden fight without pre-meditation---Suppression of injuries sustained by accused party---Effect---Conviction under section 302(b), P.P.C altered to one under section 302(c), P.P.C.---As per the FIR/prosecution story, the accused along with a co-accused was alleged to give hatchet blow on the head of the deceased, which proved fatal---However, in the private complaint lodged by the complainant, the role of causing injury on the head of the deceased was enhanced while ascribing it to accused and two co-accused persons---Said two co-accused, who were ascribed a similar role to that of accused, had been acquitted of the charge by the Trial Court, which judgment had been upheld by the High Court---According to medical evidence, the deceased received only one injury on his head, which was an incised wound---Perusal of record also revealed that the occurrence took place all of a sudden; there was no pre-meditation on the part of the accused side and during the occurrence the accused and a co-accused also received injuries at the hands of the complainant party, which aspect had been suppressed---Although, no medical report in this regard could be placed on record but there was no denial to this fact that during investigation it was found that the accused and the co-accused had received injuries during the occurrence---Possibility could not be ruled out that it was because the accused was nominated in a murder case and was arrested soon after the incident, the police officials had not allowed the accused and co-accused to be medically examined being in league with the complainant---Such possibility created a doubt in veracity of prosecution version---Seemingly the prosecution exaggerated the contents of the private complaint and made an attempt to involve all the male members of the accused's family---In these circumstances, a dent in the prosecution case had been created, benefit of which must be given to the accused---Case of the accused was covered by section 302(c), P.P.C.---Accused had already served out major portion of his sentence which was more than 15 years---To meet the ends of justice, accused was convicted under section 302(c), P.P.C. instead of section 302(b), P.P.C. and was sentenced to imprisonment for the period which he had already undergone---Petition for leave to appeal was converted into appeal and partly allowed.

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

----S. 302(b)---Qatl-i-amd---Benefit of doubt---Scope---Any doubt arising in the prosecution case is to be resolved in favour of the defence---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right.

Aftab Hussain Bhatti, Advocate Supreme Court for Petitioner.

Muhammad Jaffer, D.P.G. for the State.

2022 S C M R 1333

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Ayesha A. Malik, JJ

COMMISSIONER INLAND REVENUE, ZONE-II, REGIONAL TAX OFFICER (RTO), MAYO ROAD, RAWALPINDI and another---Petitioners

Versus

Messrs SARWAQ TRADERS, 216/1-A, ADAMJEE ROAD, RAWALPINDI and another---Respondents

Civil Petition No. 4599 of 2021, decided on 12th May, 2022.

(Against the order dated 01.06.2021, passed by the Lahore High Court, Rawalpindi Bench, in Sales Tax Reference No.02 of 2013)

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

----S. 45-B(2)--- Appeal before Commissioner Inland Revenue (Appeals)--- Maximum period of 180 days prescribed under section 45-2(B) of the Sales Tax Act, 1990 for deciding the appeal---Such prescribed time period was mandatory---Obligation fixed on the Commissioner (Appeals) by section 45-B(2) of the Act to decide the matter within 180 days is mandatory and not directory---Any decision made beyond the 180 days as prescribed under section 45-B(2) of the Act, is an invalid decision.

In terms of section 45-2(B) of the Sales Tax Act, 1990 ('the Act'), when an appeal is filed, the Commissioner (Appeals) on hearing both the parties has to pass an order with respect to the appeal pending before him. In terms of the first proviso, the Commissioner (Appeals) is mandated to pass the order not later than 120 days from the date of filing of the appeal. In the event that the case cannot be decided in 120 days, section 45-B(2) of the Act gives the Commissioner (Appeals), the authority to extend the 120 days by 60 days, if required, provided that the Commissioner (Appeals) records the reasons, in writing as to why the period of 120 days is being extended. However, the second proviso clarifies that such extended period shall, in no case, exceed 60 days. This means that the total period within which the appeal must be decided is 180 days as by using the words in no case the legislature has limited or restricted the discretion of the Commissioner (Appeals) rendering its compliance mandatory. Accordingly, the intent of the legislature can be seen from the clear use of the language of section 45-B(2) of the Act, where the Commissioner (Appeals) may decide the appeal within 120 days, giving the Commissioner the discretion to decide the case within the given time or to extend the time by justifying the reasons for extension in time. However, the section mandates that the Commissioner (Appeals) shall extend the time no more than 60 days, meaning that a total of no more than 180 days can be consumed to decide an appeal. Consequently, the legislature has prescribed a clear time frame of 180 days for deciding the appeal, by using negative and restrictive language.

The rationale for prescribing a time frame is to ensure that tax matters be resolved at the earliest, within the relevant tax year, so that the taxpayer satisfies its liability and the Department is able to collect revenue, within the relevant tax year. This is important because taxes pay for public goods and services and is one of the main sources of revenue for the State. Consequently, the intent of the legislature is to obligate the Commissioner (Appeals) to decide the appeal within 180 days.

If the Commissioner (Appeals) does not decide the matter within the 180 days as prescribed under section 45-B(2) of the Act, then such a decision made beyond the prescribed period is an invalid decision. This is because the statute requires the appeal to be decided within 180 days, hence, it has to be decided in the prescribed period.

Messrs Mujahid Soap and Chemical Industries (Pvt.) Limited v. Customs Appellate Tribunal, Bench-I, Islamabad and others 2019 SCMR 1735 ref.

(b) Interpretation of statutes---

----Fiscal statute---Provision in a fiscal statute---Whether mandatory or directory nature---Ultimate test to determine whether a provision is mandatory or directory is that of ascertaining the legislative intent---While the use of the word 'shall' is not the sole factor which determines mandatory or directory nature of a provision, it is certainly one of the indicators of legislative intent---Other factors include the presence of penal consequences in case of non-compliance, but perhaps the clearest indicator is the object and purpose of the statute and the provision in question---Court had to garner the real intent of the legislature as expressed in the law itself---Negative language used in a statute where it imposes a statutory duty on a public official means that the provision is mandatory even if no penalty is prescribed for it.

The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others 2017 SCMR 1427 and Province of Punjab through Conservator of Forest, Faisalabad and others v. Javed Iqbal 2021 SCMR 328 ref.

Malik Itaat Hussain Awan, Advocate Supreme Court along with Naeem Hussain, Secretary (Lit.), FBR for Petitioners.

Nemo for Respondents.

2022 S C M R 1340

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ

SHAN MUHAMMAD alias SHANY---Appellant

Versus

SAID MASHAL---Respondent

Civil Appeal No. 1018 of 2016, decided on 15th May, 2022.

(On appeal from the judgment dated 22.01.2016 passed by the Peshawar High Court, Peshawar in C.R. No. 235 of 2008)

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

----S. 13(3)---Talb-i-Ishhad, notice of---Pre-emptor not mentioning date of issuance of notice of Talb-i-Ishhad in the plaint---Bona fide omission---Substantial compliance of statutory provisions---In the present case, though the date of issuance of notice of Talb-i-Ishhad ('the notice') was not mentioned in the plaint but the vendee (appellant) had never alleged such deficiency in his written statement and had simply denied the performance of Talabs in accordance with law within the stipulated time; no further details whatsoever were given in his written statement---Evidence led by the pre-emptor (respondent) clearly established the fact that the notice, which bore the date of its issuance/execution, was tendered in evidence without any objection by the vendee---Postman in this regard, who appeared as a witness had stated in categorical terms that the said notice through a registered cover was delivered to the vendee---Vendee had never ever raised the ground of non-mentioning of date of issuance of notice in the plaint during the trial or in both of his appeals---Vendee had tried to make out a case which was never pleaded by him earlier and the law did not allow him to make out a new case by raising such a factual plea---Entire evidence established the fact that both the Talabs were performed by the pre-emptor in accordance with law---Substantial compliance of the statutory provisions had been made by the pre-emptor and no prejudice had been caused to the vendee---Pre-emptor could not be non-suited for a bona fide omission of non-mentioning of the date of notice in the plaint---Notice was available on the file along with plaint from day one---So, simply not mentioning the date of issuance of notice could not be held to non-suit the pre-emptor in the peculiar circumstances of the case---High Court had rightly restored the judgment of Trial Court, whereby suit of pre-emptor was decreed---Appeal was dismissed.

Mst. Saleem Akhtar v. Chaudhry Shauk Ahmed 2009 SCMR 673; Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559 and Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 distinguished.

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

Amjad Ali, Advocate Supreme Court for Respondent.

2022 S C M R 1344

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Qazi Muhammad Amin Ahmed and Sayyed Mazahar Ali Akbar Naqvi, JJ

Rana MUHAMMAD ASIF TAUSEEF---Appellant

Versus

ELECTION COMMISSION OF PAKISTAN through Chairman, Islamabad and others---Respondents

Civil Appeal No. 937 of 2018, decided on 18th November, 2020.

(Against the judgment dated 05.07.2018 of the Lahore High Court, Lahore passed in Writ Petition No.222873 of 2018)

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

----Ss. 60(2)(d) & 62(9)(c)--- Nomination papers, rejection of---Legality---Objections raised against eligibility of appellant-candidate were that a decree was passed against his spouse by the Banking Court; and that his name was mentioned in report of Credit Information Bureau (CIB)---High Court while pressing into service section 62(9)(c) of the Elections Act, 2017 ('the Act') declared the appellant ineligible to contest elections while directing the Returning Officer to delete his name from the list of the candidates---Held, that in terms of section 60(2)(c) of the Act, the assets, liabilities of the appellant, his spouse and dependent children were to be disclosed on the preceding thirtieth day of June as required in Form B duly issued by the Election Commission of Pakistan (ECP) i.e. 30-06-2017---According to election schedule announced by the ECP, general election was to be held in 2018 while the appellant was supposed to furnish the details of personal assets and liabilities and dependents including his spouse till 30th June, 2017 as per the demand of law duly mentioned in section 60(2)(d) of the Act---Decree issued by the Banking Court which was made basis by the High Court for declaration qua rejection of the nomination papers of appellant was passed against the spouse of the appellant on 04-12-2017, i.e. after the cut-off date as envisaged in section 60(2)(d) of the Act---High Court while adjudicating the matter mis-interpreted section 62(9)(c) of the Act, therefore, the impugned judgment was based on misconception of law---Appeal was allowed, impugned judgment of High Court was set aside and judgments of Election Tribunal and the Returning Officer accepting the nomination papers submitted by the appellant, were restored.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope of Constitutional jurisdiction of the High Court and principles relating to its exercise stated.

High Court while exercising constitutional jurisdiction under Article 199 of the Constitution, inter alia, provides relief in the form of a declaration, prohibitory order, mandatory order or an order in the nature of quo-warranto, subject to one commonality in the exercise of such jurisdiction, that it is discretionary in nature. Therefore, it is incumbent duty of the court to deliberate in a manner with extra care and caution eliminating any element of unfairness/injustice. The constitutional jurisdiction is wide in its scope and ordinarily it is not subject to any judicial constraints. Since constitutional jurisdiction is subject to extra-ordinary circumstances, it has to be exercised in such a manner which creates a balance in its exercise so that no one suffers because of such discretionary power.

(c) Constitution of Pakistan---

----Art. 17---Freedom of association---Scope---Participation in elections is a constitutional right.

Miss Benazir Bhutto v. Federation of Pakistan and others PLD 1988 SC 416; Mrs. Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 SC 66; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 and Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681 ref.

(d) Administration of justice---

----Every Judge must wear all the laws of the country on the sleeve of his robes.

Muhammad Sarwar v. The State PLD 1969 SC 278 and Muhammad Aamir Khan v. Government of Khyber Pakhtunkhwa 2019 SCMR 1021 ref.

(e) Administration of justice---

----Responsibility of the Court to be vigilant while exercising its authority either in original jurisdiction or constitutional jurisdiction cannot be absolved.

Rodger v. The Comptoir d'Escompte de Paris (1871) 3 PC 465 ref.

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court and Sardar M. Shahbaz Khosa, Advocate Supreme Court for Appellant.

Respondents ex parte.

Muhammad Arshad, D.G. (Law) for ECP.

2022 S C M R 1352

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Mst. KALSOOM BEGUM---Appellant

Versus

PERAN DITTA and others---Respondents

Civil Appeal No. 1348 of 2014, decided on 27th January, 2022.

(Against the judgment dated 27.05.2014 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision No. 200 of 2004)

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 4---Constitution of Pakistan, Art. 203-D(2), proviso---Inheritance---Grandchildren, share of---Section 4 of the Muslim Family Laws Ordinance, 1961 ('the Ordinance'), applicability of---Decision of the Federal Shariat Court in the case reported as Allah Rakha v. Federation of Pakistan (PLD 2000 Federal Shariat Court 1) ('Allah Rakha case'), which had struck down section 4 of the Ordinance, was challenged in an appeal filed under Article 203F of the Constitution before the Shariat Appellate Bench of the Supreme Court, and leave was granted---Since the appeal is pending adjudication, the decision of the Federal Shariat Court in 'Allah Rakha case' has not come into effect, because of second part to the proviso to clause (2) of Article 203(D) of the Constitution---Consequently, section 4 of the Ordinance continues to be the subsistent law of Pakistan, and shall remain so till such time that the Shariat Appellate Bench of the Supreme Court either upholds the decision of the Federal Shariat Court in the 'Allah Rakha case' or dismisses the said appeal.

Allah Rakha v. Federation of Pakistan PLD 2000 FSC 1 ref.

(b) Gift---

----Essential ingredients---To constitute a valid gift, it is settled that three essential ingredients must exist; first, declaration of gift; second, acceptance of the gift, and third, delivery of the possession of the subject of the gift.

Principles of Muhammadan Law section 149 ref.

(c) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 4---Inheritance---Minor daughter of predeceased son---Purported gift deed to disentitle minor daughter of predeceased son from her share in inheritance---In the present case, the gift deed did not state that the donees (uncles of the plaintiff), or either of them, had accepted the gift of the subject land---Gift deed had the purported thumb impression of the donor, and a donee was stated to have signed it, but it did not state whether the said donee signed it as a witness or as a donee---Donees did not allege that they had specifically accepted the gift, nor that they had impliedly accepted it---Written statement, jointly filed by the donees/uncles, did not state that they, or either of them, had explicitly or impliedly accepted the gift---Mere fact that they were in possession of the subject land was of no significance or consequence since they were the purported donor's sons, and as such tilling the land for him---Burden of proof to establish the gift and its validity, lay upon the donees/uncles as they were its beneficiaries; they also stood in a position of active confidence to their elderly father---Donees/uncles had failed to establish or sustain the said gift---Consequently, on the death of the purported donor, his legal heirs would inherit his estate, including his granddaughter (the plaintiff/appellant herein) as per section 4 of the Muslim Family Laws Ordinance, 1961---Appeal was allowed.

(d) Gift---

----Essential ingredients---Implied acceptance of the gift by the donee---Scope---Acceptance may be implied in certain circumstances, for instance, by simply saying thank you or by some other act signifying acceptance, such as a nod of the head.

Ali Ahmad v. Government of Sindh PLD 1976 Kar. 316; Abdullah v. Abdul Aziz 1987 SCMR 1403; Nagina Begum v. Tahzim Akhtar 2009 SCMR 623 and Khalid Hussain v. Nazir Ahmad 2021 SCMR 1986 ref.

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

Haroon Irshad Janjua, Advocate Supreme Court for Respondents.

2022 S C M R 1358

[Supreme Court of Pakistan]

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

SHAUKAT HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 585 of 2020, decided on 14th February, 2022.

(Against the judgment dated 06.05.2015 passed by the Lahore High Court Multan Bench in Jail Cr. A. No. 606 of 2003)

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 122---Husband accused of murdering his wife in their matrimonial house---Onus on husband---Scope---In incidents of domestic violence more so in the event of homicidal death of a wife in the house of her husband a heavy onus is cast upon the latter to satisfactorily explain circumstances leading to the tragedy.

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

----S. 302(b)---Husband accused of murdering his wife in their matrimonial house---Reappraisal of evidence---According to the accused-husband, his deceased-wife had happily rejoined him, albeit to the annoyance of the complainant (paternal uncle of deceased) who otherwise harboured a grudge and desired to see the marriage fail---Argument of accused found support from the fact that the deceased's father neither joined the investigative process nor opted to be in the witness-box; he would have been prosecution's best choice to prove both desertion as well as calamity that struck his daughter; his silence was most intriguing---Prosecution story was further negated by the autopsy report wherein on the neck a ligature mark was absent; there was one bruise accompanied by four abrasion marks with an intact hyoid bone---Though the death was opined as asphyxial, nonetheless, it did not appear to have occurred in the manner suggested in the crime report---Four alleged eye-witnesses claimed to have seen the occurrence from close distance, but surprisingly none of them intervened to rescue the deceased---Acquittal of co-accused, without challenge, was yet another predicament confronting the prosecution---Appeal was allowed, and accused was acquitted of the charge.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

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

2022 S C M R 1360

[Supreme Court of Pakistan]

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

SHER HASSAN and others---Petitioners

Versus

GUL HASSAN KHAN and others---Respondents

Criminal Petition No. 1091 of 2021, decided on 6th January, 2022.

(On appeal against the judgment dated 14.06.2021 passed by the Peshawar High Court, Peshawar in Cr. Revision No. 307-P of 2019)

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

----Arts. 132(2) & 133(1)---Constitution of Pakistan, Art. 10A---Cross-examination, right of---Scope---Right of cross-examination struck down by Trial Court due to non-appearance of counsel on several dates of hearing---Constitutionality---Fundamental right of fair trial which the Constitution guarantees is violated if any accused is deprived of the opportunity to cross-examine a witness deposing against him---Petition for leave to appeal was converted into appeal and allowed, and the Trial Court was directed to afford an opportunity to the petitioners to cross-examine the prosecution witnesses.

While deciding a criminal lis, the recording of evidence including the right of cross-examination of the witnesses, hearing of arguments and a reasoned judgment are the essential attributes of criminal justice system based on the Constitutional command.

The statements of witnesses and cross-examination is a vital part of the material, which forms part of evidence, therefore, in absence of such an important piece of evidence, the Court can not come to a just and fair conclusion.

Muhammad Bashir v. Rukhsar PLD 2020 SC 334 ref.

Fundamental right of fair trial which the Constitution guarantees is violated if any accused is deprived of the opportunity to cross-examine a witness deposing against him.

In the present case, it would be in the interest of justice, if the petitioners (accused persons) are given the opportunity to cross-examine the three prosecution witnesses, and by doing this no prejudice would be caused to the respondents (complainants). Petition for leave to appeal was converted into appeal and allowed, impugned judgment was set-aside, and the Trial Court was directed to afford an opportunity to the petitioners to cross-examine the three prosecution witnesses.

Altaf Khan, Advocate Supreme Court for Petitioners.

Imtiaz Ali, Advocate Supreme Court for Respondents Nos. 1 and 3.

2022 S C M R 1363

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

SHEZAN SERVICES (PRIVATE) LIMITED---Appellant

Versus

SHEZAN BAKERS AND CONFECTIONERS (PRIVATE) LIMITED and another---Respondents

Civil Appeal No. 57-K of 2018, decided on 9th June, 2022.

(On appeal from the judgment dated 14.05.2018 of the High Court of Sindh, Karachi passed in Misc. Appeal No. 317 of 2003)

(a) Trade Marks Act (V of 1940) [since repealed]---

----Ss. 6, 8(a) & 10(1)---Revised Trade Marks Rules, 1963 [since repealed], R.11 & Fourth Sched., Class 29---Trademark "Shezan"---No distinctiveness in the trade mark sought to be registered---Trademark identical to already registered trademarks---Likelihood of customers being deceived---Contravention of sections 8(a) & 10(1) of the Trade Marks Act, 1940---Application for registration of trademarks dismissed.

Admittedly, the respondent/applicant was not the proprietor of the word 'Shezan' nor of 'Shezan'. The respondent (or its purported predecessor, a partnership firm) had also not first registered the trade mark 'Shezan'/Shezan. A private limited company "Shahnawaz Limited" was the inventor and proprietor of the word 'Shezan' and label Shezan, and was also the first to have registered them, which was on 30 September 1958, that is, thirty years before the respondent submitted the Application with the Registrar to seek the registration of the trademark 'Shezan'. The trade mark registrations of 'Shezan'/Shezan (altogether seventy-five) were held by the appellant, including in class 29 since 30 September 1958. There was no distinctiveness in the trade mark, the registration whereof was sought by the respondent through the Application, therefore, it did not merit registration.

Section 6 of the Trade Marks Act, 1940 ('Act') mandates the distinctiveness requisite for registration. However, the Application of the respondent sought registration of 'Shezan'/Shezan which had no distinctiveness, and in fact was identical to subsisting registrations. Therefore, the Application of the respondent had to fail on this ground too.

The respondent was also prohibited to obtain registration of the trade mark 'Shezan'/Shezan because the trade mark it wanted to be registered was identical to already registered trade marks. To allow the respondent to register the same trade mark ('Shezan'/Shezan), and in the same class of goods in respect whereof the appellant held registrations, would definitely deceive the customers of the appellant's goods, as they would assume they were buying the appellant's goods, which would contravene section 8(a) of the Act.

The Application of the respondent could also not be allowed because it had sought registration of a trade mark which was identical to already registered trade marks, belonging to the appellant, and, obtaining such registration was not permissible under subsection (1) of section 10 of the Act.

The present case was also not one in which the respondent was an honest concurrent user nor did it attract any of the other exceptions mentioned in subsection (2) of section 8 of the Act, which may have justified the acceptance of the Application of the respondent.

An Agreement signed between the predecessors of the appellant and the respondent was relied upon by the respondent to allege that pursuant to the said Agreement the 'Shezan'/Shezan trade marks had been assigned to the respondent. This was simply incorrect. The said Agreement stated that "Shezan Limited" was 'running two restaurants … together with a bakery' and these businesses were sold to a partnership firm. The respondent, which is a private limited company, contended that it was the successor-in-interest of the said partnership firm but did not produce any proof in this regard. However, despite the absence of such proof an opportunity was provided to the respondent to establish its succession to the said firm, however, the respondent failed to file any certificate of incorporation and certificate issued by the Registrar of Firms of "Shezan, Lahore" or a copy of its partnership deed. Assuming that the requisite documents were filed, and on their basis the respondent was able to show that it had some connection with the said firm, it would still not change the outcome of the present case, because the respondent could not legally have got the trade mark 'Shezan'/Shezan registered in its name.

Besides the Agreement was in respect of the sale of the certain businesses, and was not for the sale (or assignment) of 'Shezan'/Shezan trade mark(s).

Significantly that the partnership firm, who the respondent claims to have succeeded, did not itself seek registration of the trade mark 'Shezan'/Shezan, nor called upon the other party to the Agreement to assign to it the said trade marks. The respondent's claim was also undermined by the fact that it was only after about fourteen years of the execution of the Agreement that it submitted the Application. This confirmed that neither the said partnership firm nor the respondent had ever considered or understood that through the Agreement the 'Shezan'/ Shezan trade marks were transferred, assigned or relinquished in favour of the said firm.

Appeal was allowed. Consequently, the Application of the respondent for registration of trademark was dismissed with the direction that the respondent shall pay the costs of the appellant throughout.

(b) Trade Marks Act (V of 1940) [since repealed]---

----S. 5(1)---Revised Trade Marks Rules, 1963 [since repealed], R. 11 & Fourth Sched.---Trademark, registration of---Scope---Merely because a proprietor of a trade mark had not obtained registration in a particular class, or in respect of certain goods mentioned in that class, would not on this basis alone entitle another to obtain registration in respect of that class, or in respect of other goods mentioned in such class.

Sultan Ahmed Sheikh, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (absent) for Appellants.

Hassan Irfan Khan, Advocate Supreme Court, Mrs. Amna Ahmed, Advocate Supreme Court (through video-link from Karachi) assisted by Saqib Asghar, Advocate High Court and Muhammad Iqbal Ch., Advocate-on-Record (absent) for Respondent No. 1.

Ex parte Respondent No. 2.

2022 S C M R 1375

[Supreme Court of Pakistan]

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

ZAFAR IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 177 of 2022, decided on 27th May, 2022.

(Against judgment dated 29.06.2018 of the High Court of Sindh, Sukkur Bench, Sukkur passed in Cr. J.A. No. D-85 of 2013)

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

----S. 9(c)---Possession and transportation of 3 kilograms of cannabis---Reappraisal of evidence---Accused was caught red handed by the Police while he was driving a truck and from the secret cavities of the truck, 55 plastic gunny bags containing poppy straw were recovered---Each bag weighed 30 kilograms, therefore, the total weight became 1650 kilogram---One kilogram of poppy from each bag was taken out for chemical examination, and the same was sealed up in separate envelops and sent to the office of Chemical Examiner---Prosecution relied upon the statements of an Excise Inspector and another official witness---Both said witnesses narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered by the defence despite lengthy cross-examination---Said witnesses had no enmity with the accused to falsely implicate him in the present case---Even otherwise a huge quantity of 1650 kilograms of poppy straw in no circumstances could be planted by the Investigating Officer of his own---Conviction of accused was maintained---Appeal was partly allowed.

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

----S. 9---Narcotic cases---Testimony of official witnesses---Such testimony is as good as any other private witness unless it is proved that they have animus against the accused---Reluctance of general public to become witness in cases has become a judicially recognized fact---No legal bar or restriction has been imposed on considering statement of official witnesses---Police/official witnesses are as good witnesses as any other and could be relied upon, if their testimonies remain un-shattered during cross-examination---Statements of the official witnesses are sufficient enough to sustain conviction of an accused.

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

----Ss. 2(t) & 9---Poppy plant, characteristics of---Poast---Poppy seeds---Only sack/pouch/basket of the whole poppy plant, is called poast and the same is the only part of the poppy plant excluding its seeds, which contains morphine---In common parlance, it has been seen that often that stems and leaves of the poppy plants are used as animal food---Poppy straw is derived from the plant 'Papaver somniferum', which has been cultivated in many countries of Europe and Asia for centuries; this has medicinal impact as well, which is largely used as a tonic for wellness of nervous system---Purpose of its cultivation was actually the production of poppy seeds, which are used as a food stuff and as a raw material for manufacturing poppy-seed oil, used for making various varnishes, paints and soaps etc.---Therefore, every cultivation of poppy straw unless it is proved that it is made for the sole purpose of extracting narcotics after a proper method cannot be considered a criminal act.

Zulfiqar alias Zulfa v. The State 2021 SCMR 531 ref.

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

----Ss. 2(t)(iii) & 9(c)--- Possession and transportation of 1650 kilograms of poppy straw---Reappraisal of evidence---Sentence, reduction in---Report of the Chemical Examiner failing to reveal percentage of morphine in the mixture and also as to what quantity of recovered whole poppy plants was sack/pouch/doda---In the FIR as well as in the recovery memo it had been mentioned that poast/poppy straw was recovered in plastic gunny bags but there is no mention that recovered items were got grinded or mixed and then sent to the Chemical Examiner---On the other hand, contents of the report of Chemical Examiner indicate that samples sent to it were in grinded form i.e. grinded material of black and yellow coloured straws, seeds and stalks, which means that whole poppy plant would have been recovered from the accused---Perusal of section 2(t)(iii) of the Control of Narcotic Substances Act, 1997, showed that 'poast' in the mixture form would only be considered a narcotics substance within the meaning of the Act if the same contained 0.2 percent of morphine---However, the report of the Chemical Examiner reveals no such percentage - Report of the Chemical Examiner, left no doubt that the recovered poast from the possession of the accused was in grinded/mixed shape, therefore, the report of the Chemical Examiner ought to have mentioned the percentage of morphine in the whole mixture---Record also did not show as to whether from the 1650 kilograms of poast, which was in the shape of whole poppy plants, how much quantity was the sack/pouch/doda as it is only the sack/pouch/doda which contained narcotic substance---Therefore, in absence of such report, it was difficult to determine as to whether the case against the accused fell within the purview of section 9(a), 9(b) or 9(c) of the Act---In circumstances, conviction of accused was maintained, however his sentence of imprisonment for life was reduced to that already undergone---Appeal was partly allowed.

Zulfiqar alias Zulfa v. The State 2021 SCMR 531 and Muhammad Imran v. The State 2011 SCMR 1954 ref.

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

Zafar Ahmed Khan, Additional P.G. Sindh for the State.

2022 S C M R 1383

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Ayesha A. Malik, JJ

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Defence, Rawalpindi and another---Petitioners

Versus

FARZAND BEGUM and others---Respondents

Civil Petitions Nos.5796, 5797 of 2021 and C.M.A. No.11796 of 2021, decided on 9th February, 2022.

(On appeal against the judgment dated 23.09.2021 passed by the E.F.As. Nos.21 and 26 of 2021)

Land Acquisition Act (I of 1894)---

----S. 48--- De-notification of acquired land--- Where acquisition proceedings were completed, rate was announced and possession was with the acquiring authority since long, the power of the Government to withdraw from the acquisition of the property in terms of section 48 of the Land Acquisition Act, 1894 was no longer available.

In terms of section 48 of the Land Acquisition Act, 1894, although the Government has the power to withdraw from acquisition of any property, such power is not absolute and is circumscribed by an important prerequisite namely, "possession has not been taken by the Government or the acquiring Department". Further, the powers under section 48 of the Act can be exercised only where the execution proceedings in terms of the Land Acquisition Act, 1894 have not been completed. In the present case, not only the acquisition proceedings had been completed, the Award had been announced, and the rate of compensation was challenged by the land owners before a Referee Court which revised the amount of compensation and such enhanced compensation was not only upheld by the High Court but also by the Supreme Court. Furthermore, possession had since long been with the acquiring Department. The acquisition proceedings for all practical purposes had been completed together with transfer of possession. As such, the power of the Government to withdraw from the acquisition of the property was no longer available and it could not at present stage be allowed to retrace its steps to undo the entire process which had been going on for years on end. Civil petitions for leave to appeal were dismissed and leave was refused.

Sajid Ilyas Bhatti, Additional A.G.P., Ajmal Raza Bhatti, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners (in both cases).

Mudassar Khalid Abbasi, Advocate Supreme Court for Respondents Nos. 1 - 8 (in both cases).

2022 S C M R 1387

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

SOHAIL AHMAD---Appellant

Versus

GOVERNMENT OF PAKISTAN through Secretary of Interior Ministry, Islamabad and others---Respondents

Civil Appeal No. 1684 of 2021, decided on 10th May, 2022.

(Against the Order of Federal Service Tribunal, Islamabad dated 15.11.2018 in Appeal No. 1492(P)CS/2018)

(a) Frontier Constabulary Rules, 1958---

----R. 8---Constitution of Pakistan, Art. 13---Member of Frontier Constabulary---Punishment imposed without opportunity of personal hearing---Two punishments imposed for the one and same offence---Neither any show cause notice was issued to the appellant, nor any inquiry was conducted into any allegation, nor any right of personal hearing was afforded, which was against the principles of natural justice---Two punishments issued in continuation for the one and the same cause were hit by the doctrine of double jeopardy---Transfer Order of the appellant and the subsequent order whereby his seniority was upset and he was made junior most in his platoon were set aside.

An inquiry was conducted on the complaint of the appellant against some of his colleagues. Though upon holding the inquiry, the allegations levelled by the appellant in his complaint were found baseless, nevertheless, the appellant could not have been transferred as a punishment or revenge for the reason that he filed a false complaint against some of his colleagues which was found false without issuing show cause notice or providing the right of personal hearing to him. The matter did not rest here as through another office order his seniority was disturbed as a second punishment for the same alleged offence and he was made junior most in his platoon. While imposing the first punishment of transfer, or even at the time of upsetting his seniority, neither any show cause notice was issued to the appellant, nor any inquiry was conducted into any allegation, nor any right of personal hearing was afforded in compliance with the Frontier Constabulary Rules, 1958. Both punishments for the one and the same alleged offence were imposed in a nasty and injudicious manner.

Under Article 13 of the Constitution, it is clearly provided that no person shall be prosecuted or punished for the same offence more than once. In the present case, it was apparent that the appellant was vexed twice for the same alleged offence of making false complaint against his colleagues who were found innocent after inquiry. The punishment of transfer as well as declaring him junior by upsetting his seniority through another office order issued in continuation for the one and the same cause was also hit by the doctrine of double jeopardy.

Transfer Order of the appellant and the subsequent order whereby his seniority was upset and he was made junior most in the Platoon were set aside. Appeal was disposed of with the clarification that in case of allegations of misconduct against the appellant, the Department may issue a show cause notice to him and if the reply is found unsatisfactory, a regular inquiry may he conducted in accordance with the law for further action.

(b) Natural justice, principles of---

----Principles of natural justice require that the delinquent should be afforded a fair-minded opportunity to converge, give explanation and contest the allegation before he is found guilty and condemned--- No decision affecting the right of any person should be taken without providing an opportunity of being heard.

(c) Constitution of Pakistan---

----Art. 187---Power of the Supreme Court to issue directions, orders or decrees as may be necessary for doing complete justice --- Phrase 'complete justice'---Scope---Article 187 of the Constitution endows the Supreme Court with the power to issue directions, orders or decrees as may be necessary for doing complete justice and also to mould the relief sanguine to the circumstances of the case in order to secure the ends of justice---Phrase "complete justice" is actually a wide-ranging and all-inclusive expression articulating to do justice by all means so that the dominant interest of justice is not altered or distorted on mere technicalities.

Muhammad Asif, Advocate Supreme Court for Appellant.

Farman Ullah Khattak, Advocate Supreme Court for Respondents Nos. 2 - 4.

2022 S C M R 1394

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Mst. RAJ BEGUM (DECEASED) through L.Rs and others---Appellants

Versus

Mst. AJAIB JAN (DECEASED) through L.Rs and others---Respondents

Civil Appeal No. 230 of 2016, decided on 19th April, 2022.

(On appeal from the judgment dated 06.05.2013 passed by the Islamabad High Court, Islamabad in C.R. No. 121 of 2013)

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2-A---Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), Preamble---Inheritance---Daughters deprived of their share in inheritance by their brother relying on prevailing custom---In the present case, even if it was accepted that the father of the parties died before the cut-off date of 15 March 1948 (date of enactment of Punjab Muslim Personal Law (Shariat) Application Act, 1948) the two sons had not acquired the subject land---Purported exclusion of the other legal heirs (i.e. the three daughters) took place when inheritance mutation took place in the sons' favour on 6 April 1956, which was after the cut-off date of 15 March 1948---Sons had relied upon the inheritance mutation to establish their acquisition but such purported acquisition did not accord with the requirements of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the enactment date of Punjab Muslim Personal Law (Shariat) Application Act, 1948, and the interpretation thereof by the Supreme Court in the case reported as Ghulam Haider v. Murad (PLD 2012 SC 501)---All the legal heirs were entitled to the estate left by their father as per their respective shares in accordance with Islamic shariat---Appeal was dismissed with the direction that in case the judgments of the subordinate courts and of the High Court had still not been implemented by the concerned authority, and the ownership of all the legal heirs was not recorded in the property records, the same should be done immediately, as decades had already passed since the death of the father and some of his legal heirs had remained deprived of their inheritance.

M. Ishtiaq Ahmed Raja, Advocate Supreme Court for Appellants.

Zulfiqar Ali Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 2 - 4.

Ex-parte Respondents Nos. 1-A, C(i), 15 and 16.

Zahid Mehmood Abbasi, Attorney for Respondent No. 1-B.

2022 S C M R 1398

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

Mst. SHAHNAZ AKHTAR and another---Petitioners

Versus

Syed EHSAN UR REHMAN and others---Respondents

Civil Petition No. 1077 of 2018, decided on 10th June, 2022.

(Against the judgment dated 21.12.2017 passed by Islamabad High Court, Islamabad in Civil Revision No.290 of 2015)

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

----S. 202---Powers-of-Attorney Act (VII of 1882), S. 2---Specific Relief Act (I of 1877), Ss. 39, 42, 54 & 55---Suit for declaration, cancellation, permanent and mandatory injunction---Power-of-attorney, interpretation of---Plot transferred by attorney by relying on an irrevocable general power of attorney issued by the plaintiff---Legality---Though the execution of the power of attorney was admitted but the deceased plaintiff during his evidence deposed that at the time of execution of the irrevocable general power of attorney it did not contain any provision of sale of the suit plot and said power to sell was fraudulently included---On the contrary, the conditions in the indenture of power of attorney were numbered sequentially as Clause No.1 to Clause No.18---Clause 12, encompassed the specific power to sell the plot---No manipulation or forgery was discovered in the power of attorney in which all clauses were mentioned in seriatim---Neither the principal (plaintiff) ever cancelled or revoked the power of attorney, nor denied to have executed the wide-ranging power of attorney which indenture in its pith and substance was tantamount to a sort of a surrender of rights and release in favour of the attorney---In terms of the power-of-attorney the principal/plaintiff allowed the attorney to apply and secure the plot on her own funds and also raise construction at her own expense with further power to sell unconditionally and unqualifiedly which amounted to a surrender of rights even before the stage of allotment of plot in a tangible form and this was the reason the defendant in the suit took the specific plea that she bought this right on payment of certain amount to the plaintiff and also produced the receipts of amount paid to the development authority for effectuating the allotment of plot---In the same semblance, the plaintiff also intimated the name of defendant as his nominee in the application form of plot instead of his own sons, daughter and wife---Power-of-attorney in question was also protected under section 202 of Contract Act, 1872, which was neither cancelled or revoked by the principal nor any prayer was made for its cancellation in the suit and as a matter of fact, during its currency certain third party interests were also created---Plot was transferred in the name of petitioner-defendant on 09-11-1997, whereas the civil suit was filed on 24-08-2009 after an inordinate delay without any plausible justification or explanation---No commonsensical reason was put forward as to why and how the plaintiff was prevented from making the necessary inquiry from the development authority with regard to the status of the plot---Nothing was placed on record to address whether any payment was made by the plaintiff in consideration of the allotment of the plot, nor any action was taken by him for revocation of irrevocable general power of attorney, nor any evidence was led that the plaintiff refunded any amount to the petitioner which was paid to the development authority on behalf of the plaintiff pursuant to the power of attorney---Suit was rightly dismissed by the Trial Court.

(b) Powers-of-Attorney Act (VII of 1882)---

----S. 2---Contract Act (IX of 1872), S. 182---Power of attorney---Scope---Powers of the agent/attorney---Scope---Power of attorney is a legal authorization that gives a designated person a written sanction and endorsement to stand in for or act on another's behalf in different events, businesses or legal matters having fiduciary relationship with the principal, being responsible to manage the affairs in terms of powers vested in the indenture and execute all necessary legal or other business related and/or personal documents in line with this authority---Principal may allow an agent to handle a variety of activities including the execution of contracts, dealing with property affairs, overseeing and governing financial affairs and managing and supervising diverse or multiple accomplishments---Principal may revoke or cancel the power of attorney at any time unless it is with consideration.

(c) Powers-of-Attorney Act (VII of 1882)---

----S. 2---Registration Act (XVI of 1908), S. 33(4)---Qanun-e-Shahadat (10 of 1984), Art. 95---Power of attorney---Presumption of truth and genuineness---Documentary evidence, particularly for a registered document, enfolds a presumption of truth and genuineness and such presumption of truth is attached to the registered power of attorney which is admissible unless its genuineness is suspected and proved to be counterfeited or deceptive; its admissibility cannot be doubted to impede the agent from acting on behalf of principal unless the indenture of power of attorney is controverted and repudiated with satisfactory evidence.

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

----Art. 129---Presumption---Scope---Presumption is a rule of law that ascribes a straightforward probative denomination to accurate statistics and fosters a high degree of probability unless upset and annulled by evocative proof to the satisfaction of the Court and in the event of two equal presumptions, the Court may prefer that which best accords to the facts and circumstances of the case.

(e) Powers-of-Attorney Act (VII of 1882)---

----S. 2---Contract Act (IX of 1872), S. 182---Power of attorney---Right of attorney to sell/gift principal's property---Pre-requisites---If an attorney intends to exercise right of sale/gift in his favour or in favour of next of his kin, he/she has to consult the principal before exercising that right---If an attorney on the basis of power of attorney, even if "general", purchases the property for himself or for his own benefit, he should firstly obtain the consent and approval of principal after acquainting him with all the material circumstances.

Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114; Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others PLD 1985 SC 341; Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and others 2016 SCMR 1781 and Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others PLD 2008 SC 389 ref.

(f) Powers-of-Attorney Act (VII of 1882)---

----S. 2---Power of attorney---Interpretation---Dialect and phraseology of power of attorney should be construed strictly and sternly.

(g) Words and phrases---

----"Surrender" and "release" of right---Distinction---Surrender presupposes the possession or ownership of the thing that is to be given up which may be expressed or implied such as give up, discharge, or abandon a right of action, whereas a release is the giving or discharging of a right of action which a man has or may claim against another or that which is his---Express release is one which is distinctly made in the deed or a release by operation of law which, though not expressly made but the law presumes in consequence of some act of the releaser.

Black's Law Dictionary (Ninth Edition); Words and Phrases, Volume 40A (Permanent Edition) and Stroud's Judicial Dictionary, Volume V (Fifth Edition) ref.

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

Zulfiqar Ali Abbasi, Advocate Supreme Court for Respondent No. 1.

Ch. Riasat Ali Gondal, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondent No. 2.

Nemo for Respondent No.3.

2022 S C M R 1411

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

Raja ZAHOOR AHMED and others---Petitioners

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and others---Respondents

Civil Petitions Nos.3347 to 3351, 4229 and 4263 of 2021, decided on 20th May, 2022.

(Against the consolidated judgment of Islamabad High Court, Islamabad dated 16.02.2021, passed in W.Ps. Nos.4126 of 2015 and connected cases)

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

----Ss. 11, 12 & 13---Status of properties changed from residential to commercial---Legality---Violation of the Master Plan---Capital Development Authority ("CDA") has no discretionary power to give effect to any scheme or accord any permission for change of status or use of property in breach of the Master Plan---Board of Directors ("Board") in which vests the management of the CDA is not competent to allow any change in the character of any property in violation of the Master Plan---Master Plan is protected under the Capital Development Authority Ordinance, 1960 ('the Ordinance') and the Ordinance obliges the CDA to regulate the use of land pursuant to the Master Plan---Prohibition contained against the use of land for a purpose other than the one specified in the Master Plan is absolute.

The Board of Directors ("Board") of the Capital Development Authority ("CDA") took the decision dated 13-02-1995 ('earlier decision') to commercialize the residential properties of the petitioners. The Board soon realized that the decision dated 13-02-1995 would be in violation of the Master Plan of the city. Taking note of the fact that the decision dated 13-02-1995 had not till then been implemented as conversion rate could not be finalized, the Board through a fresh decision dated 05-10-1995 rescinded its earlier decision. Subsequently, the CDA issued notices to the petitioners for non-conforming use of their properties.

The properties owned by the petitioners did not fall within a commercial area as set out in the Master Plan or the Scheme prepared thereunder. They sought a change in the status of their properties from residential to commercial. However, such a change was not permissible under the Capital Development Authority Ordinance, 1960 ('the Ordinance') without a change in the Master Plan which could only be done with the approval of the Federal Government. Any scheme prepared relating to land use, zoning and land reservation, among other things, was required to be in pursuance of the Master Plan. The CDA had no discretionary power to give effect to any scheme or accord any permission for change of status or use of property in breach of the Master Plan. The Master Plan was protected under the Ordinance and the Ordinance obliges the CDA to regulate the use of land pursuant to the Master Plan. The prohibition contained against the use of land for a purpose other than the one specified in the Master Plan was absolute. There was, therefore, no escape from the conclusion that the earlier decision of the Board was taken without lawful authority. The Board itself realized that its earlier decision would be in violation of the Master Plan and, thus, rightly rescinded it through a fresh decision.

No vested rights could be created in favour of the petitioners under the earlier decision. The Board in which vests the management of the CDA was not competent to allow any change in the character of the properties of the petitioners in violation of the Master Plan. The Master Plan could only be amended with the approval of the Federal Government. The earlier decision was in breach of provisions of the Ordinance and in conflict with the Master Plan. It was taken without lawful authority and was rightly undone by the Board. Moreover, the CDA did not implement its earlier decision. It did not approve any change in the status of the properties owned by the petitioners during the period this decision remained in the field. The petitioners could not, in the given circumstances, claim to have taken any decisive steps in pursuance of the earlier decision. The doctrine of locus poenitentiae was not, therefore, attracted to their case.

Supreme Court directed that the CDA shall ensure to factor in adaptation, climate resiliency and sustainability into their plans, policies and decisions in order to protect the constitutional rights to life, dignity and property of the residents of the Capital City, in particular, and people of the country, in general. Petitions for leave to appeal were dismissed, and leave was refused.

(b) Environmental law---

----Urban planning and climate change---Adaptation, climate resiliency and sustainability---Urban development authorities---Factors to be considered by urban development authorities in Pakistan while making urban development plans stated.

The importance of regulating land use for orderly urban development cannot be understated. Planning and regulating building construction activity in urban environments is emphasized around the world in the interest of organized growth of cities. It is an exercise based on scientific research and experience which recommends in a comprehensive manner from social, economic, environmental, infrastructure capacity, aesthetic, and other relevant aspects, the best present and future uses of geographically specified land areas called zones. Zoning is a public welfare management tool employed in urban planning to serve the city's interests. Public welfare today 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. Any initiative to revise land use regulations must be based on the said considerations in order to ensure that urban development standards stay relevant to current issues of the community.

Jerold S. Kayden, 'National Land-Use Planning in America: Something Whose Time Has Never Come' (2000) 3 WASH. U. J. L. & POL'Y 445, 446-447; Agins v. City of Tiburon 447 U.S. 255, 262 (1980); Keith H. Hirokawa, 'Making Sense of a "Misunderstanding of the Planning Process" (2012) 44 Urb. Law. 295 and D. G. Khan Cement Company Limited v. Government of Punjab 2021 SCMR 834 ref.

The necessity of planned urban development is accentuated in the vulnerable age of climate change. Climate change poses a series of interrelated challenges to the country's most densely populated places: its cities. Many cities depend on infrastructure, like water and sewage systems, roads, bridges, and power plants, that is aging and in need of repair or replacement. Rising sea levels, storm surges, heat waves, and extreme weather events will compound these issues, stressing or even overwhelming these essential services. Climate change and its impacts threaten the well-being of urban residents. Essential infrastructure systems such as water, energy supply, and transportation will increasingly be compromised by interrelated climate change impacts. The nation's economy, security, and culture all depend on the resilience of urban infrastructure systems. Direct and interacting effects of climate change will expose people who live in cities to multiple threats. Climate changes affect the built, natural, and social infrastructure of cities, from storm drains to urban waterways to the capacity of emergency responders. Climate change increases the risk, frequency, and intensity of certain extreme events like intense heat waves, heavy downpours, flooding from intense precipitation and coastal storm surges, and disease incidence related to temperature and precipitation changes. The vulnerability of urban dwellers multiplies when the effects of climate change interact with pre-existing urban stressors, such as deteriorating infrastructure, areas of intense poverty, and high population density.

https://nca2014.globalchange.gov/report/sectors/urban ref.

National response to climate change, inter alia, is to continuously evolve innovative and smart "adaptation" strategies. Adaptation climate change strategy requires that Pakistan and its public institutions make climate resilient policies and rest their decisions on sustainability. Infrastructures must be strong enough to withstand climate change e.g., heavy rains, floods, earthquakes and other extreme weather. Shutting eyes to the ominous signs of climate change will plunge the country into a world that may not be able to sustain fundamental human values. It could affect basic physical and larger social needs including harnessing and consuming energy, water and food as well as habitation, travelling and communication potentialities. It is doubtful that early town planners were driven by climate considerations. However, climate must, in the wake of climate change, form a basic determinant of urban planning and design. Climate-resilient development in cities of all sizes is crucial for improving the well-being of people and increasing the life opportunities of future generations. Any change in the Master Plan to an urban scheme without taking account of the climate factor would be detrimental.

Shelby D. Green, 'Zoning Neighborhoods for Resilience: Drivers, Tools and Impacts' (2016) 28 Fordham Envtl. Law Rev. 41 ref.

Urban development authorities need to ensure that their urban development plans consider and support adaptation, climate resiliency and sustainability. Before putting up a proposal for amendment or modification in the Master Plan or a scheme or before proposing a new development plan or scheme, the urban development authorities need to seriously consider the climate change angle. Any conversion of residential neighbourhoods to commercial zones is likely to lead to adverse environmental consequences on account of increased human and vehicular traffic and activity, and should not be permitted without proper investigation, forethought and remedial measures to control the soaring thermal environment. Urban planners should prioritize the climate factor in their development approaches to address the triple planetary crises of Climate Change, Air Pollution and Loss of Biodiversity.

(c) Constitution of Pakistan---

----Arts. 9, 14, 18 & 23---Environmental law---Climate change---Effect of climate change on Fundamental rights of people explained.

Effect of climate change on cities, affects its residents and their core fundamental rights to life, dignity and property guaranteed under Articles 9, 14, 18 and 23 of the Constitution. In an urban living, climate change can impair the quality of life of a person, offend his dignity and deprive him of his property or the right to fully enjoy his property. Incorporating adaptation, climate resilience and sustainability, in the policy decisions by the urban development authorities, are essential to actualize the fundamental rights of the people and therefore form an integral part of the fundamental human rights of the people of the country. In the face of the grave existential threat of climate change, adaptation, climate resilience and sustainability assume the role of a constitutional necessity and of an overarching constitutional obligation.

Mansoor Ahmed, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.Ps. Nos. 3347-3351 of 2021).

Syed Asghar Hussain Sabzwari, Senior Advocate Supreme Court and Mahmood A. Sh., Advocate-on-Record for Petitioners (in C.Ps. Nos. 4229 and 4263 of 2021).

Nemo for Respondents.

Hasan Riaz, Research Officer, SCRC for Research Assistance.

2022 S C M R 1422

[Supreme Court of Pakistan]

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

ISHAQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 675 of 2020, decided on 27th April, 2022.

(Against the judgment dated 30.10.2014 of the Peshawar High Court, Peshawar passed in Criminal Appeal No. 560-P of 2012)

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

----S. 9(c)---Possession and transportation of narcotics---Reappraisal of evidence---Benefit of doubt---Vehicle from which the narcotics were recovered was never produced before the court with a lame excuse that the vehicle was burnt but even no part etc. thereof was produced---Ownership of the said vehicle was never ascertained by the prosecution---Neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned laboratory was established by the prosecution because neither the Moharrar nor the Constable concerned who deposited the said parcels in the concerned laboratory was produced---Sample parcels were received in the forensic laboratory three days after the recovery of narcotics and prosecution was silent as to where these sample parcels remained during this period, meaning thereby that the element of tampering was quite apparent in the present case---Appeal was allowed, and accused was acquitted of the charge by giving him benefit of doubt.

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

----S. 9---Possession of narcotics---Prosecution failing to establish safe custody and safe transmission of samples from the police to the Forensic Science Laboratory---In a case containing the said defect on the part of the prosecution it cannot be held with any degree of certainty the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt.

Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar 2021 SCMR 363; Mst. Razia Sultana v. The State and another 2019 SCMR 1300; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Ikramullah and others v. The State 2015 SCMR 1002 and Amjad Ali v. The State 2012 SCMR 577 ref.

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

Zahid Yousaf Qureshi, Advocate Supreme Court for Respondent.

2022 S C M R 1424

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Sayyed Mazahar Ali Akbar Naqvi, J

JAVED IQBAL---Petitioner

Versus

The STATE through Prosecutor General of Punjab and another---Respondents

Criminal Petition No. 188-L of 2022, decided on 31st March, 2022.

(Against the order dated 04.02.2022 of the Lahore High Court, Lahore passed in Criminal Misc. No. 75840-B of 2021)

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

----S. 498---Penal Code (XLV of 1860), Ss. 324, 452, 337-L(2) & 34---Constitution of Pakistan, Art. 185(3)---Attempt to commit qatl-i-amd after trespassing into a house---Pre-arrest bail, grant of---Possibility of false implication---Co-accused already granted bail---Admittedly, nobody received any injury during the incident---Perusal of FIR showed that accused was not armed with any firearm and in-fact his son had a rifle, which the accused allegedly took later on---Accused's son had been granted post arrest bail by the Trial Court, which although had been challenged by the complainant but without any result so far---Case of the accused was even at better footing as compared to the case of his son---According to the accused he had gone to the house of complainant party for negotiations to settle a civil dispute---Possibility of false implication of accused to gain benefits in the civil litigation could not be ruled out---Accused had made out a case for bail as his case squarely fell within the purview of section 497(2), Cr.P.C. calling for further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed, and accused was granted pre-arrest bail.

Muhammad Ramzan v. Zafarullah 1986 SCMR 1380 ref.

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

----S. 324--- Attempt to commit qatl-i-amd---Pre-requisites for conviction---In an attempt to murder case falling within the ambit of section 324. P.P.C., the nature of the act done, the intention of the offender and the circumstances leading to the occurrence are the essential ingredients, which need to be probed into to determine the guilt or otherwise of an accused.

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

----S. 498--- Pre-arrest bail---Merits of the case---While granting extraordinary relief of pre-arrest bail, merits of the case can be touched upon.

Miran Bux v. The State PLD 1989 SC 347 ref.

M. Hanif Tahir, Advocate Supreme Court for Petitioner along with Petitioner in person.

Khurram Khan, Additional P.G., Mian Afzal, DSP and M. Ilyas, ASI for Respondents.

Rashid Javed Lodhi, Advocate Supreme Court for the Complainant.

2022 S C M R 1428

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Jamal Khan Mandokhail, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Home and TAs and others---Appellants

Versus

NOORANI GUL through LRs---Respondents

Civil Appeal No. 190 of 2015, decided on 15th April, 2022.

(On appeal from the judgment of the Peshawar High Court Mingora Bench (Dar-ul-Qaza) Swat dated 19.03.2012 passed in C.R. No. 425 of 2003)

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

----Ss. 40(1) & 116---Constitution of Pakistan, Arts. 23 & 24---Unsettled land---Possession and control of occupier over unsettled land sufficient proof of ownership---After settlement proceedings land in question, which was unsettled, was recorded in the name of Provincial Government---Plaintiff/respondent filed suit to claim that land in question belonged to him---Trial Court and High Court decreed the respondent's suit---Held, that before the settlement proceedings, the government was neither the owner nor in possession of the disputed land---Respondent produced oral evidence to establish his ownership and possession over the land, and as the land had no revenue record before the settlement proceedings, therefore, there was no possibility of the plaintiff producing documentary proof---As there was no documentary proof whatsoever of the unsettled land, therefore, possession and control of the respondent over the land was sufficient proof of ownership---Respondent's claim over the land was superior than that of the government---Appeal was dismissed.

Before the settlement proceedings, the property in question was unsettled, having no revenue record to document ownership of the land owners. The government started first settlement proceedings in the area, which were completed in the year 1986, wherein, the land in question was recorded in the name of the government. Perusal of the record would reveal that there is no evidence to prove that before the settlement proceedings, the government was either owner or in possession of the disputed land nor is there any reason in doing so. To the contrary, the respondent had claimed his ownership and possession over the suit property. The respondent produced oral evidence to establish his ownership and possession, as the land had no record before the settlement proceedings, therefore, there was no possibility of producing documentary proof. During the pendency of these proceedings, a local commissioner was appointed, who also confirmed the possession of the respondent. It is a fact that some of the adjacent properties belonging to several persons had been recorded in their names during the settlement proceedings, but the government did not dispute their ownership nor objected the settlement proceedings to their extent.

Admittedly, the government did not acquire the property in question through sale, gift or exchange, nor had ever claimed its right of escheat. Simply because the land in question was unsettled, when the first settlement was started, cannot be used to term it as unclaimed or ownerless property. Since the respondent was claiming to be its rightful owner before the preparation of record during the settlement proceedings of the year 1986 and also proved his possession over the land in question, therefore, his claim was superior than that of the government.

It was the government that neglected its duty to conduct settlement proceedings to incorporate title and ownership in the record of rights, therefore, the rightful owners could not be deprived of their fundamental right to acquire, hold and dispose of property in any part of the country, as enshrined in Articles 23 and 24 of the Constitution.

The government was bound to prove its ownership with regard to the property in question, but it did not produce any evidence to establish its ownership before the first settlement proceedings. As there was no documentary proof whatsoever of the unsettled land, therefore, possession and control of the respondent over the land was sufficient proof of ownership, but admittedly, the government was neither in possession of the property nor the same was under its control or supervision. Since the claim of the government was not supported by any evidence, therefore, its claim merely on the basis of the land being unsettled, was not a rightful claim. Appeal was dismissed.

(b) Constitution of Pakistan---

----Art. 172--- Ownerless property--- Transfer in the name of Government---"Escheat", right of--- Scope--- In case of claim of ownership of property, the government is equally responsible to show that the property has either been acquired through due process of law or it has become its owner, in respect of a property, which has no rightful owner as provided by Article 172 of the Constitution---Under the said provision of the Constitution, the government has the right to take ownership of an unclaimed or ownerless property---Such right occurs when an individual dies or disappears with no will and no heirs and his property remains unclaimed for a considerably prolonged period of time; it refers to a right of "escheat"---Before acquiring such unclaimed or ownerless property through the right of escheat, the government is required to follow the procedure provided by law and to invite objections from general public, through widely circulated notice through all mediums of communication.

Mian Shafaqat Jan, Additional A.G. Khyber Pakhtunkhwa and Ali Rehman, SI (Legal) for Appellants.

Muhammad Ajmal Khan, Advocate Supreme Court/Advocate-on-Record (through video link from Peshawar) for Respondents.

2022 S C M R 1433

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. Munib Akhtar and Muhammad Ali Mazhar, JJ

GULZAR AHMAD and others---Appellants

Versus

AMMAD ASLAM and others---Respondents

(Against the Order of Lahore High Court, Lahore dated 20.10.2017 passed in R.S.A. 167 of 2009)

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

----S. 100---Second appeal---Scope---Second appeal does not lie to question the findings on facts---If the finding of fact reached by the first appellate court is at variance with that of Trial Court, such a finding by the lower appellate court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first court which have been disfavored in the contrary finding---Interference would be justified if the decision of the lower courts is found to be contrary to law or some usage having the force of law has failed to determine some material issue of law.

Madan Gopal v. Maran Bepari PLD 1969 SC 617; Amjad Ikram v. Mst. Asiya Kausar 2015 SCMR 1 and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others 2013 SCMR 1300 ref.

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

----S. 12---Specific performance of an agreement to sell, relief of---Scope---Such relief is discretionary but the discretion cannot be exercised arbitrarily or unreasonably.

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

----S. 20---Liquidation of damages not a bar to specific performance---Scope---Party to a contract for the sale of immovable property should not be allowed to evade specific performance merely because the agreement provides the penalty to be paid on default.

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

----S. 74--- Penalty clauses--- Purpose of penalty clauses stated.

Halsbury's Laws of England, Second Edition, Volume XXXI, Part-II "Limits of the Jurisdiction", Paragraph 373 and Ranger v. Great Western Rail Co. [Reported as 5 H.L. Cas. 72; 24 L.T.O. S. 22; 18 Jur. 795; 10 E.R.824] ref.

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

----S. 27(b)--- Specific performance, relief of--- Scope---Subsequent vendee claiming to be a bona fide purchaser without notice---Specific performance of a contract may be enforced against any person claiming title subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract---Mere denial by the subsequent vendee that he had no knowledge of the prior agreement would not be enough to discharge his burden of proof---Subsequent vendee also has to prove that he acted in good faith and after due diligence entered into an agreement to sell---Subsequent vendee avowing bona fide intention cannot be absolved from making some cursory investigation to the title of the vendor which may include but is not limited to inviting public objections through public notices in order to articulate that there was no deception or foul intention to enter into in the transaction and he acted in good faith or with bona fide intention without knowledge or notice of earlier sale agreement at the time of his transaction.

Hafiz Tassaduq Hussain v. Lal Khatoon PLD 2011 SC 296 ref.

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

----S. 27(b)--- Specific performance, relief of--- Scope--- Subsequent vendee claiming to be a bona fide purchaser without notice---Burden of proof---Most important ingredient of section 27(b) of the Specific Relief Act, 1877 is the lack of knowledge or the notice of the subsequent vendee about the original contract---Initial onus is on the subsequent vendee and once it is discharged, then burden will shift on the plaintiff to prove that the subsequent vendee had the notice of his sale agreement; the subsequent transaction is without passing of the due consideration; it is a colourable or a fraudulent transaction with dishonesty by the vendor and the subsequent vendee in order to cause prejudice to his rights under the sale agreement.

Ch. Afrasiab Khan, Advocate Supreme Court for Appellants.

Sh. Tariq Mehmod, Advocate Supreme Court for Respondents LRs. Nos. 1 - 2.

Ex parte for LRs. Respondent No. 3.

2022 S C M R 1444

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

MUHAMMAD AMEEN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1774-L of 2021, decided on 20th June, 2022.

(Against the judgment of Lahore High Court, Lahore dated 17.06.2021, passed in Criminal Miscellaneous No. 24420-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 302, 109, 148, 149, 337-A(i), 337-F(i) & 337-L(2)---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, grant of---Further inquiry---Contradictory medial evidence qua alleged injury caused by the accused---Post-mortem report described the injury caused by the accused as "not a deep wound but superficial in nature" and two broken teeth of injured victim---Same post-mortem report described the mouth of the injured victim to be healthy---Final opinion of the medical officer which constituted the cause of death of deceased victim stated "cardiopulmonary arrest due to excessive internal bleeding due to rupture of spleen, liver and lung injury" which was not caused by the accused---Prima facie, the injury caused by the accused compared to the firearm injury caused by the co-accused, did not appear to be fatal leading to the death of deceased and the medial evidence to the extent of the alleged injury caused by the accused appeared to be contradictory---Question of common intention under section 34, P.P.C. could best be examined during the trial after recording of the evidence---To the extent of the accused the reappeared to be no reasonable grounds for believing that he had committed the non-bailable offence, but there were sufficient grounds for further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed and accused was admitted to bail.

Malik Matee Ullah, Advocate-on-Record (through Video-Link) for Petitioner.

Ch. Muhammad Sarwar Sindhu, Additional P.G. along with Hanan, ASP for the State.

2022 S C M R 1447

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan, Sayyed Mazahar Ali Akbar Naqvi and Ayesha A. Malik, JJ

SOHAIL AKHTAR---Petitioner

Versus

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

Criminal Petition No. 417-L of 2022, decided on 27th April, 2022.

(Against the order dated 23.02.2022 of the Lahore High Court, Lahore passed in Criminal Misc. No. 70165-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 377, 367-A & 337-B---Constitution of Pakistan, Art. 185(3)---Kidnapping of minor, sodomy---Bail, grant of---Further inquiry---Allegation against the accused was that he committed sodomy with the minor son of the complainant---However, according to the medical report, which was done promptly after the occurrence, there was no injury mark found around the victim's anus; anal bone was normal and was admitting one finger, which seemed to be normal---Perusal of the DNA report shows that sperm fractions of item Nos. 1, 3.1, 3.2, 3.3, 3.4 & 3.5 matched with the DNA profile of the accused; it further stated that the probability of finding an unrelated individual at random in the population as being a source of the DNA obtained from sperm fractions of item Nos. 3.1, 3.2, 3.3, 3.4 & 3.5 was approximately one in 63 octillion in caucasians---Approximate ratio regarding the positivity of DNA report clearly reflected that it could not override the Medico-legal report stricto sensu, which was prepared promptly---Keeping in view the medico legal and the DNA reports, the accused had made out a case for bail and this aspect of the matter would be resolved by the Trial Court during trial---Moreover FIR was lodged after two days of the occurrence and no plausible justification had been given for the same---Possibility could not be ruled out that the FIR was registered with deliberation and consultation in order to frame the accused---Accused was behind the bars for the last more than seventeen months, and until now no witness had been recorded---No useful purpose would be served by keeping the accused behind the bars for an indefinite period till the conclusion of the trial---Taking into consideration all the facts and circumstances, case of the accused squarely fell within the ambit of section 497(2), Cr.P.C., calling for further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed and accused was admitted to bail.

Pirzada Mamoon Rashid, Advocate Supreme Court for Petitioner.

Rana Abdul Majeed, Additional P.G., Malook Hussain, S.I. and Khalid Pervaiz, S.I. for the State.

Naveed Aslam, Advocate Supreme Court for the Respondent No. 2.

2022 S C M R 1450

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Syed ZULFIQAR SHAH---Petitioner

Versus

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

Criminal Petition No. 518 of 2022, decided on 21st June, 2022.

(Against the judgment dated 04.04.2022 passed by the Peshawar High Court, D. I. Khan Bench in Criminal M.B. A. No. 142-D of 2022)

Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 9(d) & 27---Control of Narcotic Substances Act (XXV of 1997), S. 20---Constitution of Pakistan, Art. 185(3)---Sale of charas (narcotic)---Bail, refusal of---Raid conducted at a dwelling house without a search warrant---Directory nature of section 27 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 ('the 2019 Act')---Whether non-compliance with section 27 of the 2019 Act would render the recovery of narcotics as inadmissible---Held, that provisions of section 27 of the 2019 Act, which are identical to the provisions of section 20 of the Control of Narcotic Substances Act, 1997 ('the 1997 Act'), are also directory in nature, and their noncompliance though may entail departmental disciplinary action or penal action or both against the delinquent police official, but do not affect the admissibility of the fact of recovery of the narcotics in evidence before the Trial Court---Where a warrant was not obtained in a case within the prohibitory clause of section 497, Cr.P.C., it was not a sufficient ground to grant bail---Petition for leave to appeal was dismissed and accused was refused bail.

Fida Jan v. The State 2001 SCMR 36; Muhammad Hanif v. The State 2003 SCMR 1237; Karl John v. The State PLD 2004 SC 394; Muhammad Akram v. The State 2007 SCMR 1671; Muhammad Younas v. Mst. Perveen 2007 SCMR 393; The State v. Hemjoo 2003 SCMR 881; Arshad Mahmood v. The State PLD 2008 SC 376; Sakina Bibi v. The State 2008 SCMR 1111 and Zafar v. The State 2008 SCMR 1254 ref.

Saleem Ullah Khan Ranazai, Advocate Supreme Court for Petitioner.

Mian Shafaqat Jan, Additional A.G. Khyber Pakhtunkhwa along with Shabir Khan, S.P and Muhammad Tariq, S.I. for the State.

2022 S C M R 1454

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

SARDAR ALI KHAN---Petitioner

Versus

STATE BANK OF PAKISTAN and others---Respondents

Civil Petition No. 803 of 2019, decided on 11th April, 2022.

(Against the judgment of the Peshawar High Court, D.I. Khan dated 26.11.2018 in C.R. No.33-D/2017 along with C.M. No.51-D of 2018)

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

----Art. 114---Estoppel---Scope---Article 114 of the Qanun-e-Shahadat, 1984 defines the doctrine of estoppel under which when a person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing---Said principle is founded on equity and justness with the objective to prevent fraud and ensure justice---Though it is described as a rule of evidence but may have effect of constituting substantive rights.

B.L. Sreedhar v. K.M. Munireddy (2003) 2 SCC 355 at 365 ref.

(b) Acquiescence, doctrine of---

----Scope---Doctrine of acquiescence is grounded upon a conduct that if a person sighted another person about to commit an act infringing upon his rights who might otherwise have abstained from it to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act.

Ramsden v. Dyson L.R. 1 E & I, Ap. 129 (140) (1865) and Duke of Leeds v. Earl of Amherst 2 Ph. 117 (123) (1846) ref.

(c) Maxim---

----"Qui approbat non reprobat (one who approbates cannot reprobate)"---Said maxim is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter---Person cannot approbate and reprobate or accept and reject the same instrument. [p. 1462] C

Shyam Telelink Ltd. v. Union of India 2010 (10) SCC 165 and Halsbury's Law of England, 4th Edn, Vol. 16 (Re-issue), Para 957 (Law of Evidence by M. Munir, Seventeenth Edition) ref.

(d) Master and servant---

----Contractual relation---Relationship of master and servant implies a contractual relation in which one party agrees to be under the control of other and the servant is bound to obey orders not only as to the work that he would execute but also as to the details of the work and the manner of its execution and in return, the master has to pay wages---Relationship between master and servant is the existence of right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work.

Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd and another [1947] 1 A.C. 1 and (I) [1957] S.C.R. 152 ref.

(e) Constitution of Pakistan---

----Art. 199---Master and servant---Constitutional jurisdiction of the High Court---Scope---Employee of a private bank aggrieved of his pensionary and retirement benefits---In the present case, the private bank was not amenable to the writ jurisdiction of the High Court under Article 199 of the Constitution nor it was a case of violation or contravention of any statutory rules of service which could be agitated in the High Court in its writ jurisdiction---Petition for leave to appeal was dismissed ad leave was refused.

(f) Constitution of Pakistan---

----Art. 185---Appellate jurisdiction of the Supreme Court---Scope---Concurrent findings of courts below---Supreme Court cannot not go behind concurrent findings of fact unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of principle relating to appreciation of evidence, or finally, if the finding can be demonstrated to be physically impossible.

Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through LRs and others 2015 SCMR 1081 and Muhammad Shafi and others v. Sultan 2007 SCMR 1602 ref.

Abdul Rehman Khan, Advocate Supreme Court and Rifiqat Hussain Shah, Advocate-on-Record for Petitioner along with the Petitioner.

Nemo for Respondents.

2022 S C M R 1467

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Sayyed Mazahar Ali Akbar Naqvi, J

NAZIR AHMAD alias BHAGA---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 186-L of 2022, decided on 31st March, 2022.

(On appeal against the order dated 20.01.2022 passed by the Lahore High Court, Lahore in Criminal Misc. No. 77550 of 2021)

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

----S. 497(2)---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---Accused allegedly purchased six cars worth Rs.117,00,000 (rupees one crore seventeen lacs) from the complainant and paid Rs.17,00,000 in advance in cash whereas for the rest of the amount i.e. Rs.100,00,000 (rupees one crore) he gave a cheque to him, which was dishonoured when presented to the Bank---Accused contended that he neither received any car nor gave the disputed cheque to the complainant; that he gave blank cheque of the amount in question to a third person for purchase of a bungalow, which was now being utilized against him---Validity---As per the contents of the crime report, the accused and the complainant had business ties---Counsel for the complainant admitted that the complainant did not have the receipt for the alleged sale of cars---Question as to whether the accused purchased the cars and issued the cheque in question to the complainant was a question which would be resolved by the Trial Court after recording of evidence---Accused was behind the bars for more than four months and the maximum punishment provided under the statute for the offence under section 489-F, P.P.C. was three years and the same also did not fall within the prohibitory clause of section 497, Cr.P.C.---Case against the accused squarely fell within the ambit of section 497(2), Cr.P.C. calling for further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed, and accused was granted bail.

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

----S. 489-F---Civil Procedure Code (V of 1908), O. XXXVII---Section 489-F of P.P.C.---Purpose---Section 489-F of P.P.C. is not a provision, which is intended by the Legislature to be used for recovery of an alleged amount, rather for recovery of any amount, civil proceedings provide remedies, inter alia, under Order XXXVII of C.P.C.

Abdul Saboor v. The State 2022 SCMR 592 ref.

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

----S. 497---Bail, grant of---Offences not falling within the prohibitory clause---Scope---Grant of bail in the offences not falling within the prohibitory clause is a rule and refusal is an exception.

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

----S. 497--- Bail--- Registration of another similar FIR--- Mere registration of (another) FIR against an accused does not disentitle him for the grant of bail if on merits he has a prima facie case.

Moundar and others v. The State PLD 1990 SC 934 ref.

Zulfiqar Ali Dhuddi, Advocate Supreme Court for Petitioner.

Amjad Ali Chattha, Advocate Supreme Court for the Complainant.

Khurram Khan, Additional P.G., Hameed Virk, DSP and Mukhtar Ahmed, SHO for the State.

2022 S C M R 1471

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Jamal Khan Mandokhail, JJ

BADSHAH ZAMIN and others---Appellants

Versus

SIRAJ KHAN and others---Respondents

Civil Appeals Nos. 290 to 297 of 2022, decided on 2nd June, 2022.

(On appeal from the judgments of the Khyber Pakhtunkhwa Service Tribunal dated 17.11.2020 in Service Appeals Nos. 126, 127, 129, 131 of 2019 and 805 of 2018)

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

----Ss. 3 & 4---Khyber Pakhtunkhwa Public Service Commission Regulations, 2003, Reglns. 35(3)(a) & 35(3)(b)---Seniority---Prior to commencement of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act'), the Provincial Public Services Commission ('the Commission') recommended employees in batches owing to their large number---Some batches were recommended for appointment prior to commencement of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act'), while others after its commencement---Employees from batches recommended by the Commission, after the commencement of the 2009 Act, would also get the benefit of section 4 of the 2009 Act---In such circumstances, other employees whose services were regularized pursuant to the 2009 Act, shall rank junior to those candidates, whose recommendations were made by the Commission, prior to the commencement date of the 2009 Act.

Section 4 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('the 2009 Act') given preference (for seniority purposes) to those employees, whowere recommended by the Provincial Public Services Commission ('the Commission') for their appointment, before the promulgation of the 2009 Act, irrespective of their actual date of appointment.

In the present case the first batch of the employees was recommended by the Commission on 15th September 2009, before the commencement of the 2009 Act, whereas, because of bulk of the candidates, the recommendations of rest of the candidates were made on different dates, after the commencement of the 2009 Act. The question before the court is that rest of the candidates, who were recommended by the Commission for their appointments, after the commencement of the 2009 Act, would get the benefit of section 4 of the Act or otherwise?

Regulations 35(3)(a) and 35(3)(b) of the Khyber Pakhtunkhwa Public Service Commission Regulations, 2003 ('the 2003 Regulations') clarify that in case of more than one candidate, if the recommendation of the Commission is withheld or delayed in respect of one or more candidates, for want of completion of the process or for any other reason, beyond the control of the candidates, the recommendations of the Commission made subsequently on different dates, are to be considered to have been made by the Commission on the dates, when first recommendation was made. Under such circumstances, the date of the recommendations of the first batch, sent to the competent authority for the appointment shall be considered as the date of recommendation for all.

In the present case, admittedly the recommendation of the first batch amongst the appellants were made by the Commission to the competent authority on 15-09-2009, whereas the 2009 Act was promulgated on 24-10-2009, therefore, the recommendations of all the appellants shall be deemed to have been made to the competent authority prior to the commencement of the 2009 Act, irrespective of the subsequent recommendations and dates of their appointments. Hence, the services of those employees, which were regularized pursuant to the 2009 Act, shall rank junior to those candidates, whose recommendations were made by the Commission, prior to the commencement of the 2009 Act.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Appellants (in all appeals).

Aftab Alam Yasir, Advocate Supreme Court for Private Respondents.

Zahid Yousaf Qureshi, Additional A.G. and Shahid Iqbal, L.O. (KPPSC) for Khyber Pakhtunkhwa.

2022 S C M R 1477

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ

ZAHEER AHMAD and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 149-L and 150-L of 2022, decided on 29th April, 2022.

(On appeal against the judgment dated 24.12.2021 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 27057-B of 2021)

Criminal Procedure Code (V of 1898)---

----S. 497--- Penal Code (XLV of 1860), Ss. 295-A, 295-B, 295-C, 298-C, 34 & 109---Prevention of Electronic Crimes Act (XL of 2016), S. 11---Constitution of Pakistan, Art. 185(3)---Propagation of Qadiani faith through social media by forwarding material and translation of Holy Quran proscribed by the government---Bail, refusal of---Accused was nominated in the FIR and he was one of the administrators of the WhatsApp group along with co-accused and forty other persons were also members of the said group---Certain proscribed book and banned text and translation of Holy Quran was shared in the said group---Co-accused disseminated banned material to accused and another co-accused for further sharing with public at large; he also used to provide derogatory books and guidelines to the accused through a WhatsApp number, registered in his name---According to the investigating officers, detailed forensic analysis of cell phones of the accused, and both co-accused was conducted by the Federal Investigation Agency (FIA) and it was found that, the accused, being one of the administrator of the WhatsApp group, used to add and remove persons not belonging to Ahmadi community in the group on the instructions of co-accused---Sufficient incriminating material was available on record connecting the accused and co-accused with the commission of alleged offence---Petitions for leave to appeal were dismissed, leave was refused and accused and co-accused were refused bail.

Sh. Usman Karim-ud-Din, Advocate Supreme Court, Miss Hina Jilani, Advocate Supreme Court, Arshad Nazir Mirza, Advocate Supreme Court and Mirza Mehmood Ahmed, Advocate Supreme Court for Petitioners (in both cases).

Syed Nayyab Hussain Gerdezi, DAG, Mehmood-ul-Hasan, D.D. (FIA), Mudassar Shah, D.D. (FIA) and Naveed Aslam, S.I. (FIA) for the State.

Muhammad Shahid Tasawar, Advocate Supreme Court for the Complainant.

2022 S C M R 1481

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Yahya Afridi, JJ

MUHAMMAD DIN---Appellant

Versus

The DEPUTY SETTLEMENT COMMISSIONER and others---Respondents

Civil Appeal No. 730 of 2015, decided on 8th March, 2022.

(Against the judgment dated 06.05.2015 passed by the Lahore High Court, Lahore in Civil Revision No. 308 of 2005)

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----Ss. 2(2) & 3---Evacuee property---Proceedings pending after the cutoff date specified under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---After the promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 ('the Act'), the officers notified under the Act, do not possess the jurisdiction to declare any Provisional Transfer Order ("PTO") or Permanent Transfer Deed ("PTD") regarding which no proceedings were pending on the cutoff date (specified under the Act), as null and void on the grounds of alleged fraud or forgery; they can only deal with and decide the pending proceedings and cannot initiate any new proceeding---Anyone who wants to challenge any PTO or PTD issued under the repealed laws, and has locus standi to do so, is to knock at the doors of Civil Court, a court of plenary jurisdiction, for the redress of his grievance.

Muhammad Ayub v. Ghulam Muhammad 2005 SCMR 1650 and Wazir Hussain v. Abdul Rehman 2002 YLR 1600 ref.

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

----S. 42---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 3---Suit for declaration---Evacuee property---Unconscionable conduct of the plaintiff---Conduct of the appellant/plaintiff, throughout the entire proceedings culminating in the institution of the suit, was not above board---Firstly, the appellant, while representing his mother as her attorney, stated himself to be a resident of the house bearing property No. 65/1-C, not No.65-ABC---As per his own statement made in the deed of General Power of Attorney, he stated to have been residing with his mother in the house bearing property No. 65/1-C, thus, leaving doubt as to how he could simultaneously be in possession of another house bearing property No.65-ABC as claimed by him in his application made to the Deputy Settlement Commissioner, seeking transfer of that house in his favour---Secondly, the appellant was unable to clearly and specifically state the period of his alleged possession, in his application of the house bearing property No.65-ABC he was claiming transfer in his favour, within the contemplation of the Scheme in question---Finally, the silence and inaction on the part of the appellant in agitating his own alleged grievance, when he was pursuing the identical cause of his mother on her behalf as her attorney, before different forums portrayed a very negative impression which was very hard to ignore---Such conduct of the appellant disentitled him to the discretionary relief of declaration under section 42 of the Specific Relief Act, 1877---Appeal was dismissed.

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

----S. 42---Suit for declaration---Relief---Unconscionable or inequitable conduct of plaintiff---Where the conduct of the person claiming declaratory relief is unconscionable or inequitable, the court may decline to grant him the relief on this sole ground.

Muhammad Ali v. Muhammad Amir PLD 1995 Lah. 124; Muhammad Riaz v. K.M.C. 2000 CLC 1107; Allauddin v. D.M., Waqf Properties 2003 CLC 799 and Shahnaz Parveen v. Javed Yaqoob 2020 MLD 638 ref.

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

----Art. 129(e)---Official acts---Presumption of regularity---Presumption of regularity attached to official acts cannot be rebutted only by making vague allegations.

Kausar Ghaffar v. Government of Punjab 2013 SCMR 99 ref.

(e) Limitation Act (IX of 1908)---

----First Sched., Arts. 14 & 120---Specific Relief Act (I of 1877), S. 42---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 3---Evacuee property---Suit for declaration---Limitation period, commencement of---Main challenge of the appellant/plaintiff, in the suit, was with regard to the validity of the Permanent Transfer Deed (PTD) dated 15-1-1962, for which purpose the Deputy Settlement Officer had referred him to have recourse to Civil Court for the redress of his grievance---Order of the Deputy Settlement Officer referring the appellant to Civil Court could not, give him a fresh period of limitation to institute the suit to challenge the validity of the PTD dated 15.1.1962---As far as the appellant's knowledge of the PTD dated 15.1.1962 was concerned, he had knowledge from 17-03-1973 when he vide the deed of General Power of Attorney accepted to represent his mother, as her attorney, in litigation concerning the suit property and thereafter did represent her before all courts and authorities, including the High Court---As per Article 14 of the First Schedule to the Limitation Act, 1908, the period of limitation for instituting a suit to set aside any act or order of an officer of Government made by him in his official capacity, not otherwise expressly provided for in the said Act, was one year from the date of the act or order; while under the residuary Article 120, the period of limitation was six years---Whichever of these two periods was applied, the suit of the appellant having been instituted on 31-01-1987 to challenge the PTD dated 15.1.1962 was clearly barred by the law of limitation---Appeal was dismissed.

(f) Limitation Act (IX of 1908)---

----S. 3 & First Sched.---Multiple reliefs sought in a suit---Main relief barred by limitation---Effect---When the main relief sought in a suit is barred by time, the consequential relief, even if be within time, is of no legal avail.

Javaid Shafi v. Rashid Arshad PLD 2015 SC 212 ref.

Ibad-ur-Rehman Lodhi, Advocate Supreme Court and Sh. Mehmood Ahmed, Advocate-on-Record for Appellant.

Shaukat Rauf Siddiqui, Additional A.G. for Respondent No. 1.

Sheikh Waqar-ul-Haq, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record (absent) for Respondent No.3.

Zaheer Bashir Ansari, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record (absent) for Respondents Nos 5 - 7.

Ex parte for respondents Nos. 2(a-b) and 4.

2022 S C M R 1494

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUNEER MALIK and others---Applicants

Versus

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

Criminal Miscellaneous Application No.1581 of 2021 in/and Criminal Appeal No.193 of 2020 and Criminal Appeals Nos.194 and 195 of 2020, decided on 11th May, 2022.

(Compromise)

(Against the judgment dated 20.06.2018 passed by the High Court Sindh, Sukkur Bench in Criminal Appeals Nos. D-36 of 2011, D-132 and D-133 of 2017)

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

----S. 7---Penal Code (XLV of 1860), Ss. 302(b), 324 & 34---Murderous assault---Occurrence taking place due to scuffle between children---Occurrence result of personal vendetta---No premeditation for the assault---Specific motive to create terror or insecurity amongst the society lacking---Provision of section 7 of the Anti-Terrorism Act, 1997 would not be attracted in such circumstances.

Occurrence took place over scuffle between the children and the accused persons had no specific motive to create terror or insecurity among the society coupled with the fact that it was not pre-meditated rather ultimately resulted into the present occurrence. Provision of section 7 of the Anti-Terrorism Act, 1997 was not attracted in the present case as the occurrence was the result of personal vendetta, therefore, the conviction and sentence recorded under section 7 of the Anti-Terrorism Act, 1997 was set aside.

Ghulam Hussain v. The State PLD 2020 SC 61; Muhammad Akram v. The State 2022 SCMR 18; Farooq Ahmed v. The State 2020 SCMR 78 and Dilawar Mehmood v. The State 2018 SCMR 593 ref.

The compromise between the legal heirs of both the deceased along with injured witnesses had been effected in the substantive offence i.e. sections 302, 324 and 34, P.P.C., which fact was reported to be genuine by the Sessions Judge. Interest of the minors of the deceased had also been safeguarded.

Appeals were allowed, and accused persons were acquitted of the charge of murders and of causing injuries to witnesses.

(b) Pakistan Arms Ordinance (XX of 1965)---

----S. 13(e)---Unlicensed possession of arms, etc.---Reappraisal of evidence---Joint recovery of weapons of offence---Crime empties neither kept in safe custody nor sent to Chemical Examiner immediately after recovery---Recoveries inadmissible in evidence---Recovery memo and site plan reveal that accused persons while in police custody jointly led to the recovery of weapons of offence i.e. one Kalashnikov and a T.T. Pistol from a fish pond, which in all eventualities was an open place---Nothing had been mentioned as to which of the accused persons had first led to the recovery or pointed out the place of recovery and in absence of the same, joint recovery of weapons of offence was of no evidentiary value---Furthermore, the record shows that eight empties of Kalashnikov and six empties of T.T. pistol were recovered from the scene of occurrence on the same day through recovery memo but the said crime empties were neither kept in safe custody nor sent to Chemical Examiner immediately after recovery---Weapons of offence and the crime empties were jointly sent to the office of Chemical Examiner after a delay of more than two months for which no plausible explanation had been given by the prosecution---In these circumstances the recoveries were inadmissible in evidence and could not be relied upon to sustain conviction of the accused persons---Appeals were allowed and conviction and sentences of accused persons under section 13(e) of the Pakistan Arms Ordinance, 1965 were set aside.

Barrister Umer Aslam, Advocate Supreme Court, Raja Muhammad Rizwan Satti, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Applicants (in all cases).

Zafar Ahmed Khan, Additional P.G., Sindh for the State.

2022 S C M R 1501

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

Messrs SUI NORTHERN GAS PIPELINES LIMITED (SNGPL)---Petitioner

Versus

Messrs NOOR CNG FILLING STATION---Respondent

Civil Petition No. 2032 of 2019, decided on 5th April, 2022.

(Against the judgment dated 22.02.2019 Peshawar High Court, Peshawar, in Civil Revision No.774-P of 2018)

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

----O. XXIX, R. 1---Appeal filed by Sui Northern Gas Pipelines Limited (SNGPL)---Lack of proper authorization to file the appeal---Non-placement of a Board Resolution or power of attorney in Court---Effect---Dismissal of suit.

The rigors of Order XXIX, Rule 1, C.P.C. as a result of non-compliance will obviously come into the play which is not simply a procedural requirement but in essence a matter of dominant implication for juristic persons to set the law into motion including the requirement of appointing or engaging a recognized agent and pleader through a written document signed by such person or by his recognized agent or by some other person duly authorized thereunder or under a power of attorney to make such appointment which cannot be ignored lightly.

The Sui Northern Gas Pipelines Limited (SNGPL) ('the Company') is a public limited company incorporated under the erstwhile Companies Ordinance, 1984. Title of the filed subject appeal mentioned the appellants as three General Managers and one Managing Director of Company. Said appeal was filed without any Board Resolution of the Company authorizing the alleged four executives to file an appeal against the judgment and decree of the Trial Court on behalf of the Company. No Board Resolution was produced along with the memo of appeal to demonstrate that they were authorized to file the appeal and even the memo of appeal was simply signed by the Advocate for the appellants who must have engaged this counsel for preferring an appeal but, again, before engaging and authorizing an advocate for filing an appeal, there must be a clear authorization in the form of a Board Resolution or power of attorney to that effect. Neither any Board Resolution was produced, nor was any extract from the minute book of the Company produced to demonstrate any authorization through the Board of Directors of the Company, nor any indenture power of attorney to put on view any duly constituted attorney.

Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684; The Central Bank of India, Ltd., Lahore v. Messrs Taj-ud-Din Abdur Rauf and others 1992 SCMR 846; Rahat and Company v. Trading Corporation of Pakistan PLD 2020 SC 366 and China Annang Construction Corporation through Project Manager v. K.A. Construction Co. through Attorney 2001 SCMR 1877 ref.

If the appeal was not filed by a duly authorized person, that defect or disability could not be overlooked or ignored if not cured at an early stage.

High Court had also taken a coinciding view and concurred with the Appellate Court findings that the appellants failed to sign the appeal, rather it was only signed by their Advocate without any party's affidavit, moreover, no Power of Attorney or resolution was produced. Petition for leave to appeal was dismissed and leave was refused.

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

----S. 9---Civil Courts, jurisdiction of---Ouster of jurisdiction by special law---Scope---Under section 9 of C.P.C., the Civil Courts have the jurisdiction to try all suits of a civil nature except suits cognizance of which is either expressly or impliedly barred---Ouster of Civil Court's jurisdiction cannot be straightaway inferred or congregated in a routine, save as the conditions laid down are fulfilled---Presumption of lack of jurisdiction may not be gathered until the specific law enacted by the legislation debars Civil Court from exercising its jurisdiction with specific remedy within the hierarchy which may attain finality of order or the controversy involved.

Ch. Hafeez Ullah Yaqub, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2022 S C M R 1511

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ

ROHAN AHMAD and others---Petitioners

Versus

The STATE and others---Respondent

Criminal Petitions Nos. 1313-L, 1314-L and 1315-L of 2021, decided on 29th April, 2022.

(On appeal against the judgment dated 26.08.2021 passed by the Lahore High Court, Lahore in Criminal Misc. Nos.18739-B and 18744-B of 2021)

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

----S. 497---Penal Code (XLV of 1860), Ss. 295-B, 298-C, 120-B, 34 & 109---Prevention of Electronic Crimes Act (XL of 2016), S. 11---Constitution of Pakistan, Art. 185(3)---Disseminating religious beliefs of Qadiani faith through social media and the internet---Bail, refusal of---During investigation it was found that accused used to publicly upload proscribed defiled translation of the Holy Quran, blasphemous books and other material and also created a link to an online storage drive and disseminated it through a WhatsApp number, which was registered against his name---Co-accused used to provide blasphemous content for online competitions through an email address and the number mentioned in that email was registered against his name; he also created a WhatsApp group and used to supervise and pass instructions regarding the quiz competitions through WhatsApp; and he disseminated defiled translation of the Holy Quran through WhatsApp---As regards role of the other co-accused, during investigation it was found that he prepared the quiz questions and papers of proscribed material and disseminated the same to the accused and co-accused through his email---Prosecution had sufficient material on record to connect the accused and both the co-accused with the alleged crime and in the circumstances, they were not entitled for grant of bail---Petitions for leave to appeal were dismissed, leave was refused, and accused and both co-accused persons were refused bail.

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

----S. 497---Bail---Evidence, appraisal of---Scope---At bail stage court is not meant to dig deep into the evidence or to scrutinize factual aspects of the case, which is the responsibility of the Trial Court and requires evidence to be adduced from both sides.

Sh. Usman Karim-ud-Din, Advocate Supreme Court, Miss Hina Jilani, Advocate Supreme Court, Arshad Nazir Mirza, Advocate Supreme Court and Mirza Mehmood Ahmed, Advocate Supreme Court for Petitioners.

Syed Nayyab Hussain Gerdezi, DAG, Mehmood-ul-Hasan, D.D. (FIA), Mudassar Shah, D.D. (FIA) and Naveed Aslam, S.I. (FIA) for the State.

Muhammad Shahid Tasawar, Advocate Supreme Court for the Complainant.

2022 S C M R 1515

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

KASHIF ALI alias KALU---Petitioner

Versus

The STATE and another---Respondents

Jail Petition No. 403 of 2018, decided on 6th June, 2022.

(On appeal against the judgment dated 24.06.2010 passed by the Lahore High Court, Lahore in Criminal Appeal No. 280-J of 2005 and Murder Reference No. 423 of 2005)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Complainant was neither an eye-witness nor a resident of the place of occurrence---As per the prosecution story, the complainant on receiving a call that a dacoity had been committed at his mother-in-law's house reached at the place of occurrence, however, he did not disclose the name of the person from whom he had received a call---First Information Report (FIR) was registered with an inordinate delay of about 18 hours for which no plausible explanation had been given, which made the whole prosecution story doubtful especially when initially brother of the accused was nominated in the FIR but subsequently the present accused was substituted as an accused---In the statement of the complainant which was exhibited in evidence, he stated that the deceased was discharged from hospital and thereafter she was being treated privately in her house and succumbed to the injuries at home but he did not mention the date on which she succumbed to the injuries---Record was also silent as to how and by whom she was being treated privately in her residence---Weapon of offence i.e. churri was not sent to the office of Chemical Examiner, therefore, the recovery was inconsequential and the same could not be used against the accused---As far as the alleged recovery of gold ornaments on the pointation of the accused was concerned, the same were taken into possession by two police officials, however, the statement of one of the officials could not be recorded as he was given up by the prosecution at the time of trial---Besides, no independent witness of the locality was associated in the said process---In these circumstances, it would not be safe to rely upon the recovery of golden ornaments to sustain conviction of the accused---Doubts in the authenticity of the prosecution case were grave, which could not be ignored---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. 46---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Dying declaration, reliance upon---Scope---In the present case, the alleged dying declaration was recorded by the investigating officer, however the time and place where it was recorded were not disclosed which made it highly improbable to rely upon---Investigating Officer, who recorded the dying declaration, was also not been produced in court---After the occurrence, deceased was taken to hospital and police was also present there---Police had moved an application on 27-06-2004 regarding her condition and to record her statement but despite that it did not record the statement at the first instance i.e. on 24.06.2004 and then on 27.06.2004---Alleged dying declaration in the present case could not be given any credence---Petition for leave to appeal was converted into appeal and allowed, and accused was acquitted of the charge.

(c) Criminal trial---

----Benefit of doubt in prosecution case---Scope---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused make him entitled to its benefits, not as a matter of grace and concession but as a matter of right---Any doubt arising in prosecution case is to be resolved in favour of the accused.

Dil Muhammad Khan Alizai, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

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

2022 S C M R 1520

[Supreme Court of Pakistan]

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

MUHAMMAD IQBAL---Petitioner

Versus

REGIONAL POLICE OFFICER, SAHIWAL and another---Respondents

Civil Petition No. 2692-L of 2016, decided on 3rd January, 2022.

(On appeal from the judgment/order dated 01.07.2016 of the Punjab Service Tribunal passed in Appeal No. 2838 of 2016)

(a) Civil service---

----Police official---Dismissal from service---Involvement in narcotics case---Subsequent acquittal by the High Court---Petitioner (police official) because of being arrested was not in a position to pursue his departmental remedies---Fundamental basis on which the impugned action of dismissal from service was passed against the petitioner had seized to exist after his acquittal in the narcotics case by the High Court---Acquittal of the petitioner by the High Court was a subsequent development that ought to be considered by the departmental authorities whilst considering disciplinary action against the petitioner---Petition for leave to appeal was converted into appeal and allowed, order of Service Tribunal was set aside with the direction that departmental authorities shall be at liberty to commence fresh disciplinary proceedings against the petitioner on the basis of the record and by the grant of opportunity of hearing to him in accordance with law.

(b) Civil service---

----Concurrent departmental and criminal proceedings---Outcome of the disciplinary proceedings is not dependent upon the outcome of criminal proceedings. [p. 1522] B

Malik Matteullah, Advocate Supreme Court for Petitioner.

Khadim Hussain Qaiser, Additional A.G. on Court's Call.

2022 S C M R 1522

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

IJAZ AHMED---Petitioner

Versus

NOOR UL AMEEN---Respondent

Civil Petition No. 2222 of 2019, decided on 4th April, 2022.

(Against the judgment dated 21.03.2019 Lahore High Court, Lahore, in Civil Revision No. 997 of 2017)

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

----Ss. 6(1)(c) & 13(3)---Suit for pre-emption---Shafi Jar---Failure to fulfill the legal requirements of Talb-i-Muwathibat and Talb-i-Ishhad---Petitioner/pre-emptor deposed that the pre-empted land was adjacent to his land with common source of irrigation but during cross-examination he stated that there was no official canal/irrigation rather the lands were irrigated from a river---Pre-emptor's witness also showed ignorance to khasra numbers of passage and source of common irrigation; he further admitted that there was no Warabandi and neither the pre-emptor was co-sharer in the Khata, nor there was any sanctioned khal---Patwari Consolidation had also deposed that there was no joint khata between the parties and, there was no passage or common source of irrigation nor any sanctioned water---Pre-emptor in his evidence deposed that he made Talb-i-Muwathibat on 27-08-2009 but in his cross-examination he admitted that in the last week of August 2009 he was in a different city---Pre-emptor's witness in his cross-examination stated that at the time of reducing the notice of Talb-i-Ishhad, no person was present except the pre-emptor but to make some improvement, voluntarily stated that another witness was also present---Pre-emptor's witness in his examination-in-chief stated that notice of Talb-i-Ishhad through registered post could not be delivered to the vendee as there was no person by the name of the pre-emptor and he returned the notice of Talb-i-Ishhad---Attesting witnesses of the notice of Talb-i-Ishhad did not depose to have the knowledge of contents of the notice of Talb-i-Ishhad---All the courts below had concurrently reached to the correct conclusion that the pre-emptor had miserably failed to fulfill the legal requirements of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with the law---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 13(3)--- Talb-i-Ishhad, notice of--- Such notice must be served on the vendor through Registered Post with Acknowledgment Due.

Mir Muhammad Khan and 2 others v. Haider and others PLD 2020 SC 233 ref.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---While exercising the revisional jurisdiction under section 115, C.P.C., the powers of the court are limited---Revisional court has to analyze the allegations of jurisdictional error such as exercise of jurisdiction not vested in the court below or a jurisdiction vested in it by law which it failed to exercise and/or the court has acted in exercise of its jurisdiction illegally or with material irregularity or committed some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision.

Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984 ref.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Provisions of section 115, C.P.C. under which a High Court exercises its revisional jurisdiction, confer an exceptional and necessary power intended to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities.

Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161 ref.

Maulvi Anwar ul Haque, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner.

Subah Sadiq Klasson, Advocate Supreme Court (via video link from Lahore) for Respondent.

2022 S C M R 1527

[Supreme Court of Pakistan]

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

ABDUL GHAFOOR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 250 of 2020, decided on 30th May, 2022.

(Against the judgment dated 31.03.2014 of the Lahore High Court, Lahore passed in Criminal Appeal No. 217-J of 2010 and Murder Reference No. 329 of 2010)

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

----Ss. 302(b) & 337-F(ii)--- Qatl-i-amd, ghayr-jaifah-badi'ah---Reappraisal of evidence---First Information Report (FIR) was registered after an inordinate delay of 11 days---Co-accused was ascribed the role of causing injury with dagger on the left shoulder of the deceased and both the injured witnesses, who had testified to this effect but subsequently through written statements the witnesses exonerated the said co-accused contradicting their previous statements---Conduct of the prosecution witnesses cast serious doubt on their credibility---Case against the accused was based on the same set of evidence and the role ascribed to him was similar to that of the co-accused---Somersault taken by the complainant regarding the accusation levelled against the accused and co-accused, since acquitted, called for extending benefit of doubt to the accused---Possibility of complainant throwing a wider net could not be ruled out.

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

----S. 154---Delay in lodging FIR---Effect---Such delay is serious lapse unless and until it is plausibly explained---Delay per se is a valid ground to gauge the veracity of the prosecution witnesses.

Mehmood Ahmad v. The State 1995 SCMR 127 ref.

(c) Criminal trial---

----Benefit of doubt--- Doubt in prosecution case--- Scope--- Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused make him entitled to its benefits, not as a matter of grace and concession but as a matter of right---Any doubt arising in prosecution case is to be resolved in favour of the accused.

Nemo for Appellant.

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

2022 S C M R 1532

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan and Sajjad Ali Shah, JJ

MUHAMMAD AKBAR and others---Petitioners

Versus

PROVINCE OF PUNJAB through DOR, Lodhran and others---Respondents

Civil Petition No. 715 of 2018, decided on 17th November, 2021.

(On appeal against the judgment dated 23.11.2017 passed by the Lahore High Court at Lahore in C. R. No.14 of 2007)

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

----S. 42---Contract Act (IX of 1872), S. 182---Suit for declaration---Joint holding, division of---Family settlement---Proof---Admission by Attorney of existence of Family Settlement --- Principal bound by such admission---Mala fides of Patwari in not sanctioning mutation in terms of the settlement---In the present case the admission(s) on part of the defendants/petitioners coupled with documentary evidence clearly established the fact that the Family settlement ('the Settlement') in fact existed and, that the revenue officials could not sanction any mutation which was contrary thereto ---Attorney of the petitioners admitted the existence of the Settlement, and an admission made by Attorney was binding on his Principal who authorized him to do so, unless a contrary intention was proved on behalf of the petitioners or that he was not so authorized---Such statement of Attorney had not been disowned by the petitioners---Fact which was expressly and unequivocally admitted by the petitioners through their Attorney, would not require proof---Settlement operated as an agreement between the parties and they were bound by its terms---Petitioners never challenged the Settlement before any forum which effectively meant that the Settlement still bound the parties thereto and their legal heirs---Settlement was validly executed and, did not require compulsory registration---Settlement Award was handed over to the Patwari for incorporation in the relevant Register---However, the Patwari procured signatures/thumb impressions of parties on a blank 'Parat' of the mutation and, the Award was not given effect---Contrarily, the property which was to be given to the respondents was given to the petitioners through the impugned mutation, showing that the Patwari's actions were tainted with mala fide---Patwari was duty bound to sanction a mutation in accordance with the terms of the Award/Settlement placed before him---Suit for declaration filed by the respondents had rightly been decreed by the High Court---Petition for leave to appeal was dismissed and leave was refused.

Anees A. Sheikh v. Col. (Retd.) Ghulam Rasool Qureshi 2005 SCMR 977; Karachi Metropolitan Corporation, Karachi v. Raheel Ghayas PLD 2002 SC 446 and Allah Dad and 3 others v. Dhuman Khan and 10 others 2005 SCMR 564 ref.

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

----S. 17---Family Settlement deed---Registration, requirement of---Where a family settlement is in the form of a deed and not a regular partition deed, it did not require compulsory registration.

Anwar Khan v. Abdul Manaf 2004 SCMR 126 ref.

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

----S. 100--- Charge created on a property through a Family Settlement---Such charge passes with the property onto the legal heirs.

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

----S. 42---Entries in revenue record---Patwari, duty of---Scope---Patwari does not have power to arbitrarily make entries in the relevant register and, must make such entries based on evidence before him.

(e) Evidence---

----'Oral evidence' and 'documentary evidence'---Documentary evidence takes precedence over oral evidence; this is especially so when oral evidence/assertions are in direct conflict with documentary evidence.

Sher Muhammad v. Muhammad Khalid 2004 SCMR 826 ref.

(f) Public official---

----Fiduciary duty---Scope---Public officials owe a fiduciary duty to the public; they are to act in utmost good faith while discharging their duties---If a public official acts in a careless manner, his actions are bound to cause not only distrust amongst the public, but also loss to the public exchequer.

Aftab Alam Yasir, Advocate Supreme Court for Petitioners.

Shahid Tabassam, Advocate Supreme Court for Respondents Nos. 2 - 5.

2022 S C M R 1540

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

SAJJAD HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1802-L of 2017, decided on 21st April, 2022.

(On appeal against the judgment dated 31.10.2017 passed by the Lahore High Court, Lahore in Murder Reference No. 406/2015 and Criminal Appeal No. 2129 of 2015)

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

----Ss.302(b) & 109---Qatl-i-amd, abetment---Reappraisal of evidence---Rule of consistency---Co-accused persons acquitted on the same set of charges--- Possibility of fatal fire shots made by the co-accused persons---In the present case, although the accused had been assigned a specific role of firing at the chest and arms of the deceased persons, the perusal of evidence suggests that the other co-accused persons had also made straight fires on the deceased, which shots hit on different parts of their body---Locale of the injuries sustained by the deceased due to the firing made by the co-accused persons had not been described---According to postmortem report, one of the deceased sustained as many as 14 injuries on his body whereas 5 were on his chest---Every possibility existed that the fire shots made by the co-accused persons would have also hit the chest of the deceased---However, said co-accused persons along with all other co-accused had been acquitted of the charge either by the Trial Court through a separate trial or by the High Court through the impugned judgment---Police in the report under section 173, Cr.P.C. had not found the accused involved in the occurrence and he was only found involved to the extent of communication with co-accused via a mobile phone---However, neither the mobile phone nor Call Data Record was placed on record---Furthermore, no memo of recovery of mobile phone was ever made---So far as the allegation of abetment against the accused was concerned, the three ingredients essential to establish/charge any person as conspirator i.e. (i) instigation, (ii) engagement with co-accused, and (iii) intentional aid qua the act or omission for the purpose of completion of said abetment, were squarely missing from the record of the present case---Weapon of offence i.e. Kalashnikov had also not been recovered from the accused---No incriminating evidence was available against the accused to distinguish his case from that of the co-accused persons since acquitted---Prosecution had failed to prove its case beyond any reasonable shadow of doubt---Petition for leave to appeal was converted into appeal and allowed and the accused was acquitted of the charge.

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

----S. 302(b)--- Qatl-i-amd--- Benefit of doubt--- Scope--- Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court for Petitioner.

Mirza Muhammad Usman, DPG for the State

2022 S C M R 1546

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

Homoeo Dr. ASMA NOREEN SYED---Appellant

Versus

GOVERNMENT OF THE PUNJAB through its Secretary Health, Department

and others---Respondents

Civil Appeal No. 1653 of 2021, decided on 12th May, 2022.

(Against the Judgment of Punjab Service Tribunal Rawalpindi Bench dated 20.10.2020 in Appeal No.3950 of 2020)

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

----S. 8(5) [as amended by section 3 of the Punjab Civil Servants (Amendment) Act, 2005]---Proforma promotion after retirement---Scope---Judgment of Tribunal based on an incorrectly published provision of a statute---Section 8(5) of the Punjab Civil Servants Act, 1974 [as amended by section 3 of the Punjab Civil Servants (Amendment) Act, 2005] provided that a retired civil servant shall not be eligible for grant of promotion; provided that he/she may be considered for grant of proforma promotion as may be prescribed---Therefore, the appellant, who had since retired, was also entitled to be considered for proforma promotion after retirement---Impugned judgment of the Service Tribunal was based on an incorrect exposition of law as a result of adverting to a wrongly published gazette notification from which for the most part the rider enabling and facilitating the proforma promotion in certain cases was missing which was actually in field even at the time of passing the impugned judgment by the Tribunal---Foremost duty in the dispensation of justice was to apply the correct law---Appeal was allowed and the matter was remanded to the Service Tribunal to decide the appeal afresh in accordance with law.

(b) Administration of justice---

----Maxim "actus curiae neminem gravabit"---Meaning and scope---Patent and obvious error or oversight on the part of Court in any order or decision may be reviewed sanguine to the renowned legal maxim "actus curiae neminem gravabit" which is a well-settled enunciation and articulation of law expressing that no man should suffer because of the fault of the court or delay in the procedure---Parties should not be made to suffer on account of an act or omission on the part of Court or other State functionaries---Maxim 'actus curiae neminem gravabit' is interrelated and intertwined with the state of affairs where the court is under an obligation to reverse the wrong done to a party by the act of Court which is an elementary doctrine and tenet to the system of administration of justice---Court and Tribunal should become conscious and cognizant that as a consequence of their mistake, nobody should become victim of injustice and in the event of any injustice or harm suffered by mistake of the court, it should be remedied by making necessary correction forthwith---If the Court is satisfied that it has committed a mistake, then such person should be restored to the position which he would have acquired if the mistake did not happen. State v. Asif Adil and others 1997 SCMR 209 ref.

(c) Administration of justice---

----Law should be worn by the Judge on his sleeves---Justice should be imparted according to the law, notwithstanding whether the parties in a lis before the Court are misdirected and misplaced in that regard.

PLD 2013 SC 829 ref.

Syed Rifaqat Hussain Shah, Advocate Supreme Court/Advocate-on-Record for Appellant.

Shaukat Rauf Siddiqui, Additional Advocate General, Punjab and M. Johar Aqeel, Lit. Officer Health Department for Respondents.

2022 S C M R 1555

[Supreme Court of Pakistan]

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

MUHAMMAD ARSHAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1603-L of 2021, decided on 13th April, 2022.

(On appeal against the order dated 09.11.2021 passed by the Lahore High Court, Lahore in Criminal Appeal No. 7301 of 2021)

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 426---Qatl-i-amd---Suspension of sentence and release on bail---Benefit of doubt---High Court while suspending the sentence inflicted upon the accused by the Trial Court mainly observed that according to the crime report, the accused along with two co-accused while each armed with .30 bore pistol had made three separate fire shots upon the person of the deceased, which landed on his belly but the assertion of the prosecution witnesses was contradicted by the doctor, according to whom, the deceased sustained only one injury on his belly---During course of trial both the prosecution witnesses had improved their earlier stance and stated that it was only the accused whose fire landed on the belly of the deceased---Possibility could not be ruled out that the prosecution witnesses deviated on the advice of their counsel or otherwise, therefore, the same could not be made basis to keep a person behind bars for an indefinite period especially when the Investigating Officer had candidly stated that the empties recovered from the place of occurrence had not been fired by the pistol allegedly recovered at the instance of the accused---Previous enmity also existed between the parties as earlier the deceased was involved by the accused in a case of attempted murder---High Court while suspending the sentence had taken care of justiciable facts and circumstances and no exception could be taken contrary to what had been observed by the High Court in the impugned order---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 426 & 497---Bail---Suspension of sentence---Benefit of doubt---Benefit of doubt can be extended to accused even at preliminary stage i.e. bail and suspension of sentence.

Mushtaq Ahmed Mahal, Advocate Supreme Court (through video link from Lahore) for Petitioner.

Mirza Muhammad Usman, D.P.G. for the State.

Mrs. Nighat Saeed Mughal, Advocate Supreme Court along with Babar Abbas (via video link from Lahore) for Respondent No. 2.

2022 S C M R 1558

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

Syed KAUSAR ALI SHAH and others---Petitioners

Versus

Syed FARHAT HUSSAIN SHAH and others---Respondents

Civil Petitions Nos. 3041 and 3061 of 2018, decided on 18th April, 2022.

(Against the judgment dated 07.05.2018 of the Islamabad High Court, Islamabad passed in C.Rs. Nos. 117 and 147 of 2017)

(a) Islamic law---

----Inheritance---Limitation for challenging an inheritance mutation---Acquiescence by heir---Clear distinction was to be drawn between two sets of cases; first, cases in which an heir alleges that his/her rights to inheritance have been disregarded and his/her share not mentioned in the inheritance mutation, and second those cases in which such an heir sits idly by, does not challenge mutation entries of long standing, or acquiesces, and only comes forward when third party rights in the subject land have been created---To succeed in respect of the second category cases an heir must demonstrate that he/she was not aware of having been deprived, give cogent reasons for not challenging the property record of long standing, and show complicity between the buyer and the seller (the ostensible owner) or that the buyer knew of such heir's interest yet proceeded to acquire the land.

Grana v. Sahib Kamala Bibi PLD 2014 SC 167 and Intelligence Bureau Employees Cooperative Housing Society v. Shabbir Hussain 2022 SCMR 877 ref.

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

----Ss. 39 & 42---Suit for declaration and cancellation of inheritance mutation---Acquiescence, principle of---Legal heir allowing third party interest to be created in the property and only challenging the same belatedly---In the present case, courts below did not pay heed to the interest in the subject land created in a third party, that is, a property developer; and, also disregarded the fact that third party interest was created before the legal heir objected to the inheritance mutation---Significance of the fact that the property developer had created further interest in the subject land by earmarking plots in a Housing Scheme and allotting as many as 444 plots was also not considered---Despite the fact that it would be the allottees of these 444 plots who would suffer the consequences, and do so for something for which they were not responsible---Once the interest of the said 444 came to light they should have been arrayed as defendants in the suit by the plaintiffs, and if the plaintiffs failed to amend the plaint it was incumbent upon the Judge of the Trial Court to do so---Depriving 444 allottees to be of their valuable property rights without them being heard by the Trial and/or Appellate Courts, by the High Court and then by the Supreme Court would be legally indefensible---Courts below disregarded the principle of acquiescence; and the fact of third party interest having been created in the subject land; and that further third parties had acquired proprietary rights in the said land; and, that such interest was acquired in land which was shown in the record of rights of long standing, which remained unchallenged---Courts below also ignored the fact that the legal heir took no action for forty-five years, and that she submitted her application to the revenue authorities only after the creation of the third party interest in the subject land---Plaintiffs, having stood by idly allowed third party interest to be created in the subject land, and could then not complain and claim the said land---Petitions for leave to appeal were converted into appeals and allowed, and consequently, the suit filed by the legal heir was dismissed.

Grana v. Sahib Kamala Bibi PLD 2014 SC 167 and Intelligence Bureau Employees Cooperative Housing Society v. Shabbir Hussain 2022 SCMR 877 ref.

Agha Muhammad Ali, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in both cases).

Ghulam Nabi, Advocate Supreme Court, Syed Nayab Hassan Gardezi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.2 (in both cases).

Nemo for other Respondents (in both cases).

2022 S C M R 1567

[Supreme Court of Pakistan]

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

TAJAMAL HUSSAIN SHAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 499 of 2019, decided on 21st April, 2022.

(On appeal against the judgment dated 20.02.2019 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 393 of 2018)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Medical evidence contradicting ocular account---According to two witnesses of the ocular account, the accused while armed with .30 bore pistol made a straight fire shot on deceased, which landed on his chest, due to which he fell down and ultimately succumbed to the injury---However, this stance was contradicted by the medical evidence, as according to the doctor, who conducted postmortem examination of the deceased, the injury on the chest, just above the nipple of the deceased, was an exit wound and the margins of the wound were black whereas the entry wound was on the back of the deceased i.e. at thoracic spine---Blackening around the wound showed that the fire shot would have been made from a close range but according to the site plan, the accused was shown standing at a distance of 18 steps away from the deceased---Such major discrepancy raised serious doubts on the credibility of the prosecution witnesses of the ocular account---Prosecution had failed to prove its case beyond any reasonable shadow of doubt---Petition for leave to appeal was converted into appeal and allowed and the accused was acquitted of the charge.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Plea of alibi successfully established---Accused took the stance that on the fateful day and time, he was not present at the place of occurrence and was visiting his cousin, who was posted in a a Battalion of the armed forces in a different city, and in-fact the deceased along with 25/30 persons attacked upon his house while armed with lethal weapons and beat his father---Said plea of alibi of the accused was inquired into by the Investigating Officer, who after thorough investigation found the same to be true---Investigating Officer also got a verification letter issued by the Commanding Officer of Battalion in question, which was placed on record---In support of plea of alibi, a member of the armed forced appeared as a defence witness and stated on oath that on the fateful day and time, the accused was physically present at the site of the Battalion---Prosecution had failed to prove its case beyond any reasonable shadow of doubt---Petition for leave to appeal was converted into appeal and allowed and the accused was acquitted of the charge.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Recovery of weapon inconsequential---Pistol .30 bore allegedly recovered on the pointation of the accused was transmitted to the Provincial Forensic Science Agency but the matching report of the same with crime empties recovered from the spot was negative, therefore, the recovery of pistol became inconsequential---Petition for leave to appeal was converted into appeal and allowed and the accused was acquitted of the charge.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Motive not proved---According to the prosecution the motive of the occurrence was previous quarrel between co-accused (tried separately) and son of the complainant---However, the prosecution failed to produce the son in order to prove the motive part, therefore, it could safely be concluded that prosecution could not prove the motive part of the story---Petition for leave to appeal was converted into appeal and allowed and the accused was acquitted of the charge.

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

----S. 302(b)---Qatl-i-amd---Absconsion---Scope---Absconsion cannot be viewed as a proof for the offence, and cannot be made basis for conviction, rather it is the prosecution which has to prove its case independently without any reasonable shadow of doubt.

Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 ref.

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

----S. 302(b)--- Qatl-i-amd--- Benefit of doubt--- Scope--- Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right.

Talat Mehmood Zaidi, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Petitioner.

Mirza Muhammad Usman, D.P.G. for the State.

2022 S C M R 1572

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah, Munib Akhtar and Muhammad Ali Mazhar, JJ

Malik MUHAMMAD RIAZ---Appellant

Versus

MUHAMMAD HANIF and others---Respondents

Civil Appeal No. 18-K of 2020, decided on 26th April, 2022.

(On appeal against order dated 06.03.2020 passed by the High Court of Sindh, Karachi in IInd Appeal No. 149 of 2018)

Specific Relief Act (I of 1877)---

----Ss. 12, 19 & 54---Civil Procedure Code (V of 1908), O. VI, R. 1 & O. XIV, R. 1---Contract Act (IX of 1872), S. 73---Suit for specific performance of contract for service, damages and permanent injunction---Defendant engaged the appellant (plaintiff) to demolish an old building structure and construct a new plaza/building thereon---Appellant alleged in the plaint that he had almost completed 80% work of construction of the Ground Floor and 30% of the First Floor; that appellant forwarded a bill to the defendant for payment of Rs.52,01,500/- but the defendant refused to pay the same---According to the terms and conditions of agreement and the schedule of payment incorporated therein, the appellant prayed for a decree in the sum of Rs.70,10,500/- out of which, a sum of Rs.52,10500/- was for construction charges and Rs.15,00,000/- for the raw-material lying at the building site plus Rs.300000/- as demolishing charges of old structure---In addition, the appellant also claimed the damages to the tune of Rs.70,00,000/- on account of irreparable losses, mental agony and severe financial losses---Trial Court decreed the suit with the directions to the defendant to pay a sum of Rs.70,10,500/- as balance construction charges in view of the agreement and a further sum of Rs.70,00,000/- as damages---Judgment and decree of Trial Court were affirmed in appeal, however vide impugned judgment, the concurrent findings of the Trial Court as well as the first Appellate Court were set aside by the High Court and the suit filed by the appellant was dismissed---Held, that so far as principal amount of Rs.52,10500/- as outstanding charges of construction was concerned, it appeared from the record that this amount was rightly decreed in favour of the appellant, being an outstanding amount that could not be turned down and which was also established through evidence---So far as the claim of 15,00,000/- as cost of raw-material lying at the building site and the claim of damages was concerned, no specific issues were settled by the Trial Court and no specific findings were available on record except that such sum was decreed as compensation for loss or damage caused by breach of contract in terms of section 73 of Contract Act, 1872---Survey of prayer clauses as incorporated in the plaint for the relief of damages, showed that it was somewhat a mix of special and general damages claim but no convincing evidence was adduced to the effect of sustaining any serious financial losses, even no evidence was adduced with regard to the alleged irreparable losses or mental agony---Neither any issue was framed nor at any point of time, the appellant applied for framing any additional issue nor any evidence was led for substantiating the claim of damages (special or general both) or to justify the claim of cost of material allegedly lying at the building site---Appeal was allowed with the consequence that suit of appellant was decreed in the sum of Rs.52,10500/- only.

Muhammad Safdar, Advocate Supreme Court and Mrs. Abida Parveen Channar, Advocate-on-Record for Appellant.

Syed Ehsan Raza, Advocate Supreme Court for Respondent No. 1.

Respondents Nos.2 and 3 (Proforma).

2022 S C M R 1577

[Supreme Court of Pakistan]

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

IJAZ AHMED---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 963-L of 2016, decided on 19th April, 2022.

(On appeal against the judgment dated 17.05.2016 passed by the Lahore High Court, Lahore in Criminal Appeal No. 156 of 2012 and Murder Reference No. 97 of 2012)

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

----S. 392---Robbery---Reappraisal of evidence---Complainant in his cross-examination candidly stated that he had not seen the accused snatching motorcycle and other articles from the witnesses---Prosecution case was that during chase, the accused concealed the cash under certain trees of a garden, which was subsequently recovered at his instance---However, this seemed to be impossible because when the people were chasing him, it was not possible for the accused to dig a hole and conceal the amount therein---Nothing was available on record to suggest whether the mobile phone, allegedly snatched by the accused, was recovered from him---No identification of said looted articles was established from the record to meet the legal requirements, hence, it could not be considered sufficient to connect the accused with the commission of the crime to the extent of robbery---When the accused was apprehended, he was not on or with a motorcycle, therefore, it can safely be said that recovery of motorcycle could not be used against him---Prosecution could not produce reliable evidence to sustain conviction of the accused for robbery under section 392, P.P.C.---Petition for leave to appeal was converted into appeal and partly allowed and conviction and sentence of accused for robbery was set-aside.

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

----S. 302(b)--- Qatl-i-amd---Reappraisal of evidence---Complainant/ prosecution witness was subjected to lengthy cross-examination by the defence but nothing favourable to the accused or adverse to the prosecution could be brought on record---Said witness remained consistent on each and every material point, therefore, it could safely be concluded that his evidence was reliable, straightforward and confidence inspiring---Medical evidence was in line with the prosecution story---Accused could not point out any reason as to why the complainant had falsely involved him in the present case and let off the real culprit, who had committed murder of his real brother especially when the accused was apprehended at the spot after a chase of co-villagers---High Court while taking into consideration the fact that the accused only fired single shot coupled with the fact that motive had not been proved and the recovery was inconsequential had rightly taken a lenient view and converted the sentence of death awarded to the accused into imprisonment for life---No further leniency could be shown to the accused---Petition for leave to appeal was converted into appeal and partly allowed and conviction and sentence of accused under section 302(b), P.P.C. along with compensation amounting to Rs.100,000/- to the legal heirs of the deceased or in default whereof to further undergo simple imprisonment for four months was maintained.

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

----S. 302(b)---Qatl-i-amd---Conviction---Testimony of single witness---Quality of evidence is to be considered and not the quantity of evidence---Evidence of one person, if found confidence inspiring, is sufficient to sustain conviction.

Niaz ud Din v. State 2011 SCMR 725 ref.

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

----S. 302(b)--- Qatl-i-amd---Prosecution witness related to the deceased---Testimony---Mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case.

Muhammad Tahir Alam Qureshi, Advocate Supreme Court for Petitioner.

Mirza Muhammad Usman, D.P.G. for the State.

2022 S C M R 1583

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

INSPECTOR GENERAL OF POLICE, QUETTA and another---Appellants

Versus

FIDA MUHAMMAD and others---Respondents

Civil Appeal No. 17-Q of 2021, decided on 18th April, 2022.

(Against the judgment dated 07.04.2021 Balochistan Service Tribunal, Quetta, in S.A. No. 542 of 2019)

(a) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---

----R. 9(6)---Reinstatement in service---Violation of principles of natural justice---Vested right to appointment---Locus poenitentiae, doctrine of---Appointment letters were cancelled through an omnibus order without disclosing any reason, providing any opportunity of hearing or issuing any show cause notice---Legality---In the present case all the appointment letters were issued by the Deputy Inspector General of Police with the approval of the Inspector General of Police after fulfillment of and contentment of required codal formalities including the recommendation of Departmental Selection Committee, constituted by the competent authority---All the respondents/employees were appointed on different posts in BPS-1 as admissible under the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 ('the 2009 Rules') against the existing vacancies---Appointment letters did not reflect that all the appointments were made for one District only, but names of other various districts were also mentioned---No convincing or persuasive raison d'être was brought forward to assume the ground of debarring the respondents from selection in view of the rigors of Rule 9(6) of the Rules, which did not seem to have been violated in any way while appointing the respondents on the recommendation of the Departmental Selection Committee---Nothing was articulated to allege that the respondents by hook and crook managed their appointments or committed any misrepresentation or fraud or their appointments were made on political consideration or motivation or they were not eligible or not local residents of the district advertised for inviting applications for the job---Despite that, an omnibus order was issued by the DIG Police for cancellation of appointments without disclosing any reason for cancellation or withdrawal and without issuing any show cause notice or providing any opportunity of audience to the respondents---Appointing authority had, therefore, violated the principle of natural justice and due process---Respondents were appointed after fulfilling codal formalities which created vested rights in their favour that could not have been withdrawn or cancelled in a perfunctory manner on mere presupposition and or conjecture which was clearly hit by the doctrine of locus poenitentiae---Appeal was dismissed with the observation that some strenuous action should have been taken against persons involved in the selection and appointment process who allegedly violated the rules rather than accusing or blaming the low paid poor employees of downtrodden areas who were appointed after due process in BPS-1 for their livelihood and to support their families.

Asim Khan and others v. Zahir Shah and others 2007 SCMR 1451; Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others 2004 SCMR 1077; Managing Director, SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724; Muhammad Shoaib and 2 others v. Government of N.W.F.P. through the Collector, D.I. Khan and others 2005 SCMR 85; Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others 2015 SCMR 1418 and Director, Social Welfare, N.W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350 ref.

(b) Natural justice, principles of---

----Purpose and scope of the principles of "natural justice" stated.

The doctrine of natural justice is destined to safeguard individuals and whenever civil rights, human rights, Constitutional rights and other guaranteed rights under any law are found to be at stake, it is the religious duty of the Court to act promptly to shield and protect such fundamental rights of every citizen of the country. The principles of natural justice and fair-mindedness are grounded in the philosophy of affording a right of audience before any detrimental action is taken in tandem with its ensuing constituent; that the foundation of any adjudication or order of a quasi-judicial authority, statutory body or any departmental authority regulated under some law must be rational and impartial and the decision maker has an adequate amount of decision making independence and the reasons of the decision arrived at should be amply well-defined, just, right and understandable. Therefore, it is incumbent that all judicial, quasi-judicial and administrative authorities should carry out their powers with a judicious and evenhanded approach to ensure justice according to tenor of law and without any violation of the principle of natural justice.

Principles of natural justice must be read in each and every statute unless and until the same were excluded from the wording of the statute itself.

Asim Khan and others v. Zahir Shah and others 2007 SCMR 1451 ref.

(c) Vested right, doctrine of---

----Scope---Doctrine of vested right upholds and preserves that once a right is coined in one locale, its existence should be recognized everywhere and claims based on vested rights are enforceable under the law for its protection---Vested right by and large is a right that is unqualifiedly secured and does not rest on any particular event or set of circumstances---In fact, it is a right independent of any contingency or eventuality which may arise from a contract, statute or by operation of law.

(d) Civil service---

----Illegal order---If an order is illegal then perpetual rights cannot be gained (by employees) on the basis of such an illegal order.

Ayaz Khan Swati, Additional A.G. Balochistan for Appellants.

M. Rauf Ata, Advocate Supreme Court for Respondents Nos. 2, 3, 5 7-10, 12 and 13.

Respondents Nos. 1, 4, 10 in person.

2022 S C M R 1592

[Supreme Court of Pakistan]

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

YAR MUHAMMAD and others---Appellants

Versus

Mst. SAMEENA TAYAB and others---Respondents

Civil Appeals Nos. 1009 of 2010 and 933-L of 2013, decided on 7th December, 2017.\

(On appeal from the judgment dated 11.10.2010 passed by the Lahore High Court, Multan Bench in W.P. No. 1673 of 2000)

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

----S. 30---Allottees given proprietary rights in land---Land fraudulently included in Schedule of 'Islamabad Oustees Scheme'---In pursuance of "Grow More Scheme", the petitioners and their predecessor-in-interest were allotted the property in dispute and subsequently were declared entitled for the proprietary rights---Record revealed that a proper note/entry regarding status-quo order was not made by the Patwari concerned in the revenue record with the collusion of the local influential people and by way of his collusive omissions and commissions the land in question was shown to be land available for inclusion in the Schedule of properties meant for Islamabad Oustees and, accordingly, the said land was allotted to respondents and thereafter sold to an alleged vendee on the same day and in the same sitting---Said alleged vendee admittedly was the real sister of the general attorney of respondents and as an attorney he first got it transferred in the names of respondents and in the same sitting re-transferred the same in the name of his sister/alleged vendee---When such collusion and fraud surfaced, the Patwari Halqa concerned was proceeded against and terminated from his service---Entire record was sufficient to prove the collusion and fraud of respondents and the Patwari Halqa---Subject land was never available for further allotment to Islamabad Oustees--- In the circumstances, the alleged-vendee could not be held to be a bona fide purchaser---Appeals were disposed of.

Zulfikar Khalid Maluka, Advocate Supreme Court and Ahmad Nawaz Ch., Advocate-on-Record (absent) for Appellants (in C.A. No. 1009 of 2010 and Respondents Nos. 2, 3 (L.Rs.) (in C.A. No. 933 of 2013)).

Razzaq A. Mirza, Additional A.G. Punjab for Appellants (in C.A. No. 933-L of 2013 and Respondents Nos. 2 and 3 (in C.A. No. 1009 of 2010)).

Malik Noor Muhammad Awan, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record (Absent) for Respondent No.1 (in both cases).

Ex parte for Respondents Nos. 4 - 7 (in both cases).

2022 S C M R 1598

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

PRESIDENT, ZARAI TARAQIATI BANK LIMITED, HEAD OFFICE, ISLAMABAD---Petitioner

Versus

KISHWAR KHAN and others---Respondents

Civil Petition No. 419 of 2020, decided on 6th June, 2022.

(Against the judgment of Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat dated 13.11.2019, in C.R. No.382-M of 2018)

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.VII, Rr. 10 & 11---Employees in a master-servant relationship---Civil suit filed by such employees against the employer---Competency---Employees of Zarai Taraqiati Bank Limited (ZTBL) were penalized for violating Standing Instructions of State Bank of Pakistan---Employees filed their appeals against the penalty but they were not decided on the ground that meeting of Board of Directors could not be convened to consider the appeals---Meanwhile employees filed a suit for declaration and injunction against the penalty imposed by ZTBL---Zarai Taraqiati Bank Limited (ZTBL) filed two miscellaneous applications under Order VII, Rule 10, C.P.C. and under Order VII, Rule 11, C.P.C. for dismissal of the suit on the basis that the Civil Court had no jurisdiction to entertain the suit as employees were governed under the rule of master and servant---Said applications were dismissed upto the High Court---Held, that ZTBL failed to point out any specific regulation which impliedly or expressly barred the jurisdiction of civil Court---Nothing had been placed on record to show whether the penalty was imposed after issuing any show cause notice and holding any regular inquiry against the employees to establish their guilt---Being in a relationship of master and servant the only course left for the employees was to file a suit for redress of their grievances---Employees had not approached the civil Court for any declaratory decree against the termination or dismissal of service or damages but were only seeking declaratory decree and injunctive relief against the imposition of penalty and its recovery from them---Issue of imposition of penalty whether rightly imposed or wrongly, or whether it was imposed after providing any opportunity of hearing to the private respondents/employees or not, or whether any regular inquiry was conducted or not to fix the responsibility, required full-fledged trial and evidence---Zarai Taraqiati Bank Limited and the other defendants in the suit had already filed their written statements and obviously after providing fair opportunity of adducing evidence and hearing, the Trial Court would decide the suit on its own merits---On one hand ZTBL filed an application under Order VII, Rule 10, C.P.C. for return of plaint which means that the proceedings were attacked on the grounds that the Court had no jurisdiction to entertain the suit but on the other hand, another application under Order VII, Rule 11, C.P.C. was moved for the rejection of the plaint---No justification was placed before the court of moving two applications simultaneously having different rudiments in C.P.C. but the grounds in both applications were absolutely alike---Civil petition for leave to appeal was dismissed and leave was refused.

Tanweer-ur­-Rehman's case PLD 2010 SC 676; PIAC v. Syed Suleman Alam Rizvi 2015 SCMR 1545; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Syed Nazir Gilani v. Pakistan Red Crescent Society and another 2014 SCMR 982 ref.

(b) Master and servant---

----Relationship of master and servant and remedies available to a servant in case of dismissal from employment, explained.

The phrase "master and servant" is an archaic legal phrase meant to describe the relationship of employer and employee which arises out of an express contract of service which may contain certain terms and conditions agreeable to the parties. The general rule is that the master may hire and fire the services of the servants. The amount of compensation is ordinarily regulated by an agreement. The lawsuits encompassing the relationship of master and servant in fact leads to the claim of dismissed or terminated employee for award of damages/ compensation against wrongful dismissal or termination.

In case of employees who are neither covered under the labour laws nor the Civil Servants laws nor have any statutory rules or regulations of service, they may, due to lack and non-existence of statutory remedy or statutory rules of service, file civil suit for satisfaction of their claims including the damages/compensation for wrongful dismissal. The relationship of master and servant is not meant for mere exploitation.

(c) Administration of justice---

----Substantial justice---Court, duty of---Function of the court is to do substantial justice and not to knockout or non-suit the party on technicalities.

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

----O. VII, R. 11---Rejection of plaint---Principles---Order VII, Rule 11, C.P.C. enlightens and expounds rejection of plaint if it appears from the averments articulated in the plaint to be barred by any law or discloses no cause of action---Court is under obligation to give a meaningful reading to the plaint and if it is manifestly vexatious or meritless in the sense of not disclosing a clear right to sue, the court may reject the plaint---With the aim of deciding whether the plaint discloses cause of action or not, the court has to perceive and grasp the averments made in the plaint and the accompanying documents---In case of any mix question of law and facts, the right methodology and approach is to let the suit proceed to written statement and discovery and determine the matter either on framing preliminary issues or regular trial---Order VII, Rule 11, C.P.C. does not justify the rejection of any particular portion of the plaint or in piecemeal as the concept of partial rejection is seemingly incongruous to the said provision.

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

----O. VII, R. 11---Return of plaint---Principles---Order VII, Rule 10, C.P.C. provides that the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted---If the Court is of the opinion that it has no jurisdiction to entertain the suit, it is not open to that Court to dismiss the suit on that account, but the Court is required to proceed under Order VII, Rule 10, C.P.C. directing that the plaint should be returned to the plaintiff for presentation to the proper Court and on returning a plaint, the Judge must endorse the date of its presentation and return, the name of the party presenting it, with a brief statement of the reasons for returning it.

Mian Muhammad Hanif, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2022 S C M R 1608

[Supreme Court of Pakistan]

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

MUHAMMAD SHOBAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 122-L of 2012, decided on 18th October, 2018.\

(On appeal from the judgment dated 9.6.2010 passed by the Lahore High Court, Lahore Multan Bench, Multan in Criminal A. No. 130 of 2005 and M.R. No. 213 of 2005)

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

----Ss. 302(b) & 337-F(iii)---Qatl-i-amd---Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to life imprisonment---Motive not established---In the present case, the motive alleged by the prosecution was of illicit relations of the accused with the sister-in-law of the deceased and the alleged words of reprimand by the deceased to the accused and his co-accused in the evening preceding the day of occurrence---Burden to prove the motive part of the occurrence was upon the prosecution but record of the case revealed that the same was alleged in the FIR but was not been proved---Merely alleging a motive would not be sufficient to accept and rely upon the same---Prosecution had failed to prove the motive alleged in the FIR, benefit of which for the purpose of quantum of sentence would have to go to the accused---Accused in the given circumstances, could not be awarded major penalty of death---Conviction of accused under section 302(b), P.P.C., was maintained, however sentence of death awarded to him was converted into life imprisonment---Appeal was partly allowed.

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

----S. 302(b)--- Qatl-i-amd--- Quantum of sentence--- Motive not established---Effect---Absence of motive or absence of proof of the same would be a sufficient mitigating circumstance to determine the quantum of sentence.

Mst. Nazia Anwar v. The State 2018 SCMR 911; Nadeem Ramzan v. The State 2018 SCMR 149; Haq Nawaz v. The State 2018 SCMR 21; Ghulam Muhammad v. State 2017 SCMR 2048; Saif Ullah v. State 2017 SCMR 2041 and Waris Ali v. The State 2017 SCMR 1572 ref.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record (Absent) for Appellant.

Ahmed Raza Gillani, Additional Prosecutor General Punjab for the State.

2022 S C M R 1612

[Supreme Court of Pakistan]

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

FAQIR DAD KHAN KHOSO and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Civil Petitions Nos. 258, 260, 268 and 457 of 2017, decided on 29th March, 2017.

(On appeal against the order dated 31.01.2017 passed by the High Court of Sindh of Karachi in C.Ps. Nos. D-4960, D-4549, D-6889 and D-6887 of 2016)

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---National Accountability Ordinance (XVIII of 1999), Ss. 9 & 24(a)---Constitution of Pakistan, Art. 185(3)---Corruption and corrupt practices---Bail, grant/confirmation of---Many co-accused persons whose role was prima facie worse than the present accused persons, had not even been arrested, thus the accused persons could not be treated differently---Question as to why such pick and choose and what underlay this duality was not intelligible---Special Prosecutor NAB could also not provide a satisfactory answer as to the intelligible differentia justifying the classification between the arrested and those left at large---Although the role of the accused persons prima facie appeared to be culpable and they must face its consequences but not at present stage when many others similarly placed persons were at large---Supreme Court observed that while exercising its discretionary jurisdiction it would not like to pass an order perpetuating a classification which prima face did not appear to be based on an intelligible differentia notwithstanding the provision contained in section 24(a) of the National Accountability Ordinance, 1999---Petitions for leave to appeal were converted into appeals and allowed, and ad-interim bail of some of the accused persons were confirmed, while other accused persons were granted post-arrest bail.

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record, Faqir Dad Khan Khoso, Shakil Ahmed Khan, Haji Abdul Razziq and Hafeez-ur-Rehman for Petitioners (in C.P. No. 258 of 2017).

Raja M. Ibrahim Satti, Senior Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record and Sohail Akbar Shah for Petitioners (in C.P. No. 260 of 2017).

Farooq H. Naek, Senior Advocate Supreme Court, Syed Rafaqat Hussain Shah, Advocate-on-Record, Abdul Rasheed Solangi for Petitioners (in C.P. No. 268 of 2017).

M. Ahsan Bhoon, Advocate Supreme Court and Ms. Tasneem Ameen, Advocate-on-Record (Absent) for Petitioners (in C.P. No. 475 of 2017).

Nasir Mehmood Mughal, Special Prosecutor NAB for NAB.

2022 S C M R 1615

[Supreme Court of Pakistan]

Present: Mushir Alam andMazhar Alam Khan Miankhel, JJ

Messrs SKB-KNK JOINT VENTURE CONTRACTORSthrough Regional Director---Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY and others--Respondents

Civil Petition No. 609 of 2017, decided on 13th February, 2018.\

(On appeal from the order dated 2.02.2017 passed by the Lahore High Court, Lahore in C.Ms. Nos. 1 and 2 of 2016 in F.A.O. No. 518 of 2014)

(a) Limitation Act (IX of 1908)---

----Ss. 3 & 5---Appeal dismissed for non-prosecution---Restoration of appeal after condoning a delay of more than six months---Legality---Application for restoration of appeal, on the face of it, was barred by law of limitation---Though a separate application for condonation of delay was also filed by the counsel for the respondent and cause for non-appearance on the fateful day was the illness of the counsel and the same was also supported by an affidavit but perusal of both the affidavits, one along with restoration application and the other with application for condonation of delay, would reveal that both these affidavits were filed for restoration of appeal and not for condonation of delay, which reflected the casual attitude of the counsel for the respondent before the High Court---Main reason for accepting the application for restoration of appeal by the High Court was the affidavit of the counsel and no doubt that normally such affidavits were given due weight by the Courts if the same were based on true facts---With the application for condonation of delay no medical certificate of the counsel was attached reflecting his duration of illness---Applications for restoration and condonation of delay did not reflect that what was the sufficient cause which precluded him from submission of said applications within the prescribed time---Limitation could not be taken as a mere technicality as by expiry of period of limitation, valuable rights accrued to the other party.

(b) Limitation Act (IX of 1908)---

----Ss. 3 & 5---Appeal filed by a government department after period of limitation---Condonation of delay---Government departments are also treated like an ordinary party before the Court and the same treatment has to be given to the government department as is given to the ordinary litigants.

Ch. Imran Hassan Ali, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record (absent) for Petitioner.

Hamood ur Rehman, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos. 2 - 3.

2022 S C M R 1618

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

KASHIF AFTAB AHMED ABBASI---Petitioner

Versus

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

Civil Petition No. 419 of 2019, decided on 6th June, 2022.

(Against the judgment of Federal Service Tribunal, Karachi Bench dated 03.12.2018, in Appeal No.51 (K) CS of 2018)

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

----Rr. 5 & 11---Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990, R. 7---Seniority, determination of---Civil servant inducted on reserved quota of Armed Forces joining Common Training Programme (CTP) after a delay of several years---In the present case while performing his duties as Lieutenant in the Navy, petitioner was appointed ADC to the Provincial Governor---During the posting, the petitioner was given an option to join Federal Civil Service---Petitioner joined the selection process and on the recommendations of the Federal Public Service Commission, he was inducted in the Police Service of Pakistan in BS-17---Petitioner was called upon to undertake 35th Common Training Program (CTP) but the Provincial Governor refused to relieve the petitioner and requested for his deferment---Petitioner was deferred every year on the requests of Governor Sindh till 2015---Eventually the petitioner joined 43rd CTP and his inter se seniority was fixed with 43rd CTP---Petitioner claimed antedated seniority from 2007 with 35th CTP members of service---Held, that record reflected that on recommendation of the Federal Public Service Commission, the competent authority issued an offer letter to the petitioner on 31-08-2007 for his induction in the Police Service of Pakistan in BS-17 on certain terms and conditions of service which, inter alia, provided that the petitioner was required to qualify every examination to the satisfaction of the head of training/ Educational Institution where he shall undergo training---So far as the seniority was concerned, it was clearly mentioned in the offer letter that the seniority of the petitioner in the group/service shall be determined by the appointing authority after the final passing out of examination in accordance with Rule 7 of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990---Petitioner was being continuously called upon to join Common Training Programme (CTP) but on continuous requests of his deferment the matter lingered on---Completion of training was mandatory which the petitioner failed to join until 43rd CTP---Claim that though the petitioner was willing to join CTP but under some compelling circumstances, he was prevented and his continuous deferments were being asked without his consent or unwillingness, was beyond reasonable comprehension---Nothing was placed on record to show that he ever raised any objection or demur that he wanted to join training rather than enjoy the post of ADC---Nothing was placed on record to show that he ever requested the Provincial Governor to release him for joining CTP---Keeping in view his complete silence at least for eight deferments, the possibility could not be ruled out that the deferments were requested and allowed with his consensus and acquiescence---Petition for leave to appeal was dismissed and leave was refused.

(b) Civil service---

----Seniority and promotion---No one has a vested right to a particular promotion or particular seniority but it is always governed and regulated in accordance with the applicable rules and regulations.

(c) Civil service---

----Antedated seniority---No antedated seniority can be claimed as a vested right.

Abdur Rahim Bhatti, Advocate Supreme Court, Malik Naeem Iqbal, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Ayaz Shaukat, D.A.G. for the Respondent.

2022 S C M R 1625

[Supreme Court of Pakistan]

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

Mst. AZRA GULZAR---Petitioner

Versus

MUHAMMAD FAROOQ and another---Respondents

Civil Petition No. 275 of 2016 and C.M.A. No. 815 of 2016, decided on 7th March, 2017.\

(Against the order dated 27.01.2016 passed by the Islamabad High Court, Islamabad in C.R. No. 210 of 2014)

Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction of the High Court---Scope---Divergent findings of Trial Court and Appellate Court---In such like situation the High Court in its revisional jurisdiction was supposed to give its findings after appraisal of the entire evidence---Revisional Court/High Court in such a situation had to re-appraise the entire evidence to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Alloo v. Sher Khan and others PLD 1985 SC 382; Abbas Ali Shah and 5 others v. Ghulam Ali and another 2004 SCMR 1342; Abdul Aziz v. Khuda Dad Khan 2004 SCMR 1046; Karim Bakhsh through L.Rs. and others v. Jindwadda Shah and others 2005 SCMR 1518; Muhammad Din and others v. Mst. Naimat Bibi and others 2006 SCMR 586; Muhammad Hassan v. Khawaja Khalil ur Rehman 2007 SCMR 576 and Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. 2008 SCMR 1037 ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Tahir Iqbal, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondent No. 1.

Hafiz Hifz ur Rehman, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No. 2.

2022 S C M R 1627

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ

AKHTAR GUL---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 343 of 2018, decided on 31st March, 2022.

(On appeal against the judgment dated 22.02.2018 passed by the Peshawar High Court, Peshawar, in Crl. Appeal No. 834-P of 2017)

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

----S. 9(c)---Possession of 50 kilograms of charas---Reappraisal of evidence---Safe custody and safe transmission of samples to the Forensic Science Laboratory not established---Benefit of doubt---Recovery was effected on 16-10-2011, whereas according to the report of Forensic Science Laboratory (FSL), the sample parcels were received there on 21-10-2011 through a constable---Neither the Moharrar who kept the sample parcel in the Malkhana from 16.10.2011 to 21.10.2011 nor the constable was produced by the prosecution to establish the safe custody and safe transmission of the sample parcels to the concerned laboratory---Since safe custody and safe transmission of the samples had not been proved by the prosecution, and as such illegality could not be ignored, it could not be held that the prosecution had succeeded in establishing its case against the accused beyond any reasonable doubt---Jail petition was converted into appeal and allowed, and accused was acquitted of the charge by extending benefit of doubt to him..

Amjad Ali v. The State 2012 SCMR 577; Ikramullah and others v. The State 2015 SCMR 1002; Taimoor Khan and another v. The State and another 2016 SCMR 621; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

Malik Nouman Khalid, Advocate Supreme Court and Arshad Hussain Yousafzai, Advocate Supreme Court for Petitioner.

Ms. Ruqia Samee, Advocate Supreme Court for the State (as State counsel, Khyber Pakhtunkhwa).

2022 S C M R 1629

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, J J

MISBAH KHANUM---Petitioner

Versus

KAMRAN YASIN KHAN and another---Respondents

Civil Petition No. 1193 of 2020, decided on 26th October, 2021.

(On appeal from the Order dated 11.2.2020 passed by the Lahore High Court, Lahore in C.R. No.76197 of 2019)

(a) Remedy---

----Availing two or more remedies simultaneously---Permissibility---No legal bar existed for a party to avail two or more available remedies under the law simultaneously and a decision in any one of such remedies availed would render the others as infructuous.

(b) Illiterate lady---

----Property transaction---Burden of proof on benefactor of such transaction---Where a transaction is shown to be with an elderly, illiterate lady, the beneficiary of such transaction is legally bound to prove the genuineness of the alleged transaction in his favour---Law places a heavy burden on the person who is ultimately on the receiving end in such like transactions.

(c) Administration of justice---

----Decree based on compromise or conceding statement---Court while deciding a matter, even on compromise or on a conceding statement, has to see the legality and genuineness of the issue brought before it---Acting in a mechanical manner without application of judicial mind is not expected from a Judicial Officer.

Kamran Murtaza, Senior Advocate Supreme Court (Video-link-Quetta) for Petitioner.

Rashid Mehmood Sindhu, Advocate Supreme Court for Respondent No. 1.

Anis-ud-Din, Advocate Supreme Court for Respondent No. 2.

2022 S C M R 1641

[Supreme Court of Pakistan]

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

QAISER and another---Petitioners

Versus

The STATE---Respondent

Jail Petition No. 587 of 2016 along with Criminal S.M.R.P. No. 14 of 2022, decided on 2nd June, 2022.

(On appeal against the judgment dated 11.11.2014 of the Peshawar High Court, Peshawar passed in Jail Crl. A. No. 343-P of 2012)

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Safe custody and safe transmission of samples to the Forensic Science Laboratory---Significance---Representative samples of the alleged drug must be kept in safe custody and undergo safe transmission from the stage of recovery till its submission to the office of the Government analyst---Non-establishing the said facts would cast doubt and would impair and vitiate the conclusions and reliability of the report of the Government analyst, thus rendering it incapable of sustaining conviction.

The chain of custody of sample parcels begins from the recovery of the narcotics by the police including the separation of representative samples of the recovered narcotics, their dispatch to the MaIkhana and further dispatch to the testing laboratory. The said chain of custody and transmission was pivotal as the entire construct of the Control of Narcotic Substances Act, 1997 (Act of 1997) and the Control of Narcotic Substances (Government Analysts) Rules, 2001 (Rules 2001), rest upon the report of the analyst. It is prosecutions bounden duty that such chain of custody must be safe and secure because the report of chemical examiner enjoined critical importance under the Act of 1997, and the chain of custody ensures the reaching of correct representative samples to the office of chemical examiner. Any break in the chain of custody i.e. the safe custody or safe transmission of the representative samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused. Such lapse on the part of the prosecution would cast doubt and would vitiate the conclusiveness and reliability of the report of chemical examiner.

Ikramullah v. The State 2015 SCMR 1002; The State v. Imam Bakhsh 2018 SCMR 2039; Abdul Ghani v. The State 2019 SCMR 608; Kamran Shah v. The State 2019 SCMR 1217; Mst. Razia Sultana v. The State 2019 SCMR 1300; Faizan Ali v. The State 2019 SCMR 1649; Zahir Shah alias Shat v. State through A.G. Khyber Pakhtunkhwa 2019 SCMR 2004; Haji Nawaz v. The State 2020 SCMR 687; Qaiser Khan v. The State 2021 SCMR 363; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Zubair Khan v. The State 2021 SCMR 492 and Gulzar v. The State 2021 SCMR 380 ref.

(b) Precedent---

----Judgments of the Supreme Court---Binding precedent---Scope---Earlier judgment of a Bench of the Supreme Court was binding not only upon the Benches of smaller numeric strength but also upon the Benches of co-equal strength; a Bench of co-equal strength could not deviate from the view held by an earlier Bench, and if a contrary view had to be taken, then the proper course was to request the Chief Justice of the Supreme Court for constitution of a larger Bench to reconsider the earlier view---Even if a decision of a bench of equal strength is not brought into the notice of a subsequent bench of same strength and it expresses a contrary view, then the later decision is a judgment per incuriam---Smaller Bench cannot request for the constitution of a larger Bench to revisit the opinion of a larger Bench on any question or principle of law.

Mst. Samrana Nawaz v. M.C.B. Bank Ltd. PLD 2021 SC 581; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Wak Limited Multan Road Lahore v. Collector Central Excise and Sales Tax Lahore (now Commissioner Inland Revenue LTU Lahore) 2018 SCMR 1474; Union of India and others v. S.K. Kapoor (2011) 4 SCC 589 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883 ref.

Arshad Hussain Yousafzai, Advocate Supreme Court and Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioners (in Jail Petition No. 587 of 2016).

Nemo for Petitioner (in Crl. S.M.R.P. No.14 of 2022).

Shumayl Aziz, Additional A.G., Khyber Pakhtunkhwa for the State.

2022 S C M R 1647

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, A.C.J., Mazhar Alam Khan Miankhel and Munib Akhtar, JJ

FAIZ ULLAH and others---Appellants

Versus

DILAWAR HUSSAIN and others---Respondents

Civil Appeal No. 97 of 2003, decided on 1st September, 2021.

(On appeal from the judgment dated 10.09.2002 passed by the Lahore High Court, Rawalpindi Bench in C.R. No. 507 of 1992)

(a) Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) [since repealed]---

----S. 3---Immovable property held by a Muslim female as a limited owner under the customary law---Termination of limited interest upon marriage of female---Persons entitled to inherit after termination of such interest---In the present case, the widow of the last full owner "I" succeeded her late husband as a limited owner till her death or re-marriage and similarly the daughter of the "I" acquired the same limited interest in the property on similar terms from her mother---When the daughter got married in the year 1944/45 (as per available record and not disputed by anyone) her limited interest in the landed property was terminated and as per law the property had to revert back to actual legal heirs (lineals and collaterals) but such termination, as per record, was not incorporated in the relevant record and till filing of the suit by the plaintiffs she remained recorded as full owner (in the course of time, her limited status was changed to full owner but no explanation in such regard was available on the record) which even otherwise was against the law---According to section 3 of the Punjab Muslim Personal Law (Shariat) Application Act, 1948 ('Act of 1948'), on the termination of the limited interest of the daughter, the property was to be considered as the ownership of the last full owner "I" and should have devolved upon his sharai heirs alive at the time of his death and if anyone of such heirs had died prior to the termination of the limited estate his heirs would get the share to which their predecessor would have been entitled if alive---Accordingly, the limited owners were entitled to their sharai share whether alive or dead---Marriage of the daughter, resulted into termination of the limited interest in the property held by her and as per the provisions of section 3 of the Act of 1948, the matter reverted back to the year 1922, the year when the last full owner "I" died---All the persons entitled to succeed the last full owner (the sharers, residuaries, distant, kindred etc.) would succeed, as per their respective share, as if the last full owner died during the application of Muslim Personal Law "Shariat"---Proviso to section 3 also clearly spoke of the females retaining the property with limited interest; they would also be entitled to get as per their ordained shares in the sharia---Accordingly the widow of "I" was entitled to get 1/8 share, the daughter was entitled to get 4/8 (1/2) (as she was the only daughter) and the remainder 3/8 would go to the brothers of "I" as residuaries---Daughter of "I" would also inherit from her mother as a sharer---Appeal was partly allowed.

Suba through his L.Rs. v. Mst. Fatima Bibi 1992

SCMR 1721 ref.

(b) Islamic law---

----Inheritance---Each legal heir a co-sharer in the property---Inheritance under Muslim Personal Law/Islamic Law opens just after the death of a Muslim---All the legal heirs, lineal and collaterals inherit/acquire to the extent of their respective shares just after the death of a Muslim; they all by such inheritance/acquisition become co-sharer/co-owner in the estate left by the deceased Muslim under sharia---Every co-sharer/co-owner is presumed to be in possession of every inch of the joint property unless the same is partitioned.

Shabla v. Ms. Jahan Afroz Khilat 2020 SCMR 352; Ghulam Sarwar (Deceased) v. Ghulam Sakina 2019 SCMR 567; Ahmad Khan v. Abdur Rehman 2009 SCMR 191; Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah 2007 SCMR 1884 and Mst. Reshman Bibi v. Amir 2004 SCMR 392 ref.

(c) Limitation---

----Inheritance---Legal heir/co-sharer---Legal heirs become owner and at the same time co-sharers in the property left by a deceased Muslim---Possession of a co-sharer is considered as a possession on behalf of all other co-sharers---Even the rights of a co-sharer with symbolic possession were safeguarded---No limitation runs against a co-sharer/co-owner---However, in certain cases law of limitation involving matter of inheritance cannot be ignored altogether---Where the predecessor/propositus transfers his property by way of sale, gift etc. in his lifetime and after his death, the legal heirs claim right of inheritance regarding said property after lapse of considerable time by questioning such transfer, the question of limitation cannot be ignored lightly.

Khan Muhammad v. Mst. Khatoon Bibi 2017 SCMR 1476; Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905; Mst. Suban v. Allah Ditta and others 2007 SCMR 635; Riaz Ahmad and 2 others v. Additional District Judge and 2 others 1999 SCMR 1328; Ghulam Ali and 2 others v. Mst. Ghulam Samar Naqvi PLD 1990 SC 1; Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Khan Muhammad through L.Rs. and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476; Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801 and Mst. Grana through legal heirs and others v. Sahib Kamal Bibi PLD 2014 SC 167 ref.

Zulfiqar Khalid Maluka, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Barrister Umar Aslam, Advocate Supreme Court for Respondents Nos. 1, 3 - 4.

Ex-parte for Respondents Nos.2, 5 - 12.

2022 S C M R 1691

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah,Syed Mansoor Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

HADAYAT ULLAH and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Review Petitions Nos. 292 to 302, 351 to 432, 442 to 456 of 2021 along with C.M.As. Nos. 11812 to 11814, 11837, 11862 to 11864, 11902-11903, 11982-11983, 11987, 11679, 12017, 12019, 12020, 12024, 12025, 12028, 12029, 12031-12033, 12035, 12075, 11993, 12103-12104, 12161-12162, 12172-12173, 12403, 12372-12373 of 2021 along with Civil Misc. Appeals Nos. 168, 158 and 175 of 2021, decided on 17th December, 2021.

(For review of the judgment dated 17.08.2021 passed in C.A. No.491 of 2012 and others)

Per Umar Ata Bandial, J; Sajjad Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ agreeing; Syed Mansoor Ali Shah, J dissenting. (Majority view)

(a) Constitution of Pakistan---

----Art. 188---Review jurisdiction of the Supreme Court---Scope---Review jurisdiction of the Court operates in a limited area---Review does not succeed merely because a material error has crept into the disputed judgment---Instead, a review is only allowed when the material error alters the outcome of the case thereby rendering the disputed judgment bad law.

Mukhtar Mai v. Abdul Khaliq 2019 SCMR 1302 ref.

(b) Constitution of Pakistan---

----Arts. 240 & 260(1)---Civil Servants Act (LXXI of 1973), S. 2(1)(b)---Terms "Service of Pakistan" and "Civil Servant"---Said terms were not synonymous, in fact, the phrase 'service of Pakistan' appeared to be of wider import---Although the terms 'civil service' and 'service of Pakistan' are not identical they do overlap in that the former is a sub-category of the latter.

Registrar, Supreme Court of Pakistan v. Wali Muhammad 1997 SCMR 141 and Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

(c) Constitution of Pakistan---

----Art. 260(1)---Term "Service of Pakistan"---Test for determining whether a person is in the 'service of Pakistan'---Test whether a person is in the service of Pakistan is whether he is performing functions in connection with the affairs of the Federation---For an entity (where a person is employed) to qualify as being in the service of Pakistan, it must fulfill three criteria; first, it must exercise public or sovereign power in some form; second, the government must retain effective/substantial control over its functioning; and third its activities must be mainly financed by the government.

Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 and Aitchison College v. Muhammad Zubair PLD 2002 SC 326 ref.

(d) Constitution of Pakistan---

----Art. 240---Appointments to service of Pakistan---Principles of merit, non-discrimination, transparency and fairness---Article 240 of the Constitution is simply the bedrock on which appointments to the service of Pakistan are to be made; it is then the responsibility of the appointing authorities to ensure that appointments are made strictly in accordance with the relevant laws (including the applicable rules and regulations) that incorporate the principles of merit (selection through a competitive process), non-discrimination, transparency and fairness---Same principles apply to appointments on any post in public service since an organisation can only best serve the people when all its employees are qualified individuals who are selected through a fair and transparent process---In the absence of dedicated supporting staff, no senior officer sitting at the helm of affairs can succeed in guiding the nation towards prosperity---However, it is significant that said principles are not merely fruit of judge made law but they also emanate from the fundamental rights enshrined in the Constitution, especially Article 18 (freedom of trade, business or profession) for which reason they occupy an immutable character.

Mubashir Raza Jaffri v. Employees Old-Age Benefits Institutions 2014 SCMR 949; Mushtaq Ahmad Mohal v. Honourable Lahore High Court 1997 SCMR 1043; Munawar Khan v. Niaz Muhammad 1993 SCMR 1287 and Abdul Jabbar Memon: In re 1996 SCMR 1349 ref.

(e) Sacked Employees (Re-instatement) Act (XXII of 2010)---

----Ss. 2(d), 2(f)(vi), 4, 10, 11, 12 & 13 & Preamble---Constitution of Pakistan, Arts. 4, 9, 14, 18, 25, 184(3), 187, 188, 240 & 242---Supreme Court Rules, 1980, O. XXXIII, R. 6---[Per Umar Ata Bandial, J. (Majority view): Initial appointment of majority of the reinstated employees ('the beneficiary employees') was made without following the principles of merit, non-discrimination, transparency and fairness---Through operation of section 4 of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') all beneficiary employees were ordered to be regularised (either on the same scale or on one-step higher scale) within a certain timeframe without complying any codal formalities and without regard to the nature of the post that they occupied prior to their dismissal, removal or termination from service---Furthermore the 2010 Act discriminated against similarly placed persons who were dismissed, removed or terminated from service in the periods prior to 01-11-1996 and subsequent to 12-10-1999---Such classification of the time period was neither reasonable nor based on any intelligible differentia---By giving leeway to the beneficiary employees and by placing them at the same (or in some cases better) footing in the organisational structure of the employers the fundamental rights of the regular employees were breached --- Act of 2010 was violative of the different provisions of the Constitution, specifically Articles 4, 9, 18, 25, 240 & 242, therefore the same was declared to be void with retrospective effect---Review petitions were dismissed with certain directions regarding services rendered by the re-instated employees of the "employers" [as defined in section 2(d) of the Sacked Employees (Re-instatement) Act, 2010]---[Per Syed Mansoor Ali Shah, J. (Minority view): Vires of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') enacted by the Parliament could not be examined and declared ultra vires, on the touchstone of Articles 4, 240 & 242 of the Constitution, as said Articles did not provide any criterion to test the vires of a law---Parliamentary debates relating to the objects and reasons of the enactment of the 2010 Act showed that the persons to be reinstated in service had suffered "political victimization" in the matter of their dismissal, removal or termination from service, at the hands of the Government during that period, and the object of the 2010 Act was to provide relief to such persons---Hence, persons reinstated formed a distinct class, and their classification was based on intelligible differentia, distinguishing them from those who had been left out, and it had a rational nexus to the object sought to be achieved by the 2010 Act, therefore, only their reinstatement and regularization under the 2010 Act as such did not offend the fundamental right to equal treatment under Article 25(1) of the Constitution---However, the issue of seniority that affected the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments, had arisen only in cases of employees reinstated and regularized on "one scale higher", under sections 4(a) & 10 of the 2010 Act---Such reinstatement and regularization was violative of the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments at the time of promulgation of the 2010 Act, and it was also violative of the 'right to dignity' and 'right to equality before law' as it gave an undue advantage to the reinstated employees to the disadvantage of the rights of the already working regular employees---Proper course, in such circumstances, was for the Court to declare (as ultra vires) only that part of the provisions of sections 4(a) & 10 of the 2010 Act that had the said offending effect, i.e., the reinstatement and regularization on "one scale higher" and this could have easily been done by reading out (severing) the words "one scale higher to" from the provisions of section 4(f) and the words "one scale higher than" from the provisions of section 10 of the 2010 Act---Furthermore sections 2(f)(vi), 11, 12 & 13, of the 2010 Act which dealt with and provided for reinstatement and regularization of such sacked employees who had been dismissed, removed or terminated from service on account of absence from duty, misconduct, mis-appropriation of Government money or stock, or unfitness on medical grounds, and the determination of their guilt or medical unfitness had attained finality by being unchallenged or unsuccessfully challenged, were also ultra vires the Constitution].

Per Umar Ata Bandial, J. (Majority view):

The material on record in the present case, furnished by the relevant Ministries/Divisions, establishes that these principles of merit, non-discrimination, transparency and fairness were not followed in the vast majority of the initial appointments (from 01.11.1993 to 30.11.1996). Therefore, such defective appointments suffered from illegality and were void.

For the initial appointments of reinstated employees ('the beneficiary employees') that were illegal from the outset, it was not within the competence of Parliament to enact laws that firstly, bypassed the settled requirements enshrined in the Constitution for joining public employment and secondly, protected these unlawful appointments without curing their respective defects. Such contravention can be seen in section 4 of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') where all beneficiary employees were ordered to be regularised (either on the same scale or on one-step higher scale) within a certain timeframe without complying any codal formalities and without regard to the nature of the post that they occupied prior to their dismissal, removal or termination from service.

State and public functionaries act as fiduciaries for and are responsible/accountable to the people of the country. They are duty bound to act in the furtherance of public interest. However, how the public interest was promoted by reinstating the beneficiary employees in question who had been inducted without complying with the duly prescribed procedure for appointment is neither determinable nor defensible.

In re: Suo Motu 2010 SCMR 885 ref.

The 2010 Act was enacted to achieve a specific object and purpose, namely, the reinstatement of those employees who had been initially appointed during tenure of a political party. The 2010 Act discriminates against similarly placed persons who were dismissed, removed or terminated from service in the periods prior to 01-11-1996 and subsequent to 12-10-1999. The Preamble of the 2010 Act coupled with its substantive provisions do not disclose the reason for reinstatement of only those employees who had been dismissed, removed or terminated from service during the specific period of 01-11-1996 till 12-10-1999. Clearly then the Act's classification of the time period is neither reasonable nor based on any intelligible differentia. There is also no rational nexus with the object being sought to be achieved because if the intent of Parliament was to assist people who had been dismissed, removed or terminated from service on account of political victimisation then there is no rhyme or reason as to why only the persons dismissed, removed or terminated between 01-11-1996 and 12-10-1999 were granted this relief. Surely such a classification ought to have been preceded by some study, data collection and analysis, however, the same are lacking. There must exist a plethora of people since independence of the country (till date) who have been unfairly removed from service on account of political victimisation yet no favour is extended to them by the 2010 Act.

Mobashir Hassan v. Federation of Pakistan PLD 2010

SC 265 ref.

The reinstatements under the 2010 Act were carried out without following any proper procedure and without having regard to the nature of the posts occupied by the beneficiary employees during their initial appointments. On the other hand, the regular employees were inducted into service after fulfilling all the codal formalities. Therefore, by giving leeway to the beneficiary employees and by placing them at the same (or in some cases better) footing in the organisational structure of the employers the fundamental rights of the regular employees were breached, in particular Articles 4, 9 and 18 of the Constitution. Said three constitutional provisions envisage a State in which all aspects of a citizen's life, including his/her right to enter a profession, will be regulated by law. Nevertheless, the 2010 Act by reinstating the beneficiary employees whilst ignoring the applicable laws, rules and regulations, which detailed the process to be followed in making appointments, has flouted these guarantees of the Constitution. Therefore, the 2010 Act has directly impinged upon the fundamental rights of regular employees.

Argument that the judgment under review should have read down section 4 of the 2010 Act and preserved its watered-down version along with the other provisions of the Act that were not inconsistent with fundamental rights, fails to recognise two important aspects of section 4; firstly, section 4 as it stands does not suffer from just a singular defect. Instead, it is fundamentally flawed. It not only provides one-step higher regularisation in subsection (a) [which could potentially have been read down] but it also regularises all beneficiary employees regardless of the post they were occupying before their initial termination. This defect is so central to section 4 that to read it down would essentially require the Court to rewrite it which is not permissible as such an exercise would enter into the realm of legislation. Secondly, section 4 is the governing/primary provision of the 2010 Act. Therefore, once it is declared unconstitutional no substance is left in the 2010 Act as all other provisions are secondary to section 4 and cannot control the operation of the 2010 Act on their own. As a result, no purpose will be achieved in retaining the 2010 Act on the statute book when its effect will have been destroyed by the deletion of section

Zahid Iqbal v. Muhammad Adnan 2016 SCMR 430 ref.

Since the 2010 Act has been adjudged to be violative of the different provisions of the Constitution, specifically Articles 4, 9, 18, 25, 240 and 242, the judgment under review would have retrospective effect.

Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 and Shahid Pervaiz v. Ejaz Ahmad 2017 SCMR 206 ref.

Supreme Court considered that having rendered a service of 10 years or more since their reinstatement under the 2010 Act (and Ordinances before that), the beneficiary employees, most of whom are nearing retirement and have minimal future job prospects, have dedicated a considerable period of their life to their employers and so deserve to be treated with leniency. More so, when through no fault of their own, the beneficiary employees were inducted and subsequently reinstated into the service of their employers without the fulfilment of the necessary codal formalities. Therefore, in exercise of its inherent power conferred under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980 and in reliance of its power to do ex debito justitiae, the Supreme Court converted present review proceedings filed under Article 188 of the Constitution into proceedings under Article 184(3) read with Article 187 to grant the following relief to the beneficiary employees:

(i) The beneficiary employees who were holding posts for which no aptitude, scholastic or skill test was required at the time of initial termination (01-11-1996 to 12-10-1999) shall be restored to the same posts they were holding when they were terminated by the judgment under review;

(ii) All other beneficiary employees who were holding posts on their initial termination (01-11-1996 to 12-10-1999) which required the passing of an aptitude, scholastic or skill test shall be restored to the posts, on the same terms and conditions, they were occupying on the date of their initial termination. However, to remain appointed on these posts and to uphold the principles of merit, non-discrimination, transparency and fairness expected in the process of appointment to public institutions these beneficiary employees shall have to undergo the relevant test, applicable to their posts, conducted by the Federal Public Service Commission within 3 months from the date of receipt of this judgment;

(iii) The improvement in the terms and conditions of service of all the beneficiary employees shall be granted strictly in accordance with the applicable laws, rules and regulations;

(iv) The relief granted in sub-paragraphs (i) and (ii) above shall not be granted to those beneficiary employees whose initial termination of service (01-11-1996 to 12-10-1999) was on grounds of absence from duty, misconduct, corruption, misappropriation of money/stock or unfitness on medical grounds if such termination was not set aside finally by a court of law. [pp. 1732, 1733, 1734] U, V, W, X & Y

Sher Alam Khan v. Abdul Munim PLD 2018 SC 449; Muhammad Akram v. Registrar, Islamabad High Court PLD 2016 SC 961 and Gul Taiz Khan Marwat v. Registrar, Peshawar High Court PLD 2021 SC 391 ref.

All review petitions were dismissed and all applications/appeals were disposed accordingly. [p. 1734] Z

Per Syed Mansoor Ali Shah, J. (Minority view):

The vires of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') enacted by the Parliament (Legislature) cannot be examined and declared ultra vires, on the touchstone of Articles 240 and 242 of the Constitution as both these Articles only command for dealing with the matters specified therein by an Act of the Parliament, and provide for nothing more. Article 240 does not provide any criterion for judging the constitutionality of an Act of the Parliament, except that the Act of Parliament must relate to the appointments to and the conditions of service of persons in the service of Pakistan concerning the Federation, not concerning any Province other than All-Pakistan Service which is a service common to the Federation and the Provinces. Likewise, the constitutional limitation on the power of the Parliament to enact a law under Article 242 is that it can enact a law for the establishment of a Public Service Commission and prescribing its functions, in relation to the affairs of the Federation, not of any Province. Said aspect of the provisions of Articles 240 and 242 of the Constitution was not presented by the parties before the Court, and the same thus escaped notice of the Court in applying the said Articles of the Constitution to judge the constitutional vires of the 2010 Act, in the judgment under review.

Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 and LDA v. Imrana Tiwana 2015 SCMR 1739 ref.

Similarly, Article 4 of the Constitution, which provides for a right to be dealt with in accordance with law, does not provide any criterion, and thus cannot be a touchstone, to test the vires of a law such as the 2010 Act. [p. 1763] W2

Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 and LDA v. Imrana Tiwana 2015 SCMR 1739 ref.

Parts from the parliamentary debates relating to the objects and reasons of the enactment of the 2010 Act, made by the parliamentarians who were member(s) of the Standing Committee that had considered and approved the Bill as well as by the other parliamentarians who had supported the same, showed that the reason for choosing the persons appointed in and dismissed from service during the specified period, for the beneficial treatment of reinstatement and regularization in service notwithstanding any other law on the subject, was that they had suffered "political victimization" in the matter of their dismissal, removal or termination from service, at the hands of the Government (Executive) during that period, and the object of the enactment of the 2010 Act was that the Parliament (Legislature) intended to provide relief to such persons. Nobody disputed before the Supreme Court, the correctness of the factual statement regarding political victimization made by the parliamentarians, nor does such statement of fact appear to be inherently improbable; it is, rather, supported by the circumstance that a large number of employees, not a few, were sacked during the specified period. Therefore, the Court is to proceed on assuming that undisputed statement of fact to be correct.

After accepting the undisputed statement of fact that the persons going to be reinstated under the 2010 Act had suffered "political victimization", in the matter of their dismissal, removal or termination from service, there remains no difficulty to hold that they formed a distinct class, and their classification was based on intelligible differentia, distinguishing them from those who had been left out, and had a rational nexus to the object sought to be achieved by the 2010 Act. Therefore, only their reinstatement and regularization under the 2010 Act as such did not offend the fundamental right to equal treatment, guaranteed by Article 25(1) of the Constitution, of other employees sacked in other durations as well as of regular employees appointed under the general laws relating to the appointments to and terms of conditions of the service concerned.

Prabodh Verma v. State of U.P. AIR 1985 SC 167 and Amarendra Kumar v. State of Orissa AIR 2014 SC 1716 ref.

The issue of seniority that affected the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments, had arisen only in cases of employees reinstated and regularized on "one scale higher", under sections 4(a) and 10 of the 2010 Act. Their reinstatement and regularization on "one scale higher" had made them senior to those regular employees who were senior to them even as per their date of initial appointments and were serving in the same grade and post in which they had been appointed prior to the initial appointment of the reinstated employees, because of the slow channel of promotion. Therefore, to the extent of reinstatement and regularization of some sacked employees, under Sections 4(a) and 10, on "one scale higher", such reinstatement and regularization was violative of the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments at the time of promulgation of the 2010 Act, and it was also violative of the fundamental 'right to dignity' guaranteed under Article 14 and fundamental 'right to equality before law' guaranteed by Article 25 of the Constitution as it gave an undue advantage to the reinstated employees to the disadvantage of the rights of the already working regular employees. The proper course, in such circumstances, was that the Court should have declared (as ultra vires) only that part of the provisions of sections 4(a) and 10 of the 2010 Act that had the said offending effect, i.e., the reinstatement and regularization on "one scale higher". And this could have easily been done by reading out (severing) the words "one scale higher to" from the provisions of section 4(f) and the words "one scale higher than" from the provisions of section 10 of the 2010 Act, and reading down those provisions to mean that the sacked employees mentioned in those Sections were to be reinstated and regularized in the same or restructured, as the case may be, scale, grade, cadre, group, post or designation from which they had been dismissed, removed or terminated from service, for the purpose of saving the constitutional validity of those provisions and construing them as constitution compliant.

Sections 2(f)(vi), 11, 12 and 13, of the 2010 Act which deal with and provide for reinstatement and regularization of such sacked employees who had been dismissed, removed or terminated from service on account of absence from duty, misconduct, mis-appropriation of Government money or stock, or unfitness on medical grounds, and the determination of their guilt or medical unfitness had attained finality by being unchallenged or unsuccessfully challenged, had the effect of nullifying, or giving the power to the Executive to nullify, the judicial orders passed on charge of misconduct, inefficiency or unfitness that had attained finality. Such employees, even, do not fall within the class of the sacked employees who had suffered "political victimization," envisaged by the 2010 Act for a beneficial treatment. The said Sections of the 2010 are, therefore, ultra vires the Constitution.

All the employees terminated from service on the basis of the judgment under review, stand restored in the service with effect from the date they were so terminated, and shall be paid the pay of the intervening period treating the said period as an extraordinary leave with pay. The cases decided by the judgment under review, which now stands recalled, shall be deemed pending and decided on their own merits by the regular Bench(es) of the Supreme Court in accordance with the provisions of the 2010 Act, subject to the above declarations regarding vires of certain provisions of the 2010 Act.

Per Umar Ata Bandial, J (Majority view):

(f) Constitution of Pakistan---

----Art. 25---Equality of citizens---Reasonable classification---Scope---Although Article 25 of the Constitution envisages equality amongst citizens, it also allows for differential treatment of persons who are not similarly placed under a reasonable classification---However, to justify this difference in treatment the reasonable classification needs to be based on intelligible differentia that has a rational nexus with the object being sought to be achieved'---Only if this test is satisfied can the distinct treatment meted out to a class of persons be sustained under Article 25 of the Constitution.

Commissioner Inland Revenue v. Tariq Mehmood 2021 SCMR 440 ref.

(g) Interpretation of statutes---

----Reference to legislative history---Scope---Reference to legislative history is permissible only as an aid to construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity i.e. from the text of a statute, the court is unable to decipher the real intent of the Legislature.

Gulshan Bibi v. Muhammad Sadiq PLD 2016 SC 769 ref.

(h) Constitution of Pakistan---

----Arts. 184 & 185--- Judgments/orders of the Supreme Court---Academic exercise---Ordinarily the Supreme Court does not enter into purely academic exercises.

Munawar Iqbal Gondal v. Nasira Iqbal 2014 SCMR 860 ref.

(i) Constitution of Pakistan---

----Arts. 184 & 185--- Judgments of the Supreme Court---Prospective/retrospective effect---Scope---Judgments of the Supreme Court operate prospectively, however, they could operate retrospectively if so declared---Consequently, there is no binding rule that all judgments issued by the Court take effect only from the date of pronouncement.

Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 and Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956 ref.

(j) Locus poenitentiae, principle of---

----Applicability---Principle of locus poenitentiae would not be attracted in a case under which the benefit has been extended by a law which was violative of the provisions of the Constitution.

Azam Shah v. Federation of Pakistan 2022 SCMR 201 ref.

Per Syed Mansoor Ali Shah, J; dissenting with Umar Ata Bandial, J.

(k) Separation of powers, doctrine of---

----Scope of the doctrine of Separation of powers in a constitutional democracy stated.

Separation of powers is the backbone of a constitutional system. The legislature, the executive and the judiciary have no authority beyond that granted to them under the Constitution. None of them is omnipotent.

Cooper v. Canada [1996] 3 S.C.R 854, 867 ref.

Separation of powers means reciprocal checks and balances between the different branches. It does not mean walls between the branches but rather bridges which balance and check. The concept of separation of powers is not to maximize efficiency but rather to maximize freedom. The principle of separation of powers has double meaning: First, it means distinguishing among different branches of government, giving each branch a central and primary function. Second, it means that different branches have reciprocal relationship in which each checks and balances over the other branches. Thus, for example, the legislature can change the rules of the game by amending the existing law or by enacting new law, but it must do so within the framework of the Constitution. On the other hand, the judiciary is authorized to interpret the Constitution and law but it is not authorized to create, amend or rewrite the Constitution or to enact a new law. Judiciary, like the other branches of the government, is also not invincible but is to function under the supreme law of the land i.e., the Constitution.

Myers v. United States 272 US 52, 293 (1926) and Responding to Imperfection: The Theory and Practice of Constitutional Amendments (Stanford Levison ed., 1995) and Aharon Barak, The Judge in Democracy ref.

The primary and central function of the legislative branch is to create laws and the courts must give weight to the purpose of the law remembering that legislation promotes social policy and is a tool for achieving a societal goal. This subjective purpose of the statute becomes a key factor in interpreting the statute. Therefore, in the first instance, the role of the courts is to safeguard and actualize these laws in the public interest. Judges should therefore give statutes a meaning that bridges the gap between the law and the social reality. Next is the objective purpose of the statute, where it honours and protects the constitutional values, and the fundamental rights of the people. It is only when the subjective or the objective purpose of the legislature outsteps the constitutional boundary that the courts interfere and set the course right by enforcing the constitutional limits. Even in that case when the courts rule that a statute is unconstitutional and invalidates it, it does not undermine the legislature or violate the separation of powers because it is the principle of separation of powers that informs us that legislative authority does not include the authority to pass unconstitutional laws. Hence, the principle of separation of powers is the very source of judicial review.

(l) Judicial review---

----Scope---Legislation is the manifestation of the will of the people and the collective wisdom of their chosen representatives in the Parliament---Courts must therefore tread carefully to judicially review the act of the legislature---First, efforts should be made by the Court to save the constitutionality of the legislation by exhausting the interpretative tools e.g. of "reading down" or "reading out" to make the legislation constitution compliant---Only when the legislation happens to be opposed to the constitutional values and the fundamental rights and allowing such a statute to remain on the statute book would be unconstitutional, should the courts interfere---Such freedom and respect is enjoyed by the branches of the government under a prosperous and a progressive constitutional democracy.

(m) Constitution of Pakistan---

----Arts. 184(3) & 188---Constitutional jurisdiction of the Supreme Court under Article 184(3) of the Constitution---Scope---Original jurisdiction of the Supreme Court under Article 184(3) of the Constitution cannot be exercised as a parallel review jurisdiction, and a judgment or an order of the Supreme Court can never be challenged by virtue of filing independent proceedings under Article 184(3) of the Constitution---Such course is absolutely impermissible.

Shabbar Raza's case 2018 SCMR 514 ref.

(n) Supreme Court Rules, 1980---

----O. XI, R. 1, Second proviso---Semper praesumitur pro negante, rule of---Scope---When the Judges of an appellate Court are equally divided in their opinion, the judgment of the Court below is affirmed and maintained, and the decision given pro negante is authoritative and binding as any other decision of the appellate Court---However, the said rule is not applicable to the final decision of a case by the Supreme Court in view of the second proviso to Rule 1 of Order XI of the Supreme Court Rules, 1980, which provides that "if the Judges hearing a petition or an appeal are equally divided in opinion, the petition or appeal, as the case may be, shall, in the discretion of the Chief Justice, be placed for hearing and disposal either before another Judge or before a larger Bench to be nominated by the Chief Justice." Hence, the application of the rule of pro negante decision is restricted to the division of opinion on a point of law decided in the judgment of the Supreme Court, notwithstanding of which there is a majority of opinion on the final decision of the case.

Inland Revenue v. Scottish General Electric Power Co. (1931) UKHL 15 TC 761 ref.

(o) Judgment---

----Judgment in rem---Neither necessary nor the requirement of law that Court should issue a separate notice and offer an opportunity of hearing to each and every person who is likely to be affected, and bound, by judgment in rem---Meaning and scope of a judgment in rem stated.

A judgment in rem binds the parties and the nonparties alike. A judgment in rem settles the fate of the res by determining its status and thus operates directly on the res itself; it binds all persons claiming a right or interest in or under the res, even though pronounced in their absence.

Federation v. Qamar Hussain PLD 2004 SC 77 ref.

In actions in rem it is neither practicable nor is it the requirement of law that the Court should issue a separate notice and offer an opportunity of hearing to each and every person who is likely to be affected, and bound, by the judgment. However, for complying with the constitutional command of fair trial and due process to a possible extent in such cases, the Court may order, as it is usually done by the civil courts dealing with actions in rem, for service of the public notice of the case through its publication in the press or any other mode deemed appropriate, for the knowledge of the persons likely to be affected by the judgment, who may then appear before the Court and seek permission to intervene and argue in the proceedings.

Surinder Kumar v. Gian Chand 1958 SCR 548; SHCBA v. Federation PLD 2009 SC 879 and Justice Bhinder v. Federation PLD 2010 SC 483 ref.

(p) Interpretation of statutes---

----Aid to statutory interpretation---Parliamentary debates---Scope---Parliamentary debates, especially the speech made by the mover of the Bill or by the chairman or member(s) of the Standing Committee that considered the Bill, explaining the reason for introducing the Bill can be referred to for ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation was enacted.

Mubeen-Us-Salam v. Federation PLD 2006 SC 602; Benazir Bhutto v. Federation PLD 1988 SC 416; Pepper v. Hart (UKHL) 1993 SCMR 1019 and K. P. Varghese v. ITO, Ernakulam AIR 1981 SC 1922 ref.

(q) Constitution of Pakistan---

----Art. 25---Equality of citizens---Reasonable classification---Scope of reasonable classification stated.

Article 25(1) of the Constitution which declares, and guarantees as a fundamental right, that all citizens are equal before law and are entitled to equal protection of law, does not prohibit reasonable classification for equal treatment, that is, "equality among equals", which is based on intelligible differentia, distinguishing persons or things that are grouped together from those who are left out, and has a rational nexus to the object sought to be achieved by law. And a classification having a reasonable basis does not offend against fundamental right to equality, merely because it is not made with mathematical nicety or because in practice it results in some inequality. Further, when the classification made by a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed, and the one who assails the classification must carry the burden of showing that it does not rest upon any reasonable basis but is essentially arbitrary.

Jibendra Kishore v. East Pakistan PLD 1957 SC 9; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; I. A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Schwartz, Constitution of the United States, Vol. II, p. 501 and Willis, Constitutional Law of the United States, pp. 579-580 approvingly cited in Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 ref.

(r) Vires of statute---

----Courts lean in favour of upholding the constitutionality of laws and are reluctant to strike them down---Cardinal principles of construction of statutes stated.

Two cardinal principles of construction of statutes are, (i) that there is always a presumption in favour of the constitutionality of a legislative enactment (a law); and (ii) that a law enacted by a competent legislature is to be construed in such a manner that its constitutional validity may be saved rather than destroyed. It is because of these principles that the courts lean in favour of upholding the constitutionality of laws and are reluctant to strike them down by declaring them as unconstitutional. The one who challenges the constitutionality of a law bears the burden to show that the law is violative of any of the constitutional provisions, and when two opinions as to the construction of a law are possible, the courts prefer to adopt that which upholds the constitutionality of the law, over that which does not. The courts, therefore, construe a law in such a manner that saves the law than destroys it, and declare it unconstitutional only when it clearly contravenes any constitutional provision and cannot be read as constitution compliant by applying any of the methods, techniques or tools of rule of constitution complaint construction, e.g., reading out or reading down. The primary purpose of applying these techniques, methods or tools, is to endeavor for saving the constitutional validity of the statute, to a possible extent, and the main reason for applying them in preference to declaring the law unconstitutional is that their application makes the process of judicial review of legislative actions less intrusive than invalidating the whole law, as the court should not strive officiously to kill a law to any extent greater than it is compelled to do. Declaring the law unconstitutional is thus one of the last resorts taken by the courts.

SSGCL v. Federation 2018 SCMR 802 and Dunkley v. Evans [1981] 1 W.L.R. 1522 ref.

(s) Vires of statute---

----'Reading out' (severance) and 'reading down' parts of a statute---Principles stated.

Courts apply the methods of "reading out" (severance) and "reading down", with certain conditions, for the purpose of construing the provisions of a law as constitution compliant and to save it, as much as possible, from being declared ultra vires the Constitution. The primary condition for applying these methods for a constitution compliant construction is to see whether the Legislature would have enacted the law in the form that remains or turns out to be after application of any of the said methods. Further, in case of applying the method of reading out (severance) the court is to see whether after reading out (severing) the invalid part, the remaining provisions of law would remain operative within the scope of the object of the law. Therefore, when confronting a constitutional flaw in a statute, court should try to limit the solution to the problem - severing the flawed portion while leaving the remainder intact. Because the unconstitutionality of a part of a statute does not necessarily defeat or affect the validity of its remaining provisions. If after severing the flawed part, the remaining provisions of law would remain fully operative, court must sustain those provisions unless it is evident that the Legislature would not have enacted those provisions independently of that which is invalid.

Haroon-Ur-Rashid v. LDA 2016 SCMR 931; Baz Muhammad Kakar v. Federation PLD 2012 SC 923; Province of Sindh v. M.Q.M. PLD 2014 SC 531 and Free Enterprise Fund v. Public Co. Accounting Oversight Board, (2010) 561 U.S. 477 ref.

In attendance:

Kh. Muhammad Arif, Advocate Supreme Court (in C.R.Ps. 292, 388 of 2021), Muhammad Yousaf Khan (in C.R.P. 293 of 2021), Muhammad Tariq Asad, Advocate Supreme Court (in C.R.P. 294 and C.M.A. 12033 of 2021), Khalid Javed Khan, Attorney General for Pakistan, Ayaz Shoukat, D.A.G. along with Ms. Maryam Rasheed and Usman Paracha, Advocates (in C.R.P. 295 of 2021), Muhammad Nawaz Abbasi (in person) (in C.R.Ps. 296 and 446 of 2021), S.A. Mehmood Khan Sadozai, Advocate Supreme Court (in C.R.Ps. 297-300 and 416 of 2021), Muhammad Ilyas Siddiqui, Advocate Supreme Court (in C.R.P. 301 of 2021), Hazrat Said (in C.R.P. 302 of 2021), S. Iftikhar Hussain Gillani, Senior Advocate Supreme Court (in C.R.Ps. 351 and 392 of 2021), Ms. Shireen Imran, Advocate Supreme Court (in C.R.Ps. 252, 393, 394, 448 and C.M.A. 12104 of 2021), M. Safdar Shaheen Pirzada, Advocate Supreme Court (in C.R.Ps. 253, 372 and 375 of 2021), Nisar A. Mujahid, Advocate Supreme Court (in C.R.P. 354 of 2021), Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court (in C.R.Ps. 355, 374, C.M.As. 11982 and 12029 of 2021), Ch. Afrasiab Khan, Advocate Supreme Court (in C.R.P. 356 of 2021), Mian Raza Rabbani, Senior Advocate Supreme Court, Saalim Salam Ansari, Advocate Supreme Court assisted by Zeeshan Abdullan (in C.R.P. 357, C.M.As. 175, 12172 and 12173 of 2021), Shah Khawar, Advocate Supreme Court, Hassan Rashid Qamar, Advocate Supreme Court (in C.R.Ps. 355, 378-381, 442, 455, 456, C.M.As. 12028 and 12162 of 2021), Zubair Hussain, Advocate Supreme Court (in C.R.P. 359 and C.M.A. 11983 of 2021), Syed M. Iqbal Hashmi, Advocate Supreme Court (in C.R.Ps. 360-363 of 2021), Mazullah Khan (in-person) (in C.R.P. 364 of 2021), Zulfikar Khalid Maluka, Advocate Supreme Court (in C.R.Ps. 365 and 428 of 2021), Ghulam Sajjad Gopang, Advocate Supreme Court (in C.R.P. 366 of 2021), Omer Farouk Adam, Advocate Supreme Court (in C.R.P. 367 of 2021), Tariq Mehmood Mughal, Advocate Supreme Court (in C.R.P. 368 of 2021), Syed Rifaqat Hussain Shah, Advocate-on-Record/Advocate Supreme Court (in C.R.Ps. 369, 385, 420, C.M.As. 168, 12032 and 12035 of 2021), Muhammad Sharif Janjua, Advocate-on-Record/Advocate Supreme Court (in C.R.Ps. 370, 386, 399, 400 and 423 of 2021), Saleem Ullah Ranazai, Advocate Supreme Court (in C.R.P. 371 of 2021), Kamran Murtaza, Senior Advocate Supreme Court (in C.R.Ps. 373 and 377 of 2021), Waseem Sajjad, Senior Advocate Supreme Court (in C.R.Ps. 376 and 383 of 2021), Dr. Saeed Ahmed (in person) (in C.R.P. 382 of 2021), Aftab Alam Yasir, Advocate Supreme Court (in C.R.P. 384 and C.M.A. 12020 of 2021), Abdul Razzaq Shar, Advocate Supreme Court (in C.R.Ps. 387, 454 and C.M.A. 12024 of 2021), Jam Khursheed Ahmed, Advocate Supreme Court (in C.R.P. 389 of 2021), Muhammad Sajid Khan, Advocate Supreme Court (in C.R.P. 390, C.M.As. 12031 and 12161 of 2021), Hamid Khan, Senior Advocate Supreme Court, M. Waqar Rana, Advocate Supreme Court (in C.R.P. 391 of 2021), Liauqat Ali Karim, Advocate Supreme Court (in C.R.P. 395 of 2021), Abid A. Zuberi, Advocate Supreme Court (in C.R.P. 396 of 2021), Azhar Navid Shah, Advocate Supreme Court (in C.R.P. 397 of 2021), Malik Faiz Rasool Rajwana, Advocate Supreme Court (in C.R.P. 398 of 2021), Muhammad Umair Baloch, Advocate Supreme Court, Shoaib Shaheen, Advocate Supreme Court (in C.R.Ps. 401-415, 418, 419 and C.M.A. 12372 of 2021), Muhammad Haseeb Jamali, Advocate Supreme Court (in C.R.P. 417 of 2021), Malik Mansoor Hussain, Advocate Supreme Court (in C.R.P. 421 of 2021), Ch. Aitzaz Ahsan, Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court (in C.R.P. 422 of 2021), Shakirullah (in-person) (in C.R.P. 424 of 2021), Muhammad Nawaz Rai, Advocate Supreme Court (in C.R.P. 425 of 2021), Muddasar Khalid Abbasi, Advocate Supreme Court (in C.R.P. 426 of 2021), Mrs. Kausar Iqbal Bhatti, Advocate Supreme Court (in C.R.P. 427 of 2021), Khalid Javed (in-person) (in C.R.P. 429 of 2021), Abdul Latif Afridi, Senior Advocate Supreme Court (in C.R.Ps. 430-431 of 2021), S. Asghar Hussain Sabzwari, Senior Advocate Supreme Court, S. Qamar Hussain Shah Sabzwari, Advocate Supreme Court, S. Nayyar Hussain Bukhari, Advocate Supreme Court (in C.R.P. 432 of 2021), Sh. Mehmood Ahmed, Advocate-on-Record (in C.M.A. 11812 of 2021), Sikandar Javed, Advocate Supreme Court (in C.M.As. 11813 and 11993 of 2021), Ms. Attiya Khanam (in-person) (in C.M.A. 11814 of 2021), Fazal e Rabbi (in-person) (in C.M.A. 11837 of 2021), Malik Muhammad Riaz, (in-person) (in C.M.A. 11862 of 2021), Arshad Ali Makhdoom, Advocate Supreme Court (in C.M.A. 11863 of 2021), Muhammad Ibrahim (in-person) (in C.M.A. 11864 of 2021), Faisal Siddiqui, Advocate Supreme Court (in C.M.A. 11902 of 2021), Anees M. Shahzad, Advocate-on-Record/Advocate Supreme Court (in C.M.A. 11903 of 2021), Mir Aurangzeb, Advocate-on-Record/Advocate Supreme Court (in C.M.A. 11987 of 2021), Jawaid Masood Tahir Bhatti, Advocate Supreme Court (in C.M.A. 11679 and C.M.A. 158 of 2021), Mir Shahzad Khan Talpur (in-person) (in C.M.A. 12017 of 2021), Malik Muhammad Munsif Awan, Advocate Supreme Court (in C.M.A. 12019 of 2021), Muhammad Afzal Khan (in C.M.A. 12025 of 2021), Tassawar Abbas Tanvir (in-person) (in C.R.P. 443 of 2021), Dr. Umar Farooq Siddiqui (in-person) (in C.R.P. 444 of 2021), Sardar M. Latif Khosa, Senior Advocate Supreme Court, Sardar M. Shahbaz Khosa, Advocate Supreme Court (in C.R.Ps. 445 and 447 of 2021), Pervez Rauf, Advocate Supreme Court (in C.R.Ps. 449 and 452 of 2021), Mir Afzal Malik, Advocate Supreme Court (in C.R.P. 450 of 2021), Malik Saleem Iqbal Awan, Advocate Supreme Court (in C.R.P. 453 of 2021), Raja Farakh Arif Bhatti, Advocate Supreme Court (in C.M.A. 12075 of 2021), Rai M. Nawaz Kharal, Advocate Supreme Court (in C.M.A. 12103 of 2021), Ch. M. Younas, Advocate Supreme Court (in C.M.A. 12403 of 2021), Shahid Anwar Bajwa, Advocate Supreme Court (in C.M.A. 12373 of 2021) and Niazullah Niazi, AG ICT.

Barrister Umer Aslam for SSGPL.

Syed Waqar Naqvi, Advocate Supreme Court for State Life.

Aftab Alam Yasir, Advocate Supreme Court for OPF.

Asad Jan, Advocate Supreme Court for SNGPL.

2022 S C M R 1765

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J. and Mazhar Alam Khan Miankhel, J

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

Versus

FAZLI GHUFRAN---Respondent

Civil Appeal No. 654 of 2021, decided on 16th November, 2021.

(On appeal from the judgment dated 25.9.2019 passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Appeal No. 1207 of 2018)

Civil service---

----Promotion---Senior most candidate on seniority list---Right to promotion from date when post becomes vacant---In the present case, after promotion of the officials/officers at Serial Nos.1 to 3 of the seniority list, respondent became senior most, topping the seniority list as a Soil Conservation Inspector (BPS-11)---One of the Soil Conservation Assistants (BPS-17) retired on 12th May, 2015, and his retirement resulted into a vacant post of Soil Conservation Assistant (BPS-17)---Respondent being the senior most, was entitled for the promotion to occupy the said vacant post of Soil Conservation Assistant (BPS-17) and promotion in the given circumstances had become his legal and vested right, but the same was denied to him by the Department with no valid reasons and also no fault on his part---Respondent was compelled to approach the Tribunal, which allowed his appeal declaring him entitled to be promoted; and denying him, his legal right was also declared as an unlawful and arbitrary exercise of authority resulting in injustice to him---Said decision of the Tribunal though was implemented but with immediate effect i.e. from 29th May, 2018 and not from the date the post became vacant/ available i.e. from 13th May, 2015, as the respondent was admittedly eligible for promotion on that date---Such promotion order with immediate effect, once again compelled the respondent to struggle for his accrued right, and the Tribunal once again came to his rescue and rightly ordered his promotion from the date, the post fell vacant---Supreme Court observed that omissions and commissions such as the one in the present case whereby decision of Tribunal was not implemented as par mandate of law were made by the authorities concerned intentionally, purposely and also in a casual manner without application of mind; that this became very troublesome for the affectee who remained in the courts for years to seek his legal and due rights; that when such type of settled matters came to the courts, it created problems not only for the Government Departments but also for those suffering from such reckless and irresponsible conduct of the concerned besides the financial losses and wastage of precious time of the courts and the parties concerned--- Appeal was dismissed.

Muhammad Amjad and others v. Dr. Israr Ahmed and others 2010 PLC (C.S.) 760 and Luqman Zareen v. Secretary Education 2006 SCMR 1938 ref.

Atif Ali Khan, Additional A.G. Khyber Pakhtunkhwa and Khalid Gohar Khan, Deputy Director, Agricultural Department, Khyber Pakhtunkhwa for Appellants.

Fazal Shah, Advocate Supreme Court for Respondent.

2022 S C M R 1770

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

FARAZ NAVEED---Petitioner

Versus

DISTRICT POLICE OFFICER GUJRAT and another---Respondents

Civil Petition No. 3122 of 2020, decided on 28th February, 2022.

(Against the judgment dated 22.09.2020 Punjab Service Tribunal, Lahore, in Appeal No. 2541 of 2019)

(a) Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 2(iii) & 6---Police Order, 2002, Arts. 3 & 4---Police Rules, 1934, Rr. 14.4 & 16.3---Concurrent criminal and disciplinary proceedings against a police official accused of violent and brutal murder of an innocent citizen---Accused-police official (petitioner) was convicted and sentenced to death by the Anti-Terrorism Court but the High Court acquitted him from the charge on basis of benefit of doubt---Question was whether after such acquittal, the petitioner's dismissal from service was justified---Held, that after proper inquiry, the petitioner was found guilty in a heinous crime and he was rightly dismissed from service---If the acquittal was found as a result of extending benefit of doubt or some other technical reasons, there was no bar for initiation of departmental enquiry and it was the prerogative rather an onerous responsibility of the employer to consider nature of offence for an appropriate action interdepartmentally---Criminal proceedings and disciplinary proceedings have distinctive characteristics and attributes with regard to the standard of proof---Strict proof 'beyond reasonable doubt" is required in a criminal trial, whereas for departmental inquiry, the standard of proof is that of "balance of probabilities" or "preponderance of evidence"---Prosecution in the criminal cases as well as the departmental inquiry on the same allegations can be conducted and continued concurrently at both venues without having any overriding or overlapping effect---Object of criminal trial is to mete out punishment of the offences committed by the accused while departmental inquiry is inaugurated to enquire into the allegations of misconduct in order to keep up and maintain the discipline and decorum in the institution and efficiency of department to strengthen and preserve public confidence---Petition for leave to appeal was dismissed and leave was refused with the observations that the police force is a disciplined force with cumbersome accountability and responsibility of maintaining law and public order in the society and populace, therefore, any person who wants to be part of the disciplined force should be a person of utmost integrity and uprightness with unimpeachable/spotless character and clean antecedents; and that a person having criminal antecedents would not be fit to be restored or reinstated to his previous position or post.

(b) Civil service---

----Concurrent criminal and disciplinary proceedings against a civil servant---Permissible---Civil servant cannot escape departmental proceedings or consequences thereof on account of his acquittal/ exoneration on a criminal charge arising out of the same impugned transaction; these two are entirely different jurisdictions with different standards of proof as well as procedures---Criminal prosecution requires strict proof through a narrowly jacketed procedure and, thus, State's failure on the criminal side does not provide shield of double jeopardy to a delinquent officer.

Dr. Sohail Hassan Khan and others v. Director General (Research), Livestock and Dairy Development Department, Punjab, Lahore and others 2020 SCMR 1708; District Police Officer, Mianwali and 2 others v. Amir Abdul Majid 2021 SCMR 420; 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; Begum Shams-un­-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413; Union Territory, Chandigarh Administration and others v. Pradeep Kumar and another (2018) 1 SCC 797; The Deputy Inspector General of Police and others v. S. Samuthiram (2013) 1 SCC 598; The State of Rajasthan and others v. Heem Singh AIR 2020 SC 5455; Southern Railway Officers Association v. Union of India (2009) 9 SCC 24 and Muhammad Ramzan v. The State PLD 1984 SC 184 ref.

Dr. Muhammad Islam v. Government of N.W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 SCMR 1993 distinguish.

Aftab Alam Yasir, Advocate Supreme Court for Petitioner.

Shaukat Rauf Siddiqui, Additional A.G., Punjab with M. Aslam Gondal, Inspector Gujrat for Respondents.

2022 S C M R 1784

[Supreme Court of Pakistan]

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

NAVEED AKHTAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 108 of 2020, decided on 22nd September, 2020.

(On appeal from the judgment dated 17.05.2018 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Crl. A. No. 700 of 2016)

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

----S. 9(c)--- Possession of narcotics--- Reappraisal of evidence---Narcotics Analysis Report confirms that the recovery, effected from the accused, on his disclosure, was charas---Forensic report regarding narcotics was strictly in accordance with the principles laid down for such purpose by the Supreme Court---Accused in his statement recorded under section 342, Cr.P.C. alleged false implication and mala fide but record of the case would show that he could not explain and establish the same---No reason or factum of malice was found on record for implicating the accused falsely or with any mala fide---Recovery of narcotics was proved by a police official and the said recovery was also testified by another police official---Non-production of other recovery witness/police official had no bearing on the merits of the case---Appeal was dismissed, and conviction and sentence awarded to accused under section 9(c) of the Control of Narcotic Substances Act, 1997 was maintained.

State v. Imam Bakhsh 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

Raja Farrukh Arif Bhatti, Advocate Supreme Court for Appellant.

Muhammad Jafar, Additional P.G. Punjab for the State.

2022 S C M R 1787

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Syed Mansoor Ali Shah, J

FARRUKH RAZA SHEIKH---Petitioner

Versus

The APPELLATE TRIBUNAL INLAND REVENUE and others---Respondents

Civil Petition No. 1417 of 2022, decided on 28th July, 2022.

(Against the judgment of Lahore High Court, Lahore dated 03.03.2022, passed in W.P. No. 55044 of 2021)

(a) Interpretation of statutes---

----Rules made under an Act or Ordinance---Subservient to the parent Act/Ordinance---Rules being subordinate or delegated legislation, are framed under the authority of the parent statute, and are therefore subservient to the primary legislation---Rules cannot contradict, override or add to the clear provisions of the parent statute---Rules are to carry out the purposes of the parent statute and cannot offend, oppose or be inconsistent with the provisions of the parent statute---Any rule, to the extent of any inconsistency with the parent statute is, therefore, ultra vires of the parent statute.

N S Bindra's - Interpretation of Statutes 12th Edition, p.108; Suo Motu Case No. 11 of 2011, PLD 2014 SC 389 and Suo Motu Case No. 13 of 2009 PLD 2011 SC 619 ref.

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

----S. 132(2)---Appellate Tribunal Inland Revenue Rules, 2010, R. 22(1)---Appeal before the Appellate Tribunal (Inland Revenue)---Appeal dismissed in default i.e. due to absence of party without sufficient cause---Rule 22(1) of the Appellate Tribunal Inland Revenue Rules, 2010, vires of---Rule 22(1) of the Appellate Tribunal Inland Revenue Rules, 2010 ("Rules") is ultra vires section 132(2) of the Income Tax Ordinance, 2001 ("Ordinance") to the extent where the Rule allows that the tax appeal before the Appellate Tribunal Inland Revenue ("Tribunal") can also be dismissed in default---Section 132(2) of the Ordinance clearly provides that the Tribunal shall afford an opportunity of hearing to the parties to the appeal and in case of default by any of the party on the date of hearing, the Tribunal may proceed ex-parte to decide the appeal on the basis of available record.

Walayat Flour Mills Lyallpur v. Commissioner of Income-Tax Rawalpindi 1973 PTD 530; Chenniappa Mudaliar v. Commissioner of Income-Tax, (1964) 53 ITR 323 and Income-Tax Commissioner, Madras v. S. Chenniappa AIR 1969 SC 1068 ref.

Ahsan Mehmood, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Ch. Muhammad Shakeel, Advocate Supreme Court for Respondents.

2022 S C M R 1793

[Supreme Court of Pakistan]

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

HASHAM KHAN and others---Petitioners

Versus

HAROON UR RASHID and others---Respondents

Civil Petition No. 264-P of 2010, decided on 28th June, 2021.

(On appeal from the judgment dated 25.3.2010 passed by the Peshawar High Court, Peshawar in C.R. No. 164 of 2008)

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Court may proceed notwithstanding either party fails to produce evidence---Scope --- Expression "to decide the suit forthwith" used in Order XVII, Rule 3, C.P.C. did not mean to decide or dismiss the suit there and then---Court, while implementing the provisions of Order XVII, Rule 3, C.P.C. can take time to go through the available record and then decide the matter---Even, in case of failure of a party to comply with the order within the contemplation of said provision of law, the Court can ask the failing party to record its statement and then to proceed with the matter---In such like situation, if the failing party is the plaintiff, who records its own statement, the Court can ask the other party/ defendant for defence/rebuttal evidence---In the present case on failure of the petitioners/plaintiffs to comply with the orders of the Court regarding production of their remaining evidence, the Trial Court, by invoking the provisions of Rule 3 of Order XVII of the C.P.C., struck off their right to adduce evidence and straight away dismissed the suit without even touching merits or available evidence on the record---Petition for leave to appeal was converted into appeal and allowed, and the case was remanded back to the Trial Court to decide the same within a period of three months.

Qazi Jawad Eshanullah, Advocate Supreme Court for Petitioners.

Zia ur Rehman, Advocate Supreme Court for Respondents.

2022 S C M R 1796

[Supreme Court of Pakistan]

Present: Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

POSTMASTER GENERAL, KARACHI and another---Appellants

Versus

ARSHAD ALI---Respondent

Civil Appeal No. 18-K of 2021, decided on 2nd August, 2022.

(On appeal against judgment dated 28.01.2020 passed by Federal Service Tribunal Bench, Karachi in Appeal No. 13(K) CS/2005)

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000) [since repealed]---

----S. 3--- Post Office Manual, Vol. VI, Chapt. 8, R. 403--- Head Postmaster (Incharge)--- Fraud in Savings Bank Accounts---Misconduct, inefficiency, connivance, abetment of fraud---Dismissal from service---Respondent (Head Postmaster) was bound to perform his duties in accordance with his job description but he was found to be reckless and incompetent---Argument that misappropriation of huge amount of public money from savings accounts was not in the knowledge of respondent was nothing but a figment of imagination and also beyond reasonable comprehension---In contrast, it was a deceptive and dishonest plea in, which in fact aggravated the degree of negligence, inefficiency and incompetence and proved that the respondent was not capable or qualified to hold any responsible post as he failed to sense any act of embezzlement and misappropriation of public money in the post office under his command, which could not have happened had the respondent performed his duties diligently and kept a vigilant eye on the books of account with periodic exercise of reconciliation for prompt checking and reporting in case any mishap or misappropriation of public funds was detected in the accounts---Being the Postmaster, he was responsible for overseeing all aspects of the post office including the management of staff and the services or products offered by the post office---Corruption of substantial sums of public money could not be taken so lightly and that was why the respondent was dismissed by the management, but the Service Tribunal without any just cause took the lenient view whereas the respondent did not deserve any compassion or sympathy---Appeal was allowed, judgment of Service Tribunal was set-aside with the consequence that respondent was dismissed from service.

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

----S. 5---Negligence or inefficiency---Service Tribunal---Evaluation of evidence---Scope---Sometimes little negligence or inefficiency may cause serious disaster and stern end results, therefore, at the time of appraising any act of misconduct contrasted with the penalty imposed by the management/department, the Service Tribunal is obligated to re-evaluate the evidence all-inclusive and then the inquiry findings with recommendations.

(c) Civil service---

----Concurrent disciplinary and criminal proceedings---Scope and purpose--- Purpose of initiating disciplinary proceedings is to ascertain whether the charges of misconduct against the delinquent are proved or not, whereas prosecution under the penal statutes is altogether different where the prosecution has to prove the guilt of accused beyond any reasonable doubt---Purpose of criminal trial is to mete out punishment for the offences committed by the accused while departmental inquiry is started off for making inquiry into the allegations of misconduct in order to maintain and uphold discipline and decorum in the institution and efficiency of the department to strengthen and preserve public confidence.

(d) Civil service---

----Concurrent disciplinary and criminal proceedings---Acquittal in criminal proceedings--- Effect--- Civil servant cannot escape departmental proceedings or consequences thereof on account of his acquittal/exoneration on a criminal charge---While facing expulsive proceedings on departmental side on account of his indictment on criminal charge, he may not save his job in the event of acquittal as the department may still have reasons to conscionably consider his stay in the service as inexpedient---Department can assess the suitability of a civil servant, confronted with a charge through a fact finding method, which is somewhat inquisitorial in nature, but without the 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 and District Police Officer, Mianwali and 2 others v. Amir Abdul Majid 2021 SCMR 420 ref.

Nishat Warsi, DAG, Rahat Ali, Assistant Superintendent and Mrs. Abida Parveen Channar, Advocate-on-Record for Appellants.

Altaf Hussain, Advocate Supreme Court for Respondent along with Respondent in person.

2022 S C M R 1806

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Yahya Afridi, JJ

SAHIB ULAH---Petitioner

Versus

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

Criminal Petition No. 546 of 2021, decided on 28th June, 2021.

(Against the judgment dated 30.04.2021 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat passed in Criminal Misc. (B.A.) No. 260-M of 2021)

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

----S. 497---Juvenile Justice System Act (XXII of 2018), Ss. 6(3) & 6(4)---Penal Code (XLV of 1860), Ss. 302, 324, 212 & 34---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Bail, grant of---Juvenile of 'more than sixteen years of age'---Connotation---In the present case the accused was 'exactly' sixteen years of age on the date the offence was committed, and was not 'more than sixteen years of age'---Such fine distinction had to be kept in mind when considering application of section 6(3) and section 6(4) of the Juvenile Justice System Act, 2018 ('the 2018 Act')---Since the accused on the date of commission of the offence was exactly sixteen years of age, and not more than sixteen years of age, therefore, applicable provision of the 2018 Act would be section 6(3), which provides that the accused has to be considered as if 'he was accused of commission of a bailable offence'---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---Juvenile Justice System Act (XXII of 2018), S. 6---Constitution of Pakistan, Art. 185(3)---Bail---Juvenile accused---When determining juvenility of accused, date of arrest in a criminal case is immaterial; an accused has to be dealt with under the law as applicable on the date that the crime is committed.

(c) Interpretation of statutes---

----Criminal statute/provision---If there are two possible interpretations of a provision of the law, the one favourable to the accused is applicable, and all the more so when the accused is governed by a special law.

Zia-ur-Rehman Tajik, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Shumail Aziz, Additional A.G. Khyber Pakhtunkhwa along with Sahib Gul, ASI for Respondent No. 1.

Shahidullah, Advocate (with permission of the Court) along with Shahid Khan, Complainant for Respondent No. 2.

2022 S C M R 1810

[Supreme Court of Pakistan]

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

SHAHIN SHAH---Appellant

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Department, Peshawar and others---Respondents

Civil Appeal No. 315 of 2022, decided on 20th June, 2022.

(On appeal against the judgment dated 27.04.2017 passed by the Peshawar High Court, Peshawar in R.F.A. No. 128-P of 2016)

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

----Ss. 17 & 39---Arbitration Award made Rule of Court---Composite order of Trial Court---Scope---Whether order of Trial Court making the Arbitration Award Rule of Court was appealable before the High Court---Held, that respondents were aggrieved of a "composite order" passed by the Trial Court, whereby the objections filed by the Respondents were dismissed as being time barred and the Arbitration Award was made Rule of Court---Word "composite" meant that the order was comprised of two distinct elements or parts---When the High Court found that the order of the Trial Court had two distinct parts, then, it had to examine whether the respondents had challenged both parts of the order independently by raising independent grounds in terms of section 17 & section 39 of the Arbitration Act, 1940 ('Act')---High Court could not have suo motu implied that such grounds had been taken---High Court was required to proceed on the basis of record which clearly showed that the respondents had nowhere taken the stance that the decree of the Trial Court was in excess of or against the Arbitration Award---As such, the High Court could not have assumed jurisdiction in the matter, especially when the respondents did not question the decree on the grounds mentioned in section 17 of the Act---Even otherwise, the failure of the respondents to agitate the grounds mentioned in section 17 before the Trial Court barred them from raising any such grounds before the High Court since the respondent was appealing against the judgment of the Trial Court---Respondents were to show that the judgment of the Trial Court was hit by any of the grounds available under section 17 which they failed to do---High Court erred in law and exceeded its jurisdiction in proceeding beyond the grounds agitated by the respondent in its appeal---Appeal was allowed and Award rendered by the Arbitrators was made Rule of the Court.

Rashida Begum v. Ch. Muhammad Anwar and others PLD 2003 Lah. 522 and Muhammad Alam Khan v. Jewan Khan PLD 1985 Lah. 181 ref.

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

----S. 30---Grounds for setting aside an Award---Court cannot reappraise the evidence relied upon by the Arbitrator(s) and engage in a roving inquiry to discover infirmities in the Arbitration Award---Illegality or infirmity in the Arbitration Award must be apparent on the face of the Award---Court is required to examine the Arbitration Award filed in Court to see whether there is an infirmity within the Award itself.

A. Qutubuddin Khan v. CHEC Mill Wala Dredging Co. Pvt. Ltd. 2014 SCMR 1268; Mian Corporation through Managing Partner v. Messrs Lever Brothers of Pakistan Ltd. PLD 2006 SC 169 and National Construction Co. v. WAPDA PLD 1987 SC 461 ref.

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

----S. 30(a)---Arbitration Award, filing of---Whether Arbitrators committed misconduct by not filing Award within time---Held, that the Trial Court gave the Arbitrators multiple extensions in time to file the Arbitration Award---Both the parties i.e. appellant and respondents were present at the time when the Arbitrators sought extensions of time to file the Award---Nothing was present on the record to show that the respondent's counsel objected to any extension in filing the Award---As such, the plea that the Arbitrators committed misconduct and should have filed the Award within four months was totally misconceived---Respondents participated in the arbitration proceedings despite extensions without raising an objection whatsoever---Minutes of the arbitration proceedings categorically mentioned that the respondents "expressed their confidence" in the nominated Arbitrators---Time limit of filing an Arbitration Award within four months is not absolute---Section 28 of the Arbitration Act, 1940 clearly provides that said time limit can be enlarged---As such, the non-filing of an Award within four months does not ipso facto make the Award invalid---In the present case the time limit mentioned in section 28 of the Act was enlarged by orders of the Trial Court in presence of the parties and even otherwise the respondents by willingly and voluntarily participating in the proceedings held during extended periods had waved their right to object---Fact that the Award was filed after expiry of the four-month period was not fatal---Trial Court, therefore, judicially scrutinized the record by applying its mind to the facts and circumstances of the case---Appeal was allowed and Award rendered by the Arbitrators was made Rule of the Court.

WAPDA v. Khanzada Muhammad Abdul Haque Khattak and Co. PLD 1990 SC 359 ref.

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

----S. 14---Award to be signed and filed---Notice under section 14 of the Arbitration Act, 1940---Scope---When an Award is filed by the Arbitrator in Court in the presence of the parties or their authorized agents then the requirements of section 14 qua serving of notice of signing and making of the Award are substantially met---Where the parties are present in Court when the Arbitration Award is filed, issuance of formal notice under section 14 of the Act, is a mere technicality which cannot vitiate the proceedings.

Tribal Friends Co. Province of Balochistan's case 2002 SCMR 1903; Pakistan through General Manager Pakistan Railway's case PLD 1990 SC 800; Ashfaq Ali Qureshi v. Municipal Corporation Multan PLD 1985 SC 597; Sheikh Mehboob Alam v. Sheikh Mumtaz Ahmed PLD 1956 (WP) Lahore 276; Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1984 SCMR 597 and Labab Gul v. Badshah Gul PLD 1952 Pesh. 23 ref.

(e) Limitation Act (IX of 1908)---

----Art. 178---Arbitration Award---Filing in Court---Limitation---Scope---Limitation period of 90 days mentioned under Article 178 of the Limitation Act, 1908 applies to parties to an arbitration agreement who have been given notice of making of the award and not to the Arbitrator(s)---Arbitrator(s) must be requested by the parties to file the Arbitration Award or must be given a direction by the Court to do so.

Inayat Ullah Khan v. Obaidullah Khan and others 1999 SCMR 2702 ref.

(f) Substantial compliance, doctrine of---

----Scope---Doctrine of substantial compliance provides that the procedural fault in complying strictly with a provision of the law is so minor that it does not have a bearing on the essence of the dispute and the object sought to be achieved---Applicability of the 'doctrine of substantial compliance' depends on the facts and circumstances of a dispute---Court has to determine whether the object, purpose, and intent of a statutory prerequisite have been fulfilled and, formal compliance with the same would be unimportant.

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

(g) Limitation Act (IX of 1908)---

----S. 5---Condonation of delay---Scope---Party must explain each day of delay and, the Court ought to adjudge whether each day of delay has been sufficiently explained to the satisfaction of the Court with evidence---If such discretion has been exercised properly, then, an appellate Court cannot arbitrarily disregard the reasons so given by the Trial Court while discounting the reasons provided by one party in an application for condonation of delay by the Trial Court unless there is misreading or non-reading of the record.

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

----Preamble---Rules of Reconciliation and Arbitration of International Chamber of Commerce ('the ICC Rules), Art. 21---ICC Rules do not divest the Courts in Pakistan of their jurisdiction in arbitration matters.

Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1618 ref.

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

----Preamble---Duty of Court in arbitration matters---Scope---Once a party has agreed to arbitration, it should be the Court's responsibility to either facilitate the said party in the arbitration while staying within the confines of the Arbitration Act, 1940 or, to compel the party to abide by the terms and conditions of a contract---Purpose of arbitration is defeated if a party refuses to abide by the agreed mode of dispute resolution---Such a trend must not be encouraged.

Qazi Jawad Ehsanullah, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Mian Shafaqat Jan, Additional A.G., Khyber Pakhtunkhwa for Respondents.

Nemo for Respondent No. 6.

2022 S C M R 1834

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

Criminal Petition No. 538-L of 2021 and

(Against the order dated 07.04.2021 passed by Lahore High Court, Lahore in Criminal Misc. 20596B of 2021)

Criminal M.A. 350-L of 2021 in Criminal P. 538-L of 2021

(Impleadment)

MUHAMMAD NIAZ---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 538-L of 2021 and Criminal M.A. 350-L in Criminal P. 538-L of 2021, decided on 10th May, 2022.

Criminal Procedure Code (V of 1898)---

----S. 498--- Penal Code (XLV of 1860), Ss. 324, 337-H(2), 148 & 149---Punjab Arms Ordinance (XX of 1965), S. 11-B---Constitution of Pakistan, Art. 185(3)---Attempt to commit qatl-i-amd---Pre-arrest bail, grant of---Rule of consistency---Counsel for injured witness and the accused both admitted that one of the co-accused, who had also fired in the air, similar to the accused, was granted pre-arrest bail, which bail order was subsequently been confirmed by the Court, and was neither challenged by the injured witness nor by the complainant---Case of accused was not distinguishable from the case of the said co-accused granted pre-arrest bail---In such circumstances as per rule of consistency, the accused was also entitled to relief of bail---Petition for leave to appeal was converted into appeal and allowed, and accused was granted pre-arrest bail.

Aftab Hussain Bhatti, Advocate Supreme Court for Petitioner along with Petition (via video link from Lahore).

Anis Muhammad Shahzad, Advocate Supreme Court (at Principal Seat) and Malik Matee Ullah, Advocate Supreme Court for Respondents (via video link from Lahore) (in Criminal M.A. 350-L of 2021).

Mirza Abid Majeed, D.P.G. Punjab for the State.

Nemo for Respondent.

2022 S C M R 1836

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ

Civil Appeals Nos. 429-P to 431-P of 2019

(Against the judgment dated 10.10.2019 of Peshawar High Court, Mingora Bench, passed in R.F.As Nos. 78-M,79-M and 80-M of 2018)

Civil Appeals Nos. 182-P to 185-P of 2020

(Against the judgment dated 21.10.2020 of Peshawar High Court, Peshawar, passed in R.F.As. Nos.145-P to 148-P of 2019)

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

Versus

YOUSAF KHAN and others---Respondents

Civil Appeals Nos. 429-P to 431-P of 2019 and Civil Appeals Nos. 182-P to 185-P of 2020, decided on 10th November, 2021.

Land Acquisition Act (I of 1894)---

----S. 28 [as amended by the Land Acquisition (Amendment) Ordinance, 2001 (Khyber Pakhtunkhwa)]---Payment of rent (formerly interest) on excess compensation---In terms of amended section 28 of the Land Acquisition Act, 1894 (as applicable in Khyber Pakhtunkhwa) Court is free to award any rate of rent on the enhanced sum of compensation and is not bound by the limit of 6%---However, it does not mean that the court is not to grant any rent on the sum enhanced---Distinction between the terms sum and amount to be determined is that while the "sum" is simply the enhanced compensation, the "amount" is the rent over and above the enhanced compensation to provide for the loss caused to the landowner due to the delay in making payment of the adequate compensation since the taking over of the possession of the land---Under section 28 of the Land Acquisition Act, 1894, a Referee Court can, and should, add the sum of actual fair market rental value of the land found acquired unpaid (or deficiently paid) if it is proved by evidence on record or, in absence of such evidence, a sum equal to 6% per annum of the enhanced sum of compensation as the minimum rental value of that land, from the date of taking possession of the acquired land to the date of actual payment of the enhanced price/compensation to the landowner.

Aslam Khaki v. Muhammad Hashim PLD 2000 SC 225 and Government of Khyber Pakhtunkhwa v. Misal Khan (C.R.Ps. Nos.758 of 2019 and other) ref.

Malik Akhter Awan, Additional A.G. Khyber Pakhtunkhwa along with Saadullah, Assistant Secretary for Appellants (in all cases).

Atlas Khan Dagai, Advocate Supreme Court for Respondents (in C.A. 182-P of 2020).

Arshad Jamal Qureshi, Advocate Supreme Court for Respondents (in C.As. Nos. 183-P to 185-P of 2020).

Umair Shahzad, Attorney for Respondents (in C.A. No. 429-P of 2019).

Sajid Ilyas Bhatti, Additional Attorney General for Pakistan for the Federation.

2022 S C M R 1842

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan, Sayyed Mazahar Ali Akbar Naqvi and Ayesha A. Malik, JJ

RASHID AHMAD and others---Petitioners

Versus

NAZAR HUSSAIN and others---Respondents

C.P.L.A. No. 1638-L of 2013, decided on 3rd August, 2022.

(Against the judgment dated 26.09.2013 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Civil Revision No. 419 of 2003)

(a) Jurisdiction---

----Ouster of jurisdiction of the Civil Court---Conditions that had to be fulfilled where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court stated.

Where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown:

(a) that the authority or the tribunal was validly constituted under the relevant Act;

(b) that the order passed or the action taken by the authority or tribunal was not mala fide;

(c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunals; and

(d) that in passing the order or taking the action, the principles of natural justice were not violated.

Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court.

Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Rafiz Muhammad Ghaus and 5 others PLD 1997 SC 3 ref.

(b) Punjab Consolidation of Holdings Ordinance (VI of 1960)---

----S. 26---Civil Procedure Code (V of 1908), O. VII, R. 11---Consolidation proceedings--- Jurisdiction of Civil Court barred---Scope---Declaratory suit challenging consolidation proceedings in addition to cancellation of mutations and setting aside of registered sale deed---Rejection of plaint by the Courts below on the ground that jurisdiction of Civil Court was barred in the matter in view of section 26 of the Punjab Consolidation of Holdings Ordinance, 1960---Legality---In the present case there were more than one prayers as mentioned in the head-note of the plaint; a declaration of ownership on the basis of registered document followed by a mutation was sought, and ignoring the said document by the consolidation authorities, prima facie, showed that they, travelled beyond their jurisdiction---When there were other prayers also the rejection of plaint was not justified by the civil court---Furthermore partial rejection (of plaint) was not permissible under the law---Petition for leave to appeal was converted into appeal and allowed, impugned orders of courts below were set aside with the direction that the declaratory suit would be deemed to be pending before the Civil Court.

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

----O. VII, R. 11--- Rejection of plaint---Scope---Plaint rejected on ground of ouster of jurisdiction of Civil Court---If with regard to any one prayer the jurisdiction of the civil court is barred and with regard to other prayers it is not, the plaint cannot be rejected.

Aamir Iqbal Basharat, Advocate Supreme Court for Petitioners.

Khalid Masood Sandhu, Advocate Supreme Court for Respondents.

2022 S C M R 1846

[Supreme Court of Pakistan]

Present: Amin ud Din Khan and Jamal Khan Mandokhail, JJ

ABDUL HABIB and others---Petitioners

Versus

Mst. NOOR BIBI and others---Respondents

Civil Petitions Nos. 189-Q and 190-Q of 2017, decided on 26th July, 2022.

(On appeal from the judgment of the High Court of Balochistan dated 22.09.2017 passed in C.Rs. Nos. 174 and 273 of 2014)

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

----Ss. 16 & 17---Suit relating to an immoveable property---Territorial jurisdiction of Courts---Principles relating to territorial jurisdiction of courts in relation to suits concerning immoveable property .

The words "any portion of the property" occurring in sections 16 and 17 of the C.P.C., cannot be limited to only one property. It may be a single immoveable property and may also include more than one property of different descriptions. In case, a person wants to obtain a relief through a suit, in respect of immoveable properties, situated within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction, any one of the immovable properties or a portion thereof is situated, provided that the cause of action in respect of the properties must be one and the same.

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

----S. 17--- Suit relating to an immoveable property---Territorial jurisdiction of Courts---Purpose of section 17, C.P.C.---Purpose of section 17 of the C.P.C. is to avoid conflicting decisions, multiplicity of litigation and to give option to the parties to choose the court for adjudication of their disputes according to their convenience, in order to facilitate them.

Kamran Murtaza, Senior Advocate Supreme Court (through video link from Quetta) for Petitioners.

Gul Hassan Tareen, Advocate Supreme Court for Respondent No.1.

Tanveer Iqbal, Advocate Supreme Court for Respondents Nos. 2 - 14.

2022 S C M R 1852

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Sajjad Ali Shah, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing Director---Petitioner

Versus

AMNA FRAZ and others---Respondents

Civil Petition No. 2481 of 2019, decided on 24th November, 2021.

(On appeal from the judgment/order dated 07.05.2019 of the Peshawar High Court, passed in W.P. No. 4531-P of 2017)

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

----S. 3---Constitution of Pakistan, Art. 199---Pakistan International Airlines Corporation ('PIAC')---Constitutional filed against 'PIAC" by legal heirs of an employee to avail financial and other benefits available to the legal heirs of deceased employees---Maintainability---Majority shareholding of PIAC lies with the Federal Government and thereby ultimate control through the Board of Directors vests in the latter---Resultantly constitutional petition filed by the wife of deceased employee was maintainable against PIAC.

Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 ref.

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

----S. 3---Constitution of Pakistan, Art. 199---Pakistan International Airlines Corporation ('PIAC')---Administrative order issued by PIAC relating to compensation package for legal heirs of its employees who died in service---Whether such compensation package could be enforced through the constitutional jurisdiction of the High Court---Held, that the compensation package constitutes or constituted a firm commitment by PIAC to the legal heirs of its deceased employees---Death of the respondent's husband occurred at the time when the said package was validly in existence---Consequently, as no other conditions had to be established (the relationship of the respondent with the deceased employee is not in issue) the respondent acquired a vested right to receive the benefits specified in the said package---Question whether the said package can be enforced by the (High) Court is irrelevant when PIAC itself had not opposed the entitlement of the respondent---Petition for leave to appeal was disposed of with the direction that PIAC shall decide the pending application of the respondent, whereby she claimed benefit under the compensation package.

Muhammad Waqar Rana, Advocate Supreme Court for Petitioner.

Zia-ur-Rehman Tajik, Advocate Supreme Court for Respondents.

2022 S C M R 1857

[Supreme Court of Pakistan]

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

PERVEZ KHAN and others---Appellants

Versus

ALI ASGHAR KHAN and others---Respondents

Civil Appeal No. 1602 of 2014, decided on 13th July, 2022.

(On appeal against the judgment dated 13.08.2014 passed by Peshawar High Court, Abbottabad Bench in C.R. No. 217 of 2009)

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

----Art. 100---Thirty year old document---Parameters and condition for considering the evidentiary value of a thirty years old document stated.

Article 100 of the Qanun-e-Shahadat, 1984 describes parameters and condition for considering the evidentiary value of thirty years old document. According to the said provisions of law, before arriving at any conclusion with regard to a presumption in respect of a document, the Court must satisfy itself about its originality, age, production from proper custody, unsuspicious character and other circumstances. The Court may make some presumption that the signature, handwriting and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested, provided that the original is before the Court, without which no such observations can be made. The presumption of genuineness with regard to 30 years old document is discretionary, therefore, the Court generally arrives at its conclusion on the document, after the evidence of both sides has been given. The Court is not supposed to presume every document and signature upon it as genuine, of a particular person, without considering the relevant factors, necessary to bring the document within the parameter of Article 100 of the Qanun-e-Shahadat, 1984.

Jang Bahadar and others v. Toti Khan and another 2007 SCMR 497; Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838 and Mst. Hajyani Bar Bibi through LRs. v. Mrs. Rehana Afzal Ali Khan and others PLD 2014 SC 794 ref.

If a Court considers any document to be of thirty years or more old and presumes that the signature and every other part thereof, is in the handwriting of a particular person, even then, it must be taken into a consideration that whether the document so presumed, can legally be acted upon or can it create any right, title or interest?

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

----Art. 79---Execution of document---Burden of proof---Scope---When a document is disputed by the opponent, the onus to prove its execution in accordance with law is upon the party, relying on it.

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

----S. 54--- Agreement relating to immoveable property---Mere agreement does not create a title, unless it is acted upon either by its executant or by way of a decree from a competent Court of law.

Zulfiqar Ali Abbasi, Advocate Supreme Court for Appellants.

Mian Muhammad Ayub, Advocate Supreme Court for Respondents Nos. 1 and 2.

Ex parte for LRs. of Respondent No. 3.

Nemo for Respondent No. 4.

2022 S C M R 1861

[Supreme Court of Pakistan]

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

MODEL CUSTOMS COLLECTORATE, ISLAMABAD---Petitioner

Versus

AAMIR MUMTAZ QURESHI---Respondent

Criminal Petition No. 209 of 2018 and Criminal Miscellaneous Application No. 392 of 2018, decided on 13th July, 2022.

(On appeal against the judgment dated 07.12.2017 by the Islamabad High Court, Islamabad, in Criminal Appeal No. 152 of 2017)

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

----Ss. 249-A & 265-K---Power of Magistrate/Court to acquit accused at any stage---Principles.

Under section 249-A, Cr.P.C. the Magistrate is empowered to acquit any accused on two grounds i.e. charge is groundless and there is no probability of conviction, whereas under section 265-K, Cr.P.C., the court during the trial is empowered to acquit an accused, when there is no probability of conviction indicating that when there is no evidence on the record and even there is no remote probability of conviction. If there is remote probability of conviction then the court is required to record the evidence and then decide the case on evidence bought on record during the trial. Application under sections 249-A and 265-K, Cr.P.C. can be filed or taken up for adjudication at any stage of proceeding of trial i.e. even before recording of prosecution evidence or during recording of evidence or when recording of evidence is over.

Although there is no bar for an accused to file an application under 249-A or 265-K, Cr.P.C. at any stage of proceeding of the trial, yet the fact and circumstances of the prosecution case will have to be kept in mind and if there is slight probability of conviction then, instead of deciding the said application, the court should record the evidence and allow the case to be decided on its merits after appraising the evidence available on record.

The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544; Bashir Ahmad v. Zafar ul Islam PLD 2004 SC 298; Bashir Ahmad v. Zafar­-ul-Islam and others PLD 2004 SC 298; The State through Collector Customs and Excise, Quetta v. Azam Malik and others PLD 2005 SC 686; Muhammad Sharif v. The State PLD 1999 SC 1063 and Ghulam Farooq Tarar v. Rizwan Ahmad and others 2008 SCMR 383 ref.

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

----Ss. 2(s), 8, 70, 156(1) & 157---Foreign Exchange Regulation Act (VII of 1947), S. 8---Criminal Procedure Code (V of 1898), S. 265-K---Smuggling of foreign currency---Acquittal of accused by Trial Court under section 265-K, Cr.P.C.---Legality---Accused was apprehended at the airport and a huge amount of currency, which he was trying to smuggle to a foreign country, was recovered from him---Argument that the accused had filed an application before the State Bank of Pakistan for permission to take away the currency to the foreign country, had no force because mere filing of an application for permission by itself was not sufficient to allow him to smuggle the currency outside the country, until the permission was granted and in the present case admittedly, no permission was ever granted by the State Bank of Pakistan---Plea of accused that he was not aware of the fact that foreign currency amounting to more than US$ 10,000 (US dollars ten thousand) could not be taken away from the country, contradicted his own defence, as on one hand he claimed that he had filed an application for permission to take a huge amount of foreign currency out of the country and on the other hand he was not aware of the fact that he could not take foreign currency beyond a certain limit outside the country---Argument of the accused that he was a Hajj Tour Operator and had not committed any offence of taking away/ smuggling foreign currency from the country, had no force because being a Hajj Tour Operator he had no license to smuggle the foreign currency outside the country---Sufficient material was available on record connecting the accused with the commission of the alleged crime and it was incumbent upon the Trial Court to record the evidence but instead of recording the evidence to prove the guilt or otherwise of the accused, the Trial Court in a slipshod manner, acquitted him under section 265-K Cr.P.C.---If the allegations levelled in the FIR supported by the preliminary evidence were admitted to be true, it could not be said at that stage by the Trial Court that there was no probability of conviction of the accused---In order to ascertain the genuineness of the allegations, the Trial Court ought to have allowed the prosecution to lead evidence---Petition for leave to appeal was converted into an appeal and allowed, orders of the Trial Court and High Court were set aside and the matter was remanded to the Trial Court to record the evidence and decide the case upon the evidence produced before it.

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

----Ss. 249-A & 265-K---Acquittal under section 249-A or 265-K, Cr.P.C.---Scope---In appellate or revisional proceedings, the same sanctity cannot be accorded to acquittals at intermediary stages such as under section 249-A or 265-K, Cr.P.C., as available for those recorded and based on full-fledged trial after recording of evidence---In appeal or revision proceedings, the order of acquittal of the accused under section 249-A or section 265-K of the Cr.P.C. would not have the same sanctity as orders of acquittal on merits---Consequently, the principles which are to be observed and applied in setting aside concurrent findings of acquittal or the principle relating to the presumption of double innocence when an accused is acquitted after a full-fledged inquiry and trial, would not be applicable to the acquittals under section 249-A, Cr.P.C. or section 265-K, Cr.P.C.

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

Qazi Shehryar Iqbal, Advocate Supreme Court for Respondent along with Respondent in person.

2022 S C M R 1868

[Supreme Court of Pakistan]

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

PAK LEATHER CRAFTS LIMITED and others---Appellants

Versus

AL-BARAKA BANK PAKISTAN LIMITED---Respondent

Civil Appeal No. 24-K of 2019, decided on 4th August, 2022.

(Against the order dated 19-10-2018 passed by the High Court of Sindh at Karachi in F.A. No. 15 of 2018)

(a) Interpretation of statutes---

----Deeming provision in a statute---While interpreting deeming provisions in a statute the Court is bound to ascertain the limits, purpose and object for which the legislature had created the fiction by adopting deeming provision.

Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397; Begum B.H. Syed v. Mst. Afzal Jehan PLD 1980 SC 29 and Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

(b) Limitation Act (IX of 1908)---

----S. 12(5)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 22---Appeal against judgment of Banking Court---Limitation period, commencement of---Time consumed by appellant in payment of fee/cost for certified copies of the decree passed by Banking Court---Whether such time could be excluded under section 12(5) of the Limitation Act, 1908 while computing the period of limitation---Held, that mere filing of an application for obtaining certified copies (without payment of fee/cost) would not suffice to stop the period of limitation---Filing of application for obtaining certified copies pre-supposes the payment of cost for obtaining them---Application for certified copies referred to is not entertained and/or processed till the prescribed fee/cost is paid---Subsection (5) to section 12 of the Limitation Act, 1908 provides commencement of period of limitation from the day actually intimated to the applicant to be the day on which the certified copy will be ready for delivery.

Legislature by introducing subsection (5) to section 12 of the Limitation Act, 1908 ('the Act') eliminated the controversy regarding the term "time requisite" and defined the term by laying down that the "time requisite" for obtaining a certified copy of the decree, order or such other prescribed proceedings, would be deemed to be the time intervening between the day on which an application for certified copy is made and the day actually intimated to the applicant to be the day on which the certified copy is ready for delivery. The interpretation that mere filing of an application (for obtaining certified copies without payment of fee/cost) would suffice to stop the period of limitation would be against the spirit and purpose for which the legislature has created the fiction. Besides, this interpretation would not only render the scheme of law behind the Limitation Act, 1908 as redundant but at the mercy of the litigant. Filing of application for obtaining certified copies pre-supposes the payment of cost for obtaining them. Admittedly, the application for certified copies referred to is not entertained and/or processed till the prescribed fee/cost is paid and in case such interpretation is accepted that mere filing of application would stop the period of limitation then by not paying the prescribed fee/cost one could prolong the period of limitation, which would be against the intention and purpose of the legislation. This interpretation not only appears to be against the reasons and object of the law of limitation but would substantially frustrate it.

Subsection (5) to section 12 of the Act provides commencement of period of limitation from the day actually intimated to the applicant to be the day on which the copy will be ready for delivery. Intimation of the day on which the copy will be ready for delivery by the very language adopted by subsection (5) appears to be an intimation of a future date, a date expected by the office by which it would be in a position to make the copy ready for delivery. It does not envisage a notice after the certified copy is ready for delivery. It is a date intimated to the applicant after he has effectively made the application for the certified copies i.e. upon payment of cost/fee to be a date acknowledging receipt of cost/fee and providing a date on which copy would be ready for delivery.

Since the burden is upon the applicant to demonstrate that the copies were not ready on the day intimated to the applicant, therefore, in case of non-delivery of certified copy on the date intimated to the applicant, in order to eliminate the controversy and to discharge his burden the applicant should accordingly take a fresh date so that the dispute of applicant having different date and the copy containing different date of "copy ready for delivery" comes to an end.

Hassan Khurshid Hashmi, Advocate Supreme Court for Appellants.

Ghulam Mohiuddin Qureshi, Advocate Supreme Court for Respondent.

2022 S C M R 1882

[Supreme Court of Pakistan]

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

SAJID MEHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 398 of 2020, decided on 31st May, 2022.

(Against the judgment dated 01.02.2018 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 281/2015, Criminal Revision No. 130/2015 and Murder Reference No. 36/2015)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the accused or adverse to the prosecution could be produced on record---Ocular account furnished by the prosecution was reliable, straightforward and confidence inspiring---Both prosecution witnesses were inmates of the house, in front of which occurrence took place, therefore, their presence was natural and the same was fully established from the record---Medical evidence available on the record corroborated the ocular account so far as the nature, time and impact of the injury on the person of the deceased was concerned---Counsel for the accused could not point out any plausible reason as to why the complainant would falsely involve the accused in the present case and let off the real culprit, who had committed murder of his real brother---Substitution in such like cases was a rare phenomenon---According to the report of the Forensic Science Labo-ratory, the crime empty was found fired from the pistol recovered from the accused---Conviction of accused under section 302(b), P.P.C. was maintained---Appeal was dismissed.

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

----S. 302(b)---Qatl-i-amd---Medical evidence and ocular account---Preference---Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence---Casual discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons---During an incident when live shots are being fired, witnesses in a momentary glance make only tentative assessment of points where such fire shots appear to land and it becomes highly improbable to mention their location with exactitude.

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

----S. 302(b)--- Qatl-i-amd---Prosecution witnesses related to the deceased---Mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case.

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

----S. 302(b)---Qatl-i-amd---Minor discrepancies in prosecution case---While appreciating the evidence, the court must not attach undue importance to minor discrepancies---Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored---Accused cannot claim premium of such minor discrepancies---If importance is given to such insignificant inconsistencies then there would hardly be any conviction.

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

----Ss. 161, 265-F(2), 265-F(7) & 540---Witness mentioned in FIR but whose statement is not recorded under section 161, Cr.P.C.---Whether such witness could be examined under section 256-F or section 540, Cr.P.C. and his evidence relied upon---Held, that perusal of section 265-F, Cr.P.C. shows that nowhere in the said section it is mentioned that only those witnesses could be examined whose statements under section 161, Cr.P.C. have been recorded---Under section 265-F, Cr.P.C. the Trial Court is not bound to record the statements of only those witnesses who have been listed in the calendar of witnesses---Furthermore there is no bar that a witness, whose statement under section 161, Cr.P.C. had not been recorded at the time of investigation, cannot be allowed to be examined under section 540, Cr.P.C.---When a witness is examined in Court, whose statement has not been recorded at the time of investigation under section 161, Cr.P.C., the evidentiary value to be attached to the evidence of such witness has to be looked into and if it is found that prejudice has been caused to the accused then the evidence of such witness may or may not be acted upon.

To arrive at a just conclusion, the courts can call any person likely to be acquainted with the facts of the case after ascertaining it from the Public Prosecutor or the complainant, subject to general provisions that summoning of any such witness does not cause delay or defeat the ends of justice. Section 265-F(2) of Cr.P.C empowers the Courts to summon a person, after having been ascertained from the Public Prosecutor or the complainant, who is likely to be acquainted with the facts of the case, to be able to give evidence for the prosecution. Section 265-F(7), Cr.P.C grants even to the accused a right to apply for summoning any witness and production of documents. The very purpose of section 265-F, Cr.P.C is to ensure the concept of a fair trial and to achieve this purpose equal opportunity has been given to both the accused and the prosecution for summoning the evidence. It is nowhere mentioned in this section that only those witnesses could be examined whose statements under section 161, Cr.P.C. have been recorded. Under this provision of law i.e. section 265-F, Cr.P.C the Trial Court is not bound to record the statements of only those witnesses who have been listed in the calendar of witnesses.

On the other hand, section 540, Cr.P.C. empowers the Trial Court to summon a material witness even if his name did not appear in the column of witnesses, provided his evidence is deemed essential for the just and proper decision of the case. Section 540 is divisible in two parts. In the first part, discretion is given to the Court and enables it at any stage of an inquiry, trial or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person present in the Court, or (c) to recall and re-examine any person whose evidence had already been recorded. On the other hand, the second part appears to be mandatory and requires the Court to take any of the steps mentioned above if the new evidence appears to be essential to the just decision of the case. The object of the provision, as a whole, is to do justice not only from the point of view of the accused and the prosecution but also justice from the point of view of the society. The Court examines evidence under this section neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor to give it any unfair advantage against the accused. Fundamental thing to be seen is whether the Court considers this evidence necessary in the facts and circumstances of the particular case before it. If this results in only "filling of lacuna" that is purely a subsidiary factor and cannot be taken into consideration. There is no bar that a witness, whose statement under section 161, Cr.P.C. had not been recorded at the time of investigation, cannot be allowed to be examined under section 540, Cr.P.C. When a witness is examined in Court, whose statement has not been recorded at the time of investigation under section 161, Cr.P.C., the evidentiary value to be attached to the evidence of such witness has to be looked into and if it is found that prejudice has been caused to the accused then the evidence of such witness may or may not be acted upon.

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

----S. 302(b)---Qatl-i-amd---Witness, evidence of---Scope---Believing or disbelieving a witness, depends upon intrinsic value of the statement made by him---No universal principle that in every case, interested witnesses should be disbelieved or disinterested witnesses be believed; it all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on scene of crime and that he is making a true statement---What is relevant is what statement has been given and it is not the person but the statement of that person which is to be seen and adjudged.

Abid Ali v. The State 2011 SCMR 208 ref.

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

----S. 302(b)---Qatl-i-amd---Testimony of single witness---Conviction---Scope---Conviction in a murder case can be based on the testimony of a single witness, if court is satisfied that he is reliable---Quality of evidence matters and not its quantity.

Niaz-ud-Din v. The State 2011 SCMR 725; Asim v. The State 2005 SCMR 417; Lal Khan v. The State 2006 SCMR 1846 and Muhammad Sadiq v. The State 2022 SCMR 690 ref.

(h) Medical jurisprudence---

----Concept of 'rigor mortis' and factors affecting the same explained.

The phrase rigor mortis is latin with rigor meaning stiffness and mortis meaning death. Rigor mortis is a temporary condition. Depending on body temperature and other conditions, rigor mortis lasts proximately for 72 hours. The phenomenon is caused by the skeletal muscles partially contracting. The muscles are unable to relax, so the joints become fixed in place. Factors that affect rigor mortis include (i) temperature/weather, (ii) physical exertion, (iii) age, (iv) body fat, (v) any illness the person had at the time of death, (vi) sun exposure, (vii) gender, (viii) body structure, (ix) genetics, (x) tribe and (xi) inhabitation.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Death sentence reduced to life imprisonment---High Court while taking into consideration the fact that the motive part of the prosecution story was not proved; there was no blood feud between the parties; what actually preceded just before the occurrence remained shrouded in mystery; accused only fired single shot and co-accused of the accused had been acquitted by the Trial Court, had rightly taken a lenient view and converted the sentence of death into imprisonment for life---No further leniency could be shown to the accused in the matter of his sentence---Appeal was dismissed.

Muhammad Ahsan Bhoon, Advocate Supreme Court, Syed Ali Imran, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

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

2022 S C M R 1893

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Jamal Khan Mandokhail, JJ

DADU KHAN (DECEASED) through LRs and 3 others---Appellants

Versus

GHULAM ABBAS and 23 others---Respondents

Civil Appeal No. 339 of 2016, decided on 23rd June, 2022.

(Against judgment dated 09.12.2015 of Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Regular Second Appeal No.03/2003)

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

----S. 58---Mortgage---Concept of mortgage and rights of a 'mortgagor' and 'mortgagee' explained.

In essence, a mortgage is a contract between two parties (i.e. a borrower/mortgagor and a lender/mortgagee) where a capital sum of money is lent in exchange for a proprietary interest in land. Unlike other proprietary interests in land, a right accrues to both the mortgagor and a mortgagee once a mortgage deed has been executed between two parties. These interests are: (1) the mortgagor's/borrower's right to have the land redeemed/returned once the capital money lent has been repaid; and (2) the mortgagee's/lender's right to possess and acquire the property if the capital money lent is not repaid as stipulated in the mortgage deed. The proprietary rights of both the mortgagor and mortgagee are independent proprietary interests and there is oftentimes no bar on the parties to transfer and/or sell their respective rights in the mortgage to subsequent parties.

(b) Punjab Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----Ss. 3, 17 & Chapt. II---Redemption of mortgage---Bar on jurisdiction of Civil Court---Scope---Punjab Redemption and Restitution of Mortgaged Lands Act, 1964 has not barred the jurisdiction of Civil Courts to adjudicate on matters pertaining to redemption of mortgages insofar as Chapter II of the said Act is concerned.

(c) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 4---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 18 & 25 [since repealed]---Specific Relief Act, (I of 1877), S. 42---Redemption of mortgage---Bar on jurisdiction of Civil Court---Scope---Admittedly, the appellants (successors-in-interest of plaintiff) never challenged the mutation which vested in the Central Government mortgagee rights in the suit property, until 1979 by approaching the Civil Court---Nothing was available on the record to suggest that the appellants had ever approached the competent Revenue Officials for resolving their grievance in light of the ouster of jurisdiction in section 25 of the Displaced Persons (Land Settlement) Act, 1958 ('the Settlement Act')---Appropriate course for the appellants was to challenge the allotment made by the then Settlement Officers by exercising their right to appeal provided in section 18 of the Settlement Act, however, the appellants never challenged these allotments and also failed to approach the competent forum i.e. the competent Revenue Officer after the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 ('the Repealing Act') for redressal of their grievances qua the suit land---Clear ouster of jurisdiction of Civil Courts was provided with respect to mortgaged land that had subsequently been declared an evacuee property under section 25 of the Settlement Act read with section 2 of the Repealing Act---Even if the appellants had the equitable right to redeem their property, their right to redeem the property stood extinguished after non-payment of the mortgage money within sixty years of the mortgage i.e. till 1976 after taking into consideration the limitation period that stood frozen from 1947 to 1960 until the suit land was allotted to the predecessor-in-interest of respondents for the first time in 1960---Even otherwise, the entire proceedings of declaratory suit before the Civil Court were coram non judice in light of the ouster of jurisdiction as per section 25 of the Settlement Act--- Trial Court as well as the High Court had rightly dismissed the suit of the appellants owing to a lack of jurisdiction to adjudicate the matter---Appeal was dismissed.

Member BOR Punjab and another v. Mst. Siddiqan through L.Rs and others 2015 SCMR 1721 ref.

Ch. Afrasiab Khan, Advocate Supreme Court for Appellants.

Muhammad Shoaib Abbasi, Advocate Supreme Court for Respondents Nos. 1 - 2.

Ex-parte for Respondents Nos. 3 - 24.

Sohail Mehmood, Additional A.G.P. for Federation.

Qasim Ali Chohan, Additional A.G., Punjab and Shaukat lqbal, Naib-Tehsildar Jand (Attock) for Province of Punjab.

2022 S C M R 1907

[Supreme Court of Pakistan]

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

AZHAR HUSSAN and another---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 190 of 2017 and Criminal Petition No. 398-L of 2017, decided on 16th August, 2022.

(Against the judgment dated 20.02.2017 passed by the Lahore High Court, Multan Bench in Murder Reference No. 111/2012 and Criminal Appeal No. 772/2012)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the accused or adverse to the prosecution could be produced on record---Ocular account furnished by the prosecution was reliable, straightforward and confidence inspiring---Medical evidence available on the record corroborated the ocular account so far as the nature, time, locale and impact of the injury on the person of the deceased was concerned---Counsel for the accused could not point out any plausible reason as to why the complainant would falsely involve the accused in the present case and let off the real culprit, who had committed murder of his real daughter---Substitution in such like cases was a rare phenomenon, especially when admittedly there was no previous enmity between the parties---Conviction of accused under section 302(b), P.P.C was maintained---Petitions for leave to appeal were dismissed and leave was refused.

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

----S. 302(b)--- Qatl-i-amd--- Prosecution witnesses related to the deceased---Mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case.

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

----S. 302(b)---Qatl-i-amd---Minor discrepancies in prosecution case---While appreciating the evidence, the court must not attach undue importance to minor discrepancies---Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored---Accused cannot claim premium of such minor discrepancies--- If importance is given to such insignificant inconsistencies then there would hardly be any conviction.

Allah Bakhsh v. Ahmad Din 1971 SCMR 462 ref.

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

----S. 302(b)---Qatl-i-amd---Medical evidence---No blood stained earth at place of occurrence---Fire shot injury causing gut to come of the belly of the deceased---In such like injuries when the gut comes out of the belly, it seals the margin of the wound and the blood falls inside the body cavity instead of oozing outside the body---Non-existence of blood at the place of occurrence, for such injuries, is easily understandable and does not shatter the prosecution case.

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

----S. 302(b)--- Qatl-i-amd--- Ocular account---Sole basis for conviction---Where ocular evidence is found trustworthy and confidence inspiring then the conviction can be solely based upon it.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to life imprisonment---Motive not established---No recovery of weapon effected---Keeping in view the fact that no recovery was affected and motive had not been proved, the High Court had rightly taken a lenient view and converted the sentence of death into imprisonment for life---No further leniency could be shown to the accused---Petitions for leave to appeal were dismissed and leave was refused.

Ms. Saba Saeed Sheikh, Advocate Supreme Court for Petitioner (in Jail Petition No. 190 of 2017 via video link Lahore).

Sikandar Javed, Advocate Supreme Court for Petitioner (in Criminal Petition No. 398-L of 2017, via video link Lahore).

Nemo for the State.

2022 S C M R 1913

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

MUHAMMAD TAYYAB BUKHARI and others---Petitioners

Versus

Dr. ANEES-UR-REHMAN and others---Respondents

Civil Appeals Nos. 49 to 54 of 2022

(On appeal from the judgment dated 23.12.2020 of the Lahore High Court, Lahore passed in I.C.As. Nos. 39525/19, 50156/19, 50158/19, 24172/20 and 24791/20)

AND

Civil Misc. A. Nos. 2987, 2988 and 11073/21 in C.P. NIL/21 (For permission to file and argue)

AND

Civil Misc. Application No. 10683/21 in Civil Appeal No.53/22

(For impleadment Usama Naqi and others as respondents in the title Civil Appeal)

Civil Appeals Nos. 49 to 54 of 2022, Civil Misc. As. Nos. 2987, 2988 and 11073 of 2021 in C.P. Nil of 2021 and Civil Misc. Application No. 10683 of 2021 in Civil Appeal No. 53 of 2022, decided on 5th September, 2022.

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

----R. 20---Punjab Civil Servants Act (VIII of 1974), S. 23---Constitution of Pakistan, Art. 27(1), third proviso---Interpretation of Article 27(1) of the Constitution and the three provisos thereto---Notification issued under Rule 20 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, reserving a certain percentage of vacancies in respect of certain areas of the Province ('the impugned Notification')---Constitutionality---Article 27(1) of the Constitution commences by safeguarding against discrimination in the service of Pakistan but then proceeds to create certain exceptions; its first proviso permitted that for a period of forty years from the commencing day posts for persons belonging to any class or area may be reserved to secure their adequate representation in the service of Pakistan---Commencing day of the Constitution is 14 August 1973, therefore, forty years stood expired on 14 August 2013, making the first proviso inconsequential---Second proviso is not applicable, in the present case, as it is with regard to services which can only be provided by a member of a particular sex---Third proviso uses language similar to the language of the first proviso in that if there is under-representation of any class or area in the service of Pakistan 'it may be determined by an act of Majlis-e-Shoora (Parliament)'---Admittedly, neither the Province concerned nor the Federation has legislated with regard thereto---In the present case, the Provincial Government, took it upon itself to insert Rule 20 in the Punjab Civil Servants (Appointment and Conditions of Service), Rules, 1974 ('the Rules') and issued the impugned Notification by, wrongly, assuming that it could do so, and in doing did not act in accordance with the third proviso to Article 27(1) of the Constitution---Neither the Notification nor Rule 20 of the Rules accorded with the law or the Constitution.

Muhammad Saleem v. Federal Public Service Commission 2020 SCMR 221; Punjab Public Service Commission v. Hasnain Abbas 2021 SCMR 1017 and Aitzaz Alam Malik v. Federation of Pakistan Order dated 6th December, 2018 passed in Constitutional Petition Nos. 34 and 71 of 2017 and others distinguished.

(b) Constitution of Pakistan---

----Art. 189---Binding precedent of the Supreme Court---Scope---To constitute a binding precedent the Supreme Court should have decided a question of law or it's decision be based upon or enunciates a principle of law.

M. Tayyab Bukhari (Appellant) in person (in C.A. 49 of 2022).

Mudassar Khalid Abbasi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.As. 50, 51, 54 of 2022 and C.M.A. 11073 of 2021).

Shaukat Rauf Siddiqui, Additional Advocate-General, Punjab, Suleman Aakash, Law Officer, Special Education Department, Punjab, Faheem Ahmed Khan, Additional Secretary, Services and General Administration Department, Punjab for Appellants.

Hafiz Arshad Ahmed, Law Officer, Services and General Administration, Department, Punjab for Appellants (in C.As. 52 and 53 of 2022) (and also for Respondents in all other cases)

Mubeen-ud-Din Qazi, Advocate Supreme Court for Applicants (in C.M.As. 2987-2988 of 2021).

Mushtaq Ahmed Mohal, Advocate Supreme Court for Applicants (in C.M.A. 10683 of 2021).

Iftikhar Ahmed Mian, Advocate Supreme Court along with Rai Azhar Iqbal, Advocate Supreme Court for Respondents No. 2 (in C.A. 49 of 2022 and Respondent No.1 in C.As. 52 and 54 of 2022).

Salman Mansoor, Advocate Supreme Court for Respondent No. 1 (in C.A. 53 of 2022)

2022 S C M R 1920

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, A.C.J., Mazhar Alam Khan Miankhel and Munib Akhtar, JJ

Engineer NASIR SHAFQAT MARRI---Petitioner

Versus

PAKISTAN ENGINEERING COUNCIL ELECTION CELL, ISLAMABAD and others---Respondents

Civil Petition No. 227-Q of 2021, decided on 2nd September, 2021.

(On appeal from the judgment/order dated 04.08.2021 of the High Court of Balochistan passed in C.P. No. 1146 of 2021)

Pakistan Engineering Council Act (V of 1976)---

----Ss. 9(2) & 25A---Government Servants (Conduct) Rules, 1964, R. 24---Elections for the Governing body of Pakistan Engineering Council ('the Council')---Prohibition on taking part in politics and elections---Whether Government servants were prohibited from taking part in elections of the Council in view of Rule 24 of the Government Servants (Conduct) Rules, 1964 ('the Conduct Rules')---Held, that the provisions of Rule 24 of the Conduct Rules which bear the heading 'Taking part in politics and elections" is concerned with legislative bodies that are political in nature---On the other hand, the Council is a professional body and is constituted by a statute which makes it a statutory professional body---Regulations and bye-laws that the Council frames are concerned with professional matters pertaining solely and specifically to engineers---Regulatory function of the Council is not a political function nor a law making function but is a supervisory function---Pakistan Engineering Council Act, 1976 itself contemplates Government servants to be members of the Council and, therefore, theobjection that Government servants are forbidden to take part in elections for the Governing body of the Council is contradicted by the provisions of the Act itself---Petition for leave to appeal was dismissed and leave was refused.

Abdul Razzaq Shar, Advocate Supreme Court for Petitioner.

M. Yasin Hatif, Advocate Supreme Court for Respondents Nos. 1-2.

2022 S C M R 1923

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Syed Mansoor Ali Shah, JJ

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY and others---Petitioners

Versus

ARY COMMUNICATIONS LTD. and others---Respondents

Civil Petitions Nos. 1716 to 1724 of 2022, decided on 25th July, 2022.

(Against the consolidated order of High Court of Sindh, Karachi dated 08.02.2022, passed in C.Ps. Nos. D-2795, D-2796, D-2797, D-3308, D-3312, D 3313, D-3314 of 2018, C.Ps. Nos.D-6644 and D-6645 of 2017)

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

----S. 26---Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules 2010, R. 3---Constitution of Pakistan, Arts. 25 & 27---Honorary appointments to public offices---Appointment process---Chairperson and Members of the Council of Complaints ("COC"), Pakistan Electronic Media Regulatory Authority ("PEMRA")---Appointments to honorary public offices, such as the COC, are to be made through an open and competitive process including advertisement---Offices of the COC are associated with important roles and are required to be filled with the most meritorious candidates---Although neither the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') nor the Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules 2010 ("Rules"), expressly require the public advertisement of the COC slots, however, the Ordinance, and also the Rules, require that the Chairperson and Members of the COC shall be citizens of eminence---Equally true that "citizens of eminence" may not themselves come forward to apply for these honorary positions, rather, the Government itself needs to spot such individuals through a process of headhunt---Relevant directions issued by the Supreme Court for filling places available on the COC stated.

Appointees to the Council of Complaints ("COC") play an important role in public life relating to the issue of public complaints in the realm of regulation of electronic media in the country. Obviously, the process of making such public appointments should be designed and conducted in a way to ensure that the best people, from the widest possible pool of candidates, are considered and appointed to these positions.

Sir Gerry Grimstone, 'Better Public Appointments - A Review of the Public Appointments Process' (Cabinet Office Whitehall 2016) ref.

Open selection process allows for unexpected expressions of interest. It prioritizes competition and helps discovering best possible candidates. The process, in turn, improves the governance and performance of the organization. In addition, such transparent process wins public confidence that appointees are selected on merit from a wide and inclusive pool of applicants. On the other hand, a closed selection approach limited to a headhunt itself conducted by the Government may prevent the organization from tapping in best available talent. Many outstanding candidates of whom the Government is unaware can be missed. Headhunting selectors have been observed to be looking for people like themselves and thus limiting the prospect of diversity. Besides, public appointments made behind closed doors raise eyebrows because the door of partisan intervention and patronage remains open.

Elena Doldor, Susan Vinnicombe, Mary Gaughan and Ruth Sealy, 'Gender Diversity on Boards: The Appointment Process and the Role of Executive Search Firms' (Equality and Human Rights Commission Research Report 85, International Centre for Women Leaders, Cranfield School of Management Cranfield University 2012) ref.

Making appointment to a public office is a sacred trust which is to be discharged justly and fairly in the best interest of the public, based on a process that is fair, transparent and nondiscriminatory. Highest standards of diligence, transparency and probity are to be observed so that a qualified, eligible and most deserving person is selected for a post. The constitutional guarantee of equality and safeguard against discrimination is not limited to paid services or jobs but extends to all appointments to public offices, honorary or otherwise.

Chief Secretary Punjab v. Abdul Raoof Dasti 2006 SCMR 1876; Syed Mubashir Raza Jaffri v. Employees Old Age Benefits Institutions (EOBI) 2014 SCMR 949; Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159 and Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

There cannot be agreement with the argument that COC appointments being of honorary nature do not need to go through the requirements associated with other appointments' selection process. It is as if to suggest that honorary appointments are not important enough to merit a selection process based on competitive transparency. Such a notion is belied by the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') which requires that only eminent citizens could be given a place on the COC. The words "citizens of eminence" show that seeking the best person for the job becomes the only consideration before the appointing authority. COC offices are associated with important roles and are required to be filled with the most meritorious candidates. The honorary nature of COC appointments is significant and a step in the direction to attract eminent persons willing to take up the job of independently settling complaints against electronic media without any pecuniary strings attached to the terms and conditions of their offices. This further accentuates the need that COC membership should consist of the finest and most accomplished persons.

Hadayat Ullah v. Federation of Pakistan 2022 SCP 242 (Syed Mansoor Ali Shah J) and Moinuddin v. State of Uttar Pradesh AIR 1960 All 484 ref.

Although neither the Ordinance nor the Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules 2010 ("Rules"), expressly require the public advertisement of the COC slots, however, the Ordinance, and also the Rules, require that the Chairperson and Members of the COC shall be citizens of eminence. The idea is that the composition of the COC shall consist of respected, qualified and experienced members of society who shall work independently under facilitation of PEMRA and take action on the complaints received against broadcast media and distribution service providers. The search for such an array of individuals must begin with a transparent call for candidates. Only then can optimum utilization of talent be achieved and ensured and purpose behind the provision of sending the citizens of eminence to the COC be realized.

It is also true that advertising may leave out some high-caliber candidates who would have accepted a direct appointment but would prefer not to join an open competition. It was possible that "citizens of eminence" may not themselves come forward to apply for these honorary positions, rather, the Government itself needs to spot such individuals through a process of headhunt.

Supreme Court directed that alongside the process initiated with the advertisement of the places available on the COC, the Government may carry out its own search of finding the best possible candidates for the job; that any suitable candidates identified in this executive search may be approached with the prospective offer of serving on the COC; that consent of such candidates to such offer may be treated as their application for the available positions, and such candidatures shall be added to the group of applications received in response to the public advertisement; that all candidates, whether identified in Government search or those who themselves choose to apply in response to advertisement, shall be assessed against an objective criteria which may relate to conduct, reputation, credibility, integrity, professional excellence etc., and that the most eligible candidates shall be selected out of the consolidated pool.

Moinuddin v. State of Uttar Pradesh AIR 1960 All 484; Danielle Wood, Kate Griffiths and Anika Stobart, 'New politics: A better process for public appointments' (Report No. 2022-09, Grattan Institute 2022) 16 ref.

Haroon Dugal, Advocate Supreme Court (video-link Lahore) along with Mohsin Hameed Dohar, Dir. PEMRA and Jalal Haider, Law Officer for Petitioners.

Ayan Mustafa Memon, Advocate Supreme Court for Respondents.

2022 S C M R 1931

[Supreme Court of Pakistan]

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

SHAMSHER AHMAD and another---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 154 of 2016 and Criminal Petition No. 1084-L of 2016, decided on 1st August, 2022.

(Against the judgment dated 23.12.2015 passed by the Lahore High Court, Lahore passed in Criminal Appeal No. 810/2011 and Murder Reference No. 209/2011)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the accused or adverse to the prosecution could be produced on record---Ocular account furnished by the prosecution was reliable, straightforward and confidence inspiring---Medical evidence available on the record corroborated the ocular account so far as the nature, time, locale and impact of the injury on the person of the deceased was concerned---Counsel for the accused could not point out any reason as to why the complainant would falsely involve the accused in the present case and let off the real culprit, who had committed murder of his real son---Substitution in such like cases was a rare phenomenon---So far as the delay of about 2 hours 45 minutes in lodging the FIR was concerned, the complainant in his cross-examination had reasonably explained such delay---Parties were known to each other and no question of mistaken identity arose---Even otherwise, the prosecution witnesses of ocular account had clearly mentioned that a tube-light was glowing at the main gate in front of which the occurrence took place---Source of light was also established from the rough site plan as well as scaled site plan, which was essential part of the prosecution case---After the occurrence, the accused also remained absconder for about six months, which was also a corroboratory piece of evidence against him---Sufficient evidence was available to sustain the conviction of 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---Ocular and medical evidence---Preference---Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence.

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

----S. 302(b)--- Qatl-i-amd---Prosecution witnesses related to the deceased---Mere relationship of the prosecution. witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill-will is established on the record to falsely implicate the accused in the case.

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

----S. 302(b)---Qatl-i-amd---Minor discrepancies in prosecution case---While appreciating the evidence, the court must not attach undue importance to minor discrepancies---Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored--- Accused cannot claim premium of such minor discrepancies---If importance is given to such insignificant inconsistencies then there would hardly be any conviction.

Allah Bakhsh v. Ahmad Din 1971 SCMR 462 ref.

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

----S. 302(b)--- Qatl-i-amd---Reappraisal of evidence--- Sentence, reduction in---Death sentence reduced to life imprisonment---Motive not established---Recovery of weapon inconsequential---High Court had rightly disbelieved the motive by holding that there was no positive proof that the deceased was, instrumental in rejection of matrimonial proposal sent by the accused---So far as the recovery of weapon of offence was concerned, admittedly no empty was recovered from the place of occurrence, which could be sent to Forensic Science Laboratory for analysis, therefore, the recovery was inconsequential---High Court had rightly taken a lenient view and converted the sentence of death into imprisonment for life---No further leniency could be shown to the accused---Petition for leave to appeal was dismissed and leave was refused.

Malik Matee Ullah, Advocate Supreme Court for Petitioners (in J.P. 154 of 2016) (via video link, Lahore)

Saiful Malook, Advocate Supreme Court for Petitioners (in Cr. P. 108-L of 2016)

Mirza Abid Majeed, D.P.G. for the State.

2022 S C M R 1938

[Supreme Court of Pakistan]

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

COMMISSIONER INLAND REVENUE, REGIONAL TAX OFFICE, FAISALABAD---Petitioner

Versus

ABDUL HAMEED, LABOUR CONTRACTOR---Respondent

Civil Petitions Nos. 6309 to 6312 of 2021, decided on 31st August, 2022.

(Against the order dated 15.09.2021 of the Lahore High Court, Lahore passed PTRs Nos. 527 to 530 of 2010)

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

----Ss. 153(1)(b), 153(1)(c) & 153(9) [as relevant at the time of the present case]---'Services', meaning of---Scope---Rendering of labour and carriage services---Whether income from labour and carriage services is liable to fixed tax regime---Held, that definition of 'services' in subsection (9) of section 153 of the Income Tax Ordinance, 2001 is not exhaustive and uses the word 'includes' and then mentions a few services---'Services' mentioned in section 153(9) of the Ordinance are not exhaustive and may include other services, including labour and carriage services---Therefore, to exclude labour and carriage services it would be discriminatory, which is not permissible---In the present case, the taxpayer had entered into a contract for rendering labour and carriage services, which was covered by section 153(1)(b) and also by the exception to section 153(1)(c) of the Ordinance, therefore, it was subject to the final tax regime (erstwhile presumptive tax regime) rather than to the normal tax regime---Petitions for leave to appeal were dismissed and leave was refused. Commissioner of Income Tax/Wealth Tax v. Rehman Enterprises 2008 PTD 1897 and Commissioner Inland Revenue v. Muhammed Ali 2016 PTD 377 endorsed.

Premier Mercantile Services (Pvt.) Ltd. v. C.I.T 2007 PTD 2521 not applicable.

(b) Federal Board of Revenue Act (IV of 2007)---

----Ss. 3 & 4---Federal Board of Revenue---Lack of proper record keeping by the Federal Board of Revenue (FBR)---Necessity of maintaining data bank of cases---Supreme Court observed that in not maintaining a data bank of its cases the interest of FBR is jeopardized and the Supreme Court's time is also wasted; that the FBR constitutes the economic and financial backbone of the country but by not maintaining a data bank of its cases the working of its own officers is hampered, and so too that of the tribunals and of the courts; that in the age of technology this lapse is unacceptable---Supreme Court directed that since the FBR remains remiss of its duties a copy of the present order be sent to the Chairman and every Member of the FBR, to the Secretary, Finance Division, Secretary Law and Justice Division and to the Cabinet Secretary, Cabinet Division, Government of Pakistan with the expectation that the noted shortcomings will be attended to with the promptness that they deserve.

Dr. Farhat Zafar, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record along with Syed Hassan Sardar, Additional Commissioner, FBR and Naeem Hassan, Secretary (Lit), FBR for Petitioner.

Nemo for Respondent.

2022 S C M R 1943

[Supreme Court of Pakistan]

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

Messrs KOHINOOR SPINNING MILLS LTD.---Petitioner

Versus

COMMISSIONER INLAND REVENUE---Respondent

Civil Petition No. 2006 of 2022, decided on 23rd August, 2022.

(Against the order of Lahore High Court, Lahore dated 21.04.2022 passed in PTR No. 209 of 2012)

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

----Ss. 131 & 133---Constitution of Pakistan, Art. 185(3)---Questions of law not raised before the Tribunal or High Court---Supreme Court is not a forum to raise fresh questions of law which have not been examined by the Tribunal or the High Court or do not even arise from the decision of the Tribunal---In numerous cases, a totally new question of law, which has not been raised earlier is agitated before the Supreme Court for the first time without disclosing that it has not been raised earlier---Supreme Court deprecated such practice and observed that the parties must restrict themselves to the questions of law raised and decided by the High Court and desist from introducing a new question of law by giving an impression that the same was not addressed by the forums below.

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

----S. 21(e)---Income from business, computation of---Deductions not allowed---Contributions made by tax-payer company to an unapproved gratuity fund---Section 21(e) of the Income Tax Ordinance, 2001 clearly stipulates that the contributions to an unapproved gratuity fund cannot be deducted while computing the income tax of a person under the head "Income from Business"---Admittedly, in the present case, the gratuity fund has not been approved---Contention of the counsel for the tax payer that once the contribution is made to a gratuity fund, section 21(e) is not applicable, is an absurd argument and totally negates the purpose and object of the statutory requirement of an approved gratuity fund---If the argument of the counsel were to hold true, the requirement of an approved gratuity fund is rendered totally meaningless, if the taxpayer simply states making the contribution to an unapproved gratuity fund and thereafter seeks deduction from the income from business---Such an interpretation is not only absurd but is also unsustainable in law---Petition for leave to appeal was dismissed and leave was refused.

Faiz Rasool Jalbani, Advocate Supreme Court for Petitioner (video link Lahore).

Ibrar Ahmed, Advocate Supreme Court for Respondent.

2022 S C M R 1946

[Supreme Court of Pakistan]

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

Rana MUHAMMAD IMRAN NASRULLAH---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 358-L of 2022, decided on 23rd August, 2022.

(Against the order dated 14.02.2022 passed by the Lahore High Court, Lahore in Criminal Misc. No. 933-B of 2022)

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 337-H(2), 506(ii), 148, 149 & 440---Constitution of Pakistan, Art. 185(3)---Trespassing, extending threats, demolishing constructed walls and making straight fire shots---Ad interim pre-arrest bail, confirmation of---Further inquiry---Admittedly a suit for declaration qua the disputed plot in question was still pending adjudication before the court of competent jurisdiction---In this view of the matter, the possibility of false implication just to pressurize the accused side to gain ulterior motives could not be ruled out --- All the offences in the crime report except sections 506(ii) & 440, P.P.C. were bailable---As far as section 440, P.P.C. was concerned, the same was added at a belated stage and the application of the same would be resolved by the Trial Court after recording of evidence---Whereas section 506(ii), P.P.C. would not be applicable where an overt act materialized and ended into an overt act, in consequence of criminal intimidation---Case of the accused squarely fell within the ambit of section 497(2), Cr.P.C. entitling for further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed, and ad-interim bail granted to the accused was confirmed.

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

----S. 506(ii)---Criminal intimidation---Scope---When in consequence of criminal intimidation an overt act materializes and ends into an overt act, the provision of section 506(ii), P.P.C. would not be applicable and the only provision which will remain in the field is the overt act.

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

----Ss. 498---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail---Merits of case---While granting pre-arrest bail, the merits of the case can be touched upon by the Court.

Miran Bux v. The State PLD 1989 SC 347 and Sajid Hussain alias Joji v. The State PLD 2021 SC 898 ref.

Saeedullah Khan, Advocate Supreme Court (via video link from Lahore) for Petitioners.

Rana Muhammad Zahid, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 2.

Mirza Muhammad Usman, D.P.G., Asif Ali Shah, DSP, Rana Abdul Ghafoor, SI and Muhammad Afzal, ASI for the State.

2022 S C M R 1950

[Supreme Court of Pakistan]

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

Mst. FURSAN---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 994 of 2022, decided on 26th August, 2022.

(Against the judgment of Peshawar High Court, Peshawar, dated 06.07.2022 passed in Criminal Miscellaneous B.A. No.2023-P of 2022)

(a) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S. 26---Criminal Procedure Code (V of 1898), Ss. 497 & 498---Provisions of sections 497 & 498, Cr.P.C. that deal with grant of bail in non-bailable offences apply to the offences under the Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019 ('the Act'), by virtue of the general provisions of section 26 of the Act, according to which the provisions of the Cr.P.C. apply to trials and appeals under the Act, except as otherwise provided in the Act.

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

----S. 497(1), first proviso & 497(2)---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S. 11(c)---Constitution of Pakistan, Art. 185(3)---Female accused found in possession of 1005 grams of methamphetamine---Likelihood of repeating the offence---Bail, refusal of---Offence alleged against the accused fell within the prohibitory clause of section 497(1), Cr.P.C.---Accused was arrested red handed on the spot and a considerable quantity of contraband ICE (methamphetamine) was recovered from her personal possession, but no plausible explanation had been offered by her in respect of the narcotics substance---Recovery memo was duly supported by marginal witnesses who were present on the spot with the seizing officer---No ill-will or mala fide had been shown by the accused on the part of police to falsely implicate her in the present case---Accused has thus not been able to make out a case of further inquiry for grant of bail in an offence of prohibitory clause, under section 497(2), Cr.P.C.---Examining the case of the accused under the first proviso to section 497(1), Cr.P.C., as she was a woman, there were three settled exceptions to the rule of granting bail under the said proviso i.e. the likelihood of the accused to abscond to escape the trial; to tamper with the prosecution evidence, which included influencing the prosecution witnesses; or to repeat the offence---Offences relating to narcotic drugs were of such a nature that did indicate the likelihood of the repetition of the offence by the accused---Dealing in narcotic drugs was usually the business of the persons involved therein, and was not a spontaneous or one time act, and the women were often involved in it as carriers for the transportation, supply and sale of narcotic drugs---Likelihood of such an offence being repeated by the accused could not, therefore, be ruled out---Case of the accused thus came within the scope of the exception of likelihood of repeating the offence---Accused was not found entitled to the relief of bail under the first proviso to section 479(1), Cr.P.C. also---Petition for leave to appeal was dismissed.

Tahira Batool v. State 2022 SCP 247 - Citation from the SCP website distinguished.

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

Mian Shafaqat Jan, Additional A.G., Khyber Pakhtunkhwa, Niaz Muhammad DSP and Noor Muhammad, SI for the State.

2022 S C M R 1954

[Supreme Court of Pakistan]

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

ABDUL WAHID---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 103-P of 2022, decided on 27th July, 2022.

(On appeal against the order dated 29.04.2022 passed by the Peshawar High Court, Peshawar in Criminal M.B.A. No. 1033-P of 2022)

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

---S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324 & 109---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, grant of---Further inquiry---Accused was not nominated in the crime report---Even the complainant while lodging the FIR had not given the description of the assailant regarding his body structure, age, height and other antecedents etc.---However, after the lapse of about one month, the complainant preferred to make statement under section 164, Cr.P.C. wherein the accused was cited as the assailant, without disclosing the source of information---No recovery had been affected from the accused rather the six empties collected from the place of occurrence were found fired from different weapons, which reflected that the occurrence had been committed by more than one person---So far as the interview of the accused wherein he allegedly confessed his guilt was concerned, the same prima facie had no evidentiary value as neither the maker of the video had been cited as a witness in the calendar of witnesses nor the forensic test of the said video had been conducted---Bulk of the evidence was still to be recorded by the Trial Court---Accused was behind bars for the last more than eight months---Case of the accused squarely fell within the ambit of section 497(2), Cr.P.C. entitling for further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

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

----S. 302---Qatl-i-amd---Confessional video of accused---Evidentiary value---Such kind of alleged confessionary video is not beneficial to the complainant/prosecution unless it is properly produced before the court of law, its genuineness is established and then the same is proved in accordance with law for it to be treated as evidence in the case---With the advancement of science and technology, it is now possible to get a forensic examination, audit or test conducted through an appropriate laboratory so as to ascertain as to whether an audio tape or a video is genuine or not.

Ishtiad Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675 ref.

Abdul Fayyaz, Advocate Supreme Court (via video link from Peshawar) for Petitioner.

Ms. Aisha Tasneem, State counsel and Mukhtiar Khan, Inspector for the State.

Mr. Hussain Ali, Advocate Supreme Court (via video link from Peshawar) for Respondent No. 2.

2022 S C M R 1994

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Muhammad Ali Mazhar, JJ

Messrs LUCKY CEMENT LTD. through General Manager, Peshawar---Appellant

Versus

KHYBER PAKHTUNKHWA through Secretary Local Government and Rural Development, Peshawar and others---Respondents

Civil Appeal No. 2092 of 2019, decided on 14th September, 2022.

(Against the judgment dated 07.02.2018 passed by Peshawar High Court, Peshawar in Writ Petition No. 359-P of 2016)

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

----S. 42(5)---Constitution of Pakistan, Arts. 18 & 25---Property tax, imposition of---Discrimination---Buildings of cement manufacturer/ appellant subjected to discriminatory property tax in comparison to other cement manufacturers---Held, that appellant could not be made to face a more onerous tax regime than its competitors---When discrimination was taking place and an unfair/unreasonable benefit/advantage was given to the appellant's competitors for no discernible reason it was incumbent upon the (Provincial) Government to exercise its powers under section 42(5) of the Act and rationalize matters, which it failed to do---Imposing property tax on appellant's buildings at a higher rate than which was imposed on the buildings of other cement manufacturers was discriminatory and to such extent it was illegal and ultra vires.

If the imposition of property tax is apparently discriminatory, then to sustain such discrimination the taxing authority/Government must demonstrate that it was justifiable by presenting some identifiable or intelligible criteria and further prove that the same was permissible under the Khyber Pakhtunkhwa Local Government Act, 2013 ('the Act') (or its predecessor law). In the present case there is nothing on record to justify, and thus sustain, the discriminatory imposition of property tax by imposing a higher property tax rate on the buildings of the appellant compared to what was imposed on the buildings of other cement manufacturers.

Article 25 of the Constitution mandates equality before the law and Article 18 of the Constitution secures the right to conduct any lawful trade or business. If both these Articles are read together and applied to the present case it means that the appellant cannot be made to face a more onerous tax regime than its competitors. I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 and Collector of Customs v. Flying Kraft Paper Mills (Pvt.) Ltd. 1999 SCMR 709 ref.

The Legislature of the Province had granted to the Government of the Province the power under section 42(5) of the Act (to direct a local government to levy any tax, increase or reduce any such tax or the assessment thereof), which it is to exercise in appropriate cases, including when similarly placed persons/entities/buildings were being treated discriminatingly or one was given an unfair or unreasonable advantage over another similarly placed. However, the Government did not exercise the power that the Act had granted to it under section 42(5) of the Act. When the (Provincial) Government was aware of, or had been informed, that discrimination was taking place and an unfair/unreasonable benefit/advantage was given to the appellant's competitors for no discernible reason it was incumbent upon the Government to exercise its powers under section 42(5) of the Act and rationalize matters, and its failure to do so would mean that it was acting in an arbitrary and capricious manner, which was not permissible.

Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705; Frederic Guilder Julius v. The Lord Bishop of Oxford (1880) 5 Appeal Cases 214 and M. v Scottish Ministers [2012] UK SC 58 ref.

The treatment meted out to the appellant to the extent of imposing property tax on its buildings at a higher rate than which was imposed on the buildings of other cement manufacturers was discriminatory and to such extent it is illegal and ultra vires.

Supreme Court directed that the respondents (concerned authorities) shall treat the buildings of the appellant in like manner to those of other cement manufacturers in the Province for purposes of property tax; that if an intelligible differentia or criterion regarding the imposition of property tax on the buildings of cement manufacturers is made in the future, and it is permissible with the applicable law and accords therewith, the taxing authority/Government may impose property tax in accordance therewith; that as regards the property tax already paid by the appellant, which was at a rate higher than that which was imposed on the buildings of other cement manufacturers, the difference in such amount is to be repaid to the appellant or adjusted with regard to the appellant's future property tax liability.

Pfizer Laboratories Ltd. v. Federation of Pakistan PLD 1998 SC 64 and Tower Hamlets London Borough Council v. Chetnik Developments Ltd. 1988 (1) AER 961 ref.

Salman Akram Raja, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Shumail Ahmed Butt, A.G. Khyber Pakhtunkhwa, Atif Ali Khan, Additional A.G. Khyber Pakhtunkhwa along with Eid Badsha, Director, Excise and Taxation, Khyber Pakhtunkhwa for the Government of Khyber Pakhtunkhwa.

Sabah-ud-Din Khattak, Advocate Supreme Court for Respondent No. 3.

2022 S C M R 2001

[Supreme Court of Pakistan]

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

MUHAMMAD ALI---Petitioner

Versus

SAMINA QASIM TARAR and others---Respondents

Civil Petition No. 3130 of 2020, decided on 29th September, 2022.

(On appeal against the judgment dated 01.10.2020 passed by the Islamabad High Court, Islamabad in Writ Petition No. 1536 of 2020)

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

----Ss. 405 & 406--- Criminal breach of trust--- Expressions 'entrustment' and 'trust' used in section 405, P.P.C.---Scope---Expression "entrustment" with the property or with any domain over the property has been used in a broader sense under section 405, P.P.C.; it has wide and different implications in different context---While expression "trust" in section 405, P.P.C. is a comprehensive expression and has been used to denote various types of relationship, like relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee.

(b) Administration of justice---

----Pursuing concurrent remedies under civil and criminal law---Permissibility---Remedy (for the same cause) can be pursued both under the criminal law and civil law in diverse situations---Although they plainly overlap, they do not always exclude one another, and essentially vary in both content and impact---Any act does not lose its criminal nature just because it has a civil liability, and it is wrongly presumed that when a civil liability is under challenge and its discipline relates to civil remedy, criminal prosecution is unsustainable.

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

----Ss. 405 & 406---Criminal Procedure Code (V of 1898), S. 154---Constitution of Pakistan, Art. 199---Criminal breach of trust---First Information Report (FIR) quashed by High Court in its Constitutional jurisdiction---Legality---In the present case, the alternative remedy of filing petition (under Cr.P.C) was not availed rather accused persons/ respondents directly filed a Constitution petition (before the High Court) calling in question the very registration of FIR---Contents of the crime report were totally ignored by the High Court and were not taken into consideration while adjudicating the matter---Bare perusal of the FIR and the agreement to sell prima facie revealed that a clear allegation of entrustment and misappropriation of the property was made by the petitioner/vendee against the respondents/vendors in the FIR, which prima-facie disclosed an offence under section 405, P.P.C. punishable under section 406, P.P.C.---Admittedly, despite lapse of statutory period, the challan had not been submitted before the Trial Court, which ex-facie meant that investigation had not been completed---In such circumstances, the possibility could not be ruled out that further material may be collected for proceeding with trial---Question regarding determination as to whether there was an entrustment of property, as asserted by the petitioner, could best be left to Trial Court to consider and decide in exercise of its power after recording of evidence--- Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of the High Court was set-aside with the direction to the prosecution branch to submit challan of the case before the Trial Court without un-necessary delay.

Muhammad Shahid Kamal Khan, Advocate Supreme Court along with Petitioner in person.

Nemo for Respondents Nos. 1 - 2.

Jehangir Jadoon, A.G. Islamabad and Fakhar Abbas, S.I. for the State.

2022 S C M R 2006

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Syed Mansoor Ali Shah, JJ

ZAFAR IQBAL and others---Appellants

Versus

NASEER AHMED and others---Respondents

C.A. No. 775 of 2015, decided on 1st October, 2021.

(Against the judgment dated 12.11.2014 and decree dated 22.06.2015 of Lahore High Court, Lahore passed in R.S.A. No. 19 of 2006)

Civil Procedure Code (V of 1908)---

----S. 100---Second appeal---Scope of jurisdiction of High Courts in second appeal under section 100, C.P.C. and of the expression "contrary to law" used therein stated.

Under section 100 of the Code of Civil Procedure 1908 ("C.P.C."), a second appeal to the High Court lies only on any of the following grounds: (a) the decision being contrary to law or usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; and (c) a substantial error or defect in the procedure provided by C.P.C. or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon merits. The scope of second appeal is thus restricted and limited to these grounds, as section 101 of C.P.C. expressly mandates that no second appeal shall lie except on the grounds mentioned in section 100. Notwithstanding such clear provisions on the scope of second appeal, sometimes the High Courts deal with and decide second appeals as if those were first appeals; they thus assume and exercise a jurisdiction which the High Courts do not possess, and thereby also contribute for unjustified prolongation of litigation process which is already chocked with high pendency of cases.

No doubt, the expression "law" used in the phrase "the decision being contrary to law" in the ground (a) mentioned in section 100 of the C.P.C. is not confined to "statutory law" only, but also includes the "principles of law" enunciated by the constitutional courts, which have the binding force of law. And, it is an elementary principle of law that a court is to make a decision on an issue of fact on the basis of legally relevant and admissible evidence available on record of the case. The decision of a court is, therefore, considered "contrary to law" when it is made by ignoring the relevant and duly proved facts, or by considering the irrelevant or not duly proved facts. The expressions "relevant evidence" and "admissible evidence" are often used interchangeably, in legal parlance, with "relevant facts" and "duly proved facts" respectively, and a decision is said to be "contrary to law" and is open to examination by the High Courts in second appeal when: (i) it is based no evidence, or (ii) it is based on irrelevant or inadmissible evidence, or (iii) it is based on non-reading or misreading of the relevant and admissible evidence. A decision on an issue of fact that is based on correct reading of relevant and admissible evidence cannot be termed to be "contrary to law"; therefore, it is immune from scrutiny in second appeal. A High Court cannot, in such case, enter into the exercise of re-reading and re-appraisal of evidence, in second appeal, and reverse the findings of facts of the first appellate court, much less the concurrent findings of facts reached by the trial court as well as the first appellate court. It has, in second appeal, no jurisdiction to go into the question relating to weightage to be attached to the statements of witnesses, or believing or disbelieving their testimony, or reversing the findings of the courts below just because the other view can also be formed on the basis of evidence available on record of the case.

Rafiul Qadre v. Safia Sultana 2009 SCMR 254; Nazeer Ahmed v. Maqsood Ahmed 2008 SCMR 190; Amjad Sharif v. Salim Ullah PLD 2006 SC 777; Mussarat Sultana v. Muhammad Saeed 1997 SCMR 1866; Abdul Rashid v. Bashiran 1996 SCMR 808; Muhammad Amir v. Khan Bahadur PLD 1996 SC 267; Sultan Ahmad v. Naeem Raza 1996 SCMR 1729 and Keramat Ali v. Muhammad Yunus PLD 1963 SC 191 ref.

Barrister Umer Aslam, Advocate Supreme Court for Appellants.

Moulvi Anwar-ul-Haq, Advocate Supreme Court for Respondents Nos. 1 - 3.

Ex parte: Respondents Nos. 4 - 8.

2022 S C M R 2012

[Supreme Court of Pakistan]

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

SABTAIN HAIDER---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 34 of 2020, decided on 21st September, 2022.

(Against the judgment dated 21.11.2019 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1584/2015 and Criminal Revision No. 907/2015)

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

----S. 302(c)---Qatl-i-amd---Reappraisal of evidence---Both witnesses of the ocular account were subjected to lengthy cross-examination by the defence but nothing favourable to the accused or adverse to the prosecution could be brought on record---Both said witnesses remained consistent on each and every material point and successfully advanced the prosecution case so far as it related to the death of deceased---Said eye-witnesses had given a reasonable explanation for their presence at the place of occurrence at the relevant time and made consistent statements before the Trial Court---Medical evidence available on the record corroborated the ocular account so far as the nature, time, locale and impact of the injury on the person of the deceased was concerned---Motive set up by the prosecution was based upon a suspicion of illicit relations between the deceased and sister of accused, which had been admitted by the accused through his statement recorded under section 342, Cr.P.C.---Conviction of accused for qatl-i-amd was maintained---Petition for leave to appeal was converted into appeal and partly allowed.

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

----S. 302(b)---Qatl-i-amd---Prosecution witness related to the deceased, testimony of---Mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case.

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

----S. 302(b)---Qatl-i-amd---Recovery of weapon---Scope---Recovery of weapon of offence is inconsequential where neither the crime empty nor the weapon is sent to the Forensic Science Laboratory.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Reappraisal of evidence---Murder of sister's alleged paramour committed under the impulses of 'ghairat' and grave and sudden provocation---Diminished liability---Conviction under section 302(b), P.P.C. altered to one under section 302(c), P.P.C.---Deceased (alleged paramour) was murdered when the accused had seen him with his sister in an objectionable position---Said question was also put to the eye-witnesses but they could not deny the same---Such fact had also been mentioned in the crime report---Stance of the accused had been supported by the statement of doctor who conducted postmortem examination of the sister of accused---Doctor candidly stated that "hymen was totally absent"---Admittedly, the place where the deceased was done to death was a school where no activity was going on when the occurrence took place---Wall of the school from the northern side was common wall between the school and the house of the accused and the stairs were situated adjacent to the above said wall---During cross-examination, the Investigating Officer admitted that it was the first version of accused that he took the life of the deceased under grave and sudden provocation as he had seen him in a compromising position with his sister---Record clearly revealed that there was no conventional enmity between the parties and the only reason as to why the accused could have committed the murders was nothing but him having seen his sister in a compromising position with the deceased---In the present case, as the murders were committed under the impulses of ghairat and grave and sudden provocation, the doctrine of diminished liability would be squarely attracted providing mitigation to the punishment awarded to the accused---Present case was a case of grave and sudden provocation which attracted the provisions of section 302(c), P.P.C.---Conviction of accused under section 302(b), P.P.C. was altered into one under section 302(c), P.P.C. and he was sentenced to imprisonment for the period which he had already undergone---Petition for leave to appeal was converted into appeal and partly allowed.

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

----S. 302(c)---Qatl-i-amd---Diminished liability, doctrine of---Scope---Diminished liability is a legal doctrine that absolves an accused person of part of the liability for his criminal act if he suffers from such state of mind as to substantially impair his responsibility in committing or being a party to an alleged criminal act.

Mrs. Bushra Qamar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Muhammad Jaffer, Additional P.G. Punjab for the State.

Rai Zamir ul Hassan, Advocate Supreme Court for the Complainant.

2022 S C M R 2020

[Supreme Court of Pakistan]

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

FEDERATION OF PAKISTAN through Secretary, Ministry of National Health Services---Petitioner

Versus

JAHANZEB and others---Respondents

Civil Petitions Nos. 3157 to 3165 of 2022, decided on 26th September, 2022.

(Against the judgment dated 21.05.2022 passed by the Federal Service Tribunal, Islamabad, in Appeals Nos. 305(R) to 313(R) CS of 2020)

(a) Civil service---

----Move-over policy---Scope---Move-over cannot be construed as promotion to the post of higher Basic Pay Scale, but the higher pay scale is treated to be an extension of the existing Basic Pay Scale of the post held by the employee---If an employee was not promoted and meanwhile reached to the maximum stage of his pay scale then obviously, he could be stagnant in his earlier pay scale due to attainment of maximum stage, therefore, as per erstwhile move-over Policy, the modus of move-over was devised to cope with such situations in accordance with the criteria provided under SI. No. 73 to SI. No. 91, (O.M. 1975 to 1999) incorporated in the Establishment Code 2007.

(b) Fundamental Rules---

----F.R. 17---Proforma promotion---Scope---If a person is not considered due to any administrative slip-up, error or delay when the right to be considered for promotion is matured and without such consideration, he reaches to the age of superannuation before the promotion, then obviously the avenue or pathway of proforma promotion comes into field for his rescue---If he lost his promotion on account of any administrative oversight or delay in the meeting of Departmental Promotion Committee (DPC) or Selection Board despite having fitness, eligibility and seniority, then in all fairness, he has a legitimate expectation for proforma promotion with consequential benefits---Unjustified delay in proforma promotion cases triggers severe hardship and difficulty for the civil servants and also creates multiplicity of litigation---Competent authority should fix a timeline with strict observance for the designated committees of proforma promotions in order to ensure rational decisions on the matters expeditiously with its swift implementation, rather than dragging or procrastinating all such issues inordinately or without any rhyme or reasons which ultimately compels the retired employees to knock the doors of Courts of law for their withheld legitimate rights which could otherwise be granted to them in terms of applicable rules of service without protracted litigation or Court's intervention.

Ch. Amir Rehman, Additional A.G.P., Iqbal Ahmed, J.S. and G.M. Jakhrani, D.D.(L) for Petitioner.

Nemo for Respondents.

2022 S C M R 2024

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Sayyed Mazahar Ali Akbar Naqvi and Ayesha A. Malik, JJ

MUHAMMAD ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 363 to 366 of 2021, decided on 22nd September, 2022.

(Against the judgment dated 07.03.2017 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeals Nos. 01 and 02/2014 and Murder Reference No. 09/2014)

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

----Ss. 396, 460 & 337-A(ii)---Dacoity with murder---Reappraisal of evidence---Both the witnesses of the ocular account remained consistent on each and every material point qua the date, time, mode, manner of the occurrence and the locale of the injuries on the person of the deceased and the injured witnesses---Although both of them were subjected to cross-examination at length but the defence failed to detect anything which cold hamper the prosecution case on salient features---Medical evidence fully corroborated the ocular account---During the course of investigation, the accusation against the accused persons was fully established as per the contents of the crime report---Convictions and sentences recorded against the accused (as altered by the High Court) were maintained---Appeals were dismissed.

(b) Criminal trial---

----Minor discrepancies in the prosecution case---Effect---Such discrepancies do not frustrate the prosecution case unless and until there is something which directly shatters the salient features of the prosecution case.

Allah Bakhsh v. Ahmad Din 1971 SCMR 462 ref.

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

----Art. 22---Test identification parade---Scope---Identification parade looses its strength if the accused persons are identified during the course of proceedings before the Trial Court.

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

----Ss. 391 & 396---Dacoity, dacoity with murder---Liability of all co-convicts same as that of the actual murderer---Section 396, P.P.C. in its plain term applies to every situation in which five or more persons commit dacoity and in the course of the commission of such dacoity anyone of the said person commits murder---Thereby all five or more people become squarely responsible for the crime of "dacoity with murder" and expose themselves to the penalties outlined in the said provision of law.

The Legislature while defining provisions of sections 391 and 396, P.P.C. has deliberately used the word "conjointly", which is not used anywhere in P.P.C. except in the said provisions. 'Conjointly' indicates jointness of action and understanding. Every one acts in aid of other. 'Conjointly' means to act in joint manner, together, unitedly by more than one person. Purpose of using the word "conjointly" relates to overlapping each and every act of participants in the occurrence on equal basis without any distinguishing feature.

Section 396 declares in specific terms that the liability of other persons is co-extensive with that of the actual murderer. All that is required to be proved is that they have been conjointly committing dacoity and during the course of dacoity death caused by a dacoit would be murder and would be attributed to all of them. The death need not be proved against any of the dacoits in particular so long as death is the result of cumulative effect of violence used by the gang. The primary element of the offence under this provision of law is that the dacoity was committed conjointly by all persons involved, and the secondary element is that murder was committed while the dacoity was being committed. The fact that section 396, P.P.C. is a self-contained provision stands out right away upon its first reading. The Section is unique, in that, it imposes vicarious liability upon all members of the gang without there being any distinction and to that extent is sui generis in nature. Section 396, P.P.C. in its plain term applies to every situation in which five or more persons commit dacoity and in the course of the commission of such dacoity anyone of the said person commits murder. Thereby all five or more people become squarely responsible for the crime of "dacoity with murder" and expose themselves to the penalties outlined in the said provision of law.

The three essential ingredients for invoking section 396, P.P.C. are that (i) one of the persons must commit murder, i.e., his act must amount to "murder" within the meaning of section 300, P.P.C., (ii) the said person must be one of the five or more persons who have joined together to commit dacoity, and (iii) the murder must be committed in the course of commission of such dacoity. If these conditioned are fulfilled, section 396, P.P.C. would set in and bring all the persons involved in the act of dacoity in the same category even if they did not commit the murder. In other words, so far as the remaining persons are concerned, the prosecution is not required to prove any overt act in order to entail section 396, P.P.C. to apply with their intention to commit dacoity. Neither intention nor knowledge that murder would be committed in the course of the commission of such dacoity is required to be proved to exist in the contemplation of any of the said other persons.

As far as sections 391 and 396, P.P.C. are concerned, there is absolutely no chance to distinguish the criminal liability on the basis of act or role ascribed to each accused rather each one of them becomes equally responsible soon after they make preparation for the commission of the offence, act during the course of occurrence and even the acts committed while retreating after commission of the offence. No one can be distinguished on the basis of role or criminal liability with reference to such like offences as these offences are squarely against the fabric of the society and heinous in nature by all means.

Basharatullah Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in Cr. As. Nos. 363-364 of 2021).

Malik Qamar Afzal, Advocate Supreme Court for the Complainant (in Cr. As. Nos. 365-366 of 2021).

Muhammad Jaffer, Additional P.G. for the State.

2022 S C M R 2034

[Supreme Court of Pakistan]

Present: Yahya Afridi, Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

ASADULLAH KHAN and another---Appellants/Petitioner

Versus

MUSLIM COMMERCIAL BANK LTD. and another---Respondents

Civil Appeals Nos.8-Q and 11-Q of 2017 and Civil Petition No. 32-Q of 2017, decided on 28th July, 2022.

(Against the judgment dated 29.12.2016 passed by The High Court of Balochistan in R.F.A No. 155/2014 and Civil Revision Petition No.391 of 2014)

(a) Constitution of Pakistan---

----Arts. 185(2)(d), 185(2)(e) & 185(3)---Civil Appeal filed under Article 185(2)(d) of the Constitution challenging only one portion of the judgment of the High Court and not challenging the other portion favouring the appellant---Maintainability---Portion of the judgment of the High Court which varied the judgment of the lower court was in favour of the appellant and that portion was not challenged by the appellant rather appellant had challenged a portion of the judgment of the High Court as well as the two fora below whereby his claim was concurrently dismissed by all the two fora below, therefore, the appeal filed by the appellant under Article 185(2)(d) was not competent; he was required to file a Petition for Leave to Appeal under Article 185(3)---By way of impugned judgment the High Court had varied or set-aside the part of judgment, decree or final order of the court immediately below---Appellant had only impugned that part of the judgment of the High Court which dismissed the claim of the appellant in the Regular First Appeal (RFA)---Therefore, the present Civil Appeal under Article 185(2)(d) of the Constitution was not competent and the appellant was required to file a Civil Petition for Leave to Appeal under Article 185(3) of the Constitution---Appeal was dismissed.

Muhammad Ismail and 5 others v. Bashir Ahmad and others 2005 SCMR 1079; Shakeel and another v. The Deputy Commissioner Sanahar and others 1986 SCMR 121 and The State Bank of Pakistan v. The Official Liquidator of National Commercial Bank Ltd. 1989 SCMR 1434 ref.

(b) Judgment---

----Judgment of court below 'varied', 'upheld'or 'set-aside'---Meaning---If a judgment is to change or alter or modify the ruling of the court below, it would be said that the judgment has varied the ruling of the lower court---However, where the same is set aside, or upheld, no modification takes place and the impugned ruling of the court below is either accepted in toto or reversed absolutely---Where a judgment is partially upheld, and partially reversed, and only that part of the judgment has been challenged which is partially maintained, then the same cannot fall under the ambit of variation, and would have to be considered as a judgment "upheld" to one extent, and a judgment "set aside" to the rest of it.

M. Mehmood Sadiq, Advocate Supreme Court for Appellants/Petitioner (in C.A. No.8-Q of 2017).

Mir Talal Rind, Advocate Supreme Court for Appellants/ Petitioner (in C.A. No. 11-Q of 2017 and C.P. No. 32-Q of 2017).

Mir Talal Rind, Advocate Supreme Court for Respondents (in C.A. No. 8-Q of 2017).

M. Mehmood Sadiq, Advocate Supreme Court for Respondents (in C.A. No.11-Q of 2017 and C.P. No. 32-Q of 2017).

2022 S C M R 2040

[Supreme Court of Pakistan]

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

Malik MUHAMMAD TAHIR---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 287 of 2022, decided on 22nd September, 2022.

(On appeal against the order dated 22.02.2022 passed by the Lahore High Court, Rawalpindi Bench in Criminal Miscellaneous No. 322-B of 2022)

Criminal Procedure Code (V of 1898)---

----S. 497--- Penal Code (XLV of 1860), Ss. 420, 468, 471, 406 & 489-F---Constitution of Pakistan, Art. 185(3)---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, criminal breach of trust, dishonestly issuing a cheque---Fraud with an Overseas Pakistani---Bail, refusal of---Allegation against the accused was that he entered into an agreement to sell his immovable agricultural land with the complainant---Complainant not only paid an amount of Rs.4.40 million to him but as per the agreed terms, he got transferred two residential plots in the name of the persons suggested by the accused---However, the accused did not mutate the land in favour of the complainant on account of deficiency in title and issued him a cheque amounting to Rs.2.60 million towards transfer fee but the same could not be encashed and got dishonoured---During investigation, it was found that the accused did not have any land, which could be transferred in the name of the complainant, and that he sold the two residential plots of the complainant to some persons and received the sale consideration---Evidence also reflected that the amount of Rs.4.40 million was received by the accused in his bank account---Although the offences under sections 406, 468 & 489-F, P.P.C. did not fall within the prohibitory clause of section 497, Cr.P.C. but this principle was not absolute, rather it depended upon the facts and circumstances of each case---Admittedly the complainant was an overseas Pakistani national, who had been deprived of his wealth, hence, it cast a heavy duty upon the courts to provide him safeguard within the limits of law---Sufficient material oral and documentary was available on the record to establish that the case of the accused did not fall within the purview of section 497(2), Cr.P.C. calling for further inquiry into his guilt---Petition for leave to appeal was dismissed, and accused was refused bail.

Talat Mehmood Zaidi, Advocate Supreme Court for Petitioner.

Malik Jawwad Khalid, Advocate Supreme Court for Respondent No. 2.

Muhammad Jaffer, Additional P.G. Punjab, Ms. Kainat Azhar, ASP and Muhammad Asif, I.O. for the State.

2022 S C M R 2044

[Supreme Court of Pakistan]

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

EDEN BUILDERS (PVT.) LIMITED, LAHORE---Petitioner

Versus

MUHAMMAD ASLAM and others---Respondents

C.M.A. No. 12587/2021 in/and C.P. No. 5925 of 2021, decided on 13th September, 2022.

(Against the order dated 2.11.2021 passed by the Lahore High Court Lahore in Civil Revision No. 53868 of 2021)

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

----Ss. 16, 17 & O. VII, R. 10---Clause of agreement grating exclusive jurisdiction to Civil Courts in place "L"---Plaintiffs filing suit for cancellation of agreement in Civil Court of place "S"---Application for return of plaint filed by defendant (petitioner) under O. VII, R. 10, C.P.C. dismissed by the Civil Court and High Court---Held, that on the basis of agreements in question lands situated in place "L" as well as in place "S" were exchanged through registered exchange deeds by or on behalf of the parties to the agreement---Main agreement was arrived at between the parties and signed at place "L" and in furtherance of that agreement the addendum and exchange deeds were executed and registered at place "L"---Thus, jurisdiction in the matter was with both the courts i.e. at place "S" where the suit was filed as well as at place "L" where the document was registered and some of the property was situated---However the Clause of the agreement grating exclusive jurisdiction to Civil Courts in place "L" was binding upon the parties, therefore, the civil court at place "L" had exclusive jurisdiction to entertain and try the suit---Petition for leave to appeal was converted into appeal and allowed; impugned orders of Civil Court and High Court were set aside, and the application moved by the defendant (petitioner) under Order VII, Rule 10 of the C.P.C. was allowed with the direction that plaint was to be returned to the plaintiffs and, if so advised, they may file it in the civil court at place "L".

(b) Jurisdiction---

----Parties cannot by agreement confer jurisdiction upon any court when otherwise the court has no jurisdiction.

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

----Ss. 16 & 17---Jurisdiction of Civil Court---Agreement between parties granting exclusive jurisdiction to Civil Courts of a particular place/city---Legality---Parties cannot be restrained to enforce their right in an ordinary court of law but if by mutual agreement between the parties a particular court having territorial and pecuniary jurisdiction is selected for the determination of their dispute, there appears to be nothing wrong or illegal in it or opposed to public policy.

Messrs Kadir Motors (Regd). Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174 ref.

Hafeez Saeed Akhtar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Shahid Mehmood Khan Khilji, Advocate Supreme Court for Respondents Nos. 1 - 3.

2022 S C M R 2047

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

ABDUL REHMAN and others---Petitioners

Versus

SECRETARY, MINISTRY OF COMMUNICATION and others---Respondents

Civil Petition No. 2944 of 2019, decided on 18th August, 2022.

(On appeal against the judgment dated 24.04.2019 passed by the Islamabad High Court, Islamabad in Writ Petition No. 3805 of 2012)

Civil service---

----Deputationist---Special allowance of one month's pay admissible to regular employees---Whether deputationists were also entitled to such special allowance---Held, that petitioners were not the regular employees of the National Highway and Motorways Police and they only served as deputationists on different posts at different intervals---Terms and conditions of service of officials transferred to National Highway and Motorway Police on deputation had been settled vide an office memorandum---At the time of their deputation, the petitioners were duly informed about the terms and conditions of service being deputationist but they never raised any objection at that time---Although in the said office memorandum, the officials on deputation had been held entitled to several allowances but it was nowhere mentioned that the special allowance of one month's pay would also be admissible to them---High Court had rightly observed that both categories of regular and deputationist employees were distinct and the petitioners did not enjoy the status of regular employees---Neither any legal right was available with the petitioners to claim the benefit of special allowance in question nor the question of infringement of any of their vested rights arose---Petition for leave to appeal was dismissed and leave was refused.

Syed Asghar Hussain Sabzwari, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.

Nemo for the Respondents.

2022 S C M R 2050

[Supreme Court of Pakistan]

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

ALI BUX SHAIKH---Petitioner

Versus

The CHIEF SECRETARY, GOVERNMENT OF SINDH, KARACHI and others---Respondents

Civil Petition No. 3112 of 2020, decided on 27 September, 2022.

(Against the judgment dated 21.09.2020 passed by the Sindh Service Tribunal at Karachi, in Appeal No.329 of 2020)

Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

----R. 12-A---Date of birth of civil servant recorded at the time of joining Government service---Interpolations---Inquiry by competent authority---Rule 12-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 does not prohibit or restrain the competent authority from inquiring into cases where, on the face of it, certain interpolations are made by the civil servant in the service book, or where he provided incorrect date in the service record---In such a case, obviously, the correction may be made after due satisfaction and inquiry and each case has to be decided on its own facts and circumstances---Civil servant cannot plead that by all means, a wrong entry made in the service book should be treated sacrosanct or as gospel truth which could not be rectified in any circumstances, despite being found and proved to be incorrect, deceitful and or interpolated.

Agha Muhammad Ali Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

S. M. Saulat Rizvi, Additional A.G. (through Video link (Karachi)) and M. Nasir, DIG (Prison) for Respondents.

2022 S C M R 2055

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, J

ATIF ALI and others---Applicants

Versus

ABDUL BASIT and another---Respondents

Criminal Miscellaneous Appeal No. 30 of 2022 in Criminal Petition No. Nil of 2022, decided on 27th September, 2022.

Supreme Court Rules, 1980---

----O. XXIII, R. 8, first and second proviso---Criminal Procedure Code (V of 1898), S. 498---Constitution of Pakistan, Art. 185(3)--- Criminal petition filed before the Supreme Court challenging order of High Court whereby pre-arrest bail granted to the applicants by the Trial Court was recalled---Office objection raised by the Registrar relying on first proviso to Rule 8 of Order XXIII of the Supreme Court Rules, 1980---Legality---Bar contained in first proviso to Rule 8 of Order XXIII of the Supreme Court Rules, 1980, did not apply to the present case because of the reason that no order of imprisonment or fine as contained in Rule 8 was challenged before the Supreme Court---Case of the applicants (accused persons) was entirely on different footing and the same was not covered by first proviso to Rule 8, which required surrender to an order of imprisonment before availing the opportunity of filing petition before the Supreme Court---In the present case, the matter pertained to recalling of the order of pre-arrest bail granted to the applicants by the Trial Court---Second proviso to Rule 8 would be applicable in the present case, which stated that the petitions involving bail before arrest may be entertained and posted for hearing if, the petitioner undertakes to appeal and surrender in Court---Counsel for the applicants in the present case stated at the bar that the applicants were ready and willing to appear and surrender before the Supreme Court---Office objection raised by the Registrar was not sustainable in the eye of law and the same was overruled---Appeal was allowed.

Zahid v. The State PLD 1991 SC 379 and Zahid Afzal v. The State PLD 1991 SC 382 ref.

Kamran Murtaza, Senior Advocate Supreme Court for Applicants.

Nemo for Respondents.

2022 S C M R 2058

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Munib Akhtar, JJ

CHIEF EXECUTIVE OFFICER, PESHAWAR ELECTRIC AND POWER COMPANY (PEPCO) and another---Petitioners

Versus

SAJEEDA BEGUM and others---Respondents

Civil Petitions Nos. 4963 and 5021 of 2018, decided on 17th May, 2022.

(Against the judgments of the Islamabad High Court both dated 04.10.2018 passed in Writ Petitions Nos.1015/2018 and 2132/2018)

(a) Constitution of Pakistan---

----Art. 199---Companies Ordinance (XLVII of 1984), S. 7(1) [since repealed]---Territorial jurisdiction of Islamabad High Court---Scope---Peshawar Electric Supply Company (PESCO)---Widow of deceased employee of PESCO filing constitutional petition before the Islamabad High Court claiming benefit of Prime Minister's Assistance Package of 2014---Maintainability---PESCO was regulated by the Companies Ordinance of 1984 and therefore, the relevant High Court for the purposes of issuance of any directions under Article 199 of the Constitution was the High Court where the main office of PESCO was situated---PESCO's headquarters were situated in Peshawar, KPK and none of its activities were undertaken within the territorial jurisdiction of the Islamabad High Court---PESCO had no place of business, branch office or presence in any of the territories that fell within the jurisdiction of the Islamabad High Court---Therefore, in the absence of anything to the contrary, reading Article 199 of the Constitution with section 7 of the Companies Ordinance of 1984, led to the un-escapable conclusion that the relevant High Court for the purposes of issuing any directions (if at all any High Court could assume jurisdiction) would have been the Peshawar High Court and not the Islamabad High Court---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of High Court was set-aside.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction of High Court---Scope---Peshawar Electric Supply Company (PESCO)---Widow of deceased employee of PESCO filed a constitutional petition before the Islamabad High Court claiming benefit of Prime Minister's Assistance Package of 2014---High Court allowed the said Constitutional petition---Held, that the 2014 package was meant for families of Government employees who died in-service or security-related deaths---Counsel for widow of deceased employee could not point out any law or rule that would lead to the conclusion that PESCO's employees were governed by any law making them government servants; in fact they were employees of a statutory corporation and the terms and conditions of the service of their employees were determined by their own rules and regulations---High Court could not have directed PESCO to release funds to the widow in terms of the 2014 Prime Minister's Assistance Package in light of the fact that PESCO's employees were not government employees---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of High Court was set-aside.

Mst. Basharat Jehan v. Director General, Federal Government Education, FGEI (C/Q) Rawalpindi 2015 SCMR 1418 and Director, Social Welfare NWFP v. Saadullah Khan 1996 SCMR 350 distinguished.

(c) Pakistan Water and Power Development Authority Act (XIII of 1958)---

----S. 3---Constitution of Pakistan, Arts. 199 & 212---Constitutional jurisdiction of High Court---Scope---Water and Power Development Authority (WAPDA)---Widow of deceased employee of WAPDA filed a constitutional petition before the Islamabad High Court claiming benefit of Prime Minister's Assistance Package of 2014---High Court allowed the said Constitutional petition---Held, that WAPDA had, of its own volition, and according to its own rules, granted its employees an assistance package similar in spirit to the Prime Minister's Assistance Package of 2014---WAPDA had internally assessed the compensation the widow was entitled to and had compensated her accordingly---Such assessment was never challenged by the widow before WAPDA or any competent forum, and the matter had, for all intents and purposes, attained finality---WAPDA's own assistance package had been approved by Competent Authority in WAPDA and then passed on to the Federal Government which accorded its approval before the funds were disbursed, therefore, in principle, it would be unconscionable for an employee of any department (or his widow) to benefit from two Assistance Packages if, after availing a department's indigenous Assistance Package (which had already been sanctioned and approved by the Competent Authority and the Federal Government), he/she subsequently sought a direction for grant of another (better) Federal Assistance Package---Even if the widow were to challenge the matter, the relevant forum would have been the relevant Service Tribunal since the Assistance Package would have formed part of the terms and conditions of service of the deceased employee---Therefore, adjudication of the matter by the High Court would have been subject to the constitutional bar under Article 212 of the Constitution---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of High Court was set-aside.

(d) Pakistan Water and Power Development Authority Act (XIII of 1958)---

----S. 3---Constitution of Pakistan, Art. 199---Water and Power Development Authority (WAPDA)---Widow of deceased employee of WAPDA filed a constitutional petition before the Islamabad High Court claiming benefit of Prime Minister's Assistance Package of 2014---High Court allowed the said Constitutional petition---Held, that the 2014 package was meant for families of Government employees who died in-service or security-related deaths---Employees of WAPDA were not government servants and the 2014 Assistance Package was announced for the benefit of government servants only---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of High Court was set-aside.

Asad Jan, Advocate Supreme Court (via video link from Peshawar) and Mir Adam Khan, Advocate-on-Record (Absent) for PESCO (in C.P. No. 4963 of 2018).

Syed Moazam Ali Rizvi, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record (absent) for WAPDA (in C.P. No. 5021 of 2018).

Ms. Farhana Naz Marwat, Advocate Supreme Court (via video link from Peshawar) for Respondents.

2022 S C M R 2068

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Sayyed Mazahar Ali Akbar Naqvi, J

NAEEM QADIR SHEIKH and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 1086-L and 1143-L of 2022, decided on 30th September, 2022.

(On appeal against the order dated 22.06.2022 passed by the Lahore High Court, Lahore in Crl. Misc. Nos. 29415/B and 81584/B of 2022)

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 409, 420, 467, 468, 471 & 201---Prevention of Corruption Act (II of 1947), S. 5(2)--- Constitution of Pakistan, Art. 185(3)---Officials of Excise and Taxation Department involved in bogus registration of vehicles---Pre-arrest bail, grant of---Further inquiry---Rule of consistency---Admittedly the accused was posted as Excise and Taxation Officer (ETO) in the year 2019 whereas the scam of bogus registration pertained to the years 2015-2018---Investigating Officer stated before the Court that up till now the accused had no nexus with the scam, which was under investigation---As far as the case of the co-accused was concerned, it was his case that he was merely a Data Entry Operator, who was entrusted with the job of punching the data in system---As per SOPs, the basic duty to examine the documents and verify the particulars of the vehicles entered in the system with the original file; the physical examination of the vehicle, and submission of the file after complete satisfaction of the papers of the motor vehicle was the job of the Inspector and not the co-accused---All the officers, who were nominated in the crime report, had been exonerated, which fact prima facie fortified the stance of the accused and co-accused that they had been made scapegoat---One of the co-accused, who had been ascribed a similar role to that of present accused and co-accused had been granted post arrest bail up to the High Court, and his bail was not challenged before the Supreme Court, meaning it had attained finality---Trial Court after recording of evidence would decide about the guilt or otherwise of the accused and co-accused and no useful purpose would be served by sending them behind the bars for an indefinite period---Prima facie there were sufficient grounds to take into consideration that the case of the accused and co-accused was fully covered by section 497(2), Cr.P.C. calling for further inquiry into their guilt---Petitions for leave to appeal were converted into appeals and allowed and accused and co-accused were granted pre-arrest bail.

Muhammad Ramzan v. Zafarullah 1986 SCMR 1380; Kazim Ali and others v. The State and others 2021 SCMR 2086; Muhammad Kashif Iqbal v. The State and another 2022 SCMR 821 and Javed Iqbal v. The State through Prosecutor General of Punjab and another 2022 SCMR 1424 ref.

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

----S. 498---Pre-arrest bail---Merits of the case---While granting pre-arrest bail, the merits of the case can be touched upon by the Court.

Miran Bux v. The State PLD 1989 SC 347; Sajid Hussain alias Joji v. The State PLD 2021 SC 898; Javed Iqbal v. The State 2022 SCMR 1424 and Muhammad Ijaz v. The State 2022 SCMR 1271 ref.

Aftab Ahmad Bajwa, Advocate Supreme Court for Petitioner along with Petitioner (in Cr. P. 1086-L of 2022).

Mian Muhammad Rauf, Advocate Supreme Court for Petitioner along with Petitioner (in Cr. P. 1143-L of 2022).

Khurram Khan, Additional P.G. and Abdul Majeed, Deputy Director, Anti-Corruption for the State.

2022 S C M R 2073

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

GOVERNMENT OF PAKISTAN MINISTRY OF HOUSING AND WORKS through Joint Estate Officer, Federal Government Colony Hassan Ghari, Peshawar---Petitioner

Versus

Malik SAFEER AHMED---Respondent

Civil Petition No. 361-P of 2018, decided on 18th August, 2022.

(a) Civil service---

----Allotment of official accommodation/residence--- Terms and conditions of service---Matter of allotment or cancellation of an official residence is connected with the terms and conditions of the service of the persons in the service of Pakistan, in public service and other officials of the concerned government, autonomous, semi-autonomous bodies, authorities, corporations etc.

(b) Constitution of Pakistan---

----Art. 199--- Allotment of official accommodation/residence, issue of---Constitutional jurisdiction of the High Court---Scope---Any order made or proceedings taken in respect of an official accommodation, pursuant to the applicable rules, regulations, policies, instructions, directions etc., shall not be called in question before any court, except the forums provided therein---However, if such forum is not provided, a High Court may, if it is satisfied, exercise its power, as provided by Article 199 of the Constitution.

(c) Accommodation Allocation Rules, 2002---

----R. 29---Civil Servants Act (LXXI of 1973), Ss. 23B & 25(1)---Allotment of official accommodation/residence---Allotment cancelled by the Estate Officer---Civil suit filed by employee against order of Estate Officer---Maintainability---In the present case, the respondent was an official of the Federal Government, to whom the official accommodation was allotted and was subsequently cancelled through an order made by an officer authorized by the Accommodation Allocation Rules, 2002 ('the Rules 2002')---Under Section 23B of the Civil Servants Act, 1973 ('Act of 1973'), no order made or proceedings taken under the Rules could be called in question in any court and no injunction shall be granted by any court in respect of any decision made, or proceedings taken in pursuance of any power conferred by, or under the rules made thereunder---Since the order of cancellation was made by an authority, exercising power under the Rules 2002 framed under the Act of 1973, therefore, it could have been called in question in the forum, provided by the Rules 2002---Respondent, feeling aggrieved from the order of cancellation of allotment of his official accommodation, made by an authorized officer in pursuance of the power conferred upon him by the Rules 2002, instead of availing the remedy provided by the Rules 2002, approached the civil court which had no jurisdiction in the matter---Petition for leave to appeal was converted into appeal and allowed, impugned judgment passed by the High Court and the judgments and decrees of the Courts below were set aside with the direction that the Trial Court, having no jurisdiction in the matter, should return the plaint along with annexures to the respondent.

Amir Javed, Additional A.G.P. for Petitioner.

Abdul Munim, Advocate Supreme Court for Respondent.

2022 S C M R 2077

[Supreme Court of Pakistan]

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

SHAMEEM BIBI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 982-L of 2022, decided on 22nd September, 2022.

(On appeal against the order dated 20.04.2022 passed by the Lahore High Court, Lahore in Criminal Misc. No. 20379-B of 2022)

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

----S. 497(2)---Penal Code (XLV of 1860), S. 302, 394, 107, 109 & 411---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, voluntary causing hurt in committing robbery, abetment, dishonestly receiving stolen property---Bail, grant of---Further inquiry---Accused female of advanced age---Admittedly, the accused-lady was not named in the crime report and it was subsequent in time that she was implicated in the case on the supplementary statement of the complainant---Only allegation against the accused was that the whole occurrence was committed by the co-accused on her abetment---However, no specific date, time and place where the conspiracy was hatched had been mentioned in the supplementary statement of complainant---Even name and number of witnesses to that extent was not available on the record---All ingredients of abetment mentioned under section 107, P.P.C. were prima facie missing in the present case---Prosecution admitted that as yet there was no evidence that the recovered mobile phone belonged to the accused and the SIM was in her name---In these circumstances, the Call Data Record (CDR) in isolation did not advance the prosecution's case unless and until some credible material in such regard had been collected---Challan had already been submitted, which meant that the accused was no more required for further investigation---Accused was a lady of 50 years of age, having five children left at home---Keeping in view the peculiar facts and circumstances of the present case, keeping the accused behind the bars for an indefinite period would not be in the interest of justice---In these circumstances, it was the Trial Court which after recording of evidence would decide about the guilt or otherwise of the accused---Case of the accused squarely fell within the purview of section 497(2), Cr.P.C., calling for further inquiry into her guilt---Petition for leave to appeal was converted into appeal and allowed and accused was admitted to bail.

(b) Criminal trial---

----Call Data Record (CDR), reliance upon---Scope---In absence of any concrete material the Call Data Record (CDR) is not a conclusive piece of evidence to ascertain the guilt or otherwise of an accused.

Mian Shah Abbas, Advocate Supreme Court (via video link from Lahore) for Petitioner.

Muhammad Jaffer, Additional P.G., Bilal Sulehri, ASP and Muhammad Yasin, S.I. for the State.

Muhammad Irshad Ch., Advocate Supreme Court for Respondent No. 2.

2022 S C M R 2080

[Supreme Court of Pakistan]

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

MALL DEVELOPMENT (PVT.) LTD.---Appellant

Versus

WALEED KHANZADA and others---Respondents

Civil Appeal No. 639 of 2014, decided on 12th May, 2022.

(On appeal against judgment of the High Court of Sindh at Karachi dated 04.12.2013 and 04.02.2014 in C.P. No. 1143 of 2011)

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

----Chapt. V---Amenity plot---Lease hold rights of a commercial plot transferred by Defence Housing Authority (DHA) to a company (appellant)---Commercial plot merged with an "adjacent plot" sold to the appellant by DHA---Legality---Constitutional petition filed by the respondent with the plea that adjacent plot was an amenity pot and could not be merged with the commercial plot was allowed by the High Court---Held, that nothing was available on the record to show that the amenity plot was advertised to be sold/transferred or, that objections were called from the general public when it was purportedly being sold by converting it into a commercial plot, which casted a shadow on the entire transaction and suggested that the transfer of the amenity in favour of the appellant lacked transparency and adherence to the law---Letter of the Military Estates Officer was available on record which mentioned the adjacent plot as a "Park"---Fact that the Military Estates Officer mentioned the word "Park" in his letter established that the adjacent plot was not to be used for a commercial purpose---Adjacent plot was mentioned as a "Park" in various letters issued by DHA as well---Furthermore a clause of the agreement between DHA and the appellant only allowed the appellant to "develop" the adjacent plot with "amenities"---As such, the mode and manner in which the adjacent plot could be used had been restricted---Fact that appellant had paid consideration for the adjacent plot did not mean that it could do whatever it wanted with the adjacent plot---Mere payment of consideration did not mean that anything done illegally would get protection of the law---High Court was correct to hold that the adjacent plot was unlawfully annexed/amalgamated with the commercial plot and that the nature and land use of the adjacent plot could not be changed, altered or modified in violation of the rights of public at large---Appeal was dismissed and judgment of the High Court was upheld.

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

----Chapt. V---Land and valuable property, the rights of which vest in the Government---Such land or property cannot be sold off arbitrarily.

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

----Chapt. V---Amenity plot converted for commercial use---Legality---Amenity plot or public park cannot be converted for commercial use, nor can its land use be changed to one which affects the rights of other residents of the locality to enjoy the public park or amenity---Any transaction in this respect cannot be deemed to be legal because, one of the stakeholders in such a transaction is the general public.

(d) Administration of justice---

----When the law provides a particular manner of doing things, they must be done in that manner or not at all---Anything done to the contrary would be illegal, ex-facie erroneous and unsustainable in law.

(e) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Public spaces---Parks---Right to life inter alia includes the right to enjoy public spaces such as parks.

Syed Ali Zafar, Advocate Supreme Court for Appellant.

Khalid Javed, Advocate Supreme Court for Respondent No. 3.

Malik Naeem lqbal, Advocate Supreme Court for Respondent No. 4.

Respondent No. 1 in person (via video link from Karachi).

Ex parte: Respondent No. 2.

2022 S C M R 2089

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Amin-ud-Din Khan and Sayyed Mazahar Ali Akbar Naqvi, JJ

SAQIB ALI---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Civil Petition No. 1174-L of 2021, decided on 19th November, 2021.

(Against the judgment dated 07.10.2019 passed by the Lahore High Court, Lahore in I.C.A. No. 58254 of 2019)

(a) Limitation---

----Condonation of delay---For condonation of delay, each day's delay has to be explained with proper justification.

(b) Civil service---

----Post of Hardware and Network Technician in police force---Provisional appointment letter, withdrawal of---Appointee booked in a murder case before joining duty---Appointee subsequently acquitted from the case on basis of compromise---Whether appointee had right to appointment on basis of provisional appointment letter---Held, that although the petitioner (appointee) was provisionally offered the job but he had not joined the same---When in the very (provisional) appointment letter, it was clearly mentioned that the appointment of the petitioner shall be subject to verification of his character, the petitioner could not claim a right to appointment on the basis of the such appointment letter---Petition for leave to appeal was dismissed and leave was refused.

Petitioner was provisionally offered job for the post of Hardware and Network Technician in police force on contract basis subject to fulfilling certain conditions, which had been duly mentioned in the provisional appointment letter. One of the said conditions was that the appointment shall be subject to verification of character/antecedents/ educational certificates and in case anything adverse was reported, the contract appointment shall be liable to be terminated. Thus, the competent authority had reserved its right to withdraw the appointment letter/terminate the petitioner from service in case anything adverse about his character came on the record even at belated stage. Admittedly a criminal case under sections 302, 324, 148 and 149, P.P.C. was registered against the petitioner, which ultimately ended in compromise. The petitioner was not acquitted on merits and it was only the compromise between the parties, which was made basis for his acquittal. The police was a disciplined force, whose only job was to maintain law and order situation in the society irrespective of nature of job and to apprehend the criminals, who violated the law of the land. Keeping in view the role of the police in a society, only the people of highest moral standard with clean record should be inducted in the department. Petition for leave to appeal was dismissed and leave was refused.

(c) Civil service---

----Appointment---Criteria for appointment---Every department has the right to make rules and induct people according to its own standards and requirements.

Petitioner in person.

Aalia Ejaz, A.A.G., Zahid, DSP and Muhammad Anwar, Inspector for Respondents.

2022 S C M R 2093

[Supreme Court of Pakistan]

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

UMAR ZAMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 206 of 2022, decided on 28th September, 2022.

(Against the judgment dated 06.07.2015 of the Peshawar High Court, Peshawar passed in Criminal Appeal No. 130-P of 2012)

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

----S. 9(c)---Possession of narcotics---Safe custody of the recovered substance and its safe transmission from the local police station to the office of the Chemical Examiner not established by the prosecution---Effect---In a case containing the said defect on the part of the prosecution, it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused person beyond the shadow doubt.

In the present case recovery was effected on 15-03-2011 whereas the sample parcels were delivered to the office of Chemical Examiner on 19.03.2011. It was shrouded into mystery as to in whose safe custody the sample parcels and the other case property remained intact from 15.03.2011 to 19.03.2011 because the Moharrar, Malkhana was not produced to prove that he received the samples parcels and kept the same in the Malkhana which remained intact. Non-production of Moharrar clearly indicated that the safe custody of the sample parcels was not established by the prosecution. Same was the case with transmission of the sample parcels to the office of Chemical Examiner, as according to the report of Chemical Examiner a constable deposited the sample parcels in the said office but the said official was never produced by the prosecution to establish the intact transmission of the sample parcels to the concerned laboratory. It was, therefore, quite clear that safe custody of the recovered substance and its safe transmission from the local police station to the office of the Chemical Examiner had not been established by the prosecution before the trial court through cogent and independent evidence. In a case containing the said defect on the part of the prosecution, it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused person beyond the shadow doubt. Appeal was allowed; conviction and sentence of the accused were set aside and he was acquitted of the charge by extending the benefit of doubt to him.

Amjad Ali v. The State 2012 SCMR 577; Ikramullah and others v. The State 2015 SCMR 1002; Taimoor Khan and another v. The State and another 2016 SCMR 621; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

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

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa for the State.

2022 S C M R 2096

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

SECRETARY SCHOOLS EDUCATION, GOVERNMENT OF PUNJAB and others---Petitioners

Versus

ASGHARI BEGUM and another---Respondents

Civil Petitions Nos. 936-L and 1023-L of 2015, decided on 22nd December, 2020.

(Against judgment dated 25.02.2015 of Punjab Service Tribunal, Lahore, passed in Appeals Nos. 4337 of 2011 and 344 of 2012)

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

----S. 4(1)(b)(vi)--- Government school teacher---Dismissal from service---Procuring bogus transfer orders---Inquiry report confirmed that transfer order of respondent was bogus---Verification letter of the Headmistress of the school where respondent managed her transfer stated that the respondent was neither employed in the said school nor was any record of her employment available at the said school---Further, the officials who were involved in issuing the said bogus transfer letter were also penalized by the Secretary of the Provincial Schools Education Department in departmental proceedings---Several show cause notices were issued to the respondent, however, instead of replying to the said notices, she was involved in vexatious litigation which prolonged the matter even further---Respondent was time and again asked to produce evidence and furnish her defence, however, she failed to furnish a plausible justification, and, the competent authority while following all codal formalities, dismissed her from service---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of the Service Tribunal, whereby respondent was re-instated in service, was set-aside.

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

----S. 4(1)(b)(vi)--- Government school teacher---Dismissal from service---Procuring fake transfer orders after withdrawal of appointment order---Appointment order of respondent was withdrawn since her appointment was found erratic---Despite such withdrawal, the respondent managed to get bogus transfer letters, and, ultimately, switched three schools and ultimately ended up at the school in question, where her services were terminated---After almost 19 years the respondent awoke and realized that her appointment order was withdrawn, and challenged such withdrawal---Case of the respondent was hit by the principle of laches due to the fact that she remained in a slumber throughout almost 19 years---Finding of the Service Tribunal that respondent was not granted an opportunity to defend herself was erroneous for the fact that the respondent herself admitted that her departmental appeal was rejected because she did not appear for personal hearing---Respondent was time and again asked to produce evidence and furnish her defence; she was sent show cause notices on various dates spanning over years, however, the respondent failed to furnish a plausible justification, and, the competent authority while following all codal formalities, dismissed her from service---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of the Service Tribunal, whereby respondent was re-instated in service, was set-aside.

(c) Laches, doctrine of---

----Scope---Litigant who sleeps on his rights has no right to claim relief.

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

----S. 4(1)--- Appeal before the Service Tribunal, filing of---Prerequisite---Departmental appeal---To avail any remedy before the Service Tribunal, it is necessary that a departmental appeal is filed before the competent forum---If no such departmental appeal is filed, a subsequent service appeal filed would not be maintainable.

Rana Shamshad Khan, Additional A.G., Punjab and Razia Sultana, DEO (WEF) for Petitioner.

Sh. Irfan Akram, Advocate Supreme Court for Respondents.

2022 S C M R 2105

[Supreme Court of Pakistan]

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

MIR WAIZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 239 of 2022, decided on 28th September, 2022.

(Against the judgment dated 20.04.2017 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat passed in Criminal Appeal No. 195-M of 2014)

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

----S. 9(c)---Possession of narcotics---Safe custody of the recovered substance and its safe transmission from the local police station to the office of the Chemical Examiner not established by the prosecution---Effect---In a case containing the said defect on the part of the prosecution, it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused person beyond the shadow doubt.

In the present case recovery was effected on 12-07-2013 whereas the sample parcels were delivered to the office of Chemical Examiner on 18-07-2013. The whole record was silent as to in whose custody the sample parcels remained from 12-07-2013 to 18-07-2013 because the Moharrar, Malkhana was not produced who could claim that he had received the samples parcels and kept the same in the Malkhana which remained intact. Non-production of Moharrar clearly indicated that the safe custody of the sample parcels was not established by the prosecution. Likewise, the report of Chemical Examiner indicated that the parcels were received there on 18-07-2013 through a constable, but even the said constable was never produced during the trial to establish the intact transmission of the sample parcel to the concerned laboratory. It was, therefore, quite clear that safe custody of the recovered substance and its safe transmission from the local police station to the office of the Chemical Examiner had not been established by the prosecution before the trial court through cogent and independent evidence. In a case containing the said defect on the part of the prosecution, it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused person beyond the shadow doubt. Appeal was allowed; conviction and sentence of the accused were set aside and he was acquitted of the charge by extending the benefit of doubt to him.

Amjad Ali v. The State 2012 SCMR 577; Ikramullah and others v. The State 2015 SCMR 1002; Taimoor Khan and another v. The State and another 2016 SCMR 621; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

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

Zahir Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa for the State.

2022 S C M R 2107

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Jamal Khan Mandokhail, JJ

COLLECTOR OF CUSTOMS, KARACHI---Appellant

Versus

MUHAMMAD SHAFIQ---Respondent

Civil Appeal No. 1846 of 2016, decided on 10th October, 2022.

(On appeal from judgment dated 29.01.2016 of the High Court of Sindh at Karachi passed in Special Customs Reference Application No. 1229 of 2015)

Customs Act (IV of 1969)---

----S. 33---Import of vehicle---Claim regarding over-paid customs duties and taxes rejected---Requisite certificate of the manufacturer of the vehicle not produced---Respondent had imported a vehicle and had submitted goods declaration describing it as used "Hummer limousine" and classified it under HS No. 8703.2490 of the Harmonized Commodity Description and Coding System ('HS Code')---Customs accepted the goods declaration filed by the respondent and cleared the vehicle on payment of applicable customs duties and taxes---Thereafter, the respondent submitted an application (the application') for refund of customs duty and taxes overpaid and attached therewith a 'copy of manufacturing certificate' (the certificate') which showed that since it had a seating capacity of more than ten persons it should have been classified under HS No. 8702.9090, which attracted lower duties and taxes, therefore, the respondent was entitled to the refund of the amount which was over-paid---Held, that admittedly the vehicle was manufactured by 'General Motors' and the HS Code required certification by the manufacturer, which in the present case was absent---Certificate which was produced by the respondent was that of 'American Limousine Sales' which was not the manufacturer of the vehicle---Moreover, the attached history of the vehicle stated that the vehicle had a standard seating of five persons, and not of ten persons or more as contended by the respondent---Pakistan Customs Tariff (Volume 1, 29th Edition) explains HS No. 8702.2490 by stating that, 'this heading covers all motor vehicles designed for the transport of ten persons or more including the driver'---Conspicuous use of the word 'designed' suggested that the relevant document was the manufacturer's certificate, that is, of 'General Motors', which the respondent had not produced---Admittedly, the respondent had submitted the goods declaration wherein he had himself classified the vehicle under HS No. 8703.2490, but then sought refund on the basis of a certificate which was not relevant to determine the applicable HS Code---Decisions of the Tribunal and of the High Court were set aside and the decision of the Additional Collector of Customs, whereby the application seeking refund was dismissed, was restored---Appeal was allowed.

Raja Muhammad Iqbal, Advocate Supreme Court and Umar Sajjad, Assistant Collector, Customs (through video link from Karachi) for Appellant.

Muhammad Afzal Awan, Advocate Supreme Court for Respondent.

2022 S C M R 2111

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Sayyed Mazahar Ali Akbar Naqvi, J

RASHID RAMZAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 433-L of 2022, decided on 30th September, 2022.

(On appeal against the order dated 31.01.2022 passed by the Lahore High Court, Bahawalpur Bench in Criminal Misc. No. 4790-B/ 2021/BWP)

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

----S. 497--- Penal Code (XLV of 1860), Ss. 302, 324, 337-F(v), 337-F(iii), 337-­F(i), 148 & 149---Constitution of Pakistan, Art.185(3)---Murderous assault---Bail, refusal of---Accused was duly nominated in the crime report and a specific role of firing at the head of complainant's father had been ascribed to him---According to medical evidence, the injury ascribed to the accused was present on the body of the deceased and the same became the cause of his death---Occurrence took place at 08.00 a.m. while the matter was reported to the police at 10.45 a.m.---Keeping in view the inter se distance between the place of occurrence and the Police Station i.e. 13 kilometers, the same would be considered a promptly lodged FIR---Incident was a day light occurrence and the parties were known to each other prior to the occurrence, therefore, there was no chance of mis-identification---Allegation levelled against the accused was also supported by the statements of three injured witnesses---Weapon of offence had also been recovered from the accused---Although there was a cross-version for the occurrence but therein neither the accused was mentioned as present at the place of occurrence nor any claim of right of private defence of person or property had been made on his behalf, therefore, no benefit could be extended to the accused---Co-accused of the accused had been granted bail by the Trial Court, but the case of accused was different from them---Co-accused were ascribed simple injuries on the person of the injured whereas, the accused had been ascribed a specific role of making fire shot at the head of the deceased, which proved fatal---Tentative assessment of the record made it clear that sufficient material was available on the record to connect the accused with the commission of the crime---Petition for leave to appeal was dismissed, and bail was refused.

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

----S. 497---Penal Code (XLV of 1860), S. 302---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail---Case of cross-versions---Mere existence of a cross-version could not alone be considered a sufficient ground to grant bail to an accused.

Munawar Iqbal Gondal, Advocate Supreme Court for Petitioner.

Khurram Khan, Additional P.G., Abdul Hameed, SI and Sohail, ASI for the State.

2022 S C M R 2114

[Supreme Court of Pakistan]

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

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Khyber Pakhtunkhwa, Peshawar and others---Appellants

Versus

NARGIS JAMAL, EX-DEO (FEMALE) KARAK---Respondent

Civil Appeal No. 19 of 2022, decided on 6th October, 2022.

(Against the judgment dated 12.03.2020, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Service Appeal No.332 of 2019)

(a) Civil service---

----Compulsory retirement, penalty of---Absence from duty---Foreign travel outside Pakistan without prior approval from competent authority---Service Tribunal modified penalty of compulsory retirement to that of reduction to lower substantive post from BPS-19 to BPS-18 for a period of four years---Legality---Travel history of the respondent was not disputed---Even before the Tribunal, the respondent failed to offer any justification or produce any document or NOC, nor did she contradict the "Travel History Report" divulged to her department---Tribunal without any analytical justification, modified the punishment of compulsory retirement to reduction to lower substantive post---Punishment of compulsory retirement was imposed after due process of law and conducting proper inquiry into the charges of misconduct, and it was the province and dominion of the competent authority to award punishment in case the allegations of misconduct were proved in the inquiry---Appeal was allowed, impugned judgment of Service Tribunal was set-aside, and the punishment of compulsory retirement awarded to respondent was restored.

(b) Civil service---

----Misconduct--- Recommendations of the Inquiry Committee---Competent authority, duty of---Scope---No hard and fast rule existed that the competent authority in all circumstances is bound to adhere to the recommendations of the inquiry committee or inquiry officer, but what carries great weight is the assiduousness and onerous duty of the competent authority to scrutinize and gauge the inquiry proceedings and inquiry report with proper application of mind for a fine sense of judgment---If charges of misconduct were proved and ample opportunity of defence was afforded to the accused during the inquiry, then obviously, keeping in mind all attending circumstances including the gravity or severity of the proven charges, the competent authority may impose the punishment in accordance with law.

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

----S. 5(1)--- Punishment awarded by the competent/departmental authority---Service Tribunal, power of---Scope---Award of punishment under the law is primarily the function of the competent authority and the role of the Tribunal or Court is secondary unless the punishment imposed upon the delinquent is found to be unreasonable or contrary to law---Tribunal enjoys powers to modify any order passed by the departmental authorities---However, such power is 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.

Director General Federal Directorate and another v. Tanveer Muhammad and another 2021 SCMR 345; Divisional Superintendent, Postal Services, Faisalabad and others v. Muhammad Zafarullah 2021 SCMR 400; Government of Pakistan, Revenue Division, Federal Board of Revenue through Chairman, Islamabad and another v. Nawaz Ali Sheikh 2020 SCMR 656 and Commissioner Faisalabad Division, Faisalabad and another v. Allah Bakhsh 2020 SCMR 1418 ref.

(d) Administration of justice---

----Relief, award of---Scope---No Court has any jurisdiction to grant arbitrary relief without the support of any power granted by the Constitution or the law.

Shumail Aziz, Additional A.G. Khyber Pakhtunkhwa for Appellants.

Respondent in person.

2022 S C M R 2121

[Supreme Court of Pakistan]

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

ABDUL GHANI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 286 of 2022, decided on 12th October, 2022.

(Against the judgment dated 25.11.2015 of the Peshawar High Court, Peshawar passed in Criminal Appeal No. 83-P of 2013)

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Possession of narcotics---Reappraisal of evidence---Safe custody and safe transmission of samples to the Forensic Science Laboratory not established---Benefit of doubt---According to the report of Chemical Examiner the sample parcels were delivered there by a Head Constable but the said Head Constable was not produced by the prosecution during the trial---Prosecution could not explain as to why the said Head Constable was not produced to confirm the safe transmission of the sample parcels to the office of Chemical Examiner so an adverse presumption under Article 129(g) of the Qanun-e-Shahadat, 1984 could be drawn against the Head Constable that he was not supporting the prosecution case---Non-production of the said Head Constable indicated that safe transmission had also not been established by the prosecution---Due to such defect on the part of the prosecution it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused person beyond any reasonable doubt---Besides record indicated that four persons were sitting in the truck and out of them three succeeded in running away whereas the accused was the only one arrested---Record was silent as to who among those four was driving the vehicle---Appeal was allowed, and accused was acquitted of the charge by extending benefit of doubt to him.

Amjad Ali v. The State 2012 SCMR 577; Ikramullah and others v. The State 2015 SCMR 1002; Taimoor Khan and another v. The State and another 2016 SCMR 621; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

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

----S. 9(c)---Possession of narcotics---Safe custody of the recovered substance and its safe transmission from the local police station to the office of the Chemical Examiner not established by the prosecution---In a case containing the said defect on the part of the prosecution, it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond the shadow of doubt.

Amjad Ali v. The State 2012 SCMR 577; Ikramullah and others v. The State 2015 SCMR 1002; Taimoor Khan and another v. The State and another 2016 SCMR 621; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

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

Anis Muhammad Shehzad, Advocate Supreme Court (as State Counsel, Khyber Pakhtunkhwa) for the State.

2022 S C M R 2123

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

Raja MUHAMMAD OWAIS---Petitioner

Versus

Mst. NAZIA JABEEN and others---Respondents

Civil Petition No. 240 of 2021, decided on 5th October, 2022.

(Against order dated 12.01.2021 passed by the Lahore High Court Rawalpindi Bench, Rawalpindi in W.P. No.3800 of 2019)

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

----Ss. 17 & 25---Custody of children---Mother contracting second marriage---Effect---Although the general rule (as contained in paragraphs 352 and 354 of Principles of Muhammadan Law By D F Mulla) is that the mother on contracting a second marriage forfeits her right of custody, this rule is not absolute and if it is in the interest of the child, custody should be given to the mother---Paramount consideration where custody is concerned is the welfare of the minor, that is to consider what is in the best interest of the child---In cases of remarriage, circumstances change, hence, while looking at the welfare of the child, the entire living arrangement and environment has to be reassessed in the context of the welfare of the child---Fundamental to such decision is the best interest of the child and not that of the parents---Hence, a second marriage of the mother cannot become a stand alone reason to disqualify her right to custody.

Muhammad Siddique v. Lahore High Court, Lahore through Registrar and others PLD 2003 SC 887; Mst. Shahista Naz v. Muhammad Naeem Ahmed 2004 SCMR 990; Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267 and Shabana Naz v. Muhammad Saleem 2014 SCMR 343 ref.

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

----Ss. 17 & 25---Custody of children---Welfare of child---Scope---Factors to be considered by the Court---Court's jurisdiction in custody cases is in the form of parental jurisdiction which means that the court must consider all factors from the parents' ability to provide for the child including physical and emotional needs, medical care but also relevant is the parents' ability to provide a safe and secure home where the quality of the relationship between the child and each parent is comforting for the child---Hence, there is no mathematical formula to calculate the welfare of the minor, as the factors range from financial and economic considerations to the household environment, the care, comfort and attention that a child gets---Accordingly, the concept of welfare of the child is an all encompassing concept which will cover not only the manner in which the child has to be cared for but will also include the physical, mental and emotional wellbeing of the child.

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

----Ss. 17 & 25---Custody of children---Mother contracting second marriage---Intention of children to live with the mother---In the present case, the Guardian Judge considered the welfare of the children based on their ages and gender---Mother was an educated woman running a private school; she lived in her own house and was able to care for the children---One of the factors that prevailed with the Guardian Judge was the wishes of the four children as they made their statement in Court that they were desirous of living with their mother---In order to ascertain the desire of the children each of them was asked in Court, about their preference, and they informed the Court that they desired to live with their mother---Children were confident and were able to easily express their wishes, and their desire as expressed was relevant particularly when the child was able to express his or her mind on preference---Although, this could not be the sole factor, it was a relevant factor---Custody of children was rightly awarded to the mother---Petition for leave to appeal was dismissed.

Muhammad Siddique Awan, Advocate Supreme Court for Petitioner along with Petitioner.

Ms. Sarkar Abbas, Advocate Supreme Court for Respondents Nos. 1 to 5 along with Respondents.

2022 S C M R 2130

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Munib Akhtar and Ayesha A. Malik, JJ

ZAKIA BEGUM and others---Appellants

Versus

NASIR-UL-ISLAM KHAN and others---Respondents

Civil Appeals Nos. 10-Q, 1273 of 2021, C.M.A. No. 10780 of 2021 and Criminal Appeal No. 4-Q of 2021, decided on 31st March, 2022.

(On appeal against the judgment dated 30.06.2021 passed by the High Court of Balochistan, Quetta in R.F.A. No. 41 of 2014 and Contempt Application No. 62 of 2018)

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

----S. 2(h)---Will---Meaning and scope---Will can be considered as a formal document drawn up by a natural person wherein he expresses his wish as to how he would want his estate to be distributed after his death---By virtue of the fact that wills operate after the death of the donor, they are considered testamentary instruments i.e. instruments that come into effect after the death of the donor/testator---Will, therefore, ceases to be a will if it is executed and acted upon during the lifetime of the testator---Instead, a will executed in the lifetime of a donor takes on the guise of an inter-vivos instrument i.e. an instrument which is executed within the lifetime of a person which can take the form of a gift which has its own requirements and different standards of proof.

(b) Islamic law---

----Will---Compliance with Shariah---Sharia-compliant will would not act as an ex-ante instrument which regulates the inheritable shares of any and all legal heirs before the actual opening of the testator's estate; this would be the case even where the ultimate value received by all the legal heirs is equivalent to what would have been their receivable Quranic share at the time of the opening of the estate.

In the present case the will of the predecessor of the parties had been drawn up with an obvious bias in favour of the sons. The sons had been given the lion's share in the inheritable pool of properties especially with respect to lucrative revenue-generating properties/businesses to the complete exclusion of the daughters. A sharia-compliant will would not act as an ex-ante instrument which regulates the inheritable shares of any and all legal heirs before the actual opening of the testator's estate. This would be the case even where the ultimate value received by all the legal heirs is equivalent to what would have been their receivable Quranic share at the time of the opening of the estate. The daughters were just as entitled as their brothers to a share in their father's businesses and other properties at the time the estate would have opened up. They were denied that opportunity to become shareholders by virtue of their Quranic rights of inheritance in the suit properties by virtue of the wills in question. The wills had, in essence, ex-ante deprived Quranic inheritors i.e. the daughters of their shares in properties which they would have received at the time of the opening of the estate for inheritance. Will in question was contrary to the principles of Sharia and, as a result, null and void.

Section 117 of Mullah's Mohammadan Law and Section 118 of Mullah's Mohammadan Law ref.

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

----S. 41---Transfer by ostensible owner---Bona fide purchaser of property without notice---Requirement of purchaser acting in good faith and taking reasonable care before entering into the transaction---Scope---Purchaser was required to do due diligence when purchasing properties---In the present case the purchasers exercised due diligence by approaching the revenue records for ascertaining title of the properties, which showed that the sons were the owners of the properties and had become owners by virtue of unchallenged wills---section 41 of the Transfer of Property Act, 1882 applied in the present case and the purchasers were entitled to such equitable protection available to them---Order accordingly.

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

----S. 41---Transfer by ostensible owners (sons)---Compensation for daughters deprived of their inheritance share---Brothers had deprived their sisters of their inheritance share in subject property by selling the same to respondents, who were bona fide purchasers without notice and for valuable consideration---Question was as to how the sisters were to be compensated for their respective shares in the sold property---Held, that the only viable solution appeared to be that the sons be directed to pay for the equivalent of respective shares of the daughters in the subject property in monetary terms---Sale price of the property when it was sold was duly documented and none of the parties had argued or alleged that the property in question was sold for a value less than its market value at the relevant time---However, the fact remained that the sons received the entire sale consideration and had since then used the same for their own benefit---Supreme Court directed that the respective shares of the daughters in the total sale consideration shall be determined; that the sons will pay mark up from the date of sale at the bank rate to the daughters on their respective shares till the time of payment; and that all other transactions relating to the properties that constituted a part of the estate of the deceased father and mother of the parties shall devolve upon all their sons and daughters in accordance with their respective shares as provided in Sharia Law---Order accordingly.

Azhar Ahmed Khan, Attorney for Appellants (in C.A. No. 10-Q of 2021, Criminal Appeal No. 4-Q of 2021 and for Respondents Nos. 1-2 in C.A. No. 1273 of 2021).

Naeem Bukhari, Advocate Supreme Court for Respondents (in C.A. No. 1273 of 2021 for Respondents Nos. 1(a, e, g, h) and 2 (in C.A. No. 10-Q of 2021) and for Respondents Nos. 2-3 (in Criminal Appeal No. 4-Q of 2021)).

M. Qasim Khan, Advocate Supreme Court (for Respondents Nos. 9-14 in C.A. No. 10-Q of 2021 and for Respondents Nos. 10-15 in C.A. No. 1273 of 2021).

Gul Hassan Tareen, Advocate Supreme Court for Respondent No. 15 (in C.A. 10-Q of 2021).

M. Munir Paracha, Advocate Supreme Court for Respondent No. 5 (in C.A. No. 1273 of 2021).

2022 S C M R 2142

[Supreme Court of Pakistan]

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

MUHAMMAD AZAM---Petitioner

Versus

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

Criminal Petition No. 1218 of 2022, decided on 28th September, 2022.

(Against the judgment dated 17.05.2022 of the Lahore High Court, Lahore passed in Criminal Misc. No. 23859-B of 2022)

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Constitution of Pakistan, Art. 185(3)---Bail---Observations made by the Court in a bail granting or bail refusing order---Such observations had no effect on merits of the case in any subsequent proceedings.

Mian Muhammad Ismail Thaheem, Advocate Supreme Court (through video link from Lahore) for Petitioner.

Mirza Abid Majeed, D.P.G. Punjab for Respondents.

2022 S C M R 2143

[Supreme Court of Pakistan]

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

MUHAMMAD USAMA---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 496 of 2019, decided on 20th October, 2022.

(On appeal against the judgment dated 27.04.2018 passed by the High Court of Sindh, Karachi in Criminal Jail Appeal No. 52 of 2015)

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

----S. 302(c)---Qatl-i-amd---Reappraisal of evidence---Eye-witnesses of the occurrence were subjected to lengthy cross-examination by the defence but nothing favourable to the accused or adverse to the prosecution could be produced on record---Ocular account furnished by the prosecution was reliable, straightforward and confidence inspiring---Medical evidence available on the record was in line with the ocular account so far as the nature, locale, time and impact of the injury on the person of the deceased was concerned---Eye-witnesses had specifically explained their presence at the spot and given details of the occurrence in a natural manner, which proved that they had witnessed the occurrence---Prosecution had brought on record reliable evidence to sustain the conviction of the accused---Conviction of accused under section 302(b), P.P.C. was altered to one under section 302(c), P.P.C.---Petition for leave to appeal was converted into appeal and partly allowed.

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

----S. 302(b)---Qatl-i-amd---Minor discrepancies on statements of eye-witnesses---Effect---On account of lapse of memory owing to intervening period, some minor discrepancies are inevitable and they may occur naturally but the accused cannot claim benefit of such minor discrepancies.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Reappraisal of evidence---Spur of the moment occurrence without any premeditation---Conviction under section 302(b), P.P.C. altered to one under section 302(c), P.P.C.---Sentence, reduction in---Accused was a minor (aged about 14 years) at the time of occurrence; the occurrence had taken place at the spur of the moment and without any preparation or premeditation; the weapon (motorcycle wire lock) used by the accused was ordinarily attached to the motorcycle/cycle for safety and the same without any stretch of imagination could not be termed as a weapon for committing such like crimes---All such aspects when read conjointly with the statement of the accused under section 340(2), Cr.P.C., further strengthened the view that the occurrence had taken place without premeditation and possibility could not be ruled out that the same was result of some trivial altercation/use of filthy language as stated by the accused---Accused had made out a case, which squarely attracted the provisions of section 302(c), P.P.C.---Conviction of accused under section 302(b), P.P.C. was altered to one under section 302(c), P.P.C., and his sentence of imprisonment for life was reduced to the period already undergone by him---Petition for leave to appeal was converted into appeal and partly allowed.

Anis Muhammad Shehzad, Advocate Supreme Court for Petitioner.

Zafar Ahmed Khan, Additional P.G. Sindh for the State.

Complainant in person.

2022 S C M R 2147

[Supreme Court of Pakistan]

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

MUHAMMAD NAWAZ KHAN---Petitioner

Versus

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

Civil Petition No. 2277 of 2019, decided on 11th October, 2022.

(Against the judgment dated 20.03.2019 of the Punjab Service Tribunal, Lahore passed in Appeal No. 4745 of 2017)

Civil service---

----Concurrent departmental and criminal proceedings---Acquittal in criminal proceedings--- Effect--- Civil servant cannot escape departmental proceedings or consequences thereof on account of his acquittal/exoneration on a criminal charge---While facing expulsive proceedings on departmental side on account of his indictment on criminal charge, civil servant may not save his job in the event of acquittal as the department may still have reasons to conscionably consider his stay in the service as inexpedient---Department can assess the suitability of a civil servant, confronted with a charge through a fact finding method, which is somewhat inquisitorial in nature, but it is without the 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 and District Police Officer, Mianwali and 2 others v. Amir Abdul Majid 2021 SCMR 420 ref.

Malik Matee Ullah, Advocate Supreme Court (through video link from Lahore) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2022 S C M R 2149

[Supreme Court of Pakistan]

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

SHAH ZAMEEN---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 178 of 2022, decided on 10th October, 2022.

(Against the judgment dated 03.04.2017 of the Peshawar High Court, Peshawar passed in Criminal Appeal No. 611-P of 2014)

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

----S. 9(c)---Possession of narcotics---Reappraisal of evidence---Safe custody and safe transmission of samples to the Forensic Science Laboratory not established---Possibility of tampering with and fabrication of samples---Benefit of doubt---Although Moharrar appeared in the court and stated that he kept the sample parcels in the Malkhana but he did not mention that to whom he delivered the sample parcels for taking the same to the office of Chemical Examiner--- Prosecution did not produce any witness who could have claimed that he had delivered the sample parcels to the concerned laboratory intact---Report of Chemical Examiner did not disclose the name of the person who had brought the said sample parcels to the said laboratory---Safe transmission of the sample parcels to the concerned laboratory had not been established by the prosecution and the element of tempering with and fabrication (of the samples) could not be excluded---Appeal was allowed, and accused was acquitted of the charge by extending benefit of doubt to him.

Amjad Ali v. The State 2012 SCMR 577; Ikramullah and others v. The State 2015 SCMR 1002; Taimoor Khan and another v. The State and another 2016 SCMR 621; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

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

----S. 9--- Possession of narcotics---Safe custody of the recovered substance and its safe transmission from the local police station to the office of the Chemical Examiner not established by the prosecution---In a case containing the said defect on the part of the prosecution, it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond the shadow of doubt.

Amjad Ali v. The State 2012 SCMR 577; Ikramullah and others v. The State 2015 SCMR 1002; Taimoor Khan and another v. The State and another 2016 SCMR 621; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

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

Mian Shafaqat Hussain Shah, Additional A.G., Khyber Pakhtunkhwa for the State.

2022 S C M R 1958

[Supreme Court of Canada]\

Present: Wagner C.J., Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal, JJ.

ATTORNEY GENERAL OF CANADA---Appellant

Versus

COLLINS FAMILY TRUST and another---Respondents

Decided on 17th June, 2022.

(On Appeal from the Court of Appeal for British Columbia)

Per Brown J; Wagner C.J. ,Moldaver, Karakatsanis, Rowe, Martin, Kasirer and Jamal JJ. concurring; Côté, J, dissenting.

(a) Taxation---

----Income tax--- Equity--- Rescission, remedy of---Rescission of transaction on the ground of mistake--- Scope--- Transactions undertaken by taxpayer based in part on the interpretation of provision of law by the government revenue service---Courts subsequently interpreting the provision differently resulting in issuances of notices of reassessment by the revenue service imposing tax liability on the tax payer---Whether equitable remedy of rescission of transaction is available in a case where the taxpayer is mistaken about the tax consequences of transaction freely agreed upon]---[Per Brown J: (Majority view): Transactions that do not call for relief as a matter of conscience or fairness are properly outside equity's domain---Nothing is unconscionable or unfair in the ordinary operation/ application of tax statutes to transactions freely agreed upon---Tax consequences do not flow from parties' motivations or objectives---Rather, they flow from their freely chosen legal relationships, as established by their transactions---Taxpayer should neither be denied nor judicially accorded a benefit based solely on what they would have done had they known better---Proper inquiry is into what the taxpayer agreed to do and not into whether there is a windfall for the public treasury or a taxpayer---Court may not modify an instrument/ transaction merely because a party discovered that its operation generates an adverse and unplanned tax liability]---[Per Côté, J: (Minority view): Rescission is, in strictly limited circumstances, an available remedy that can be used to unwind transactions that were undertaken on the basis of a mistaken assumption, even if permitting it would effectively relieve the taxpayer from payment of unexpected taxes---Rescission on the ground of mistake is available in a tax context, but should be granted only in rare circumstances---Equity will not intervene to relieve a taxpayer from the consequences of a risk that was knowingly or recklessly accepted---Taxpayers should not engage in bold tax planning on the assumption that it will be possible to rescind their transactions should that planning fail---Since rescission is a remedy of last resort, it can only be granted if no alternative remedies are available; it is not sufficient for an alternative remedy to merely exist; the alternative remedy must be practical and adequate.]

Per Brown J: (Majority view):

In the present case two companies executed a plan to create family trusts to protect their assets from creditors without incurring income tax liability. The plan was based in part on interpretations published by the Canada Revenue Agency ("CRA") of the attribution rules in section 75(2) and the inter-corporate dividend deduction in section 112(1) of the Income Tax Act, 1985 (Canada). The dividends were paid to the family trusts. Subsequent to implementation of the plans, the Tax Court of Canada, in a separate matter, interpreted section 75(2) differently than was commonly accepted by tax professionals and CRA. The CRA reassessed the trusts' returns and imposed unanticipated tax liability. The trusts petitioned the court for the equitable remedy of rescission of the transactions leading to and including the payment of dividends. The chambers judge allowed the petitions and granted rescission considering himself bound to follow the Court of Appeal's for British Columbia's decision in Re Pallen Trust, 2015 BCCA 222, 385 D.L.R. (4th) 499, which had applied the test for equitable rescission stated in Pitt v. Holt, [2013] UKSC 26, [2013] 2 A.C. 108 ('Pitt v. Holt'), to similar transactions. The Court of Appeal dismissed the Attorney General's appeals.

Re Pallen Trust, 2015 BCCA 222, 385 D.L.R. (4th) 499; Pitt v. Holt, [2013] UKSC 26, [2013] 2 A.C. 108 and Jean Coutu Group (PJC) Inc. v. Canada (Attorney General), 2016 SCC 55, [2016] 2 S.C.R. 670 ref.

Taxpayers should be taxed based on what they actually agreed to do and did, and not on what they could have done or later wished they had done. A determination that equity can relieve a tax mistake is barred by a limiting principle of equity and by principles of tax law stated in Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 S.C.R. 720 ('the Fairmont Hotels'), and Jean Coutu Group (PJC) Inc. v. Canada (Attorney General), 2016 SCC 55, [2016] 2 S.C.R. 670 ('the Jean Coutu').

Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 S.C.R. 720 at para 3 ref.

A court of equity may grant relief where it would be unconscionable or unfair to allow the common law to operate in favour of the party seeking enforcement of the transaction. However, it is a limiting principle and a fundamental premise of equity that it developed to alleviate results under the common law that call for relief as a matter of conscience and greater fairness. Transactions that do not call for relief as a matter of conscience or fairness are properly outside equity's domain. There is nothing unconscionable or unfair in the ordinary operation of tax statutes to transactions freely agreed upon. If there is to be a remedy, it lies with Parliament, not a court of equity.

J. Berryman, The Law of Equitable Remedies (2nd ed. 2013), at p. 2; I. C. F. Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (9th ed. 2014), at p. 1) and Canada Life Insurance Co. of Canada v. Canada (Attorney General), 2018 ONCA 562, 141 O.R. (3d) 321, at para. 93 ref.

The principles of tax law and the prohibition against retroactive tax planning stated in Fairmont Hotels and Jean Coutu preclude any equitable remedy. Unless a statute says otherwise, taxpayers are to be taxed in accordance with the applicable tax statute's ordinary operation. Taxpayers may structure their affairs so as to reduce their tax liability but may also be taken as having structured their affairs in such a way that increased their tax liability. Tax consequences do not flow from parties' motivations or objectives. Rather, they flow from their freely chosen legal relationships, as established by their transactions. A taxpayer should neither be denied nor judicially accorded a benefit based solely on what they would have done had they known better. The proper inquiry is into what the taxpayer agreed to do and not into whether there is a windfall for the public treasury or a taxpayer. A court may not modify an instrument merely because a party discovered that its operation generates an adverse and unplanned tax liability. These principles are of general application and are not confined to cases where rectification is sought. There is no room for distinguishing Fairmont Hotels or Jean Coutu based upon the particular remedy sought. A taxpayer is barred from resorting to equity in order to undo or alter or in any way modify a concluded transaction or its documentation to avoid a tax liability arising from the ordinary operation of a tax statute.

Duha Printers (Western) Ltd. v. Canada, [1998] 1 S.C.R. 795, at para. 88; Neuman v. M.N.R., [1998] 1 S.C.R. 770, at para. 63 ref.

A limiting principle of equity and, relatedly, principles of tax law stated in Fairmont Hotels and Jean Coutu are irreconcilable with the conclusion in Pitt v. Holtthat equity can relieve a tax mistake. This conclusion contradicts these principles by maintaining that tax consequences are relevant to deciding whether a party to a voluntary disposition can satisfy the test for rescission. The lower courts therefore erred in relying upon Pitt v. Holt. Further, the constraint imposed by Parliament upon the Minister of National Revenue to assess a taxpayer in accordance with the facts and the law required CRA to reassess the trusts in light of the Tax Court's decision. The Minister was bound to apply Parliament's direction in the Income Tax Act, 1985 (Canada) as interpreted by a court of law, unless and until that interpretation is judged to be incorrect by a higher court. In the present case no unfairness lies in holding the trusts to the consequent tax liabilities of the ordinary operation of the Income Tax Act, 1985 respecting transactions freely undertaken. Accordingly, the trusts are barred from obtaining rescission of the transactions. Appeal was allowed, the judgments of the Court of Appeal and of the chambers judge were set aside, and the petitions of the respondents (trusts) were dismissed.

Harris v. Canada (C.A.), [2000] 4 F.C. 37 (C.A.), at para. 36; Ludmer v. Canada, [1995] 2 F.C. 3 (C.A.); Longley v. Minister of National Revenue (1992), 66 B.C.L.R. (2d) 238 (C.A.) at para 19; CIBC World Markets Inc. v. Minister of National Revenue, 2012 FCA 3, 426 N.R. 182, at paras. 16 and 20-21, Galway v. Minister of National Revenue, [1974] 1 F.C. 600 (C.A.), at p. 602 and Canada v. 984274 Alberta Inc., 2020 FCA 125, [2020] 4 F.C.R. 384, at para. 52 ref.

Per Côté, J: (Minority view):

Rescission is, in strictly limited circumstances, an available remedy that can be used to unwind transactions that were undertaken on the basis of a mistaken assumption, even if permitting it would effectively relieve the taxpayer from payment of unexpected taxes. Although the cases of Fairmont Hotels and Jean Coutu affirmed certain principles of tax law, such as the principle that taxpayers should be taxed based on what they did, not what they wish they had done, and the principle that retroactive tax planning is impermissible, they are not determinative of the availability of rescission in the tax context. Neither Fairmont Hotels nor Jean Coutu generally precludes the availability of equitable remedies in a tax context. Both clarified the test for rectification.

Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 S.C.R. 720 and Jean Coutu Group (PJC) Inc. v. Canada (Attorney General), 2016 SCC 55, [2016] 2 S.C.R. 670 ref.

Cases of Fairmont Hotels and Jean Coutu stand for the following propositions: if a taxpayer does not meet the test for an equitable remedy, then a court has no discretion to grant that remedy, even if the taxpayer may have to pay taxes unexpectedly; if, however, a taxpayer meets the test for an equitable remedy, then the court may grant it, even if doing so would effectively relieve the taxpayer from payment of the unexpected taxes; and a common intention to limit or avoid tax liability is insufficiently precise to evince an existing prior agreement with definite and ascertainable terms.

Rescission on the ground of mistake is available in a tax context, but should be granted only in rare circumstances. The test developed in Pitt v. Holt, the leading case on equitable rescission of unilateral transactions for mistake, is compatible with (Canadian) law and should be endorsed. A court may rescind a voluntary disposition when there is a clear causative mistake of sufficient gravity that demands the intervention of equity. Only a mistake can warrant rescission, as opposed to mere ignorance or misprediction. The test for rescission is fact-specific and objectively assessed. Still, some types of mistake should not attract relief, for example when the taxpayer accepted the risk that a scheme might be ineffective, or when it would be against public policy to grant relief. Equity will not intervene to relieve a taxpayer from the consequences of a risk that was knowingly or recklessly accepted. Additionally, the fact that a transaction would have constituted abusive tax avoidance but for the mistake might preclude rescission because when a tax plan is aggressive, the taxpayer accepts the risk that it may not operate as intended. However, the purported morality of a plan remains irrelevant and what constitutes an aggressive tax plan akin to abusive tax avoidance should be strictly interpreted. Taxpayers should not engage in bold tax planning on the assumption that it will be possible to rescind their transactions should that planning fail.

A. H. Oosterhoff, "Causative Mistake of Sufficient Gravity, or Retroactive Tax Planning? A Comment on Re Pallen Trust" (2016), 35 E.T.P.J. 135, at p. 144; W. Seah, "Mispredictions, Mistakes and the Law of Unjust Enrichment" (2007), 15 R.L.R. 93, at p. 100; Neville v. National Foundation for Christian Leadership, 2013 BCSC 183, aff'd 2014 BCCA 38, 350 B.C.A.C. 7; Canada v. Alta Energy Luxembourg S.A.R.L., 2021 SCC 49 and Quebec (Agence du revenu) v. Services Environnementaux AES inc., 2013 SCC 65, [2013] 3 S.C.R. 838 ref.

Rescission is a discretionary remedy. Appellate intervention is only warranted if a decision to grant rescission is manifestly unjust. There is no basis to intervene in the present case. The taxpayers' erroneous belief about section 75(2) was a mistake of law, not a misprediction in relation to a change in the law. Rescission relieves against mistakes concerning the situation that existed at the time of the transaction. Given that section 75(2) had never been analyzed by a court when the Tax Court of Canada released its decision, that decision did not change the law. It stated what the law had always been even though the law had been erroneously interpreted by the CRA and by tax professionals. Injustice stemmed from the CRA's change of position on the interpretation of section 75(2) after the Tax Court rendered its decision, but while it was still arguing in the Federal Court of Appeal that the Tax Court had erred in law. CRA's discretionary decision to reassess the trusts in these circumstances takes this case into the zone of unfairness that allows equity to intervene, and neither policy reasons nor assumption of risk bars rescission in the present case.

Wilson v. Alharayeri, 2017 SCC 39, [2017] 1 S.C.R. 1037, at para. 59 and Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205, at para. 36 ref.

In the present case the taxpayers' plan did not constitute abusive tax avoidance. The primary goal of the plan (to create family trusts) was not to avoid payment of any tax. The purpose of the plan was to shield assets from creditors and to do so in a manner that did not attract tax liability, with both aspects having equal importance. The plan was also not aggressive at the time it was undertaken, because CRA was unlikely to have contested the taxpayers' position prior to the Tax Court's decision. Deference is also owed to the chambers judge's conclusion that the trusts never assumed the risk that CRA would reverse its interpretation of the attribution rules. The only risk they assumed was that the general anti-avoidance rule might apply.

Fiducie Financière Satoma v. The Queen, 2018 FCA 74, 2018 D.T.C. 5052 distinguished.

Since rescission is a remedy of last resort, it can only be granted if no alternative remedies are available. It is not sufficient for an alternative remedy to merely exist; the alternative remedy must be practical and adequate. No alternative remedies preclude rescission in the present case. Applying to the Minister of National Revenue of for a remission of tax is an extraordinary remedy granted in rare circumstances and it is highly unlikely that the Minister would recommend it in the present case. A claim by the trusts (respondents) against their tax advisers would also not be an adequate remedy because the tax advice was correct at the time it was given and so it is unlikely that a negligence claim would have any chance of success.

5551928 Manitoba Ltd. v. Canada (Attorney General), 2019 BCCA 376, 439 D.L.R. (4th) 483 endorsed.

Fink v. Canada (Attorney General), 2019 FCA 276, 2019 D.T.C. 5127, at para. 1 and 5551928 Manitoba Ltd. (Re), 2018 BCSC 1482, [2018] 6 C.T.C. 186, at para. 47, aff'd 2019 BCCA 376, 439 D.L.R. (4th) 483, at para. 41 ref.

The chambers judge in the present case did not err in granting rescission, and the Court of Appeal was right to uphold his decision. Appeal was dismissed.

Per Côté, J. dissenting (Minority view)

(b) Equity---

----Remedies---Rescission and rectification---Distinction---Rescission and rectification are different remedies with different objectives---Rectification requires a valid antecedent decision to carry out a particular transaction that was incorrectly transcribed on paper---Premise underlying this remedy is that it would be unfair to hold a person to be bound by a transaction they never agreed to---As for rescission, it relieves against a mistake; it presupposes that the transaction was transcribed correctly but was entered into under a mistaken assumption about the facts or the law---If granted, rescission puts the parties in status quo ante and restores things, as between them, to the position in which they stood before the contract was entered into---In other words, the purpose of rectification is to ensure that a written instrument accurately reflects the parties' antecedent agreement, whereas rescission enables a court to retroactively cancel a transaction that was entered into by mistake, thereby restoring the parties to their original position.

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, at para. 39; Abram Steamship Co. v. Westville Shipping Co., [1923] A.C. 773 (H.L.), at p. 781 and Snell's Equity (34th ed. 2020), by J. McGhee and S. Elliott, at para. 15-001 ref.

(c) Equity---

----Remedy---Rescission---Scope---Since rescission is a remedy of last resort, it can only be granted if no alternative remedies are available; it is not sufficient for an alternative remedy to merely exist, the alternative remedy must be practical and adequate.

5551928 Manitoba Ltd. v. Canada (Attorney General), 2019 BCCA 376, 439 D.L.R. (4th) 483 endorsed.

Michael Taylor and Dayna Anderson for the Appellant.

Joel A. Nitikman, Q.C., and Jessica Fabbro, for the Respondents.