SCMR 2023 Judgments

2023 S C M R 1

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

Criminal Petitions Nos. 1197-L and 1263-L of 2021

(Against the order dated 01.06.2021 of the Lahore High Court, Lahore passed in Criminal Misc. No. 35569-B of 2021)

And

Civil Petition No. 1596-L of 2021

(Against the order dated 01.06.2021 of the Lahore High Court, Lahore passed in Writ Petition No. 25122 of 2020)

AHMED SHAKEEL BHATTI and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 1197-L and 1263-L and Civil Petition No. 1596-L of 2021, decided on 16th March, 2022.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Petition for cancellation of pre-arrest bail, dismissal of---Petitioner (complainant) entered into a Share Purchase Agreement with the accused for the sale of a sugar mill for a price of Rs.840 million---Accused initially paid Rs.500 million and issued a postdated cheque for Rs.340 million, which was dishonored on presentation on the instructions given by the accused to his Bank to stop payment---Plea of accused that dispute related to a commercial transaction between the parties, and the complainant was required to fulfill his end of the bargain before he could encash the cheque; that since complainant had failed to fulfill his obligations under the agreement, he was not entitled to encash the cheque---High Court granted pre-arrest bail to the accused---Validity---Commercial integrity is an ethical standard which would require evidence for establishing its absence in the conduct of an accused to a degree that constitutes dishonesty by him within the meaning of section 489-F, P.P.C.---In the facts of the present case, such an assessment can be made at the trial to evaluate whether any improper benefit, if at all, has been derived by the accused on account of the stoppage of payment of his cheque which was wrongful---Such aspect of the matter cannot be determined at the bail stage in the present case---As dishonesty is an ingredient of the offence under section 489-F of the P.P.C., therefore, the cancellation of pre-arrest bail can be ordered in the instant case if the element of dishonesty is presently indicated from the conduct of the accused---Evidentiary material to such effect is lacking on record at the present stage---Indeed, if evidence on the point is brought at the trial, the finding thereon will depend on the significance and materiality of the obligation claimed by the accused to have been breached by the complainant under the terms of the bargain between the parties---Petition for leave to appeal seeking cancellation of pre-arrest bail granted to accused was dismissed and leave was refused.

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

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Cancellation of bail---Scope---Cancellation of orders granting bail are ordinarily resorted by the (Supreme) Court on two grounds: (i) when the impugned order is perverse on the face of it or (ii) when the impugned order has been made in clear disregard of some principle of the law of bail---Perverse order is one that has been passed against the weight of the material on the record or by ignoring such material or without applying the relevant legal criteria or without giving reasons---Such an order is also termed as arbitrary, whimsical and capricious.

Ahsan Bhoon, Advocate Supreme Court for Petitioners (in Criminal Petition No. 1197-L of 2021).

Hafeez Saeed Akhtar, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 1596-L of 2021).

Ch. Muhammad Sarwar Sidhu, Additional P.G., Amir Abbas, DSP and M. Siddique, SI for the State.

Shaukat Rauf Siddiqui, Additional A.G. for the Government of Punjab.

Kh. Haris Ahmed, Senior Advocate Supreme Court for Respondents (in Criminal Petition No. 1197-L of 2021).

2023 S C M R 6

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Jamal Khan Mandokhail, JJ

MUNIR HUSSAIN and others---Applicants

Versus

RIFFAT SHAMIM and others---Respondents

Civil Miscellaneous Application No. 3492 of 2022 in Civil Petition No. Nil of 2022, decided on 14th November, 2022.

(On appeal against the judgment dated 12.04.2022 passed by the Islamabad High Court, Islamabad, in W. P. No. 213 of 2022)

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

----S. 42---Paternity of child---Suit for declaration challenging paternity of a child---Suit was filed about seven months after the death of the child's father "AH" and at a time when the child was aged about 17 years---Admittedly child was brought up by "AH" and his wife (the respondent) as their daughter and as long as "AH" lived, the child's paternity was not questioned by the plaintiffs/petitioners who, for the first time, did so after the father, "AH" had departed from this world--- Respondent/mother testified that the child was her and "AH's" daughter---Petition for leave to appeal and application were dismissed.

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

----S. 42--- Paternity of child---Suit for declaration challenging paternity of a child---Maintainability---Through their declaratory suit the plaintiffs/petitioners sought a negative declaration to the effect that the child in question was not the daughter of "AH" but of "MZ"---To challenge another's paternity/legitimacy is not an assertion of one's own legal character in terms of section 42 of the Specific Relief Act, 1877---However, a person whose legal character, including paternity, was being denied such person could file a suit to claim it, but the present case was not such a case---Plaintiffs lacked legal character under section 42 of the Specific Relief Act, 1877---Petition for leave to appeal and application were dismissed.

Laila Qayyum v. Fawad Qayum PLD 2019 SC 449 ref.

Ch. Afrasiab Khan, Advocate Supreme Court for Applicants.

Nemo for the Respondents.

2023 S C M R 8

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

CIVIL PETITIONS NOS. 84-P, 377-P, 307-P OF 2020

(Against the judgments dated 11.11.2019, 13.02.2020 and 16.03.2021 passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Service Appeals Nos. 1452/2019, 248/2020 and 1260/2016)

AND 469-P, 474-P, 479-P TO 549-P OF 2021

(Against the judgment dated 12.07.2021 passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Service Appeals Nos. 12889/2020, 1207/2017, 812-818/2021, 903-914/2021, 3536-3551/2021, 775-795/2021, 797-811/2021)

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

Versus

MAQSAD HAYAT and others---Respondents

Civil Petitions Nos. 84-P, 377-P, 307-P of 2020 and 469-P, 474-P, 479-P to 549-P of 2021, decided on 7th July, 2022.

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

----Ss. 2(e), 17 & 23, proviso--- Constitution of Pakistan, Art. 3---Fundamental Rules, F.R. 28(b)---Government teachers (BPS-15) serving in the Elementary and Secondary Education Department---Conveyance allowance---Discontinuation of conveyance allowance during summer and winter vacations---Constitutionality and legality---Under section 23 of the Khyber Pakhtunkhwa Civil Servants Act, 1973, it is clearly provided that where the said Act or any rule was applicable to the case of a civil servant the case shall not be dealt with in any manner less favourable to him than that provided by the Act or such rule---Furthermore Fundamental Rule 28(b) showed that vacations counted as duty---Thus, there was no statutory provision under which conveyance allowance of the teachers (respondents) could be stopped or reclaimed---Definition of "pay" provided in section 2(e) of the Act referred to all emoluments, which were being paid to a civil servant under the terms and conditions of service, hence, no action less favourable to the terms and conditions of service could be taken, which otherwise amounted to a violation of the terms and conditions of service of a civil servant---No notification was placed on record to justify the discontinuation of conveyance allowance during summer and winter vacations---Law officer for the Provincial Government failed to point out any document, or any terms and conditions of service of the teachers in which it was ever mentioned that the payment of conveyance allowance was conditional, or that the competent authority in any case reserved the right to discontinue or deduct the amount during summer or winter vacations, nor was it argued that during the vacations the teachers, never attended their duties or during the entire vacations they were never called upon to attend the institutions---Non-payment and/or deduction of conveyance allowance from monthly perks during summer and winter vacations would be tantamount to the violation of fundamental right under Article 3 of the Constitution, which casts an unavoidable and inescapable obligation upon the State to ensure the elimination of all forms of exploitation---Petitions for leave to appeal were dismissed and leave was refused.

Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100 ref.

(b) Khyber Pakhtunkhwa Service Tribunals Act (I of 1974)---

----S. 7(1)---Service Tribunal---Judgment in rem---When a Tribunal decides any question of law by dint of its judgment, the said judgment is always treated as being in rem, and not in personam.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 ref.

Mian Shafaqat Jan, Additional A.G., Khyber Pakhtunkhwa, Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa for Petitioners (in all cases).

Muhammad Amir Malik, Advocate Supreme Court for Respondents (in all cases)

2023 S C M R 16

[Supreme Court of Pakistan]

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

Nawab SIRAJ ALI and others---Appellants

Versus

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

Criminal Appeals Nos. 400, 401 and 402 of 2019, decided on 18th October, 2022.

(Against the judgment dated 13.05.2019 passed by the High Court of Sindh, Karachi in Special Criminal A.T.As. Nos. 19/2013, 24/2013, 25/2013, Criminal Revision No. 40/2014 and Conf. Case No. 01/2013)

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

----Third Sched., Entry No. 4---Heinous offences---Anti-Terrorism Court, jurisdiction of---Scope---Cases of the offences specified in Entry No. 4 of the Third Schedule to the Anti-Terrorism Act, 1997 are cases of those heinous offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule---In such cases of heinous offences mentioned in Entry No. 4 of the said Schedule an Anti-Terrorism Court can pass a punishment for the said offence but not for committing the offence of terrorism.

Anti-Terrorism Court has been conferred jurisdiction not only to try all those offences which attract the definition of 'terrorism' provided by the Anti-Terrorism Act, 1997 ('the Act') but also some other cases, which have been specified in Third Schedule of the Act involving heinous offences which do not fall in the said definition of terrorism. The sole purpose of trying such offences by the Anti-Terrorism Court is for speedy trial of such heinous offences irrespective of the fact that they do not fall within the ambit of 'terrorism'. Such specified heinous offences are only to be tried by an Anti-Terrorism Court and that court can punish the person committing such specified heinous offences only for commission of those offences and not for committing terrorism because such offences do not constitute terrorism. Cases of the offences specified in entry No. 4 of the Third Schedule to the Anti-Terrorism Act, 1997 are cases of those heinous offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule. In such cases of heinous offences mentioned in entry No. 4 of the said Schedule an Anti-Terrorism Court can pass a punishment for the said offence but not for committing the offence of terrorism.

Ghulam Hussain v. The State PLD 2020 SC 61; Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others PLD 2001 SC 169; Farooq Ahmed v. State and another 2020 SCMR 78; Amjad Ali and others v. The State PLD 2017 SC 661 and Muhammad Bilal v. The State and others 2019 SCMR 1362 ref.

Such distinction between cases of terrorism and other heinous offences by itself explains and recognizes that all heinous offences, howsoever serious, grave, brutal, gruesome, macabre or shocking, do not ipso facto constitute terrorism which is a species apart.

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

----Ss. 6 & 7---Act of terrorism---Reappraisal of evidence---Occurrence a result of personal scuffle---Admittedly, in the present case, the occurrence took place due to one of the accused directing an indecent joke with daughter of the complainant, which aggravated the situation and ultimately resulted into the death of complainant's son---No element of terrorism was found in the present case---Such aspect also found support from the fact that the father of the deceased, who was himself a police officer, while lodging the crime report admitted that scuffle took place amongst his son and the accused persons in a club, which ultimately resulted into the incident---Present case was the outcome of personal egoistic approach and there was no design or purpose of destabilizing the government, disturbing the society or hurting a section of the society with a view to achieve objectives which were essentially political, ideological or religious, therefore, provisions of Anti-Terrorism Act, 1997 were not applicable in the present case---Appeals were allowed, and accused persons were acquitted of the charge.

Muhammad Akram v. The State 2022 SCMR 18; Muneer Malik v. The State 2022 SCMR 1494; Amjad Ali v. The State PLD 2017 SC 661; Dilawar Mehmood v. The State 2018 SCMR 593; Muhammad Bilal v. The State 2019 SCMR 1362 and Farooq Ahmed v. The State 2020 SCMR 78 ref.

(c) Administration of justice---

----Courts adjudicate matters without being influenced by passions---Prime duty of the Court is to do justice according to its own conscience.

(d) Pakistan Arms Ordinance (XX of 1965)---

----S. 13(e)---Unlicensed possession of arms etc.---Crime empties---If the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory looses its evidentiary value---Sending the crime empties together with the weapon of offence is not a safe way to sustain conviction of the accused.

In the present case admittedly the crime empties were firstly sent to Forensic Science Laboratory on 31-12-2012 but subsequently they were taken back on 17-01-2013 and were re-submitted later on along with the alleged recovered pistol from the appellant on 23-01-2013. If the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory looses its evidentiary value. Sending the crime empties together with the weapon of offence was not a safe way to sustain conviction of the accused and it smacked of foul play on the part of the Investigating Officer simply for the reason that till recovery of weapon, he kept the empties with him for no justifiable reason. Appeal was allowed, conviction of the accused under section 13(e) of the Pakistan Arms Ordinance, 1965 was set aside and he was acquitted of the charge.

Mahmood Akhtar Qureshi, Advocate Supreme Court for Appellants (in Criminal Appeal No. 400 of 2019).

Syed Muhammad Farhad Tirmazi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in Criminal Appeal No. 401 of 2019).

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record assisted by Ms. Suzain Jehan Khan, A.H.C. for Appellants (in Criminal Appeal No. 402 of 2019).

Muhammad Amir Malik, Advocate Supreme Court for the Complainant (in all cases).

Dr. Faiz-ul-Hassan Shah, P.G. Sindh, Zafar Ahmed Khan, Additional P.G. Sindh and Fauzi Zafar, Additional A.G. Sindh for the State.

2023 S C M R 33

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Muhammad Ali Mazhar, JJ

Civil Appeals Nos. 174 to 177 of 2012

(Against the judgment dated 11.12.2003 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos. 1980/1999, 1/2000, 120/2000 and 6/2001)

AND

Criminal Original Petition No. 59/04

(Against non-compliance of the order dated 26.02.2004 passed by this Court)

LAKSON TOBACCO COMPANY LIMITED and others---Appellants/Petitioners

Versus

NWFP through Secretary Finance and others---Respondents

Civil Appeals Nos. 174 to 177 of 2012 and Criminal Original Petition No. 59 of 2004, decided on 13th September, 2022.

Khyber Pakhtunkhwa Finance Act (V of 1999)---

----S. 11---Tobacco development cess, levy of---Constitutionality---Imposition of the tobacco development cess was not ultra vires the Constitution---Tobacco development cess that was levied was in the nature of fee, and the amounts collected were to be spent for the benefit of the tobacco manufacturers and the tobacco growers, who sustained the tobacco manufacturing industry---Appeals were dismissed. Pakistan Tobacco Company v. Government of NWFP PLD 2002 SC 466 ref.

Raashid Anwer, Advocate Supreme Court for Appellants (in all cases).

Shumail Ahmad Butt, Advocate-General, Khyber Pakhtunkhwa, Imtiaz Ahmed, E.T.O., Mardan, Saeed Gul, E.T.O., Nowshera for Respondent No. 1 (in all cases).

Rashideen Nawaz Qasoori, Advocate Supreme Court for Respondent No. 2 (in all cases).

2023 S C M R 46

[Supreme Court of Pakistan]

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

AZRA BIBI---Petitioner

Versus

GENERAL MANAGER, PERSONNEL (CPO), PAKISTAN RAILWAYS HQ, LAHORE and others---Respondents

Civil Petition No. 2628 of 2019, decided on 10th October, 2022.

(Against the judgment dated 27.05.2019 passed by Federal Service Tribunal, Islamabad in Appeal No. 2054(R)CS/2018)

Civil Servants Act (LXXI of 1973)---

----S. 2(b)---Service Tribunals Act (LXX of 1973), Ss. 2(a) & 4---Appeal filed by legal heirs of deceased civil servant---Maintainability---Perusal of Civil Servants Act, 1973 and Service Tribunals Act, 1973 showed that there is no scope or prospect for filing any appeal before the Service Tribunal other than by the civil servant himself, and the law does not permit the legal heirs to knock on the doors of the Service Tribunal after the death of the said civil servant---Any relief which is personal to the deceased civil servant cannot be granted after his death but the Service Tribunal after taking into consideration the facts and circumstances of each case separately and to alleviate the miseries of the bereaved family, may continue the pending appeal only to examine and decide whether any monetary relief such as lawful pending dues are payable or if any lawful claim lodged by the civil servant in his life time which is subject matter of appeal in which cause of action survives despite his death including pensionary benefits, gratuity or provident fund etc., if permissible and applicable under the law and rules to the deceased.

Record showed that the deceased civil servant died on 30.07.2017, and the first application/representation was moved before the department by his widow/petitioner on 21.05.2018, which was obviously after the demise of her husband. Nothing was placed on record to show that the deceased, ever challenged his regularization with immediate effect, rather than from the date of his initial appointment. The claim of regularization, rightly or wrongly, from the date of initial appointment was a cause of action that could only be agitated by the deceased in his lifetime, but no such claim or legal proceedings were set into motion by him which showed that the deceased was satisfied and not interested in lodging any such claim and after his death.

There is no scope or prospect for filing any appeal before the Service Tribunal under section 4 of the Service Tribunals Act, 1973 other than by the civil servant himself, and the law does not permit the legal heirs to knock on the doors of the Service Tribunal after the death of the said civil servant.

In the present case had the appeal been filed by the deceased and during its pendency he passed away, then subject to the Tribunal first deciding the question whether the cause of action did survive despite death, the widow/petitioner could have moved the application for impleadment in the Tribunal as if the Tribunal had not become functus officio.

Any relief which is personal to the deceased civil servant cannot be granted after his death but the Service Tribunal after taking into consideration the facts and circumstances of each case separately and to alleviate the miseries of the bereaved family, may continue the pending appeal only to examine and decide whether any monetary relief such as lawful pending dues are payable or if any lawful claim lodged by the civil servant in his life time which is subject matter of appeal in which cause of action survives despite his death including pensionary benefits, gratuity or provident fund etc. if permissible and applicable under the law and rules to the deceased. However, the facts of the present case are quite distinguishable and the Tribunal could not entertain the appeal which was originally filed by the widow herself after the death of civil servant and it was not a case of impleading the legal heirs in any pending appeal to ensure the payment of full and final settlement of dues. Petition for leave to appeal was dismissed and leave was refused.

Muhammad Sharif Janjua, Advocate-on-Record for Petitioner along with Mrs. Azra Bibi in person.

Nemo for the Respondents.

2023 S C M R 50

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

Civil Appeal No.630 of 2010

(Against the judgment of Peshawar High Court, Peshawar dated 03.3.2009, passed in Tax Ref. No.8/2008)

and

Civil Appeals Nos. 159 to 161 of 2013

(Against the judgment of Peshawar High Court, Peshawar dated 15.2.2012, passed in ITRs Nos. 92 to 94/2008)

and

Civil Appeals Nos. 162 and 163 of 2013

(Against the judgment of Peshawar High Court, Peshawar dated 07.4.2011, passed in ITRs Nos. 116 and 117/2010)

and

Civil Appeals Nos. 164 to 167 of 2013

(Against the judgment of Peshawar High Court, Peshawar dated 03.3.2011, passed in ITRs Nos. 86 to 89/2010)

and

Civil Appeals Nos. 168 to 175 of 2013

(Against the judgment of Peshawar High Court, Peshawar dated 30.6.2011, passed in ITRs Nos. 41 to 48/2011)

and

Civil Appeals Nos. 176 to 178 of 2013

(Against the judgment of Peshawar High Court, Peshawar dated 27.9.2011, passed in ITRs Nos. 127 to 129/2010)

and

Civil Appeals Nos. 300 to 306 of 2013

(Against the judgment of Peshawar High Court, Peshawar dated 26.10.2011, passed in ITRs Nos. 54 to 60/2011)

and

Civil Appeals Nos. 529 to 531 of 2013

(Against the judgment of Peshawar High Court, Peshawar dated 18.1.2012, passed in ITRs Nos. 83 to 85/2010)

and

Civil Appeals Nos. 1211 to 1214 of 2014

(Against the judgment of Peshawar High Court, Peshawar dated 28.5.2014, passed in ITRs Nos. 115, 111, 112 and 122/2010)

and

Civil Appeals Nos. 1414 to 1418 of 2014

(Against the judgment of Peshawar High Court, Peshawar 10.7.2014, passed in ITRs Nos. 113/2010, 05, 08, 09 and 10/2011)

and

Civil Petitions Nos. 1152 and 1153 of 2017

(Against the judgment of Peshawar High Court, Peshawar dated 24.1.2017, passed in ITRs Nos. 06/2011 and 39-P/2013)

COMMISSIONER OF INCOME TAX---Appellant/Petitioner

Versus

Messrs DYE CHEMICAL INDUSTRIES (PVT.) LTD. and others---Respondents

Civil Appeals Nos. 630 of 2010, 159 to 178, 300 to 306, 529 to 531 of 2013, 1211 to 1214, 1414 to 1418 of 2014 and Civil Petitions Nos. 1152, 1153 of 2017, decided on 6th September, 2022.

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

----S. 80D & Second Sched. Pt. I, Cl. 122C---Protection of Economic Reforms Act (XII of 1992), Ss. 2(b), 3 & 6---Exemption from payment of minimum tax---Whether the respondent taxpayers enjoyed exemption from the payment of minimum tax charged under section 80D of the repealed Income Tax Ordinance, 1979 ("Ordinance") by virtue of section 6 of the Protection of Economic Reforms Act, 1992 ("Act") read with clause 122C, Part-I of the Second Schedule to the Ordinance---Held, that section 80D of the Ordinance introduced in the year 1991, much after the insertion of Clause 122C, was a non obstante provision and therefore overrode the other provisions of the Ordinance including any tax exemption granted under the Ordinance prior to the introduction of section 80D---Additionally, the industrial undertakings in the present case were set up after 07.11.1990 which was after the timeframe provided in clause 122C---"Economic reforms" which were protected under the Act were the ones that were announced, promulgated or implemented by the Government on or after the 7th day of November, 1990---"Economic reforms" also included "fiscal incentives for industrialization"---Section 6 of the Act, simply protected the "economic reforms" already introduced for a specified term and mandated that they shall not be altered to the disadvantage of the taxpayer---Fiscal incentives (part of the "economic reforms") that were protected under section 6 were the fiscal incentives that were announced, promulgated and implemented by the Government on or after 07.11.1990---Thus, the two notifications mentioned in the Schedule to the Act were tax incentives announced in December 1990---Section 6 also protected other fiscal incentives notified under the statutes mentioned in section 3 of the Act but the condition precedent for the "economic reforms" (including the fiscal incentives) to enjoy the protection of the Act was that they must have been announced, promulgated or implemented by the Government on or before 07.11.1990---In the present case, the fiscal incentive under clause 122C of Part-I of the Second Schedule was promulgated in 1987---Argument of the counsel for the taxpayer that the industrial undertaking set up by the respondents was after 07.11.1990 was immaterial; it was the promulgation of the fiscal incentive by the Government that had to be on or before 07.11.1990 and not the actual setting up of the industrial undertaking---Even otherwise, if the industrial undertaking was setup after 07.11.1990 then clause 122C does not apply as it only applied to industrial undertaking setup between January 1987 to June, 1988---Appeals were allowed.

Elahi Cotton Mills Ltd v. Federation of Pakistan PLD 1997 SC 582 distinguished.

Ghulam Shoaib Jally, Advocate Supreme Court for Appellants/ Petitioners (in all cases except C.As. Nos. 529 - 531 of 2013).

Jamroz Khan Afridi, Advocate Supreme Court for Appellants/ Petitioners (in C.As. Nos. 529 - 531 of 2013).

Ch. Akhtar Ali, Advocate-on-Record for Appellants/Petitioners (in C.A. No. 630 of 2010).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants/ Petitioners (in C.As. Nos. 159 - 178 of 2013).

Bahadur Sher Afridi, Additional Commissioner FBR.

Amjad Hameed Ghori, Advocate Supreme Court for Respondents (in C.As. Nos. 161, 300-306 of 2013 and 1416-1418 of 2014).

Abdul Rauf Rohaila, Advocate Supreme Court (through video-link) (in C.As. Nos. 162 - 163 of 2013).

Aftab Alam Yasir, Advocate Supreme Court for Respondents (in C.As. Nos. 168 - 175 of 2013).

Sh. Mehmood Ahmed, Advocate-on-Record for Respondents (in C.As. Nos. 176 - 178 of 2013).

2023 S C M R 58

[Supreme Court of Pakistan]

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

Chaudhary MUNAWAR AHMED and others---Petitioners

Versus

HIGHER EDUCATION COMMISSION through Chairman Higher Education Commission, Islamabad and others---Respondents

Civil Petitions Nos. 2411-L, 2617-L, 2618-L, 2652-L to 2677-L, 2721-L to 2733-L, 2765-L, 2771-L, 2775-L, 3480, 3492, 3168-L to 3173-L of 2019 and C.M.A. 11202 of 2019, Civil Petitions Nos. 3174-L and 3175-L of 2019, C.M.A. No. 4727 of 2020 and Civil Petitions Nos. 3176-L to 3187-L of 2019, decided on 15th December, 2021.

(On appeal from the judgment/order dated 03.07.2019 of the Lahore High Court, Lahore passed in W.Ps. Nos. 872/17, 37349/17, 82086/17, 1243/17, 46298/17, 57113/17, 59525/17, 67652/17, 68304/17, 71964/17, 75390/17, 87325/17, 97314/17, 102735/17, 129834/18, 154090/18, 154295/18, 154567-L/18, 157634/18, 176904/18, 193992/18, 216188/18, 220633/18, 231076/18, 238815/18, 244708/18, 250545/18, 22576/19, 23679/19, 13427/17, 21746/17, 30613/17, 27955/17, 32050/17, 67315/17, 37325/17, 67287/17, 67654/17, 154094/17, 220551/18, 220601/18, 45841/17, 176904/18, 231076/18, 23679/19, 872/17, 68304/17, 4243/17, 13427/17, 21746/17, 27955/17, 30613/17, 32050/17, 37325/17, 37349/17, 67287/17, 67315/17, 75390/17, 82686/17, 87325/17, 102735/17, 154094/18, 154295/18, 154567/18, 157034/18, 220531/18 and 231076/18)

Educational institution---

----Sub-campuses of universities set up outside the territory of their charter---Legality---According to the Higher Education Commission of Pakistan (HEC) such campuses were illegal but the only measure which the HEC could effectively undertake was to issue alerts, and that the HEC had not received any cooperation from the Federal Government nor from the Provincial Government in respect of sub-campuses that were operating within their territories---Supreme Court observed that the maintenance of uniform standards of education and the effective monitoring of such standards and curriculum by the HEC was essential for safeguarding the future of education of the youth of the country, and that in such respect, the Court endorsed all lawful acts taken by the HEC---Supreme Court directed the Provincial Government as well as the Federal Government to render their fullest cooperation in enforcing such measures and standards---Petitions were disposed of.

Yasir Nawaz and others v. Higher Education Commission and others PLD 2021 SC 745 ref.

Syed Ali Zafar, Advocate Supreme Court for Petitioners (in C.P. No. 2411-L of 2019).

Shehryar Kasuri, Advocate Supreme Court (video link from Lahore) for Petitioners (in C.P. No. 2617-L of 2019 and others).

Sahibzada Ahmed Raza Qasuri, Advocate Supreme Court for Petitioners (in C.P. No. 3480 of 2019).

Malik Mateeullah, Advocate Supreme Court for Petitioners (video link from Lahore) (in C.P. No. 3492 of 2019).

Sultan Mehmood, Advocate Supreme Court (video link from Lahore) (in C.P. No. 3168-L of 2019).

Nayyab Gardezi, D.A.G. for Federation.

Qasim Chohan, Additional A.G. for the Punjab.

Fauzi Zafar, Additional A.G. for Sindh.

Zahid Yousaf Qureshi, Additional A.G. for Khyber Pakhtunkhwa.

Niazullah Niazi, A.G. ICT for ICT.

M. Ayaz Sawati, Additional P.G. for Balochistan.

Sajid Ijaz Hotiani, Advocate Supreme Court for HEC.

2023 S C M R 61

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

CAPITAL DEVELOPMENT AUTHORITY, CDA through Chairman, CDA, Islamabad---Petitioner

Versus

AHMED MURTAZA and another---Respondents

Civil Petition No. 3709 of 2022, decided on 2nd November, 2022.

(Against judgment dated 29.09.2022 passed by the Islamabad High Court Islamabad in W.P. No. 1978 of 2022)

(a) Supreme Court Rules, 1980---

----O. XXVIII, R. A(3)---Public institution---Frivolous litigation---Wasting time of Court---Special costs imposed---Non-transferable plot allotted for use as a clinic transferred outside of family members of original allottee---Held, that Capital Development Authority (CDA) allowed the transfer of the disputed plot to non-family members, from time to time and only raised a dispute with reference to the transfer in favour of respondent---Present case was a classic example of a litigant wasting the time of the Supreme Court by filing frivolous litigation given that the present matter already stood decided by the High Court---Furthermore, the dispute, if any, raised by the CDA was based on their own conduct as the record shows that they had themselves transferred the disputed plot outside the family members of original allottee repeatedly and yet chose to dispute the transfer in favour of respondent notwithstanding the earlier transfers made in favour of different transferees---Capital Development Authority had taken no action against any officer, nor raised the present issue before their own governing body to highlight the fact that their own documents and policy were not being followed by their officers---Instead, they chose to litigate the matter and burdened the courts with litigation which did not raise a question of law or fact in good faith---Supreme Court imposed special costs of Rs.500,000/- on the CDA, which was to be deposited in any approved charity---Petition for leave to appeal was dismissed and leave was refused.

(b) Supreme Court Rules, 1980---

----O. XXVIII, R. A(3)---Constitution of Pakistan, Arts. 9 & 37(d)---Frivolous litigation---Wasting time of Court---Special costs---Supreme Court can impose costs, to curb frivolous litigation, for prolonging the agony of the respondents and wasting the time of the Supreme Court which could be spent in resolving legitimate disputes---Such frivolous litigation overburdens the Supreme Court with vexatious cases thereby delaying and thus denying the rightful claim of access to justice guaranteed under Article 9 of the Constitution---Such frivolous litigation also impairs expeditious justice and offends Article 37(d) of the Principles of Policy under the Constitution---Court time can be well spent on handling genuine cases as opposed to pursuing cases which are vexatious and meritless on their face and which have already been decided between the parties.

Syed Iqbal Haider v. Federation of Pakistan 1998 SCMR 1318; Muhammad Akbar v. Major Tajjuddin 2007 SCMR 140 and Commissioner of Inland Revenue v. Packages Limited 2022 SCMR 634 ref.

Muhammad Nazir Jawad, Advocate Supreme Court for Petitioner.

Saqib Jillani, Advocate Supreme Court for Respondents (via video link, Lahore).

2023 S C M R 68

[Supreme Court of Pakistan]

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

MUHAMMAD AZIM KHAN AFRIDI---Petitioner

Versus

The PRESIDENT OF PAKISTAN through Principal Secretary and others---Respondents

Civil Petition No. 3413 of 2017, decided on 22nd October, 2022.

(Against the judgment of the Peshawar High Court, Peshawar dated 05.09.2017 passed in Writ Petition No. 3676-P of 2018)

(a) Constitution of Pakistan---

----Art. 199---Writ of certiorari---Scope---Whenever a High Court is exercising its constitutional jurisdiction for the purposes of certiorari, it is directing a Court under its superintendence to correct any error of law or jurisdiction in a judgment/decision assailed before it in such a manner that the same order or judgment can be "certified" by the same High Court---However, whilst certiorari may be a prerogative of the High Court under Article 199 of the Constitution of Pakistan, it is still a discretionary power.

Ryots of Garabandho v. Zemindar of Parlakimedi AIR 1943 PC 164; Darvesh Khan v. Muhammad Sher Khan and others 1986 SCMR 352 and Rehmatullah and others v. Mst. Hameeda Begum and others 1986 SCMR 1561 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---When exercising constitutional jurisdiction the High Court does not sit as a Court of appeal.

Rex v. Northumberland Compensation Appellate Tribunal 1952 1 KB 338 ref.

(c) Constitution of Pakistan---

----Arts. 175A(1), 175A(8) & 199---Judicial Commission of Pakistan ('Commission'), decisions of---Not amendable to judicial review by way of constitutional petitions filed under Article 199 of the Constitution---Commission is not a "Court" whose decisions can be made the subject of superintendence by the High Courts for the purposes of exercising writ of certiorari under Article 199 of the Constitution.

(d) Constitution of Pakistan---

----Arts. 175A(8) & 199---Additional Judge of (Islamabad) High Court---No vested right to be confirmed as a Permanent Judge of the High Court on the sole ground that the then-Chief Justice of (Islamabad) High Court had recommended him for confirmation---Recommendation from the Chief Justice of a High Court is nothing but a process of procedure and the said recommendation needs to be deliberated and ultimately voted on by the Judicial Commission of Pakistan ('Commission'), before a name is either confirmed or dropped by a majority vote of the Commission---Constitutional petition filed by the petitioner before the High Court against his non-confirmation as a Permanent Judge of the High Court was rightly dismissed---Petition for leave to appeal was dismissed.

Petitioner in person.

Nemo for Respondents.

2023 S C M R 79

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Jamal Khan Mandokhail, JJ

Messrs PAKISTAN WAPDA FOUNDATION---Appellant

Versus

The COLLECTOR OF CUSTOMS, SALES TAX, LAHORE and others---Respondents

Civil Appeal No. 458 of 2017, decided on 8th December, 2022.

(Against the judgment dated 04.10.2016 passed by the Lahore High Court, Lahore in Excise Tax Reference No. 02 of 2009)

(a) Central Excises Act (I of 1944)---

----Ss. 2(25) & 3---Central excise duty---Term 'manufacture' within the purview of the Central Excises Act, 1994---Principles for adjudging as to what constitutes 'manufacture' within the purview of the scheme envisaged in the Central Excises Act, 1944 stated.

Following are the principles for adjudging what constitutes 'manufacture' within the purview of the scheme envisaged in the Central Excises Act, 1944:

i. The Central Excises Act, 1944 enlarges the scope of the word 'manufacture' to such acts, processes, works, and repair which may not generally be covered by the word literally;

ii. The word 'manufacture' includes any process incidental or ancillary to the completion of a manufactured product and any process of re-manufacture, remaking, reconditioning or repair and the process of packing or repacking such product;

iii. It is not necessary that any new article may be produced in this process. The article may even remain the same but the processing may make it a finished good different in quality or utility from the original one;

iv. A process in which goods, though remain same, are made marketable and are, therefore, regarded by the purchasing public as different articles having a positive and specific use in their new state; and

v. The definition of the word 'manufacture' contained in the Central Excises Act, 1944 is not an absolute one but a qualified.

Assistant Collector of Central Excise v. Orient Straw Board PLD 1991 SC 992; Superintendent of Central Excise v. Faqir Muhammad PLD 1959 W.P. (Rev.) 103; Collector of Customs v. Mahboob Industries 2006 PTD 730 and Federation of Pakistan v. Messrs Noori Trading Corporation 1992 SCMR 710 ref.

Servo-Med Industries v. Commissioner of Central Excise (2015) 14 SCC 47 and Mineral Oil Corporation v. CCE, Kanpur Manu 1999 (114) E.L.T. 166 distinguished.

(b) Central Excises Act (I of 1944)---

----Ss. 2(25) & 3---Sales Tax Act (VII of 1990), Ss. 2(16), 2(17), 2(39), 2(41), 3(1) & 3(3)---Central Excises Rules, 1944, R. 7---Reclamation of used transformer oil carried out by Pakistan WAPDA Foundation ('appellant') for WAPDA---Question as to whether such reclamation comes within the purview of the Central Excises Act, 1944; and whether the said process is a taxable supply chargeable to sales tax under the provisions of section 3 of the Sales Tax Act, 1990---Held, that the appellant is not a manufacturer of transformer oil within the contemplation of section 2(25) of the Central Excises Act, 1944 read with Rule 7 of the Central Excises Rules, 1944---Appellant is, therefore, not liable to pay the excise duty for reclaiming (manufacturing) transformer oil---Services provided by the appellant for reclaiming transformer oil may have come within the purview of excisable services provided under heading 9809.0000 in the table of services provided in the First Schedule of the Central Excises Act, however, no definite finding can be rendered on said issue by the Supreme Court, and that too at present stage, when the same was not put to the appellant to respond to in the Show Cause Notice---Regarding sales tax, the appellant is not a manufacturer within the purview of section 2(17) of the Sales Tax Act, 1990---Supply of reclaimed transformer oil by the appellant to WAPDA, thus, does not come within the scope of taxable supplies under the Sales Tax Act, 1990---Appellant is, therefore, not liable to pay the sales tax.

Admittedly, the Pakistan WAPDA Foundation ('appellant') and WAPDA are two distinct and separate legal persons, who had entered into an agreement, whereby waste transformer oil, the so-called raw material, was provided free of cost by WAPDA to the appellant for reclamation of transformer oil. The title of waste transformer oil during the entire process of reclamation remained with WAPDA. Therefore, the transfer of possession of waste transformer oil by WAPDA to the appellant under a contract, so that the same is reclaimed and made useable, and thereafter, is returned to WAPDA, would constitute 'bailment'. In such circumstances, when the appellant did not have title over waste transformer oil and was reclaiming the same for WAPDA under a contract, it cannot be described as the real 'manufacturer', while the capacity of WAPDA, the real owner of the waste as well as of reclaimed transformer oil, can hardly be described otherwise.

The waste transformer oil was provided by WAPDA to the appellant, and the same remained the property of WAPDA during the entire reclamation process. In such a scenario, the role of the appellant in the entire reclamation process could at most be described as rendering services for the reclamation of transformer oil by providing 'labour' for 'hire' to WAPDA under a contractual arrangement.

Manufacturing of transformer oil is also an 'excisable good' under the Central Excises Act, 1944. However, the excise duty on this 'excisable good' is to be paid by the manufacturer, not by the service provider. As the appellant is not a 'manufacturer', it is not liable to pay the excise duty on reclaimed transformer oil, an 'excisable good'.

The appellant provided 'services' for reclaiming transformer oil to the 'manufacturer' - WAPDA. One needs to see whether such 'service' is an 'excisable service' under the Central Excises Act, 1944 specified in the First Schedule to the said Act. Perusal of the First Schedule to the Central Excises Act, 1944 shows that the services provided while carrying out reclamation of waste transformer oil or, for that matter, any waste oil are not specifically mentioned in the table of 'excisable services' provided in the Schedule. However, there is an omnibus heading; 9809.0000 titled "Services provided or rendered by persons engaged in contractual execution of work or furnishing supplies". An argument could be advanced that the activity of reclamation of transformer oil performed by the appellant could be considered as 'work' so as to fall within the meaning of 'contractual execution of work'. However, no definite finding can be rendered by the Supreme Court on this point, and that too at present stage, when the same was not put to the appellant in the Show Cause Notice.

Moving onto sales tax, it is important to note that the appellant only reclaimed or repaired transformer oil. During the process of reclamation, impurities are removed from used transformer oil. This activity does not involve conversion of any article singly or in combination with other articles into another distinct article or product. Nor does the process change or transform transformer oil in a way rendering it capable of being put to use differently or distinctly. The appellant returned the same good, that is transformer oil, to the owner of that good, WAPDA, after charging the latter for the repair work done by it. The process of reclamation of transformer oil by the appellant, thus, does not fall within the meaning of 'manufacture' as provided in section 2(16) of the Sales Tax Act and, in sequel, the appellant is not a 'manufacturer' as defined in section 2(17). As the appellant is not a manufacturer, it does not get caught up in the activity of making a 'taxable supply' as per section 2(41) for only a supply of taxable goods by an importer, manufacturer, wholesaler (including dealer), distributor or retailer falls within 'taxable supply' under that section. The appellant, not belonging to any of the said capacities, therefore, cannot be charged to sales tax under section 3 of the Sales Tax Act, 1990.

Chairman FBR v. Al-Technique Corporation PLD 2017 SC 99 ref.

(c) Central Excises Act (I of 1944)---

----Ss. 2(25) & 3---Central excise duty---Term 'manufacturer' within the purview of the Central Excises Act, 1944 explained.

Word 'manufacturer' within the purview of the Central Excises Act, 1944 falls into the following two categories:

i. a person who employs hired labour in the production or manufacture of excisable goods; and

ii. a person who engages in the production or manufacture of excisable goods on his own account if those goods are intended for sale.

A person who himself does not engage in the production or manufacture of excisable goods, but hires the labour of another person, whether natural or juristic, on contract for this purpose, falls within the scope of the first category of manufacturers mentioned above.

United Iron Works v. Standard Brass Casting Co. (231 P. 567, 569, 69 Cal. App. 384) ref.

Mian Ashiq Hussain, Advocate Supreme Court for Appellant (through video-link, Lahore).

Mrs. Kausar Parveen, Advocate Supreme Court and Naeem Hassan, Secy. Litigation, FBR for Respondents.

2023 S C M R 102

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar and Shahid Waheed, JJ

Malik TARIQ MAHMOOD and others---Appellants

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Appeal No. 914-L of 2013, decided on 29th November, 2022.

(On appeal against the Judgment dated 08.10.2013 passed by the Lahore High Court, Lahore, in R.F.A. No. 89 of 2009)

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

----S. 23(1)---Land acquisition---Matters to be considered by Court in determining compensation stated.

The Court assessing compensation is required to take into consideration not only the present purpose or the present use to which the land is applied but also any other more beneficial purpose to which it might reasonably be put by the owner. Indubitably, it is true that regard can be had only to the existing conditions and what is likely to happen in reasonably near future and compensation cannot be fixed on the basis of what might happen in the dim and distant future. Where there is a reasonable possibility of the land being put to a more profitable use within a reasonable period the same cannot be ignored in assessing its value. Compensation has always to be determined by reference to the price which a willing vendor may reasonably expect to obtain from a willing purchaser. When the land possesses some unusual, special or unique features as to its location or potentialities, due weight must be attached to all these elements. After considering all the circumstances, the Court has to arrive at a fair estimate with reference to the surrounding circumstances and evidence in the case and to award a fair compensation on that basis. The Court further ought to be liberal in the sense that it should not be too meticulous or pedantic in dealing with the evidence. It is also true that an entry in the revenue record as to the nature of the land may not be conclusive. If the land acquired is found to be useful both for agricultural or non-agricultural purposes, merely on the ground that it was used as agricultural land by the owner till the time of its acquisition, its potentiality as non-agricultural land cannot be ignored.

Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam AIR 1939 PC 98; Bailey v. Isle of Thanet Light Railways Company (1900) 1 QB 722; re An Arbitration between Lucas and the Chesterfield Gas and Water Board (1909) 1 KB 16; Cedars Rapids Manufacturing and Power Company and Lacoste and others (1914) AC 569; Fraser and others and City of Fraserville (1917) AC 187; Fazalur Rahman and others v. General Manager, SIDB and another PLD 1986 SC 158; Land Acquisition Collector, GSC, NTDC, (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28; Air Weapon Complex through DG v. Muhammad Aslam and others 2018 SCMR 779; Askari Cement Limited through Chief Executive v. Land Acquisition Collector (Industries) Punjab and others 2013 SCMR 1644; Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164; Province of Punjab through Collector, Attock v. Engineer Jamil Ahmad Malik and others 2000 SCMR 870 and Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512 ref.

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

----S. 23(1)---Land acquisition---Compensation, enhancement of---Commercial nature of acquired land---'Patwari' and 'professional property evaluator', evidence of---Report of Local Commission, reliance upon---Land owners produced the Patwari of the village, who in his examination-in-chief clearly stated that to the east of the land was commercial land, to the west was a bypass road, to the north was a main (inter-city) road, and to the south was also commercial area---Said statement was not cross-examined, and thus, it would be deemed to have been admitted by the acquiring authority---Another important witness produced by the land owners to determine the kind of land was a Civil Engineer who was also a professional property evaluator; he stated in his examination-in-chief that the area was commercial and industrial and during cross-examination he told the same boundaries of the acquired land as told by the Patwari---Reference Court appointed a Local Commission, who visited the site, prepared a site plan, recorded the statement of the parties and witnesses, and prepared his report stating that the land was of very valuable and commercial nature and situated in the factory area---Commissioner's integrity and carefulness was unquestioned, his careful and laborious execution of task was proved by his report, and he had not blindly adopted the assertion of either party, and thus, it was not safe for the Court to disregard it or interfere with the result of a careful local investigation as to the use and location of the land acquired---Notwithstanding the absence of evidence regarding the use of land at the time of acquisition, it had become commercial by virtue of being situated in a commercial area---Subject land was of a commercial nature, thus, its compensation had to be determined accordingly---Letter from the Provincial Board of Revenue was available on record which showed that the rate of commercial land of the village had been fixed at Rs.40,000/- per marla---Nothing was available on record nor was it submitted during the arguments that anyone was paid more than Rs.40,000/- per marla for the commercial land of the village, so balancing the interest of the land owners (appellants) with the public interest, the same rate should be for the land of the appellants---Appeal was partly allowed, and the Supreme Court enhanced the compensation awarded from Rs.1200/- per marla to Rs.40,000/- per marla, with the appellants entitled to all statutory benefits, including compulsory acquisition charges and compound interest, as already awarded by the High Court.

Chadan Mull Indra Kumar and others v. Chiman Lal Girdhar Das Parekh and another AIR 1940 PC 3 ref.

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

----S. 23(1)---Civil Procedure Code (V of 1908), O. XXVI, R. 9---Constitution of Pakistan, Art. 24---Land acquisition---Compensation, quantum of---Report of Local Commission, reliance upon---Scope---In land acquisition cases the Court should bear in mind that under Article 24 of the Constitution, the landowner has a fundamental right to get fair and just compensation for the land acquired, and must, therefore, take all possible steps to protect the landowner from denial of that right, and to do so the law does not restrict it to merely rely on the evidence of the parties, but obliges it to exercise its suo motu powers under Order XXVI, Rule 9, C.P.C. and, to obtain the Commission's report on the matters relating to the location, type and use of the land acquired and its market value.

Malik Muhammad Jamil Awan, Advocate Supreme Court for Appellants (via Video Link from Lahore).

Malik Asif Taufeeq, Additional Advocate General, Muhammad Ramzan, LAC, Lahore and Asjid Javed, SDO for Respondents.

2023 S C M R 111

[Supreme Court of Pakistan]

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

CONTROLLER GENERAL OF ACCOUNTS, GOVERNMENT OF PAKISTAN, ISLAMABAD and others---Petitioners

versus

ABDUL WAHEED and others---Respondents

Civil Petitions Nos. 1775 to 1778 and 1793 of 2022, decided on 28th September, 2022.

(Against the judgment dated 07.03.2022 passed by the Federal Service Tribunal, Lahore in Appeals Nos. 180(L) to 183(L) and 179(L) of 2021)

Civil service---

----Promotion---Amendment in promotion Rules---Amended Rules not to be applied retrospectively unless specifically mentioned---Where a statute affects a substantive right, it operates prospectively unless, by express enactment or necessary intendment, retrospective operation has been given---Like original statutes, amending statutes shall not be given retroactive construction, unless the language clearly makes such construction necessary---Insertion or deletion of any provision in the rules or the law, if merely procedural in nature would apply retrospectively, but not if it affects substantial rights which already stood accrued at the time when the un-amended rule or provision was in vogue.

Zakaria H.A. Sattar Bilwani and another v. Inspecting Additional Commissioner of Wealth Tax, Range-II, Karachi 2003 SCMR 271; Government of KPK and others v. Khalid Mehmood 2012 SCMR 619; Senior Member BOR and others v. Sardar Bakhsh Bhutta and another 2012 SCMR 864; Bennion on Statutory Interpretation (Seventh Edition), page 181; Crawford's Statutory Construction, Chapter XXV at pages 562 to 566 and 622 and People v. Dilliard (298 N.Y.S. 296, 302, 252 Ap. Div. 125 ref.

Ch. Aamir Rehman, Additional A.G.P. and Anis M. Shahzad, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2023 S C M R 117

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi and Shahid Waheed, JJ

QASIM SHAHZAD and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 241-L and 385-L of 2018, decided on 25th November, 2022.

(On appeal against the judgment dated 30.01.2018 passed by the Lahore High Court, Lahore in Criminal Appeal No. 101 of 2012 and Criminal Revision No. 167 of 2012)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence took place at 02.45 p.m. whereas the matter was reported to the police at 04:10 p.m. on the same day while the inter se distance between the place of occurrence and the police station was 4½ kilometers---Such aspect of the case clearly reflected that the matter was reported to police without any inordinate delay---Occurrence took place in broad daylight and the parties were known to each other therefore, there was no chance of misidentification---Both the 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, therefore, it can safely be concluded that the ocular account furnished by the prosecution witnesses was reliable, straightforward and confidence inspiring---Said witnesses had reasonably explained their presence at the place of occurrence---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---Conviction and sentence awarded to the accused was maintained---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 302(b)---Qatl-i-amd---Conviction---Testimony of single witness---Conviction in a murder case can be based on the testimony of a single witness, if court is satisfied that he is reliable and it is the quality of evidence and not the quantity which matters---Prosecution evidence is not tested on the basis of quantity but quality of evidence; it is not important that who is giving evidence and making 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.

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.

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

----S. 302(b)--- Qatl-i-amd--- Ocular evidence---Medical evidence---Preference--- Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence.

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

----S. 302(b)---Qatl-i-amd---Witnesses of the ocular account related to the deceased---Mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses.

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

----S. 302(b)--- Qatl-i-amd--- Minor discrepancies--- As long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence---Test is whether the evidence of a witness inspires confidence---If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same---While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth---Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety --- Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Recovery of weapon of offence disbelieved and inconsequential---Sentence of imprisonment justified---Both the courts below had rightly disbelieved the recovery of weapon of offence i.e. churri by holding that no independent witness was associated during the recovery proceedings, and the blood stained churri was not sent to the office of Forensic Science Laboratory---Keeping in view the fact that recovery was disbelieved and inconsequential, the courts below had rightly awarded penalty of imprisonment for life to the accused---No further leniency could be shown to the accused---Petition for leave to appeal was dismissed and leave was refused.

Malik Saleem Iqbal Awan, Advocate Supreme Court for Petitioners (in Criminal Petition No. 241-L of 2018).

Nemo for Petitioners (in Criminal Petition No. 385-L of 2018).

Khurram Khan, Additional P.G. for the State.

2023 S C M R 124

[Supreme Court of Pakistan]

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

SALAH-UD-DIN and others---Appellants

Versus

GOVERNMENT OF PUNJAB through District Officer (Revenue), Jhang and others---Respondents

Civil Appeal No. 875 of 2017, decided on 18th October, 2022.

(On appeal against judgment dated 17.02.2017 passed by the Lahore High Court, Lahore in Writ Petition No. 1649 of 2010.)

Punjab Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----Ss. 3, 7 & 8---Limitation Act (IX of 1908), First Sched., Art. 148---Application for redemption of mortgage under section 3 of the Punjab Redemption and Restitution of Mortgaged Lands Act, 1964 ('the Act')---Limitation---Second application barred---First application for redemption of mortgage was filed in or about 1972 within the limitation time, but the same was rejected---Thereafter, neither the predecessor-in-interest nor the contesting respondents themselves did anything---First application of 1972 was not renewed before the revenue authority who did have jurisdiction under the Act nor was any suit for redemption filed in the civil courts---Several decades passed, and it was not until the Board of Revenue ('the Board') issued, in 2002, a purported memorandum enlarging the time for deposit of money due up to 20-6-2003 that the contesting respondents filed a fresh (second) application under the Act---Board did not have the power to extend the period of limitation under the Act to revive claims that had become time barred for purposes of filing an application under section 3 of the Act---In any case, and more importantly, the second application under section 3 had become barred and did not lie by reason of section 8 of the Act---No suit for redemption was admittedly filed---Therefore, the revenue authorities were quite correct in dismissing the second application for redemption of mortgage---Appeal was dismissed.

Muhammad Luqman v. Allah Diwaya and others 2006 SCMR 718 distinguished.

Muhammad Munir Paracha, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants.

Malik Asif Taufeeq, Additional A.G., Punjab for Respondents Nos. 1 - 4 (Government).

Aftab Alam Yasir, Advocate Supreme Court along with Ch. Hafeez Ullah Yaqoob, Advocate Supreme Court for Respondents Nos. 5 to 11 and 12 (L.Rs.).

2023 S C M R 129

[Supreme Court of Pakistan]

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

FEDERATION OF PAKISTAN through Secretary Ministry of Communications, Islamabad and another---Petitioners

Versus

SHUJA SHARIF and others---Respondents

Civil Petition No. 303 of 2019, decided on 24th October, 2022.

(Against the judgment dated 10.12.2018 passed by the Islamabad High Court, Islamabad in I.C.A. No. 253 of 2018 in W.P. No. 908 of 2017)

(a) National Highways Safety Ordinance (XL of 2000)---

----S. 45---Constitution of Pakistan, Art. 9---Ban on plying motorcycles on motorways imposed by the National Highways and Motorway Police ('NH & MP')---Constitutionality---Purpose and exercise of powers conferred under section 45 of the National Highways Safety Ordinance, 2000 (Ordinance 2000) encompasses the responsibility of supervision, superintendence and administration including the power to restrict the entry of motorcyclists on motorways with the solitary cautiousness and intelligence of maintaining safety and protection vice versa---Ban imposed on motorcycles was within the precincts and parameters of law which could neither be construed as the violation of any fundamental right to life or liberty, nor said section was challenged before the High Court as being ultra vires the Constitution or the Ordinance 2000.

Under section 45 of the National Highways Safety Ordinance, 2000 (Ordinance 2000) the Government or any agency authorized by it in the interest of public safety or convenience may prohibit or restrict the driving of motor vehicles or of any specified class of motor vehicles in a specified area or on a specified road etc. According to the scheme of the Ordinance 2000, the prime factor and consideration is the safety of the public at large and the ban imposed on motorcycles is within the precincts and parameters of law which can neither be construed as the violation of any fundamental right to life or liberty, nor said section was challenged before the High Court as being ultra vires the Constitution or the Ordinance 2000. The powers vested under Section 45 of the Ordinance 2000 are meant to ensure and regulate safety measures in the larger public interest to avoid untoward risks of accidents in order to save precious lives which in no way seems to have any tendency, objective and or ingenuity to deprive a person from his life or liberty, rather the powers have been conferred by all means to restrict entry in the public interest to regulate and ensure safety measures of traffic on motorways.

Purpose and exercise of powers conferred under section 45 also encompasses the responsibility of supervision, superintendence and administration including the power to restrict the entry of motorcyclists on motorways with the solitary cautiousness and intelligence of maintaining safety and protection vice versa. Petition for leave to appeal was converted into appeal and allowed.

(b) Interpretation of statutes---

----Maxim "Ut Res Magis Valeat Quam Pereat"---Meaning and scope.

A statute or any enacting provision therein must be construed as to make it effective and operative. The Latin legal maxim "ut res magis valeat quam pereat" denotes that it is better for a thing to have effect than to be made void or it is better to validate a thing than to invalidate it. The Court should, in so far as possible, avoid that construction which may ascribe or attribute unreasonableness to the will of legislature and while moving into the task of interpretation of any law or provision, the predominant objective should be that the law survives and the presumption, if any, must be in favour of its constitutionality. The court should not adopt such interpretation which renders the statute or any of its provisions inoperative or unworkable. No doubt, the Court can strike down a law if it is found to be unconstitutional, but it cannot introduce any inexactitude or absurdity or restrict or constrict a provision by espousing or presuming an anomalous elucidation in a peculiar manner to make it meaningless or inconsequential in the reading down concept.

(c) Constitution of Pakistan---

----Art. 25--- Equality of citizens--- Reasonable classification---Scope and pre-requisites.

Persons may be classified into groups and such groups may be treated differently if there is a reasonable basis for such difference. The principle of equality or egalitarianism does not mean that every law must have universal application to all persons. In fact, the fluctuating needs of dissimilar sets of persons necessitate different treatment. The touchstone of acceptable classification requires the fulfillment of two basic ingredients, namely that the classification must be founded on an intelligible differentia which may judiciously distinguish persons or things that are grouped together from others left out of the group, and the differentia must have a logical and reasonable linkage with the object sought to be achieved. The expression "intelligible differentia" connotes the departure which is capable of being understood and made sense of. A categorization of groups of people is ruminated as being reasonable when the classification is based on intelligible differentia having a rational relationship with the objective of the act.

(d) Judicial review---

----Scope of judicial review stated.

Primarily Judicial review is a Court's regimen to review legislative and executive actions to maintain and sustain the rule of law. Under the territory and province of Judicial review, the Court reviews the lawfulness of a decision or action made by a public body. In fact, this is a process under which executive or legislative actions may be subject to review by the judiciary. 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 and it also maintains check and balance. Judicial review can be sought on the grounds that 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; there is a failure to observe statutory procedures or natural justice; or the same is in breach of the doctrine of legitimate expectation, either procedural or substantive. At the same time, clear distinction or line of demarcation is also required to be drawn by the Courts in the middle of judicial review vis-a-vis judicial overreach in order to avoid transgression of border line.

Mian Irfan Bashir v. The Deputy Commissioner (D.C.), Lahore and others PLD 2021 SC 571 ref.

Ch. Aamir Rehman, Additional A.G.P. and Rana Liaquat Ali, AIG (Legal), Motorway Police for Petitioners.

Mansoor Usman Awan, Advocate Supreme Court for Respondents Nos. 1 - 8.

2023 S C M R 139

[Supreme Court of Pakistan]

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

JAVED IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 139 of 2022, decided on 25th October, 2022.

(On appeal against the judgment dated 30.10.2018 passed by Peshawar High Court, Peshawar, in Criminal Appeal No.335-P of 2018)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Benefit of doubt---Safe custody and transmission of sample parcels to the office of Chemical Examiner not established---Recovery was effected on 18.12.2013 and the sample parcels were received in the office of Chemical Examiner on 20.12.2013 by one police official but the said official was never produced before the Court---Moharrar of the Malkhana was also not produced to confirm that he kept the sample parcels in the Malkhana in safe custody from 18.12.2013 to 20.12.2013---Where and in whose custody the sample parcel remained during such time remained a mystery---So the safe custody and safe transmission of the sample parcels was not established by the prosecution and such defect on the part of the prosecution by itself was sufficient to extend benefit of doubt to the accused---Furthermore, there was no direct evidence available on record to indicate the accused had exclusive knowledge of presence of narcotics in the luggage lying in the boot of vehicle---Judicial confession of accused was exculpatory confession and from the said confession, conscious knowledge and conscious possession of the narcotics, qua the accused, was not established; hence, his conviction on such exculpatory statement/ confession was not sustainable---Appeal was allowed and accused was acquitted of the charge.

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

----S. 9(c)--- Possession of narcotic --- Safe custody and transmission of sample parcels to the office of Chemical Examiner not established---In cases under section 9(c) of the Control of Narcotic Substances Act, 1997, it is duty of the prosecution to establish each and every step from the stage of recovery, making of sample parcels, safe custody of sample parcels and safe transmission of the sample parcels to the concerned laboratory---Such chain has to be established by the prosecution and if any link is missing in such like offences the benefit must be extended to the accused---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 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.

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

----Ss. 161 & 164---Judicial and extra-judicial confession---Scope---Any confession made by an accused, whether judicial or extra-judicial, should be taken into consideration in toto and could not be split into pieces, nor any part of the same can be taken to favour the prosecution---Any such confession may be taken into consideration but the court cannot select out of the statement, the passage, which goes against the accused---Such confession must be accepted or rejected as a whole; it is not open to accept only a part of the confessional statement of the petitioner and reject the other part while maintaining his conviction---Confession has to be read as a whole and not by relying only on the inculpatory part of the confession/the statement.

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

----S. 164--- Judicial confession--- Principles relating to judicial confession stated.

Following are the principles relating to judicial confession:

(i) Solitary judicial confession, if made the basis for conviction, had to be relied upon in toto without any pick and choose;

(ii) Where there is no other evidence and the confessional statement is the only material on which an accused is convicted, then it has to be either accepted as a whole or rejected as a whole. Where the prosecution fails to prove its case through cogent, reliable and trustworthy evidence, the court can base the conviction on the confessional statement of the accused, however, the same has to be considered in toto and the exculpatory parts of the confession cannot be rejected;

(iii) The exculpatory portion of a confession cannot be discarded while proceeding to rely upon the same for decision of the case;

(iv) A confession has to be read as a whole and not by relying only on the inculpatory part of the statement;

(v) The confessional statement of a person can only inculpate himself and no other person can be inculpated merely because some other person has made any admission;

(vi) The admission of occurrence by the accused with a different version is not a confession of guilt and the Court, without splitting it up, can reject or accept the same in toto, but if the admission in parts or full is of the nature which provides support to prosecution case which is proved through reliable evidence, then of course such statement/confession can be used for the purpose of corroboration and supporting evidence; and

(vii) Where there is other prosecution evidence in field which is believable then of course a portion of the confession may, in the light of that evidence, be rejected while acting upon the remainder with the other evidence; and

Sultan Khan v. Sher Khan and others PLD 1991 SC 520; Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879; Naseer Hussain v. Nawaz and others 1994 SCMR 1504; Bahadur Khan v. The State PLD 1995 SC 336; Shamoon alias Shamma v. The State 1995 SCMR 1377; Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Shera Masih and another v. The State PLD 2002 SC 643; Ayyaz Ahmed v. Allah Wasaya and others 2004 SCMR 1808; Mst. Gul Nissa and another v. Muhammad Yousuf and another PLD 2006 SC 556; Allah Nawaz v. The State 2009 SCMR 736; Muhammad Azam and others v. The State 2009 SCMR 1232; Mushtaq and others v. The State 2012 SCMR 109; Ali Ahmad and another v. The State and others PLD 2020 SC 201 and Muhammad Abbas v. The State PLD 2020 SC 620 ref.

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

Mian Shafaqat Jan, Additional A.G. Khyber Pakhtunkhwa for the State.

2023 S C M R 149

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Jamal Khan Mandokhail, JJ

MUHAMMAD TAHIR---Appellant

Versus

COMMISSIONER INLAND REVENUE, ZONE-II, REGIONAL TAX OFFICE, ABBOTTABAD and another---Respondents

Civil Appeal No. 317 of 2022, decided on 31st October, 2022.

(Against the judgment dated 01.12.2021 of the Peshawar High Court, Abbottabad Bench passed in I.T.R. No. 1-A of 2019)

Income Tax Ordinance (XLIX of 2001)---

----S. 170---Constitution of Pakistan, Art. 247(6) [since omitted]---Resident of a Provincially Administered Tribal Area adjoining Mansehra District (the 'said tribal area')---Income tax refund, claim for---President had issued an order vide S.R.O. 118(I)/2011 on the 10th February 2011 published in the Gazette of Pakistan Extraordinary on 12 February 2011 which ordered that the said tribal area had ceased to be a tribal area---President had the constitutional power to issue the order and his order changed the status of the said tribal area and made it a non-tribal area---Order passed by the President under Article 247(6) of the Constitution meant that the area lost its status as a tribal area---Consequently, once the President had passed the order, any tax levied/deducted in accordance with the Income Tax Ordinance, 2001 was leviable/payable, because the Ordinance automatically stood extended to the said area---Fact that the area was hitherto a tribal area wherein tax under the Ordinance could not be levied/deducted would be of no consequence---Admittedly, the said tribal area adjoined Mansehra District and the order of the President was of a date prior to the levy/deduction of income tax, therefore, the refund claim submitted by the appellant-tax payer was correctly rejected by the Deputy Commissioner---Appeal was dismissed.

Riaz Hussain Azam, Advocate Supreme Court for Appellant.

Zahid Idris Mufti, Advocate Supreme Court and Anis M. Shehzad, Advocate-on-Record for Respondents.

Ayaz Shoukat, DAG, Ayaz Swati, A.A.G. Balochistan and Mian Shafaqat Jan, A.A.G. Khyber Pakhtunkhwa on Court's Notice.

2023 S C M R 153

[Supreme Court of Pakistan]

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

SAJID MEHMOOD---Petitioner

Versus

Mst. SHAZIA AZAD and others---Respondents

Civil Petition No. 1451 of 2020, decided on 7th November, 2022.

(Against the judgment dated 26.02.2020 passed by the Lahore High Court, Rawalpindi Bench in W.P. No.2643 of 2014)

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

----Ss. 5, Sched. & 17---Oaths Act (X of 1873), S. 11---Recovery of dower and dowry articles---Wife taking special oath in regard to dower and dowry articles upon offer made by husband---Evidence conclusive against husband offering to be bound by oath---In the present case the husband-petitioner filed an application for special oath which was accepted by the wife-respondent and the special oath was taken in the mode and manner proposed by the petitioner---Due to the mutuality of the promise between the parties, the party making an offer has no right to resile from it after the offer is accepted and the special oath is taken---In the absence of any such satisfactory or sufficient cause the Court is obligated to implement the agreement and to record the statement of the party concerned to make a decision in the case accordingly---Petitioner could not wriggle out or withdraw his offer which was given by him voluntarily before the Family Court and the same was acted upon according to his will---Petition for leave to appeal was dismissed and leave was refused.

(b) Oaths Act (X of 1873)---

----Ss. 8, 9 & 11--- Evidence conclusive as against person offering to be bound by oath---Party offering to have a cause decided on oath and undertaking to abide by the special oath of a person (party or not a party to the suit) cannot be allowed to resile from it, for it amounted to a binding contract unless it was found to be void or stands frustrated.

Under the provisions of the Oaths Act, 1873 a party in litigation can offer the opposite party to accept or reject the claim on special oath, but they cannot compel each other to take the special oath, however if the offer is accepted by the other party then a binding agreement comes into existence and the party making the offer has no right and authority in law to resile from it. When the Court communicates the offer to the other party and gets hold of his assent or refusal, as the case may be, it in fact plays a role as an intermediary between the parties and when the offer is accepted by the other party, the acceptance is transmitted to the party inviting the other to take special oath, thereafter the agreement is completed between the parties, unless the offer is withdrawn before its acceptance by the other side.

Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841; Muhammad Mansha and 7 others v. Abdul Sattar and 4 others 1995 SCMR 795; Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others PLD 1997 SC 823; Mst. Asifa Sultana v. Honest Traders, Lahore and another PLD 1970 SC 331; Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970 SC 241; Attiqullah v. Kafayatullah 1981 SCMR 162; Muhammad Rafique and another v. Sakhi Muhammad and others PLD 1996 SC 237; Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908 and Saleem Ahmad v. Khushi Muhammad 1974 SCMR 224 ref.

In the event of an offer or proposal to be bound by the oath of the opposite party, due to the mutuality of the promise between them, the party making an offer has no right to resile from it after the offer is accepted and the special oath is taken. In the absence of any such satisfactory or sufficient cause the Court is obligated to implement the agreement and to record the statement of the party concerned to make a decision in the case accordingly.

A party offering to have a cause decided on oath and undertaking to abide by the special oath of a person (party or not a party to the suit) cannot be allowed to resile from it, for it amounted to a binding contract unless it was found to be void or stands frustrated.

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

Nemo for Respondents.

2023 S C M R 159

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi and Shahid Waheed, JJ

MUKHTIAR HUSSAIN---Petitioner

Versus

Mst. SHAFIA BIBI---Respondent

Civil Petition No. 3988 of 2019, decided on 24th November, 2022.

(On appeal against the Judgment dated 27.09.2019 of the Lahore High Court Multan, Bench Multan, passed in Civil Revision No. 161 of 2015)

Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Ex-parte decree and judgment---Application for setting aside ex-parte decree and judgment, dismissal of---At the stage of recording the evidence, the petitioner-defendant stopped appearing, and thus, the Trial Court proceeded ex-parte against him, and subsequently, by its judgment issued a decree in favour of the respondent-plaintiff---Petitioner applied under Order IX, Rule 13, C.P.C. to set aside the ex-parte decree taking the stance that there was an attempt to compromise between the parties and he was told by the respondent that the suit had been withdrawn, and under this impression, he did not appear in the proceedings---Held, that petitioner did not attach any compromise deed with his application (under Order IX, Rule 13, C.P.C.) nor did he mention the details of the terms and conditions of the alleged compromise in his application nor the date, time and name of the persons before whom it was made---Secondly, he also did not mention in his application that he had told his counsel about the alleged compromise and instructed him not to appear before the Court, and thirdly, he had not disclosed any reason as to why he did not take any step to confirm the fact of withdrawal of suit from his counsel---All such facts showed that the petitioner had deliberately chosen to refrain from joining the proceedings and displayed non-cooperation with the Court and, therefore, he had no right to ask its indulgence and seek setting aside of ex-parte decree passed against him---As such, his application deserved a summary dismissal as it was deficient in necessary material facts, and was vague in all respects, and appeared to be an attempt to cover up his misdeeds and negligence---Petitioner could not be allowed to take advantage of his own wrong or negligence---Petition for leave to appeal was dismissed and leave was refused.

Abdul Rehman Laskani, Advocate Supreme Court (through video link from Lahore) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Dil Muhammad Ali Zai, Advocate Supreme Court for Respondent.

2023 S C M R 162

[Supreme Court of Pakistan]

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

JAWAD AHMAD MIR---Petitioner

Versus

Prof. Dr. IMTIAZ ALI KHAN, VICE CHANCELLOR, UNIVERSITY OF SWABI, DISTRICT SWABI, KHYBER PAKHTUNKHWA and others---Respondents

Civil Petition No. 3944 of 2019, decided on 18th October, 2022.

(Against the judgment dated 20.09.2019 passed by the Peshawar High Court, Peshawar in Writ Petition No.4406-P of 2019)

(a) Civil service---

----Stopgap appointment---Scope and principles relating to a filling a post by way of stopgap arrangement explained.

At times the person possessing requisite antecedents to qualify for a particular post may not be available in the department and, while the selection for appointment is under process, or is delayed due to some plausible reason for the time being, the competent authority, in view of exigency, may assign acting charge and current charge as a stopgap arrangement. The expression 'stopgap' means a temporary way of dealing with a problem or satisfying a need and/or something that can be used until something better or more permanent can be obtained. Ad-hoc appointment is made, or look-after/acting or additional charge is given, under exceptional situations as a stopgap arrangement for a limited period with the sole aim and intention to continue such appointment till the regular appointment on the post. A person appointed as a stopgap arrangement does not hold such post in a substantive capacity; this arrangement characterizes a class which is distinct and dissimilar from those who are appointed to posts in service compliant with the relevant rules of recruitment. Look-after or additional charge as a stopgap arrangement does not entitle the incumbent to claim any benefit on account of such arrangement, which can be revoked or withdrawn by the competent authority at any time without assigning any reason.

(b) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Writ of quo warranto---Scope, principles and pre-requisites relating to a writ of quo warranto stated.

The rationality of the writ of quo warranto is to settle the legality of the holder of a statutory or Constitutional office and decide whether he was holding such public office in accordance with law or against the law. The writ of quo warrant can be instituted by a person though he may not come within the meaning of words "aggrieved person". For the purpose of maintaining a writ of quo warranto there is no requirement of an aggrieved person, and a whistle blower need not to be personally aggrieved in the strict sense and may relay the information to the court to enquire from the person holding public office.

Halsbury's Laws of England (Third Edition), Volume 11, page 145; Halsbury's Laws of India, Volume 35, Page 145; American Jurisprudence (Second Edition), Volume 16, page 578; Corpus Juris Secundum, Volume LXXIV, page 174-175; Black's Law Dictionary (Tenth Edition), page 1447; Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203 and Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab and others 2000 SCMR 1720 ref.

In the writ of quo warranto no special kind of interest in the relator is needed, nor is it necessary to explain which of his specific legal rights is infringed. It is enough that the relator is a member of the public and acts bona fide. This writ is more in the nature of public interest litigation where undoing of a wrong or vindication of a right is sought by an individual for himself, or for the good of the society, or as a matter of principle.

Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52 ref.

The conditions necessary for the issuance of a writ of quo warranto are that the office must be public and created by a statute or Constitution itself; the office must be a substantive, one and not merely the function of an employment of a servant at the will during the pleasure of others; there has been contravention of the Constitution or a statute or statutory instrument by appointing such person to that office. The essential grounds for issuing a writ of quo warranto are that the holder of the post does not possess the prescribed qualification; the appointing authority is not the competent authority to make the appointment and that the procedure prescribed by law has not been followed. The burden of proof is then upon the appointee to demonstrate that his appointment is in accordance with the law and rules.

(c) Khyber Pakhtunkhwa Universities Act (X of 2012)---

----S. 12---Vice Chancellor---No vested right to extension in tenure---Vice Chancellor who has completed his tenure cannot claim extension as a vested right, if the competent authority is not interested in his extension for any legitimate or justifiable reason.

Raja Saif-ur-Rehman, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Ch. Aamir Rehman, Additional A.G.P. on Court's Call.

2023 S C M R 172

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Munib Akhtar, JJ

HIDAYAT KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 659 of 2019, decided on 24th June, 2019.

(On appeal against the judgment dated 16.05.2019 passed by Peshawar High Court, Mingora Bench (Dar-ul-Qaza) in Criminal M. B.A. No. 218-M of 2019)

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

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 8---Constitution of Pakistan, Art. 185(3)---Zina liable to Hadd, kidnapping, abducting or inducting woman to compel for marriage etc.---Bail, grant of---Further inquiry---Accused was alleged to have eloped with the complainant's wife---Although in the FIR the complainant claimed that his wife on her own eloped with the accused but his information to such extent was based upon the information passed to him by someone and the FIR was silent regarding the source through which the complainant came to know about the involvement of the accused in the present case---Subsequently, two prosecution witnesses were examined by the police under section 161, Cr.P.C. that too after eight and four days respectively of the registration of the FIR who also claimed that they came to know about the involvement of the accused but did not disclose their source---Alleged wife of the complainant had not been arrested so far---Such circumstances clearly brought the case of the accused within the ambit of further inquiry under subsection (2) of section 497, Cr.P.C.---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--- Constitution of Pakistan, Art. 185(3)--- Bail--- Long abscondence---Mere abscondence by itself is not sufficient to withhold the concession of bail when the accused otherwise becomes entitled for the grant of bail.

Zia-ur-Rehman Tajik, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Zahid Yousaf Qureshi, Additional A.G. Khyber Pakhtunkhwa for the State.

2023 S C M R 174

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Muhammad Ali Mazhar, JJ

Civil Appeals Nos. 1292 to 1301 of 2021

(On appeal against the judgment dated 11.02.2021 passed by the Sindh Service Tribunal, Karachi, in Appeals Nos. 25, 60, 68, 69 and 118 of 2020)

AND

Civil Misc. Appeal No. 103 of 2022

(Against the order of the Registrar)

MUSHTAQUE AHMED MEMON

and another---Appellants

Versus

ARSHAD HUSSAIN BHUTTO and others---Respondents

Civil Appeals Nos. 1292 to 1301 of 2021 and Civil Misc. Appeal No. 103 of 2022, decided on 20th September, 2022.

Sindh Civil Servants (Regularization of Ad hoc Appointments) Act (XIX of 1994) [as amended by the Sindh Civil Servants (Regularization of Ad hoc Appointments) (Amendment) Act (XII of 2014)]---

----S. 3---Constitution of Pakistan, Arts. 25(1), 27(1) & 240(2)---Seniority---Discrimination in service of Pakistan---Scope and applicability of the Sindh Civil Servants (Regularization of Ad hoc Appointments) Act, 1994 [as amended by the Sindh Civil Servants (Regularization of Ad hoc Appointments) (Amendment) Act, 2014]---Sindh Civil Servants (Regularization of Ad hoc Appointments) (Amendment) Act, 2014 (the 2014 Act) sought to give an advantage to the appellants with retrospective effect at the expense of the vested rights of the respondents---Unlike the appellants the respondents entered into the service of Pakistan in terms of Article 240(2) of the Constitution by being selected by Provincial Public Service Commission ('the Commission')---While the appellants came through the proverbial back door and were saved by the Sindh Civil Servants (Regularization of Ad hoc Appointments) Act, 1994 ('the 1994 Act')---Having secured their employment by the 1994 Act, an unjustified, illegal and unconstitutional benefit was sought to be extended to the appellants through the impugned notifications and the 2014 Act---Incidentally, the reasons to enact the 2014 Act were neither given therein nor provided by the appellants---Article 25(1) of the Constitution proscribed discrimination and Article 27(1) of the Constitution prohibited discrimination in the service of Pakistan---By way of the impugned judgment the Tribunal had rightly concluded that the amendment brought by 2014 Act used for taking away the constitutional rights of respondents after twenty years could not be recognized as constitutionally legal and valid; that the deeming clause brought twenty years after the promulgation of the 1994 Act was, on the face of it, against the object and scheme of the original 1994 Act itself, and that the purpose of the original 1994 Act was only to validate and regularize the ad hoc appointment of the employees from the date of its promulgation whereas the subsequent deeming clause went much beyond the scheme of the original Act, therefore, it had to be accepted to the extent which it was in conformity with the original 1994 Act---Appeals were dismissed with costs.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 and Mudassar Shah Termizi v. Peshawar High Court 2021 SCMR 116 ref.

Abdul Rahim Bhatti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. Nos. 1292-1296 of 2021).

Nemo for Appellants (in C.As. 1297-1301 of 2021 and C.M. Appeal No. 103 of 2022).

Fauzi Zafar, Additional A.G., Sindh, M. Soulat Rizvi, Additional A.G., Sindh, Ghulam Ali Birhamani, Additional Secretary, S&GAD and Ramzan Solangi, S.O. for the Government of Sindh.

M. Shoaib Shaheen, Advocate Supreme Court for Respondents (in C.As. Nos. 1292, 1295 and 1298 of 2021).

Ahmed Ali Ghumro, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Respondents (in C.As. Nos. 1293, 1294, 1296, 1300 and 1301 of 2021).

2023 S C M R 179

[Supreme Court of Pakistan]

Present: Ijaz ul Ahasn, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

Civil Appeal No. 3090 of 2022

(On appeal against order dated 22.08.2022 passed by the Election Commission of Pakistan in Case No.F-23(284)/2022-Law.)

And

Civil Misc. Application No. 7920 of 2022

(Permission to file Civil Appeal.)

In Civil Appeal No.Nill of 2022

NASEER AHMED and others---Appellants

Versus

RETURNING OFFICER U/C 31 KHUDA DAD, MIRPUR KHAS and others---Respondents

Civil Appeal No. 3090 of 2022 and Civil Misc. Application No. 7920 of 2022 in Civil Appeal No. Nill of 2022, decided on 1st November, 2022.

(a) Administration of justice---

----Incorrect statutory provision relied upon by a Court---Even if the correct statutory provision is not mentioned by the authority making the order under challenge, if the relevant power or jurisdiction has been conferred the Court will consider the matter in terms thereof.

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

----S. 9(1)---Local Government elections---Ballot papers---Erroneous printing of symbols on ballot papers---Power of the Election Commission to declare the election as void and order a re-poll---Scope---Respondents (candidates) were allotted the symbol of 'hand pump' by the Returning Officer---Due to a printing error in respect of the ballot papers the Election Commission erroneously printed another symbol (of a bibcock or tap) instead of hand pump, which constituted a violation of the Elections Act, 2017 and/or the applicable rules---Even if, as contended by the counsel for the appellants (returned candidates), the same word in Urdu was wide enough to refer to both "hand pump" and "tap", there could be no doubt that the two were different devices---More importantly, any graphic representation or visual and/or pictorial image or depiction of the two was easily differentiated and the difference was immediately discernable---Respondents correctly portrayed the symbol allotted to them during their electioneering or that at least some of the voters in the constituency would rely primarily on the graphic/pictorial representation of the device/thing/animal etc (i.e., the symbol itself) allotted and printed on the ballot paper in identifying the candidate they wished to vote for---Difference between the appellants and respondents in terms of number of votes was small, which itself indicated that at least some of the voters who intended to vote for the respondents could have been misled or confused as to whom they were to vote for---Had the difference been great it could be plausibly argued that the error did not materially affect the outcome of the poll, but the closeness in the result indicated otherwise---Result of the poll was materially affected and the Election Commission was well within its jurisdiction to order a re-poll for the whole of the constituency.

Syed Qalb-i-Hassan, Advocate Supreme Court for Appellants (in C.A. No.3090 of 2022).

Agha Muhammad Ali, Advocate Supreme Court for Applicants (in C.M.A. No.7920 of 2022).

Muhammad Ikram Ch., Senior Advocate Supreme Court and Syed B.H. Shah, Advocate-on-Record for Respondents Nos. 2 - 4.

2023 S C M R 184

[Supreme Court of Pakistan]

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

MUHAMMAD NADIM---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1072-L of 2022, decided on 8th November, 2022.

(Against the order dated 22.06.2022 passed by Lahore High Court, Lahore, in Criminal Misc. No.31931-B of 2022)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 365 & 337-L(2)---Constitution of Pakistan, Art. 185(3)---Abduction for ransom---Bail, grant of---Rule of consistency---Further inquiry---No specific role was assigned to the present accused, rather all the accused persons had been incriminated with composite and alike role in the commission of offense out of whom, two accused had already been granted post arrest bail by the Trial Court---According to an affidavit submitted in the Trial Court, the complainant conceded to the bail of one of the accused and did not want to indict him for the charge and so far as the bail granted to the other accused was concerned, nothing was said that any petition for cancellation of bail was moved against him if the complainant was aggrieved of his bail---Role of the two accused that were granted bail was not dissimilar to the present accused---FIR was silent as to whether any ransom was paid or not---Case of accused was covered under the rule of parity and was also one of further inquiry---Petition for leave to appeal was converted into appeal and allowed, and accused was granted bail.

Muhammad Fazal alias Bodi v. State 1979 SCMR 9 ref.

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

----S. 497---Constitution of Pakistan, Art. 185(3)--- Bail--- Rule of consistency---Doctrine of parity in bail matters---Scope---Said doctrine encapsulates that where the role ascribed to the accused is one and the same as that of the co-accused then the benefit extended to one accused should be extended to the co-accused also on the principle that like cases should be treated alike but after accurate evaluation and assessment of the co-offenders' role in the commission of the alleged offence---While applying doctrine of parity in bail matters, the Court is obligated to concentrate on the constituents of the role assigned to the accused and then decide whether a case for the grant of bail on the standard of parity or rule of consistency is made out or not.

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

----S. 497(2)---Constitution of Pakistan, Art. 185(3)---Bail---Case of further inquiry---Scope---Further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching a just conclusion---Case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime.

Muhammad Tariq Zafar, Advocate Supreme Court for Petitioner.

Ch. M. Sarwar Sandhu, Additional P.G., Punjab, Arif Ashfaq, DSP and Ishfaq, ASI for the State.

Zubair Afzal Rana, Advocate Supreme Court (via video link from Lahore) for the Complainant.

2023 S C M R 190

[Supreme Court of Pakistan]

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

MUHAMMAD BASHIR and another---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 557 of 2016 and Criminal Petitions Nos. 1391-L and 1392-L of 2016, decided on 31st October, 2022.

(Against the judgment dated 03.10.2016 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1638 of 2013, Criminal Appeal No. 1724 of 2013 and Murder Reference No. 400 of 2013)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Matter was reported to police without any inordinate delay---Occurrence took place at 05.00 a.m. in the morning whereas the matter was reported to the police at 09:15 a.m. on the same day while the inter se distance between the place of occurrence and the Police Station was six miles---As the occurrence had taken place in broad daylight and it was not denied anywhere that the parties were not known to each other, therefore, there was no chance of misidentification---Ocular account was furnished by the complainant and a witness---Both of them 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 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---Ocular account furnished by the prosecution was reliable, straight-forward and confidence inspiring---Both said witnesses had reasonably explained their presence at the place of occurrence by stating that they were watering the fields and saw the accused make a fire shot with his pistol, which hit the deceased---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---Accused could not point out any reason as to why the complainant would falsely involved the accused in a case involving murder of his brother and let off the real culprit---Even if evidence relating to motive and recovery of weapon was discarded, there was sufficient evidence available to sustain the conviction of the accused under section 302(b), P.P.C.---Jail petition was dismissed, leave was refused and conviction of accused was maintained.

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

----S. 302(b)---Qatl-i-amd---Discrepancy between ocular account and medical evidence---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 occurrence when live shots are being fired, witnesses in a momentary glance make only tentative assessment of the distance between the deceased and the assailant and the points where such fire shots appeared to have landed and it becomes highly improbable to mention the distance correctly and the location of the fire shots with exactitude.

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

----S. 302(b)---Qatl-i-amd---Witnesses of ocular account related to the deceased---Mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses.

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

----S. 302(b)---Qatl-i-amd---Minor discrepancies and contradictions in statements of eye-witnesses---As long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence---Test is whether the evidence of a witness inspires confidence---If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same---While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth---Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety---Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in--- Motive not proved--- Recovery of weapon inconsequential---Specific motive had been attributed towards the accused that he wanted to marry niece of deceased and on refusal he took the deceased's life--- High Court had rightly disbelieved the motive by holding that name and parentage of niece of deceased whose hand had allegedly been demanded by the accused was not introduced in the investigation as well as before the Trial Court---No evidence could also be placed on record to prove the motive---So far as the recovery of weapon of offence i.e. .30 bore pistol was concerned, the same was inconsequential in presence of negative report of Forensic Science Agency---Keeping in view the fact that recovery was inconsequential 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---Jail petition was dismissed and leave was refused.

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

----S. 302(b)--- Qatl-i-amd--- Petition for leave to appeal challenging acquittal of accused---Reappraisal of evidence---Name of the accused was not mentioned in the crime report, and his name was brought in through a private complaint, which was lodged after a lapse of three months wherein his name was mentioned for the first time---Statement of one of the witnesses of the ocular account recorded under section 161, Cr.P.C. also did not disclose the name of the accused---Alleged confessional statement on the part of all the accused was of no avail as the same was made jointly, which had no legal sanctity---Even otherwise, the same was inadmissible in evidence---High Court while adjudicating the matter and taking into consideration all the material placed on the record gave a finding of acquittal in favour of accused, which seemed to be well reasoned and the same did not invite any interference on judicial premises---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Yar Khan Daha, Advocate Supreme Court for Petitioner (in J.P. No. 557 of 2016).

Malik Matee Ullah, Advocate Supreme Court for the Complainant and Petitioners (in Criminal Petitions 1391-L and 1392-L of 2016) (via video link from Lahore).

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

2023 S C M R 198

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

AINA HAYA---Petitioner

Versus

PRINCIPAL PESHAWAR MODEL GIRLS HIGH SCHOOL-I, PESHAWAR and others---Respondents

Civil Petition No. 2824 of 2019, decided on 20th January, 2022.

(Against the judgment dated 18.06.2019 of the Peshawar High Court, Peshawar passed in W.P No. 1447-P of 2019)

(a) Educational institution---

----Policy, disciplinary and administrative matters of an educational institution---Interference by Courts---Courts must sparingly interfere in the affairs of academic institutions, therefore, it is best to leave the disciplinary, administrative and policy matters of educational institutions to the professional expertise of the people running them, unless of course there is a blatant violation of any of the fundamental rights or the law.

Khyber Medical College v. Raza Hassan 1999 SCMR 965; Muhammad Ilyas v. Bahauddin Zakariya University 2005 SCMR 961; Muhammad Arif v. University of Balochistan, PLD 2006 SC 564 and Secretary Economic Affairs Division, v. Anwarul Haq Ahmed 2013 SCMR 1687 ref.

(b) Administration of justice---

----Compassion and hardship cases---Judges are to decide disputes before them in accordance with the Constitution and the law and not on the basis of their whims, likes and dislikes or personal feelings or mere humanitarian grounds---While justice is tempered with mercy but not at the expense of overriding the clear letter of the law---Compassion and hardship, therefore, may be considered by courts for providing relief to an aggrieved person, but only when there is scope in the relevant law to do so, not in breach of the law.

D.G., National Savings v. Balqees Begum PLD 2013 SC 174 ref.

Muhammad Amjad Khan, Advocate-on-Record along with Amina Rafique, mother of Petitioner for Petitioner (through video-link from Peshawar).

Mansoor Tariq, Advocate Supreme Court for Respondent No. 1 (through video-link).

Nazirullah Khan, Chairman Peshawar Board for Respondents Nos. 3 - 4.

2023 S C M R 201

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi and Shahid Waheed, JJ

SHAHRAY KHAN (DECEASED) through LRs. and others---Petitioners

Versus

QADIR BAKHSH (DECEASED) through LRs. and others---Respondents

Civil Petition No. 2658 of 2019, decided on 17th November, 2022.

(Against the judgment dated 04.04.2019 of the Lahore High Court, Multan Bench, Multan passed in C.R. No.753-D of 2009)

Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 3---Female limited owner of immovable property having no right to further alienate the same---Female owner (widow) despite being not competent to transfer the property, transferred the same in favour of her relatives on the pretext that her deceased husband died without settling a loan payable by him, which was ultimately paid by her relatives and in lieu of the said discharging of liability, she was compelled to make transfer of the suit property in their name---Legality---Statements of the alleged collateral/reversioner and the widow did not contain the amount of loan extended to the deceased husband and the part paid by each of the relatives to discharge the liability---Even otherwise, a bare reading of the statements of both the alleged collateral/reversioner and the widow showed that this very ground had been expressed in generalize manner without specifying any particulars of the said transaction---Even the widow could not disclose exact amount of the loan and the amount, which was considered for selling out the portion of the landed property---Widow being limited owner of the suit property was not competent to transfer the portion of the landed property to her relatives---Such aspect of the case was adjudicated by each forum and was discarded, hence, there were concurrent findings recorded by each court regarding this aspect of the matter---Courts below had rightly held that under the law (after promulgation of Muslim Personal Law (Shariat) Application Act, 1962, the widow, mother, and two sisters of the deceased excluded any other heir from inheritance and they were entitled to the decree of inheritance according to their share of inheritance---Petition for leave to appeal was dismissed and leave was refused.

Zulfikar Khalid Maluka, Advocate Supreme Court for Petitioners.

Nemo for the Respondents.

2023 S C M R 206

[Supreme Court of Pakistan]

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

YASIR AFTAB---Appellant

Versus

IRFAN GULL and others---Respondents

Civil Appeal No. 2797 of 2022, decided on 30th November, 2022.

(On appeal against judgment dated 20.07.2022 passed by High Court of Sindh, Circuit Court Hyderabad in C.P. No. D-2478 of 2022.)

(a) Sindh Local Councils (Election) Rules, 2015---

----R. 16(3)---Sindh Local Government Act (XLII of 2013), S. 23---Local government elections---Nomination papers---Declaration of assets at pre-election and post-election stage---Scope---Candidate is requirement to make a declaration of assets in the nomination papers filed by him/her---If the candidate is successful, he/she then has to make another declaration (of assets) as required by section 23 of Sindh Local Government Act, 2013---If any objection is raised to the declaration of assets in the nomination papers of a candidate and the same is sustained then the nomination may be rejected by the Returning Officer.

(b) Sindh Local Councils (Election) Rules, 2015---

----R. 18(3), proviso, Clause (ii)--- Local government elections---Nomination papers, scrutiny of---Declaration of assets in nomination papers---Substantial defect---Discretion of Returning Officer to allow such defect in nomination papers to be remedied forthwith---Scope of Clause (ii) of the proviso to sub-rule (3) of Rule 18 of the Sindh Local Councils (Election) Rules, 2015 stated.

Clause (ii) of the proviso to sub-rule (3) of Rule 18 of the Sindh Local Councils (Election) Rules, 2015, requires a two-step exercise to be carried out by the Returning Officer. In the first stage he must determine whether the defect objected to is of a substantial nature. If the answer is in the negative, that concludes the exercise and he is bound not to reject the nomination papers. If the answer is in the affirmative, then the matter moves to the second stage. He must consider whether, in his discretion (exercised in a lawful manner), to overrule the objection to the defect though it be of a substantial nature, as long as it can be remedied forthwith. If he exercises his discretion in favor of the candidate and the defect is remedied forthwith the nomination papers stand accepted. If he refuses to exercise his discretion then of course the nomination papers stand rejected. But whatever his action the Returning Officer must record his reasons appropriately and accordingly, in relation (as the case may be) to both stages of the exercise.

Shah Khawar, Advocate Supreme Court and Sh. Mehmood Ahmed, Advocate-on-Record for Appellant.

Aftab Alam Yasir, Advocate Supreme Court and M. Kassim Mirjat, Advocate-on-Record for Respondents Nos. 1 and 2.

Rashdeen Nawaz Kasuri, Additional A.G.P. and M. Arshad, D.G. Law, ECP on Notice.

2023 S C M R 217

[Supreme Court of Pakistan]

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

DISTRICT EDUCATION OFFICER (FEMALE), CHARSADDA and others---Petitioners

Versus

SONIA BEGUM and others---Respondents

Civil Petitions Nos. 448-P of 2017, 651-P, 655-P, 658-P and 666-P of 2019, decided on 29th September, 2022.

(Against the Judgments dated 01.08.2017, 09.11.2018, 04.09.2019, 19.08.2019, 16.09.2019, passed by the Peshawar High Court, Peshawar, in W.Ps. Nos. 2932-P/2017, 4061-P/2017, 1210-P/2019, 3768/2019 and 2412-P/2019)

(a) Domicile-------"Domicile' and 'residence'---Definition and distinction.

Black's Law Dictionary (Ninth Edition), at page 558; Words and Phrases (Permanent Edition), Volume 13, at page 425 - 426; Corpus Juris Secundum, Volume XXV, at pages 2-3; Black's Law Dictionary (Ninth Edition), at page 1423; Words and Phrases (Permanent Edition), Volume 37, at pages 318 to 319; Corpus Juris Secundum, Volume LXXVII, at pages 292 to 293 and Joan Mary Carter v. Albert William Carter PLD 1961 SC 616 ref.

(b) Pakistan Citizenship Act (II of 1951)---

----S. 17---Pakistan Citizenship Rules, 1952, R. 23---Domicile, acquisition of---'Domicile' and 'residence'---Distinction---Principles regarding acquisition of a domicile and the distinction between 'domicile' and 'residence' stated.

To establish or get hold of a domicile, a person should have an abode at a particular place with the intent to be there for an unlimited period. In order to thrash out this particular aspect, the concept of 'animus manendi' (the intention of remaining) is a crucial component and a benchmark to resolve the question of dwelling and whether a person has elected any particular place for his abode rests on the facts of each case separately. The term 'residence' envisions a constituent of permanency in residence and does not connote occasional or intermittent dwelling for any particular period at any particular place. By and large, the domicile of a person can be the residence but the residence may or may not be the domicile or mere residence is not domicile. There is also no concept under the Citizenship Act, 1951 for two simultaneous domiciles of the same person who may inhabit at many places but he can have one domicile only which indicates his permanent place of dwelling, whereas residence is a more flexible notion than domicile.

Cragnish v. Craignish [1892] 3 Ch. 180 and Central Bank of India v. Ram Narain AIR 1955 SC 36 ref.

In English Law most of the jurists agree that two constituent elements for existence of domicile are, first, a residence of a particular kind; and second, an intention of a particular kind. There must be the factum and there must be the animus. The residence need not be continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside forever in the country where the residence has been taken up. It is also a well-established proposition that a person may have no home but he cannot be without a domicile. Arvind Kumar v. State of U.P. and others (2011) ILR 3 ALL 1350 and Jagir Kaur v. Jaswant Singh 1963 AIR 1521=1964 SCR (2) 73 ref.

(c) Pakistan Citizenship Act (II of 1951)---

----S. 17---Pakistan Citizenship Rules, 1952, R. 23---Civil service---Domicile specific posts---Domicile certificate to be given preference over address on Computerised National Identity Card (CNIC)---By and large, the domicile of a person is treated as a parent document for recruitment in order to ascertain the permanent abode---Weightage and preference should be given firstly to the certificate of domicile which cannot be ignored without due consideration---If jobs are given merely considering the Computerised National Identity Card (CNIC) without considering the address on the domicile then it would create various complications and complexities and even in the case of temporarily shifting or in case of a rented house, the person will be forced every time to apply for fresh domicile with the address of changed abode and in such eventuality, he will become a rolling stone, who would never be able to secure a job due to the alleged discrepancy and his candidature will be rejected every time, meaning thereby that if he will apply on CNIC address, he will be rejected due to difference in domicile address and if he applies on domicile, again he will be rejected due to different address on CNIC.

(d) Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act (XII of 2011)---

----S. 3---Posts of Primary School Teachers, appointment of---Legitimate expectation, doctrine of---Scope and applicability---Respondents (candidates) were allowed to compete in the aptitude tests for appointment on ad hoc/contract or permanent basis as per advertisement; they qualified the test; some of them secured top positions and collectively all of them were declared eligible but they were dropped from the merit list due to difference in addresses mentioned on domicile certificates and their Computerised National Identity Cards (CNICs)---If the department had any doubt with regard to the address as mentioned in the domiciles and CNICs, then why due diligence was not done at the time of scrutiny of application forms or at the time of short-listing the candidates which was an appropriate stage to vet all the credentials and antecedents of each candidate and, in case of any objection, the candidate could be confronted and asked to remove the objection before joining the recruitment process---Thus, the conduct of the department was not above board---Nothing was said regarding any vetting of documents made before allowing the candidates to appear in the aptitude test and despite qualifying the test on the basis of documents submitted by them and securing marks on merits, they were denied the job opportunity at the eleventh hour which was against the doctrine of legitimate expectation---High Court had rightly given directions to the department to consider respondents against the vacant posts---Petitions for leave to appeal were dismissed and leave was refused.

Uzma Manzoor and others v. Vice-Chancellor, Khushal Khan Khattak University, Karak and others 2022 SCMR 694; Halsbury's Laws of England, Volume 1(1), 4th Edition, paragraph 81, at pages 151-152 and R. v. Secretary of State of Transport Exporte Greater London Council (1985) 3 ALL. ER 300 ref.

Mian Shafaqat Jan, Additional A.G., Khyber Pakhtunkhwa and Zaheer ud Din, Sub-Divisional Education Officer, District Bajour for Petitioners.

Nemo for Respondents.

2023 S C M R 233

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Ayesha A. Malik and Athar Minallah, JJ

KANWAR ARIF ALI KHAN and another---Petitioners

Versus

DANISH ALI and others---Respondents

Civil Petitions Nos. 3509 and 1494-K of 2021, decided on 1st December, 2022.

(Against judgments dated 27.05.2021 and 02.06.2021 passed by the High Court of Sindh Bench at Sukkur in Const. Ps. Nos. D-1110 of 2020, D-1538 of 2017)

Supreme Court Rules, 1980---

----O. XXXIII, R. 7---Inherent powers of the Supreme Court---Scope---Application by a person who is not a party in the proceedings before the High Court---Person who is not a party to a suit or a proceeding in the court below (the Supreme Court) should file a separate application for obtaining leave from the appellate court to appeal the judgment, decree or order of which he feels aggrieved, along with the memorandum of appeal filed by him.

Longstanding and consistent practice of the Supreme Court is that any person who challenges the judgment of the High Court through a petition or appeal, but has not been a party to the proceedings before the High Court, first prefers a separate application seeking leave of the Court to maintain such a petition or appeal. The wisdom behind the said practice is; firstly, that it ensures that the Court is put on notice that the petitioner was not a party in the proceedings before the High Court; and secondly, the petitioner, before addressing the merits of the case, has to establish before the Court that he is aggrieved of the impugned judgment. Once these conditions are met and the application is allowed, by the Court, the petition or appeal is duly numbered and fixed to be heard on merits. Such practice has been tacitly a part of Order XXXIII, Rule 7 of the Supreme Court Rules, 1980 for a long time and promotes transparency, openness and good judicial governance. Supreme Court endorsed such practice and reiterated the principle to such effect laid down in the case of H. M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65.

H. M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 ref.

Hassan Rasheed Qamar, Advocate Supreme Court and Muhammad Haseeb Jamali, Advocate Supreme Court (through video link, Karachi) for Petitioners.

Rai Muhammad Nawaz Khan Kharal, Advocate Supreme Court for Respondents.

2023 S C M R 236

[Supreme Court of Pakistan]

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

SDO, PESCO DAUDZAI SUB-DIVISION RING ROAD, PESHAWAR and others---Petitioners

Versus

WADAN SHER---Respondent

Civil Petition No. 820 of 2019, decided on 25th August, 2022.

(Against the judgment dated 25.01.2019 of the Peshawar High Court, Peshawar passed in Civil Revision No.592-P of 2018)

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

----O. XXIX, R. 1---Government owned public limited company [Peshawar Electric Supply Company (PESCO)]---Officials of the company (PESCO) sued in their personal capacity---Board resolution of company not required by officials for filing a civil revision before the High Court---Petitioner were sued in their personal capacity and were not representing PESCO---Plaint of the plaintiff nowhere mentioned that PESCO in its capacity as a public limited company was sued---Plaintiff consciously chose to nominate the petitioners as defendants in the suit, in their respective personal capacities---Written statement filed by the petitioners before the trial Court showed that the same had been filed for themselves and not on behalf of the PESCO---Petitioners had nowhere taken any stance on behalf of PESCO or defended it, rather, the petitioners had defended themselves in their individual capacities---As such, they were not required to produce a Board Resolution when defending themselves in their personal capacity---Petition for leave to appeal was converted into appeal and allowed and impugned judgment of High Court was set aside.

Chief Executive, PESCO Department, Government of Khyber Pakhtunkhwa, Peshawar v. Afnan Khan 2021 SCMR 2100 ref.

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

----O. XXIX, R. 1---Suit by or against Corporations---Subscription and verification of pleadings---Board resolution, requirement of---Scope--- When a company is sued or is initiating legal proceedings, there must be proper authorization which is ordinarily provided in the Memorandum and Articles of Association or a Resolution of the Board of Directors of a company---To the contrary, if a member/shareholder/ director/official of a company is sued in his personal capacity, then, the need for a Board Resolution authorizing such person does not arise; this is because, the company is itself a separate legal entity whereas, its members/officials/shareholders/directors, in their personal capacity, have a separate legal status.

Uzma Construction Co. v. Navid H. Malik 2015 SCMR 642 ref.

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

----O. XXIX, R. 1---Suit by or against Corporations---Subscription and verification of pleadings---Board resolution, lack of---Curable defect---Even in the absence of a Board Resolution, pleadings can, either expressly or impliedly, be subsequently ratified---Court can, therefore, come to the conclusion that the Corporation had ratified the act of signing the pleadings by its Officer(s)---As such the absence of a Board Resolution is not an incurable defect which would ipso facto render a plaint/suit defective---Rather, it is a curable defect and, in certain instances, is not even necessary if subsequently, the plaint/suit is ratified by a person competent and empowered to do so.

Rahat and Company v. Trading Corporation of Pakistan Statutory Corporation 2020 CLD 872 ref.

Asad Jan, Advocate Supreme Court (through video link from Peshawar) for Petitioners.

Not represented (Ex parte) for Respondent.

2023 S C M R 241

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar and Shahid Waheed, JJ

SAGHIR AHMED---Petitioner

Versus

The STATE and others---Respondents

Jail Petition No. 300 of 2022, decided on 28th November, 2022.

(On appeal against the judgment dated 17.05.2022 passed by the Lahore High Court, Bahawalpur Bench in Criminal Appeal No. 215 of 2021 and Criminal Revision No. 109 of 2021)

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

----S. 377--- Commission of sodomy with a minor--- Reappraisal of evidence---Benefit of doubt---Report of Forensic Science Agency and medical office not giving definite finding of sodomy---Victim was medically examined on the same day and his medical report clearly stated that the child had not yet defecated, nor taken shower or cleaned the area after the act; that on general physical examination, no signs of physical trauma were noted on body; that there was mild redness around the anal sphincter but no bruise, no swelling, no abrasion or laceration was noted on skin around anal sphincter---Victim neither complained of pain on walking or defecation---Two external and three internal anal swabs were sent to Forensic Science Laboratory for DNA analysis, which did not give any definite finding and the report just denoted that the victim may have been victimized with the act of sodomy---In such view of the matter, the report of the Forensic Science Agency had to be interpreted in favour of the accused---Report of the Forensic Science Laboratory was sufficient to cast a shadow of doubt on the prosecution case, which entitled the petitioner to the right of benefit of the doubt---Jail petition was converted into appeal and accused was acquitted of the charge.

(b) Criminal trial---

----Evidence---Interpretation favorable to the accused---If two views are possible on the evidence adduced in the case, one indicating the guilt of accused and other to his innocence, the view favourable to the accused is to be adopted.

Shahid Orakzai v. Pakistan Muslim League 2000 SCMR 1969; Ijaz Hussain v. The State 2002 SCMR 1455; Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Muhammad Zubair v. The State 2010 SCMR 182 ref.

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

----S. 377---Commission of sodomy with a minor---Mere heinousness of the offence, if not proved to the hilt, is not a ground to punish an accused.

(d) Criminal trial---

----Benefit of doubt---Scope---For the accused to be afforded the right of benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner.

Mst. Asia Bibi v. The State PLD 2019 SC 64; Tariq_Pervaiz v. The State 1995 SCMR 1345; Ayub Mosih v. The State PLD 2002 SC 1048 and Abdul Jabbar v. State 2019 SCMR 129 ref.

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

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

Complainant in person.

2023 S C M R 246

[Supreme Court of Pakistan]

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

Muhammad Ali Mazhar, JJ

Mst. TAYYEBA AMBAREEN and another---Petitioners

Versus

SHAFQAT ALI KIYANI and another---Respondents

Civil Petition No. 3209 of 2019, decided on 3rd November, 2022.

(Against the judgment dated 10.06.2019 passed by the Peshawar High Court, Peshawar in W.P. No.156-P of 2016)

(a) Appeal---

----Appellate Court, jurisdiction of---Scope---Appellate Court to give due deference to findings of Trial Court based on evidence---Scope and purpose of appellate jurisdiction stated.

Purpose of appellate jurisdiction is to reappraise and re-evaluate the judgments and orders passed by the lower forum in order to examine whether any error has been committed by the lower court on the facts and/or law, and it also requires the appreciation of evidence led by the parties for applying its weightage in the final verdict. It is the province of the Appellate Court to re-weigh the evidence or make an attempt to judge the credibility of witnesses, but it is the Trial Court which is in a special position to judge the trustworthiness and credibility of witnesses, and normally the Appellate Court gives due deference to the findings based on evidence and does not overturn such findings unless it is on the face of it erroneous or imprecise. No doubt an Appellate Court may re-appreciate the evidence to ensure only that the approach of the Trial Court while recording and appraising the evidence was not flawed or perverse to the well-settled principles of law, but it is not the function of the Appellate Court to interpret the evidence rather than considering it in its plain meaning and determine what was actually testified and deposed by the parties or their witnesses during evidence and it cannot pass the appellate judgment on the basis of presumption or speculation.

(b) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(viii)(a)---Family Courts Act (XXXV of 1964), S. 5 & Sched.---Suit for dissolution of marriage on the ground of cruelty---Physical and mental cruelty---Meaning of cruelty and the approach to be adopted by Courts while deciding a lis for dissolution of marriage on the ground of cruelty stated.

The cruelty alleged may be mental or physical, premeditated or unpremeditated, but lack of intent does not make any distinction. Obviously, if it is a physical act then it would be a question of fact, and in the event of mental cruelty, an enquiry is required to be made as to the nature of the cruel treatment to find out the impact or repercussions thereof on the mind of the spouse. Mental cruelty can be largely delineated as a course of conduct which perpetrates mental pain with such a severity and harshness which would render it impossible for that party to continue the matrimonial tie or to live together. The matrimonial relationship is based on a mutual trust between wife and husband with emotions and it obliges reciprocal respect, love and affection for evenhanded adjustments with the spouse without causing a sense of anguish and disappointment, therefore, while deciding any lis for dissolution of marriage on the ground of cruelty, the Court must adjudge the intensity and ruthlessness of the acts and examine whether the conduct complained of is not merely a trivial issue which may happen in day-to-day married life, but is of such a nature which no reasonable person can endure.

Halsbury's Laws of England (Fourth Edition), Volume 13, Para 1269, Page 602; American Jurisprudence (Second Edition), Volume 24, Chapter: Divorce and Separation, Para 35, Page 217-218; Corpus Juris Secundum, Volume XXV, at page 16; Black's Law Dictionary (Ninth Edition), at page 434 and Words and Phrases (Permanent Edition), Volume 10-A ref.

The matrimonial bond between a man and woman is a pious relationship which plays an important part and also nurtures between the husband and wife happiness and compassion and the lineage and family heredity also depends on it. Connubial affairs are based on gentle, human and emotional affiliation which requires mutual trust, regard, respect, love and affection with adjustments with the spouse, and the relationship should also be in accordance with social norms. Mental cruelty is a conduct and behavior which inflicts upon the wife such mental pain and anguish making it impossible for her to continue the matrimonial relationship which is also a state of mind caused due to the behavioral pattern of the husband, but this is required to be determined by the Court according to the facts and circumstances of each case and must be more serious than the ordinary, petty or trivial issues or disputes of married life which usually occur in day-to-day married life. According to the injunctions of Islam, the husband is obligated and responsible to provide food, clothing, accommodation and all the other necessities of life to the best of his capability and capacity. A man is expected to treat his wife nicely, with love and affection.

An-Nisa-4.34-quran.com/en/an-nisa/34; Ar-Rum-30.21-quran. com/30/21; Al-A'raf-7.189-quran.com/en/al-araf/189; An-Nisa-4.1- quran.com/4; An-Nisa-4.19 legacy.quran.com/4/19; Al-Baqarah Quran, 2:187-quran.com/al-baqarah/187; An-­Nisa-4.4-quran.com/an-nisa/4; Narrated by Sahih Muslim, 1468a, Book No. 17, Hadith-80 (Ref: sunnah.com/muslim:1468a); Jami at-Tirmidhi, 3895, Book No.49, Hadith-295]-(Ref: sunnah.com/tirmidhi-3895); At-Tirmidhi)- (Ref: the­faith.com/women-in-islam; Narrated by Sahih Muslim, 1218-a (Ref: sunnah.com/muslim:1218a) and Sub-paragraph (2) of Paragraph 281 of Chapter XIV of "Principles of Muhammadan Law" (Ninth Edition), by D.F. Mulla ref.

In the present case, judgment of the Family Court depicted various acts which according to the wife caused her mental anguish and torture, i.e. after around one week of marriage, the behavior of the husband started to change and he was pressurizing the wife to arrange money to get a house on rent; when the wife was pregnant, the husband and his family members started spreading a false accusation that the minor was not the child of the husband which further worsened the situation and the wife suffered severe mental agony; the husband instead of supporting the wife, left her deserted in the house at a crucial time when she was pregnant; the husband neither turned towards her, nor paid any maintenance allowance or the delivery expenses which were also borne by the wife; the husband and his family members also imposed a harsh condition that the wife should deposit her salary into a joint account with the husband, and if she wants money for personal use, she should ask for the permission of her husband and his family members; despite filing the family suit, the husband's behavior did not change and he started causing more mental anguish and started leveling false accusations against his wife amongst relatives and another unreasonable condition was imposed that the amount for the house purchased by the wife should be reimbursed to her by her father and the money should be paid to the husband. In such circumstances the Family Court had rightly decreed the suit for dissolution of marriage on the ground of cruelty. Petition for leave to appeal was converted into appeal and allowed.

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

----S. 5 & Sched.---Suit for restitution of conjugal rights---Approach to be adopted by Courts when deciding such suit---Husband, duty of---Scope---When a husband claims restitution of conjugal rights in response to the suit for dissolution of marriage, dower, dowry and maintenance filed by the wife, it is an onerous responsibility of the Court to see whether he is sincerely fulfilling his obligations towards his wife, rather than gratifying the urges of male chauvinism---Lodging of claim for restitution of conjugal rights should not be used as weapon to defend or obstruct the claim of dower or maintenance allowance, but must be lodged in good faith and with a bona fide intention to reconcile and rectify the issues between the spouses in order to save the matrimonial tie with magnanimity, kindness and through the fulfillment of the husband's obligations and not as a tool to fight out or frustrate the claim of maintenance allowance or dower amount.

Paragraph 277 of Chapter XIV of "Principles of Muhammadan Law" (Ninth Edition), by D.F. Mulla ref.

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

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

2023 S C M R 261

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Muhammad Ali Mazhar, JJ

Messrs PAKISTAN TELECOMMUNICATION COMPANY LTD.---Appellant

Versus

COLLECTOR OF CUSTOMS, KARACHI---Respondent

Civil Appeal No. 24 of 2015, decided on 4th November, 2022.

(Against the order dated 25.08.2014 passed by the High Court of Sindh, Karachi in Special Customs. R.A. No. 328 of 2011)

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

----Ss. 19, 19A & 33--- Equipment imported by Pakistan Telecommunication Company Ltd. (PTCL)---Over-paid customs duty, refund of---Concessionary rate of customs duty under SRO.457(I)/2004 dated 12.06.2004 ('SRO 457'), benefit of---Held, that the imported equipment fell within the purview of 'components' stated in SRO 457---'Conditions of Import', provided in SRO 457, stipulated two essential conditions precedent for availing the concessionary rate of customs duty: firstly, the imported goods should not be manufactured locally, and this fact was to be certified through the erstwhile Central Board of Revenue by the Facilitation Committee of the Board of Investment (BOI); and secondly, the importer was to produce NOC or license, as the case may be, from the concerned agencies for the purpose---Factually, the appellant (PTCL) fulfilled both the said conditions---section 19A was inserted in the Customs Act, 1969 when the refund claims of the appellant were pending adjudication before the Additional Collector of Customs, however as section 19A provided for a rebuttable presumption, it fell within the purview of procedural law, and thus, had retrospective application to the refund claims of the appellant---At the time when the appellant had filed the Goods Declaration and refund claims, section 33 of the Customs Act, 1969 did not expressly require a claimant (importer) to show that the incidence of the paid customs duty had not been passed on to the buyer as part of the price of the imported goods, therefore, section 33(4) , being substantive law, could not be applied retrospectively---In the present case, admittedly the imported equipment had not been sold further by the appellant to any third person/buyer either directly, as they were actually imported, or indirectly, as a raw material or as a component part in the finished product; rather the same had been used and installed by the appellant in its own project of telecommunication services---Therefore, the concept of unjust enrichment referred to in section 19A, could not be applied to the present case---Appeal was allowed, and the refund claims of the appellant in respect of the over-paid customs duty were allowed.

Messrs Fecto Belarus Tractor v. Government of Pakistan 2005 PTD 2286 distinguished.

(b) Interpretation of statutes---

----Prospective/retrospective application of a new law---Scope---Any new law, which deals with the procedure and does not affect the rights or liabilities of the parties, generally applies to all proceedings, pending as well as future, while a new law, unless expressly provided, which affects the rights or liabilities of the parties, being substantive in nature, is applied prospectively, and not retrospectively.

State v. Muhammad Jamil PLD 1965 SC 681; Muhammad Alam v. State PLD 1967 SC 259; Commissioner of Income Tax v. Messrs Asbestos Cement Industries 1993 SCMR 1276 and Mumtaz Ahmed v. Federal Service Tribunal 2000 SCMR 832 ref.

(c) Interpretation of statutes---

----Retrospective application of a new law/provision---Scope---New provision relating to a rebuttable presumption---Rebuttable presumption falls in the realm of the procedural law of evidence, and thus would have retrospective application.

Abdul Rehman v. Allah Wasai 2022 SCMR 399 ref.

(d) Interpretation of statutes---

----Tax statute---While construing a tax law, the language used in it is not to be either stretched in favour of the State or narrowed in favour of the taxpayer.

Yousaf Rerolling Mills v. Collector of Customs PLD 1989 SC 232 ref.

Faisal Siddiqi, Advocate Supreme Court and Khizar Ali Khan, Manager Legal, PTCL for Appellant.

Raja Muhammad Iqbal, Advocate Supreme Court and Jalal Zaidi, D.C. Customs, Islamabad for Respondent.

2023 S C M R 273

[Supreme Court of Pakistan]

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

MUHAMMAD IQBAL and others---Appellants

Versus

NASRULLAH---Respondent

Civil Appeal No. 2433 of 2016, decided on 15th September, 2022.

(Against the judgment dated 28.07.2015 of the Peshawar High Court, D.I. Khan Bench, D.I. Khan passed in C.R. No.25-D of 2014)

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

----Ss. 2(d), 5(1) & 13(2)---Pre-emption suit, filing of---Suit filed by pre-emptor prematurely before completion of sale of property---Section 5 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 clearly stated that "the right of pre-emption shall arise in case of sale" meaning thereby that when there was no sale i.e. conveyance of title from vendor to vendee, there would be no right of pre-emption---In the present case, perusal of the agreement to sell showed that it had expressly been stipulated therein that sale deed would be executed and the possession would be delivered to the appellants (vendees) after payment of outstanding balance out of total consideration---Admittedly agreement to sell between the parties had not been concluded at the time when the respondent (pre-emptor) had performed his first talab---On the date when the pre-emptor performed Talb-e-Muwathibat, the sale was not complete, therefore, the subsequent performance of Talb-e-lshhad and filing of suit for pre-emption was pre-mature---Argument of pre-emptor that once possession of pre-empted property was transferred, sale became complete even if the balance sale consideration had not been paid, did not hold ground as this did not create any right or title as per law---Appeal was allowed, impugned judgment of High Court was set-aside and judgments of lower fora dismissing the suit for possession through pre-emption were affirmed.

Muhammad Nazeef Khan v. Gulbat Khan and others 2012 SCMR 235 distinguished.

Abdul Nasir v. Haji Said Akbar 2010 SCMR 1770 ref.

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

----S. 54---Agreement to sell---Scope---Agreement to sell does not create any title or claim over the property; it also does not create ownership in the land and, as such, a person in whose favour such an agreement is made cannot claim a decree of title on the basis of incomplete sale consideration---Even if such an agreement contains an acceptance of receipt of an earnest or partial payment of the total sale consideration, it does not need to be registered because all it does in lieu of is grant the right to get another document i.e. sale deed---Unless the sale deed is registered and title is transferred, the possibility always exists that the agreement to sell might be terminated in the event of breach of any provision contained therein.

(c) Interpretation of statutes---

----Special and general law---Wherever there is a special and general law applicable to a certain matter, the special law will prevail.

Safi-ud-Din Kazi v. Pranab Chandra Roy Choudhary PLD 1950 Dacca 37 ref.

Ms. Afshan Ghazanfar, Advocate Supreme Court, Syed Mastan Ali Shah Zaidi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Malik Ghulam Mustafa Kandwal, Advocate Supreme Court for Respondent.

2023 S C M R 279

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Jamal Khan Mandokhail, JJ

The COMMISSIONER, INLAND REVENUE, KARACHI---Appellant

Versus

Messrs ATTOCK CEMENT PAKISTAN LIMITED, KARACHI---Respondent

Civil Appeal No. 1422 of 2019, decided on 12th January, 2023.

(Against the judgment dated 20.08.2018 passed by the High Court of Balochistan, Quetta, in Sales Tax Appeal No. 01 of 2005)

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

----S. 7---Input tax, adjustment of---Scope and nature---Section 7 of the Sales Tax Act, 1990 by nature is a beneficial provision of law providing a facility to a registered person to adjust input tax at the time of making payment of output sales tax.

Sheikhoo Sugar Mills v. Government of Pakistan 2001 SCMR 1376; Collector of Customs, Sales Tax and Central Excise v. Messrs Sanghar Sugar Mills Ltd. PLD 2007 SC 517 = 2007 PTD 1902, Chiltan Ghee Mills, Quetta v. Deputy Collector of Sales Tax (Refund), Customs House, Quetta 2016 SCMR 2183; AIR 1992 SC 2078; India Agencies (Regd.), Bangalore v. Additional Commissioner of Commercial Taxes, Bangalore AIR 2005 SC 1594; Jayam and Co. v. Assistant Commissioner AIR 2016 SC 4443; State of Karnataka v. M.K. Agro Tech.(P) Ltd. (2017) 16 SCC 210 and ALD Automotive Pvt. Ltd. v. The Commercial Tax Officer AIR 2018 SC 5235 ref.

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

----S. 7(1)--- Input tax, adjustment of---Whether any time limit for adjustment of input tax---Held, that section 7(1) of the Sales Tax Act, 1990 does not stipulate any condition or restriction of time for adjustment of the 'input tax' from the 'output tax' payable in respect of taxable supplies made in a tax period---Noted stipulation of time in section 7(1), that is, a tax period, is with regard to determining the tax liability of the 'output tax' on taxable supplies made by the tax payer during that period, and does not relate to the period of payment of 'input tax' on the taxable supplies received by him---For purposes of the present case, at the relevant period there was no express obligation on the tax payer to avail the facility of adjustment of 'input tax' in the same tax period in which it was paid---Such restriction was, however, for the first time introduced by inserting the words 'during the tax period' after the words, "input tax paid", in section 7(1) vide the Finance Act, 1998--- More amendments with regard to the time limit for availing the adjustment facility of 'input tax' followed later.

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

----Ss. 7(1) & 66---Import of new machinery and spare parts---Input tax, refund/adjustment of---Time and manner of claiming the adjustment of input tax---Appellant-tax authority asserted that the adjustment could be claimed in the same tax period and that too in the monthly returns, while the respondent-company claimed it as a right enforceable beyond the tax period in which the input tax was paid---Held, that section 66 of the Sale Tax Act, 1990 ('the Act') provides for refund of tax claimed to have been 'paid or over paid' through 'inadvertence, error or misconstruction' and prescribes a period of one year for preferring such claims---In the present case, the respondent-company, during the relevant period, was not obliged to pay 'output tax' equivalent to the amount of 'input tax' paid on imports, but it overlooked availing the facility of adjustment of the 'input tax' afforded under section 7(1) of the Act---Such omission, as asserted by the respondent-company, was due to 'confusion' and 'misunderstanding' on its part, and would thus come within the purview of the word 'inadvertence', envisaged under section 66 of the Act---Facility of making adjustment of the 'input tax' was available to the respondent-company till 1st July 1997, when the taxable supply of cement, was exempted from payment of sales tax by the Finance Act, 1997---Obviously, after the said exemption of cement from payment of sales tax, there was no question of payment of 'output tax', and hence 'input tax' paid could not have been adjusted by the respondent-company---Only remedy, thus, available to the respondent-company was to seek the refund of the excess amount of 'output tax' paid by the respondent-company, under section 66 of the Act---Period of limitation prescribed for seeking the refund under section 66 was one year from the date of over-payment of tax that is, when 'output tax' was paid by the registered person without adjusting the 'input tax'---In the present case, the respondent-company would, therefore, be entitled under Section 66 of the Act to claim refund of an amount of the overpaid 'output tax', equivalent to the 'input tax' not adjusted in the monthly returns filed during the period of one year preceding 11-06-1997, that is, from 11-06-1996 till 10-06-1997---Appeal was partly allowed.

(d) Interpretation of statutes---

----Amendment in a provision/section of a statute---Scope---Amendment is generally made to bring about a change in the state of law; however, it is not so when the amendment is mere explanatory or clarificatory in nature.

Syed Mohsin Imam, Advocate Supreme Court for Appellant.

Mansoor Ali Ghanghro, Advocate Supreme Court for Respondent.

2023 S C M R 291

[Supreme Court of Pakistan]

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

Muhammad Ali Mazhar, JJ

CHIEF ENGINEER, GUJRANWALA ELECTRIC POWER COMPANY (GEPCO), GUJRANWALA---Appellant

Versus

KHALID MEHMOOD and others---Respondents

Civil Appeals Nos. 1685 to 1687 of 2021, decided on 3rd October, 2022.

(Against the judgment dated 08.01.2021 passed by the Lahore High Court, Lahore, in W.Ps. Nos. 428, 431 and 432 of 2021)

(a) Pakistan Wapda Employees (Efficiency and Discipline) Rules, 1978---

----Rr. 5(iii) & 5(iv)---Disciplinary proceedings---Regular inquiry---Scope---No rigid or definitive rule that in each and every case after issuing show cause notice a regular inquiry should be conducted, but if the department aspires to dispense with the regular inquiry due to some compelling circumstances or exigency, then justifiable reasons should be assigned in writing before dispensing with the regular inquiry---No doubt, if a charge is set up or stems from admitted documents, no full-fledged regular inquiry is obligatory, but if the allegations are based on disputed questions of facts, then obviously the employee cannot be denied a right of regular inquiry, specifically where the allegations cannot be resolved without leading evidence and providing a fair opportunity to the parties to cross-examine the witnesses.

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; Fuad Asadullah Khan v. Federation of Pakistan 2009 SCMR 412 and Chief Postmaster Faisalabad, GPO and another v. Muhammad Fazal 2020 SCMR 1029 ref.

(b) Limitation---

----Law of limitation reduces an effect of extinguishment of a right of a party when significant lapses occur---When no sufficient cause for such lapses, delay or time barred action is shown by the defaulting party, the opposite party is entitled to a right accrued by such lapses---Omission and negligence of not filing the proceedings within the prescribed limitation period creates a right in favour of the opposite party.

Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 ref.

(c) Limitation---

----Void order---No relaxation is available in law to approach the court after deep slumber or inordinate delay under the garb of labeling an order or action void with the articulation that no limitation runs against the void order---If such tendency is not deprecated and a party is allowed to approach the Court of law on his sweet will without taking care of the vital question of limitation, then the doctrine of finality cannot be achieved and everyone will move the Court at any point in time with the plea of void order---Even if the order is considered void, the aggrieved person should act more cautiously rather than waiting for lapse of limitation and then coming up with the plea of a void order which does not provide any premium of extending limitation period as a vested right or an inflexible rule.

Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587 ref.

(d) Limitation---

----Scope---Intention of the provisions of the law of limitation is not to give a right where there is none, but to impose a bar after a specified period, authorizing a litigant to enforce his existing right within the period of limitation.

Muhammad Iftikhar Abbasi v. Mst. Naheed Begum and others 2022 SCMR 1074 and Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933 ref.

(e) Limitation---

----Court is obliged to independently advert to the question of limitation and determine the same and to take cognizance of delay without limitation having been set up as a defence by any party.

(f) Punjab Industrial Relations Act (XIX of 2010)---

----S. 42---Penalty imposed by department challenged by employee before the Labour Court---Acceptance of dues by employee---Whether employee estopped from challenging dismissal after accepting dues---Held, that mere acceptance of legal dues by an employee does not amount to waiver so as to estop him from challenging the order of dismissal---Such remedy cannot be denied to him if the charge of misconduct has not been established---In case order of termination is held to be mala fide or the charge of misconduct has not been proved, the payment of entire dues will not disentitle an employee to seek further relief of reinstatement from the Court---Cannot be accepted as a rule in each and every case that receipt of dues would debar an employee from approaching the Labour Court for the redress of his grievance, as it is always a question of fact to be determined on the basis of record whether an employee has accepted his termination and severed his relationship with the employer.

General Manager, National Radio Telecommunication Corporation, Haripur, District Abbottabad v. Muhammad Aslam and 2 others 1992 SCMR 2169 and Farasat Hussain and others v. Pakistan National Shipping Corporation through Chairman and others 2004 SCMR 1874 ref.

Muhammad Munir Paracha, Advocate Supreme Court for Appellant (in all cases)

Azhar Iqbal, Advocate Supreme Court for Respondent No. 1

(in all cases).

Syed Moazam Ali Rizvi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 4 (in all cases).

2023 S C M R 301

[Supreme Court of Pakistan]

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

MUHAMMAD NAEEM---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

C. P. No. 4294 of 2019, decided on 25th November, 2022.

(Against the judgment of Peshawar High Court, Peshawar dated 01.10.2019, passed in W.P. No. 4666-P of 2018)

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

----S. 2(1)(b)---Government Servants (Efficiency and Discipline) Rules 1973, R. 2(1)--- Government Servants (Conduct) Rules 1964, R. 3(1)(b)---Penal Code (XLV of 1860), Ss. 21 & 161---Term 'public servant' as provided in sections 21 & 161 of P.P.C.---Scope---Definition of "public servant" as provided in section 21 of the P.P.C. is only for the purpose of application of the provisions of that substantive criminal law, as well as of the related procedural criminal law, the Code of Criminal Procedure 1898, and the extended definition of that term as given in Explanation of section 161, P.P.C.---Said definitions do not confer any civil status, capacity or position on the persons falling in the scope thereof.

Terms "civil servant" and "government servant", having almost the same meaning and scope, are commonly used interchangeably in the civil service laws of the country. The term "public servant" as defined in section 21 of the P.P.C. for the purpose of application of that law is, however, of wide import and scope than those terms. It cannot, therefore, be referred to or used as an equivalent or synonym of them, in the context of a person's civil status, capacity or position. In the ordinary English language, the words "civil servant" and "public servant" may have the same meaning, but this is not so in the legal language as commonly used in the laws of the country (Pakistan). It may be said that in legal parlance, particularly of the service and criminal laws, all civil servants are public servants as defined in section 21 of the P.P.C., but not all such public servants are civil servants.

The definition of "public servant" as provided in section 21 of the P.P.C. is only for the purpose of application of the provisions of that substantive criminal law, as well as of the related procedural criminal law, the Code of Criminal Procedure 1898, and the extended definition of that term as given in Explanation of section 161 (which brings the employees of any corporation or other body or organisation set up, controlled or administered by, or under the authority of, the Federal Government, within the ambit of the term "public servant") is only for the purpose of application of that section and sections 162, 163, 164, 165, 166, 167, 168, 169 and 409 of the P.P.C. These definitions do not confer any civil status, capacity or position on the persons falling in the scope thereof. The reference to the definition of "public servant" as provided in a criminal law, the P.P.C., for claiming the civil status of being a government servant/officer is therefore misconceived.

Professor Alaud Din v. Government of Punjab PLD 1979 Lah. 324 ref.

(b) National Bank of Pakistan Ordinance (XIX of 1949)---

----S. 3(2)---Civil Servants Act (LXXI of 1973), S. 2(1)(b)---Employees of National Bank of Pakistan (NBP)---As per section 3(2) of the National Bank of Pakistan Ordinance, 1949, NBP is a body corporate, and its employees are employees of a statutory corporation, not of the Federal Government---Employees of NBP are therefore not "government servants" or "civil servants" as defined in the Civil Servants Act, 1973.

Deedar Bhayo v. NBP 2013 SCMR 894 and Mubeen-Us-Salam v. Federation PLD 2006 SC 602 ref.

(c) National Bank of Pakistan Ordinance (XIX of 1949)---

----S. 3(2)---Civil Servants Act (LXXI of 1973), S. 2(1)(b)---Constitution of Pakistan, Art. 199---Employees of National Bank of Pakistan (NBP)---Recourse to writ jurisdiction of the High Court in service matters---National Bank of Pakistan (NBP), being a statutory corporation, is amenable to the writ jurisdiction of the High Courts under Article 199 of the Constitution, and its employees when are governed or proceeded against under the statutory rules can also avail the recourse to the writ jurisdiction for the redressal of their grievances in respect of their service matters---However, such legal position does not merge the NBP, a separate juristic person, into the Federal Government, nor in any manner blurs the distinction between NBP, a statutory corporation, and the Federal Government, a constitutional body, or in any manner turn the employees of the NBP into the employees of the Federal Government.

Deputy Managing Director, NBP v. Ata-ul-Haq PLD 1965 SC 201; Salah-ud-Din v. Frontier Sugar Mills PLD 1975 SC 244; University of Dacca v. Zakir Ahmed PLD 1965 SC 90; Deedar Bhayo v. NBP 2013 SCMR 894; Mubeen-Us-Salam v. Federation PLD 2006 SC 602; K.D.A. v. Wali Ahmed 1991 SCMR 2434; Principal, Cadet College v. Shoab Qureshi PLD 1984 SC 170 and State of Assam v. Barak Upatyaka (2009) 5 SCC 694 ref.

Amjad Ali, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2023 S C M R 306

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Jamal Khan Mandokhail, JJ

GULL DIN---Petitioner

Versus

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

Criminal Petition No. 1308 of 2022, decided on 17th November, 2022.

(Against the order dated 19.09.2022 of the Lahore High Court, Multan Bench passed in Criminal Miscellaneous No. 5220-B of 2022)

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

----R. 4(2)---Criminal Procedure Code (V of 1898), S. 497---Bail---Seized narcotics to be dispatched for analysis 'not later than seventy-two hours of the seizure' [Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001 'the Rules')]---Non-compliance with Rule 4(2) of the Rules---Effect---Rule 4(2) of the Rules is directory in nature---Non-compliance of a directory rule would not entitle the petitioner to bail---Ground of non-compliance with Rule 4(2) of the Rules will not on its own be a sufficient ground to entitle the petitioner to the concession of bail.

Tariq Mehmood v. State PLD 2009 SC 39; Gul Alam v. State 2011 SCMR 624; Muhammad Sarfraz v. State 2017 SCMR 1874 and Tallat Ishaq v. National Accountability Bureau PLD 2019 SC 112 ref.

Malik M. Usman Bhatti, Advocate Supreme Court for Petitioner.

Ch. Muhammad Sarwar Sidhu, Additional Prosecutor-General, Punjab along with Farhat Rasool, DSP City, Muzaffargarh and Khalid Azizi, SI/IO for the State.

Muhammad Yaqoob, ASI for Respondent No. 2.

2023 S C M R 308

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

AMIR FARAZ---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 475 of 2022, decided on 9th January, 2023.

(On appeal against the order dated 15.04.2022 passed by the Lahore High Court, Lahore, in Criminal Misc. No. 11519-B of 2022)

(a) 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---Complainant lodged the report within one hour and twenty minutes of the occurrence, when the Police Station was at a distance of 2½ kilometers and while lodging the FIR, he categorically attributed fatal injury to the accused---Accused was the only one alleged to have caused solitary fatal firearm injury with a pistol to the deceased, whereas the co-accused fired upon another deceased---Fatal injury attributed to accused got full support from the medical evidence and it was sufficient to cause death of the deceased---Witnesses mentioned in the FIR, got their statements recorded on the same day under section 161, Cr.P.C. and supported the version put forward by the complainant in the FIR---In the earlier investigation the accused was found guilty, but subsequently a second investigation was conducted wherein statements of three witnesses were recorded after more than four months and they stated that they saw both the parties quarreling---On basis of said statement the Investigating Officer opined that although accused was present at the scene but was empty handed---No independent statement of the said three witnesses under section 161, Cr.P.C. was recorded, and they were not mentioned in the report under section 173, Cr.P.C.---Although the second Investigating Officer opined that complainant party was aggressor but surprisingly, nobody from the accused side received even a single scratch---Accused side did not make any effort to lodge any report regarding the aggression of the complainant side and even no private complaint was ever filed against the complainant party---Bail was being mis-used by the accused by hampering the trial as on numerous dates of hearing the prosecution witnesses appeared before the Court but their statements were not recorded on the request of defence counsel---Petition for leave to appeal was converted into appeal and allowed, and bail granted to accused was cancelled/recalled.

Mst. Sughran Bibi v. The State PLD 2018 SC 595 distinguished.

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

----Ss. 497(5) & 156---Bail, cancellation of---Opinion of Investigating Officer, relevance of---Opinion of the Investigating Officer has some persuasive value, if the same is based upon a strong and concrete material---Court has to consider whether the said opinion is based upon cogent and concrete material---In the absence of any material/ data no credit can be given to such ipse dixit of the police officer.

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

----S. 497---Bail---Ocular account---Corroboratory evidence---At bail stage, corroboratory piece of evidence, if missing, cannot discard the ocular account recorded on the day of occurrence.

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

----S. 497(5)---Bail, cancellation of---Commencement of trial---No hard and fast rule can be laid down that bail should not be cancelled merely for the reason that the trial has commenced or is likely to commence because every case is to be examined in the light of its own facts---Crucial question that arises for determination would be as to whether a person is entitled to grant of bail under the provision of section 497, Cr.P.C.

Mian Pervaz Hussain, Advocate Supreme Court (via video link from Lahore) and Anis M. Shahzad, Advocate-on-Record for Petitioner.

Muhammad Jaffar, Additional P.G. Punjab (via video link from Lahore) for the State.

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court and Syed Iqbal Hussain Shah Gillani, Advocate Supreme Court for Respondent No. 2.

2023 S C M R 316

[Supreme Court of Pakistan]

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

SANA JAMALI---Petitioner

Versus

MUJEEB QAMAR and another---Respondents

Civil Petition No. 32-Q of 2019, decided on 5th October, 2022.

(Against the judgment dated 17.12.2018 passed by the High Court of Balochistan, Quetta, in C.P. No. 724 of 2013)

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

----O. V, R. 20--- Substituted service--- Scope--- Legislature has conferred a wide ranging freedom of choice and options under Order V, Rule 20, C.P.C. as to how the substituted service is to be effected to ensure service quickly and efficiently if the notice/summons could not be served personally at the given address or at the address which is given or known---However, the remedy of substituted service can be resorted to only if the Court is satisfied that there is reason to believe that the other side is keeping out of the way only to avoid service.

(b) Maxim---

----'Ubi jus ubi remedium' (wherever there is a right, there is a remedy)---Scope---Said maxim is an elementary principle of law and any person having a right has a corresponding remedy to institute suits in a Court unless the jurisdiction of the Court is barred---Such principle acknowledges the subsistence of a legal right and can also be invoked when the law seemingly does not provide a remedy for the enforcement of such right. [p. 322] B

Government of the Punjab through Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others 2022 SCMR 25 ref.

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

----S. 14---Constitution of Pakistan, Art. 199---Exhaustion of remedies, doctrine of---Scope---Constitutional petition filed before the High Court to challenge a decree of Family Court instead of resorting to the remedy of appeal provided under section 14 of Family Courts Act, 1964---Maintainability---Family Courts Act, 1964 is a special law which provides various legal remedies and the intention of the legislature for creating such remedies is that disputes falling within the ambit of such forum be taken only before it for resolution and bypassing or circumvention of the forums is not permissible under the command of Article 199(1) of the Constitution which confers jurisdiction on the High Court only when there is no adequate remedy available under any law---Where an adequate forum is fully functional, the High Court must not interfere and must relegate the parties to seek remedy before the special forum created under the special law---Doctrine of exhaustion of remedies prevents a litigant from chasing a remedy in a new court or jurisdiction until the remedy already provided under the law is exhausted.

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 and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011

SCMR 1813 ref.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope and object---Object of proceedings under Article 199 of the Constitution is the enforcement of a right and not the establishment of a legal right and, therefore, the right of the incumbent concerned which he seeks to enforce must not only be clear and complete but simpliciter and there must be an actual infringement of the right---Writ jurisdiction of the High Court cannot be expended as the solitary resolution or treatment for undoing the wrongdoings, anguishes and sufferings of a party, regardless of having an equally efficacious, alternate and adequate remedy provided under the law which cannot be bypassed to attract the writ jurisdiction.

Ahsan Rafiq Rana, Advocate Supreme Court (video Link at Quetta) for Petitioner.

Nemo for Respondent No. 1.

2023 S C M R 325

[Supreme Court of Pakistan]

Present: Munib Akhtar, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

Syed ASAD HUSSAIN and others---Appellants

Versus

Syed GHULAM KHITAB---Respondent

Civil Appeal No. 232-P of 2014, decided on 24th November, 2021.

(On appeal against judgment dated 03.05.2010 of the Peshawar High Court, Peshawar in Civil Revision No. 353 of 2010)

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

----Ss.2(d), 13(1)(a) & 31---Suit for pre-emption---Talb-i-Muwathibat---Pre-emptor's knowledge of sale prior to registration of sale deed---Evidence to be led by vendee regarding pre-emptor's knowledge of sale---Whether in the present case pre-emptor delayed making demand of Talb-i-Muwathibat---Plea of vendees/appellants that subject sale deed in the present case (the sale which had been pre-empted) was executed in favour of the appellants on 12-8-2003 and the document was presented for registration to the sub-Registrar promptly, when the pre-emptor/ respondent on 3-7-2003 filed a suit for injunction against the vendor of the property, pleading that vendor should be prohibited from alienating the same to the vendees; that an injunction order was passed in that case, however, on 5.9.2003, the vendor in his written statement had brought on record the fact that the sale has already been accomplished, thus the pre-emptor was obliged under the law to make Talb-i-Muwathbat there and then, which was not so done; that the view set out by the courts below that as sale deed was registered on 4.11.2003 and therefore, TaIb-i-Muwathibat made on 9.11.2003 by the pre-emptor is valid in law, is founded upon misconception, against the facts on the record and also violative of the letter and spirit of the provisions of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987---Validity---Question of knowledge of the sale was ultimately a question of fact; it had to be determined on the basis of the evidence as led by the parties---Plea that as the sale stood disclosed in the written statement of the vendor of the property the earlier suit, the Talb-i-Muwathibat, had to be reckoned from the date thereof, which was 5.9.2003, was ultimately a question of fact---Merely because the written statement filed by the vendor was of a certain date could not mean that the knowledge of the pre-emptor must automatically, or even necessarily, be reckoned from that date or that the law raised a presumption, conclusive or otherwise, in this regard; it had to be specifically pleaded (or least proved by leading evidence on the point) that the respondent's knowledge dated to the date of the written statement or was on the basis, or in terms, thereof---Such evidence would have then rebutted the case as put forward by the pre-emptor as regards the date of his knowledge of the sale and the evidence that he led thereon (which was otherwise accepted by all three courts below)---Vendees did not lead evidence in such respect, thus, the crucial finding of fact which the vendees now urged the (Supreme) Court to make would, in effect, have to be a new finding---Indeed, the nature of such new finding would be such that it would be based (in at least important part) on surmises and conjectures---Appeal filed by vendees was dismissed with the Supreme Court expressing its reservations to the observations made in paragraph 7 of a two member bench judgment of the Supreme Court reported as Muhammad Nafeez Khan v. Gulbat Khan and others 2012 SCMR 235.

Muhammad Nafeez Khan v. Gulbat Khan and others 2012 SCMR 235 ref.

Altaf Ahmed, Advocate Supreme Court and Haji Muhammad Zahir Shah, Advocate on Record for Appellants.

Muhammad Faheem Wali, Advocate Supreme Court for Respondent.

2023 S C M R 330

[Supreme Court of Pakistan]

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

MUHAMMAD UMAR WAQAS BARKAT ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 352-L of 2022, decided on 23rd November, 2022.

(On appeal against the order dated 21.02.2022 passed by the Lahore High Court, Lahore in Criminal Misc. No. 8593-B of 2022)

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

----Ss. 498 & 497(2)--- Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(ii), 337-F(v), 354, 148 & 149--- Constitution of Pakistan, Art. 185(3)--- Murderous assault---Ad interim pre-arrest bail, confirmation of---Case of cross-versions---Further inquiry---Admittedly father of the present accused had firstly lodged an FIR against the complainant of the present case with the allegation that the complainant and his co-accused severely beat two of his sons and caused them several injuries---Medico legal certificates available on record prima facie support the accusation of father of accused---After six days of the incident complainant lodged the present cross-version FIR, wherein he nominated the present accused---Stance of the accused was that infact the complainant party was the aggressor and they had just exercised their right of self-defence---Opinion of the Investigating Officer regarding the overt act of the accused had to be evaluated after recording of evidence as an abundant caution---Possibility of false implication of accused just to pressurize the accused side to gain ulterior motives could not be ruled out ---Trial Court after recording of evidence would decide about the guilt or otherwise of the accused and until then he could not be put behind the bars for an indefinite period---Present case was of two versions narrated before the Court, thus, it squarely fell within the ambit of (further inquiry) section 497(2), Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed, and ad-interim pre-arrest bail granted to the accused was confirmed.

(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 adjudicating extraordinary relief of pre-arrest bail.

Miran Bux v. The State PLD 1989 SC 347; Sajid Hussain alias Joji v. The State PLD 2021 SC 398; Javed Iqbal v. The State 2022 SCMR 1424 and Muhammad Ijaz v. The State 2022 SCMR 1271 ref.

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

----Ss. 497(2)---Constitution of Pakistan, Art. 185(3)---Bail---Case of cross-versions---Further inquiry---Where there is a case of two versions narrated before the Court, it squarely falls within the ambit of (further inquiry) section 497(2), Cr.P.C.

Khalid Masood Sandhu, Advocate Supreme Court for Petitioner along with Petitioner.

Mirza Muhammad Usman, D.P.G., Hassan Farooq, D.S.P. and Abdul Razzaq, ASI for the State.

2023 S C M R 334

[Supreme Court of Pakistan]

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

ABDUL QUDOOS---Petitioner

Versus

COMMANDANT FRONTIER CONSTABULARY, KHYBER PAKHTUNKHWA, PESHAWAR and another---Respondents

Civil Petition No. 2021 of 2019, decided on 4th October, 2022.

(Against the judgment dated 05.04.2019 passed by the Federal Service Tribunal, Islamabad, in M.P. No. 2047/2018 in Appeal No.483(P)CS/2013)

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

----S. 4(1)---Appeal filed by employee of Frontier Constabulary (F.C.)---Service Tribunal, jurisdiction of---Scope---F.C. employees are civil servants and, in a matter relating to the terms and conditions of service, they can approach the Tribunal and file an appeal in accordance with law.

Commandant, Frontier Constabulary, Khyber Pakhtunkhwa, Peshawar and others v. Gul Raqib Khan and others 2018 SCMR 903 ref.

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

----S. 4(1)---Constitution of Pakistan, Art. 199---Constitution petition filed by employee of Frontier Constabulary (F.C.) remitted to the Service Tribunal after consent of both parties---Service Tribunal, jurisdiction of---Scope---After the petitioner [employee of Frontier Constabulary (F.C.)] filed a writ petition in the High Court, the High Court remanded the matter to the Service Tribunal with the direction that the writ petition filed before the High Court shall be treated as a service appeal pending before it, which will be decided after issuing notices to the parties concerned in accordance with law---Counsel for the parties by consent agreed that the pending writ petition may be remitted to the Tribunal for decision and finally, the High Court in view of the dictum laid down in the case of Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539), observed that the petitioner had already filed the departmental appeal before filing the writ petition, therefore, with the consent of counsel for the parties, the matter was sent to the Tribunal for further adjudication subject to all just and legal objections, including limitation---In view of the directions of the High Court which were binding upon the Tribunal, neither the petitioner was required to file any application for resurrection of the earlier disposed of appeal by the Tribunal on the ground of jurisdiction, nor the Tribunal could dismiss the application on the ground of limitation---As a matter of fact, only the memo of writ petition filed in the High Court was to be transmitted to the Tribunal for decision on merits, but the Tribunal without proper application of mind dismissed the restoration application, rather than asking for a copy of the writ petition from the petitioner or requisitioning the Registrar, High Court for a copy of the writ petition for further proceedings---Petition for leave to appeal was converted into an appeal and allowed; the impugned order of the Tribunal was set aside with the directions that the Registrar, High Court shall transmit a certified copy of the relevant writ petition along with its annexures to the Tribunal within 10 days which will be treated as a Service Appeal or, alternatively, the petitioner may submit a complete certified true copy of the said writ petition in the Tribunal; that after receiving a copy of the writ petition the Tribunal shall decide the appeal in accordance with law and applicable rules after notice and opportunity of hearing to the parties.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

(c) Administration of justice---

----Fault/mistake of Court---No person should suffer because of a delay in procedure or the fault of the Court---Act of the Court shall prejudice no one---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---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.

Homoeo Dr. Asma Noreen Syed v. Government of the Punjab through its Secretary Health, Department and others 2022 SCMR 1546 = 2022 PLC (C.S) 1390 ref.

(d) Ex debito justitiae, doctrine of---

----Scope---Mistake/error of court---Power of court to rectify its mistake---Doctrine of ex debito justitiae, refers to the remedies to which a person is entitled as a matter of right as opposed to a remedy which is discretionary---Every court has the power to rectify ex debito justitiae its judgment in order to prevent abuse of process and severe and patent oversights and mistakes---Said doctrine applies to the remedies that the court is bound to give when they are claimed as distinct from those that it has discretion to grant---Power of a court to act ex debito justitiae is an inherent power of courts to fix the procedural errors if arising from courts own omission or oversight which resulted in violation of the principle of natural justice or due process.

Government of the Punjab, through Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others 2022 SCMR 25 ref.

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

----S. 4(1)---Constitution of Pakistan, Arts. 199---Constitutional power of High Court to remit a case to the Service Tribunal---Scope---High Court in its writ jurisdiction may exercise its discretionary powers to avoid grave injustice and in order to get out of the rigors of technicalities remit the case to the Service Tribunal in a prima facie case, provided all requisite formalities including the filing of departmental appeal are complied with according to law and rules---Such discretionary powers may only be exercised in exceptional cases where exigency so demands in the interest of justice, rather than adopting it as a routine or everyday practice to extend an advantage or recourse to civil servants to approach the High Court despite the bar contained under Article 212 of the Constitution.

Muhammad Ramzan Khan, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Ch. Amir Rehman, Additional A.G.P. on Court's Call.

2023 S C M R 344

[Supreme Court of Pakistan]

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

MUHAMMAD GHAFFAR (DECEASED) through LRs and others---Petitioners

Versus

ARIF MUHAMMAD---Respondent

C.P.L.A. No.1517 of 2022, decided on 22nd November, 2022.

(Against the judgment dated 24.03.2022 passed by Peshawar High Court, Peshawar in Civil Revision No. 714-P/2018)

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

----S. 12---Suit for specific performance of an agreement to sell immoveable property---Agreement to sell---Proof---For the grant of a decree (of specific performance) plaintiff has to not only prove the agreement to sell by producing two marginal witnesses but also the receipt/proof of payment of the consideration amount (averred to be paid)---When the evidence of payment of earnest money/partial consideration amount is in oral form which is in contradiction to the sale agreement, it should be pleaded so, and it must be proved through strong and consistent with the other documentary evidence on record---Where the execution of the document has categorically been denied by the vendors then it is obligatory upon the plaintiff party to seek the signatures/thumb impression---When the evidence brought forward by a party to prove the execution of the document (agreement to sell) is contradictory or paradoxical to the claim lodged in the suit, or is inadmissible, such evidence would have no legal sanctity or weightage.

Khudadad v. Syed Ghazanfar Ali Shah 2022 SCMR 933 ref.

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

----Ss. 12 & 21---Suit for specific performance of an agreement to sell immoveable property---Agreement to sell---Property mentioned in agreement not specific---Effect---When the property is not specific no decree can be passed in the light of section 21 of the Specific Relief Act, 1877---Court will refuse to specifically enforce a contract where it suffers from uncertainty.

Hari Saindino Khan and another v. Mst. Zaibunnissa through Legal Heirs and another 1991 SCMR 972 ref.

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

----S. 12---Suit for specific performance of an agreement to sell immoveable property---Discretionary relief---For the grant of a decree for specific performance on the basis of an agreement to sell it is a discretionary relief and the Court, for just and equitable reasons, can withhold thee same even if the agreement is proved.

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

----O. VI, R. 1---Pleadings---Scope---Secundum allegata et probate, rule of---Case pleaded by a party in the pleadings binds the party to accept that pleading up to the Supreme Court---Party can only prove the case pleaded by it---Rule of secundum allegata et probata, not only excludes the element of surprise, but also precludes the party from proving what has not been alleged or pleaded---No party can be allowed to lead evidence on a fact which has not been specifically pleaded nor can any evidence be looked into which is outside the scope of pleadings.

Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Hail Muhammad PLD 1976 SC 469; Messrs Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Co-operative Bank Ltd., Jaranwala" 1968 SCMR 804; Binyiameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 and Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562 ref.

Agha Muhammad Ali Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Abdul Sattar Khan, Advocate Supreme Court and Mufti Irshad Ahmed, Mohtamim Madrassa Taleem ul Quran, Village Murghaz, Swabi for Respondent.

2023 S C M R 354

[Supreme Court of Pakistan]

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

DIVISIONAL SUPERINTENDENT POSTAL SERVICES FAISALABAD and others---Petitioners

Versus

KHALID MAHMOOD and others---Respondents

C.M.As. Nos. 3837 to 3845 in Civil Petition No. Nil of 2022 and Civil Petitions Nos. 1874, 1987 to 2001, 2091, 2605, 2477 and 2478 of 2022, decided on 6th October, 2022.

(Against the judgment dated 11.02.2022 passed by the Federal Service Tribunal, Lahore in Appeals Nos. 185(L), 159-L, 160-L, 161-L, 163-L, 173-L, 179-L, 146-L, 184-L, 174-L, 162-L of 2020 respectively)

(a) Civil service---

----Back benefits, grant of--- Employer-department making a commitment before the Tribunal to pay back benefits---Approbate and reprobate, doctrine of---Applicability---Before the Service Tribunal the petitioners (postal services departments) never defended the case vigorously and submitted their own comments in which they admitted the fact that the services of the respondents (employees) had been regularized from the date of initial appointment, and not only their service books had been verified from the concerned department, but also a commitment was made that the arrears of pay and allowances would be paid on the availability of funds from the Finance Division---After such clear statement, nothing was within the dominion and purview of the Tribunal to decide, when there was no bone of contention between the parties, except that the Tribunal, keeping in view the financial scarcity or crunch, allowed the petitioners to arrange the funds for discharging liability of arrears within the period of three months---Petitioners had assailed the judgment of the Tribunal which was simply disposed of with the concurrence of the petitioners on the basis of their comments, and nothing was decided by the Tribunal, except recording the consensual statement made in the comments---Factual position encapsulated in the comments could not be challenged by the petitioners due to their acquiescence that the services of the respondents (employees) had been regularized and their service books had also been verified with a further promise to pay arrears on the availability of funds, hence at present stage the petitioners' plea was also hit by the doctrine of approbate and reprobate---Petitions for leave to appeal were dismissed and leave was refused

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

----O. XII, R. 6---Discretionary power of the court to pass a decree based on the admission made by the parties without determining any questions raised by the parties---Purpose and scope of Order XII, Rule 6, C.P.C. stated.

Order XII, Rule 6, C.P.C. empowers and qualifies the civil court to dispose of the lis with regard to which there is no dispute between parties, but for this purpose the entire plaint or written statement is required to be read for the purposes of finding out the nature of the admission, whether it is clear, specific, unambiguous, definite and categorical. The Court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. The elemental characteristic of an admission is that it should be a condensed and cautious act. The precondition and benchmark of an admission is that it should be unconditional, unambiguous and intended to be read and construed as an admission.

The legislative purpose of Order XII, Rule 6, C.P.C. is to cut short the length of litigation with forward-thinking comprehension and without the imposition of any irrational constraint, rather the court should consciously and judicially look into the fundamental constituents of the admission for its satisfaction whether the lis can attain finality or not in the facts and circumstances of each case. In the event of any ambiguous, conditional or unclear admission, the court cannot be left to interpretative determination, but the proper course would be that the case should be decided on merits after denouement of a full-fledged trial.

Ch. Amir Rehman, Additional A.G.P, Anis Muhammad Shahzad, Advocate-on-Record, M. Naeem, Assistant Account Officer, M. Zaman, Assistant Superintendent, M. Salman, Assistant Superintendent, GPO, Lahore, M. Imran Assistant Superintendent, GPO, Faisalabad, M. Tahir, Deputy Senior Postmaster, Shaikhurpura and Amjad Ali, Assistant Superintendent, GPO, Faisalabad for Petitioners.

Nemo for Respondents.

2023 S C M R 360

[Supreme Court of Pakistan]

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

ICC (PVT.) LIMITED---Petitioner

Versus

MINISTRY OF ENERGY (POWER DIVISION) through Secretary Civil Secretariat, Islamabad and others---Respondents

Civil Petition No. 3136 of 2022, decided on 12th September, 2022.

(On appeal from the order of the High Court of Balochistan at Quetta dated 17.08.2022 passed in C.P. No. 1824 of 2021)

Public Procurement Rules, 2004-------Rr. 26(3), 26(4) & 39---Contract, award of---Failure by company (petitioner) to furnish performance guarantee in terms of 'Instructions to Bidders' document---Bank guarantee, encashment of---Legality---Plea of petitioner-company that that the procuring agency extended bid validity period on more than one occasion and each time the bidders, including the petitioner, gave their consent conditional and subject to an increase in the prices of the items earlier offered through their bid; that the procuring agency was under a legal obligation to undertake an exercise to ascertain the exponential increase in prices between the period of submission and the date of acceptance of the bid; that without following the provisions of the Public Procurement Rules, 2004 ('the Rules'), the act of encashment of the bank guarantee by the procuring agency was unwarranted and illegal---Validity---Admittedly, the petitioner agreed to the extension of the bid validity period at all instances sought by the procuring agency---Perusal of the replies submitted by the petitioner revealed that it had simply mentioned its concern regarding the increase in the prices, which could not be considered as a condition for its consent for the extension of the bid validity period---Even otherwise if such contention of the petitioner was accepted, the Rules did not permit the procuring agency to accept the request of the bidder to increase prices of the items mentioned in the bid at the stage of Notification of Award ("NOA"), because Rule 26(4) of the Rules provides that in case of an extension of the bid validity period by consent of the parties, the substance of the bid and the prices of the items mentioned therein, shall remain unchanged---Had the petitioner been unsatisfied with the prices for undertaking of the specified work after the expiry of the bid validity period it had an option to withdraw its bid, without forfeiture of its bid security---Once the petitioner agreed to perform the specified work on the same terms and conditions and prices as mentioned in the bid document, it was estopped by its conduct of requesting an increase in the prices---Petitioner's conduct compelled the procuring agency to request encashment of the bid security as provided under the Rules---Petition for leave to appeal was dismissed and leave was refused.

Kh. Ahmad Tariq Rahim, Senior Advocate Supreme Court (through video link Lahore) and Tariq Aziz, Advocate-on-Record for Petitioner.

Hasan Rashid Qamar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No. 4.

2023 S C M R 364

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

FAHAD HUSSAIN and another---Petitioners

Versus

STATE through Prosecutor General Sindh---Respondent

Criminal Petition No. 167-K of 2022, decided on 28th December, 2022.

(On appeal against the order dated 27.10.2022 passed by the High Court of Sindh, Circuit Court, Larkana in Criminal Bail Application No. S-232 of 2022)

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, common intention---Ad interim pre-arrest bail, confirmation of---Further inquiry---According to the FIR, the incident occurred on 11.4.2022, while the FIR was lodged by the complainant on 20.4.2022---Though the complainant attributed the cause of delay to the police that after some protest the FIR was lodged but no details of the alleged protest were mentioned---Complainant has narrated in the FIR that when he along with his mother and brother reached the house of his deceased sister, they heard hue and cry from her room and when they entered the room, the accused was asphyxiating her, while the two co-accused persons were holding her hands and feet; that upon seeing this the complainant and his brother and mother raised cries which attracted villagers due to which the accused persons left the house, however no name of any villager was mentioned in the FIR who came to the scene of crime---Nothing was mentioned in the FIR that despite presence of the complainant and his brother along with the mother at the crime scene, whether any efforts were made by them to overpower the culprits in order to save the life of the deceased---According to the complainant, the post-mortem could not be conducted due to the non-availability of a lady doctor, hence the deceased was buried without conducting a post-mortem---On the contrary, according to the interim report filed under section 173, Cr.P.C, parents of the deceased mentioned the incident as a suicide, and it was further mentioned that letter for postmortem was issued but the complainant and his brothers did not allow the doctor to conduct postmortem and thereafter, the parents of the deceased forcibly took the dead body from hospital and buried it without postmortem---Said interim report further stated that the complainant had not produced eye-witness of the case to record their statement hence investigation was not concluded---Special Medical Board constituted for the postmortem unanimously concluded that the cause of death of the exhumed dead body of the deceased remained undetermined---Question as to whether present case was a case of suicide or murder, could only be resolved and determined by the trial court after full-fledged trial of the case---Keeping in view the present set of circumstances, the case of the accused persons required further inquiry---Petition for leave to appeal was converted into an appeal and allowed, and ad-interim pre-arrest bail already granted by the Supreme Court was confirmed.

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

----S. 497(2)--- Bail--- Further inquiry--- Scope--- Perception and discernment of the expression "further inquiry" is a question which must have some nexus with the result of the case and it also pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime.

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

----Ss. 497 & 498---Bail---Benefit of doubt---Benefit of doubt can be extended to the accused even at the bail stage.

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

----Ss. 497& 498--- Bail--- Proof beyond reasonable doubt--- Basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not.

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

----S. 497(1)---Bail---"Reasonable grounds" for believing that accused has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years---Scope---Reasonable grounds are those which may appeal to a reasonable judicial mind, as opposed to merely capricious, irrational, concocted and/or illusory grounds---However, for deciding the prayer of an accused for bail, the question whether or not there exist reasonable grounds for believing that he has committed the alleged offence cannot be decided in a vacuum.

Muhammad Sachal R. Awan, Advocate Supreme Court for Petitioner.

Complainant in person.

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

2023 S C M R 370

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

MUHAMMAD FAISAL VAWDA---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and others---Respondents

Civil Petition No.397 of 2022 and C.M.A. 751 of 2022 in C.P. No.397 of 2022, decided on 25th November, 2022.

(Against judgment dated 16.2.2022 passed by the Islamabad High Court Islamabad in W.P. No. 527 of 2022)

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

----Ss. 8(c) & 9(1)---Constitution of Pakistan, Art. 218(3)---Pre-election qualification and disqualification of a returned candidate---Election Commission, powers of---Scope---Election Commission has no jurisdiction under Article 218(3) of the Constitution read with section 8(c) or 9(1) of the Elections Act 2017 to inquire into and decide upon the matter of pre-election qualification and disqualification of a returned candidate.

Muhammad Salman v. Naveed Anjum 2021 SCMR 1675 and Zulfiqar Bhatti v. E.C.P (C.A. No. 142 of 2019 decided on 02.11.2022) ref.

(b) Constitution of Pakistan---

----Arts. 63(1)(c) & 62(1)(f)--- Pre-election qualification and disqualification of a returned candidate---Election Commission, powers of---Scope---Filing a false affidavit as to citizenship of a foreign country---Good faith and remorse shown by Parliamentarian---Petitioner (Parliamentarian) stated before the Court that he regretted his claim of renunciation of his foreign nationality at the time of filing his nomination papers for the election of National Assembly on 07.6.2018; that he had then initiated the process for such renunciation, but the "Certificate of Loss of Nationality" of the foreign country was issued to him on 25.6.2018; that he admitted that he was disqualified from contesting the election under Article 63(1)(c) of the Constitution, on the date when he had filed his nomination papers for the election of National Assembly, and that his affidavit filed with the nomination papers thus contained an erroneous statement, which he regretted---In order to demonstrate his good faith in remorse for his mistake, petitioner undertook that he would resign from the office of the member of the Senate to which was subsequently elected---In view of such statement and undertaking of the petitioner, the Court need not proceed further in the matter in the peculiar facts and circumstances of the ease---Supreme Court observed that the petitioner shall be bound to comply with his undertaking and shall take immediate steps to present his resignation to the Chairman, Senate, in accordance with law, and that the petitioner shall not be considered disqualified in any subsequent election, on the basis of the present matter.

Wasim Sajjad, Senior Advocate Supreme Court and Moiz Ahmed, Advocate Supreme Court for Petitioner.

Sajeel Sheryar Swati, Advocate Supreme Court, Muhammad Arshad, DG (Law) and Ms. Saima Tariq Janjua, DD (Law) ECP for Respondent No. 1.

Farooq H. Naek, Senior Advocate Supreme Court for Respondent No. 6.

Ch. Aamir Rehman, Additional A.G.P. on Court's Notice.

2023 S C M R 374

[Supreme Court of Pakistan]

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

SUMMIT BANK LIMITED, LAHORE---Petitioner

Versus

Messrs M. M. BROTHERS, PROPRIETORSHIP CONCERN through Proprietor and others---Respondents

Civil Petition No. 2056 of 2022, decided on 4th October, 2022.

(Against the judgment dated 27.04.2022 passed by the Lahore High Court, Lahore in E.F.A. No.35845 of 2020)

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

----O. XXI, Rr. 64, 65, 66, 67 & 90---Proclamation of sales by public auction---Mode of making proclamation---Guiding principle in the scheme of Order XXI, C.P.C is to ensure appropriate publicity for Court auction sales so that a fair and reasonable price can be realized for the properties---Solitary underlying principle is that the properties must fetch the best possible price in the auction---Purpose and intention behind Rules 64 to 67 of Order XXI, C.P.C. stated.

While attempting the sale of property of a judgment debtor for execution and satisfaction of decree, wide publicity should be given to the proclamation of sale in order to fetch the highest and most handsome price for the property. Another purpose is to invite the maximum numbers of persons for participation in the auction proceedings through wide publications and the best course is the publication of auction notice in the vernacular newspapers to attract maximum participants. In today's advanced era of information technology and print and electronic media diversity and polarization, it seems to be totally illogical to avoid publication of proclamation in the newspapers and solely depend upon the beat of drum or other customary methods. Besides complying with other formalities, the publication of auction notice with the reserve price and other salient features must be published in the newspapers to attract the attention and participation of public at large, so that all interested persons may take part in the auction proceedings for submission of their bids before fall of the hammer which will maintain balance and will also protect the rights and liabilities of the parties. The fetching of fair market price through auction is not only in favour of decree holder to realize its debts but also in favour of judgment debtor for discharging his debts, so while conducting an auction efforts should be made by the Executing Court that the provisions contained for proclamation and its publication should not be disregarded or unheeded to render such provisions redundant which have been incorporated by the legislature with logical purpose. The guiding principle or course of action triggering in the scheme of Order XXI, C.P.C is to ensure appropriate publicity for Court auction sales so that a fair and reasonable price can be realized for the properties. Solitary underlying principle is that the properties must fetch the best possible price in the auction and, in case of violation, the sale can be regarded as illegal under Rule 90 of Order XXI, C.P.C.

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

----O. XXI, Rr. 66 & 67(2)---Proclamation of sales by public auction---Competitive bidding---Pre-requisites---At least two bidders---Publication of proclamation---According to the established norms and standards, the presence of at least two potential bidders is indispensable to carry out an auction in which competitive bidding is a key factor for free and transparent public auction---Furthermore Executing Court ought to order the publication of proclamation in at least one widely circulated daily newspaper.

Auction is a form of sale of property to the highest bidder, usually as a result of competition between bidders who compete among themselves by offering competitive prices and the highest bid is normally approved, but according to the established norms and standards, the presence of at least two potential bidders is indispensable to carry out an auction in which competitive bidding is a key factor for free and transparent public auction. In the present case there was no competitive bidding conducted by the Court's auctioneers, nor any notice was published in the newspapers The sole bid was tendered by the decree holder bank which was accepted without considering whether the price offered matches the actual value of the property or not, nor anything was mentioned as to why publication of auction notice was not ordered to be published in the newspapers for information of general public or for inviting them to attend the auction on the given date. In the impugned judgment the High Court rightly found that in order to ensure proper publicity, the Executing Court ought to have exercised the authority vested in it under Rule 67(2) of Order XXI, C.P.C. to order the publication of proclamation in at least one widely circulated daily newspaper and failure to do so had caused injustice to the judgment debtors. Petition for leave to appeal was dismissed and leave was refused.

Iftikhar Ullah Malik, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2023 S C M R 383

[Supreme Court of Pakistan]

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

Mst. ASIYA---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1267 of 2022, decided on 18th November, 2022.

(On appeal against the order dated 15.08.2022 passed by the Peshawar High Court, Peshawar in Criminal M.B.A. No. 2260-P of 2022)

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

----Ss. 497(1), first proviso & 497(2)---Penal Code (XLV of 1860), Ss. 302, 34, 297, 201 & 203---Constitution of Pakistan, Art. 185(3)---Wife accused of abetting/instigating murder of her husband---Bail, grant of---Female accused with a suckling baby---Further inquiry---Rule of consistency---Admittedly it was the accused-lady herself, who had reported the matter to the police that her husband went missing---Subsequent to that she was implicated in the case pursuant to the statement of brother of the deceased recorded under section 164, Cr.P.C. after lapse of 15 days---Admittedly, the recovered dead body of the deceased was fully burnt and overall condition of the dead body made it impossible to identify the deceased---Although DNA test of the corpse had been done but the report was still awaited---Only allegation against the accused was that the whole occurrence was committed by the principal accused on her instigation/abetment---However, no specific date, time and place where the conspiracy was hatched had been mentioned---Even name and number of witnesses to that extent were not available on the record---Accused had two children, one of which was a suckling baby girl of 17 months, who had been confined with her in jail---Other child was living with the grandmother---Principal accused had already been granted post-arrest bail by the High Court, and the case of the present accused was even at better footing as compared to the principal accused---Following the rule of consistency, the accused also deserved the same treatment to be meted out---Furthermore accused was behind bars for the last more than five months; she was otherwise a woman and her case was covered by first proviso to subsection (1) of section 497, Cr.P.C.---Accused had made out a case for bail as her case squarely fell within the purview of section 497(2), Cr.P.C. entitling for further inquiry into her guilt---Petition for leave to appeal was converted into appeal and allowed, and accused was granted bail.

Mst. Nusrat v. The State 1996 SCMR 973; Muhammad Fazal alias Bodi v. The State 1979 SCMR 9; Muhammad Ajmal v. The State 2022 SCMR 274 and Muhammad Usman Shakir v. The State 2021 SCMR 1880 ref.

(b) Criminal trial---

----Call Data Record (CDR)---Evidentiary value---In absence of any concrete material the Call Data Record is not a conclusive piece of evidence to ascertain the guilt or otherwise of an accused.

Arshad Jan, Advocate Supreme Court for Petitioner.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 2.

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

2023 S C M R 387

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Jamal Khan Mandokhail, JJ

The COMMISSIONER INLAND REVENUE---Appellant

Versus

Messrs HABIB INSURANCE COMPANY LTD.---Respondent

Civil Appeals Nos. 632 and 633 of 2019, decided on 3rd November, 2022.

(Against the order dated 23.11.2017 of the High Court of Sindh, Karachi passed in I.T.Cs. Nos. 228 and 229 of 2003)

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

----S. 26(a) & Fourth Sched., R. 5---Insurance Act (IV of 1938), S. 40-C---Insurance company---Deduction of expenses spent on the management---Limit---Whether the Controller of Insurance had pursuant to the proviso to section 40-C(1) of the Insurance Act, 1938 condoned the excess amount said to have been spent on the expenses of management by the respondent (insurance company) in the present case---Held, that once the respondent had admitted that the prescribed maximum limit of expenses had been exceeded it was incumbent upon it to show that the excess in the expenses of management had been condoned by the Controller of Insurance, and to what extent---However, documents in this regard which the respondent should have possessed were not produced, despite the noting of the stated discrepancy by the Tribunal---If, for whatever reason, the requisite documents were not produced before the Tribunal the same should have been produced before the High Court, but this too was also not done, nor were the same produced before the Supreme Court---Burden to establish that the Controller of Insurance had condoned the excess management expenses lay upon the respondent but the respondent had failed to produce any document to establish this fact---Appeals were allowed, impugned order of the High Court was set-aside and the orders of the Tribunal were restored.

Commissioner of Income Tax v. Messrs ALPHA Insurance Co. Ltd. PLD 1981 SC 293 distinguished.

Syed Mohsin Imam, Advocate Supreme Court for Appellant.

Anwar Kashif Mumtaz, Advocate Supreme Court for Respondent.

2023 S C M R 394

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Ayesha A. Malik, JJ

MUHAMMAD YASIN and another---Petitioners

Versus

The DIRECTOR GENERAL, PAKISTAN POST OFFICE, ISLAMABAD and another---Respondents

Civil Petitions Nos. 688 and 689 of 2020, decided on 9th January, 2023.

(Against the judgment of the Federal Service Tribunal, Islamabad dated 10.01.2020, passed in Appeals Nos. 2061 and 2062 (R)CS of 2019)

Constitution of Pakistan---

----Arts. 4, 5 & 25---Civil service---Right to equality---Scope---Appointment---Eligibility criteria---Any unlawful act cannot be made a standard for enforcing the right to equality guaranteed by the Constitution---Any person aspiring for the appointment to a post has to pass the eligibility criteria prescribed in the relevant law for that post and cannot be absolved from fulfilling those criteria on the ground that some other person who was allowed to compete for or appointed to such post also did not meet the prescribed criteria.

Article 25 of the Constitution guarantees the equal protection of law, not the equal protection of lawlessness, by declaring that all citizens are equal before law and are entitled to equal protection of law. An unlawful act, therefore, cannot be made a standard for enforcing the right to equality guaranteed by the Constitution. One illegality cannot be allowed to be compounded by applying the right to equality. The extension of the right to equality to the acts done in violation of law would amount to perpetuating previous unlawful acts and motivating the commission of further illegalities. Article 25 of the Constitution has no application to a claim based upon other unlawful acts and illegalities. It comes into operation when some persons are granted a benefit in accordance with law but others, similarly placed and in similar circumstances, are denied that benefit. Such other persons cannot be discriminated against to deny the same benefit, in view of their right to equality before law and equal protection of law guaranteed by Article 25 of the Constitution. But where a person gains, or is granted, a benefit illegally, other persons cannot plead, nor can the court accept such a plea, that the same benefit must be allowed to them also in violation of law.

Abdul Wahid v. C.B.R. 1998 SCMR 882; Government of Punjab v. Zafar Iqbal 2011 SCMR 1239; Yar Muhammad v. Government of Punjab 2011 SCMR 1537; Shahid Ahmed v. O.G.D.C. 2014 SCMR 1008 and Government of Khyber Pakhtunkhwa v. Hidayat Ullah 2021 SCMR 1904 ref.

One wrongdoing cannot be permitted, defended or condoned by citing the example of another wrongdoing. If unlawful acts are allowed or acknowledged on the basis of the right to equality and non-discrimination, it would negate the rule of law mandated by Articles 4 and 5 of the Constitution. The one who wants the court to grant him the relief prayed for must base his claim on his own legal right, not on the wrongful gains of others. Any person aspiring for the appointment to a post has to pass the eligibility criteria prescribed in the relevant law for that post and cannot be absolved from fulfilling those criteria on the ground that some other person who was allowed to compete for or appointed to such post also did not meet the prescribed criteria.

Malik Matee Ullah, Advocate Supreme Court for Petitioners (in both cases).

Nemo for Respondents.

2023 S C M R 397

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD ASLAM---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 558-L of 2022, decided on 20th December, 2022.

(On appeal against the order dated 16.03.2022 passed by the Lahore High Court, Rawalpindi Bench in Criminal Misc. No. 13069-B of 2022)

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

----S. 376---Rape---Solitary statement of victim---In rape cases the statement of the victim itself in isolation is sufficient for proving the charge against the accused but the strict condition for this is that the same shall reflect that it is independent, unbiased and straight forward to establish the accusation against the accused.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 376 & 292---Constitution of Pakistan, Art. 185(3)---Rape, sharing explicit videos and pictures of a rape victim---Bail, grant of---Further inquiry---Allegedly the accused committed rape with the complainant 2/3 months prior to lodging of the FIR but no specific date and time of the alleged occurrence had been disclosed---Complainant did not utter even a single word for the delay in lodging the FIR---During medical examination of the complainant, the lady doctor found no visible redness, abrasion, bruise, laceration, tear or any other violence mark on the body of the alleged victim---Hymen was found to be old ruptured and there was no sign of bleeding---Neither any DNA test nor grouping test of the semen had been conducted---In the absence of grouping test of the semen, it could not be held with certainty that the victim was subjected to zina by the accused especially when she was admittedly a married woman---Although, the video of the alleged occurrence was sent to the Forensic Science Laboratory (FSL) for analysis but the report showed that the video was created about seven months prior to the registration of the FIR, which prima facie contradicted the prosecution story---Prosecution showed its ignorance to the query whether the mobile from which the video and explicit pictures were made belonged to the accused---Mobile phone/instrument had also not been sent to FSL for analysis---Accused was behind the bars for the last one year---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.

Mian Abdul Quddous, Advocate Supreme Court for Petitioner.

Rana Abdul Majeed, Additional P.G., Rana Iftikhar, DSP and Ms. Shakila, SI for the State.

2023 S C M R 401

[Supreme Court of Pakistan]

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

JAVED IQBAL---Petitioner

Versus

The STATE through D.A.G., Islamabad and another---Respondents

Criminal Petition No. 1251 of 2022, decided on 1st November, 2022.

(Against the order dated 29.08.2022 passed by Islamabad High Court, Islamabad in Criminal Misc. No. 1013-B of 2022)

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

----Ss. 499 & 514---Bail, grant of---Conditions imposed on accused for grant of bail---Principles---In order to ensure future attendance, the accused is required to submit bail bond under section 499 of the Code of Criminal Procedure, 1898 (the Code) and while asking the accused to submit sureties, the Court is not required to impose any condition upon the accused for further depositing of money---In case of default or non-appearance in Court, the Court may proceed to forfeit such bail bond under section 514 of the Code---When the Court comes to a conclusion that an accused is entitled to be released on bail then of course such bail granting order cannot be subjected to riders and conditions---While admitting to an accused person on bail, actually he is released from the custody of the authorized officer/judicial lockup of the Court and his custody is entrusted to a person known as his surety, who is bound to produce him in Court at a specific time and place to answer the charge against him---Even no condition can be imposed upon an accused person in order to desist him from the repetition of the offence.

Mian Mahmud Ali Qasuri and others v. The State PLD 1963 SC 478; Faizur Rahman Sarkar v. The State and 2 others 1970 SCMR 175; Mst. Afshan Bibi v. The State 1998 SCMR 6; Saeed Zaman v. The State and another 2020 SCMR 1855; Jehanzeb Khan v. The State through A.G. Khyber Pakhtunkhwa and others 2020 SCMR 1268 and Maqbool Ahmed Mahessar and others v. National Accountability Bureau (NAB) through Chairman and others 2021 SCMR 1166 ref.

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

----S. 499---Bail, grant of---Conditions imposed on accused for grant of bail---Principles.

(i) In terms of section 499 of the Criminal Procedure Code, 1898, the Court cannot require an undertaking from an accused person before granting bail to desist from the repetition of the offence with which he is charged, as a condition precedent to the grant of bail; such a condition cannot be incorporated in a bail or surety bond itself;

(ii) When bail is granted to an accused not as a mean of enforcing recovery of fine, but on its own merits, the same could not be made dependent on the payment of fine; any such condition would amount to curtail his liberty, for which he otherwise is entitled;

(iii) Grant of bail cannot be subjected to riders and conditions, if otherwise, a case stands made out; and

(iv) An accused cannot be required to barter his freedom, and imposing any condition (on his bail) other than submission of sureties would be against the dictum laid down by the Supreme Court.

Mian Mahmud Ali Qasuri and others v. The State PLD 1963 SC 478; Faizur Rahman Sarkar v. The State and 2 others 1970 SCMR 175; Mst. Afshan Bibi v. The State 1998 SCMR 6; Saeed Zaman v. The State and another 2020 SCMR 1855; Jehanzeb Khan v. The State through A.G. Khyber Pakhtunkhwa and others 2020 SCMR 1268 and Maqbool Ahmed Mahessar and others v. National Accountability Bureau (NAB) through Chairman and others 2021 SCMR 1166 ref.

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

----Ss. 497 & 499---Prevention of Electronic Crimes Act (XL of 2016), Ss. 13 & 14---Penal Code (XLV of 1860), Ss. 420, 468, 471 & 109---Constitution of Pakistan, Art. 185(3)---Electronic forgery and fraud---Bail, grant of---Condition of depositing money in Trial Court for grant of bail---Legality---High Court granted post-arrest bail to accused, subject to his furnishing of bail bonds in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of the trial Court, and further directed the accused to deposit Rs.3.5 million in the Trial Court---Held, that the High Court without any legal backing imposed the condition of depositing of Rs.3.5 million besides the surety bonds---Petition for leave to appeal was converted into appeal and allowed, the condition imposed by the High Court of depositing of Rs.3.5 million in the trial Court was set-aside and the order of granting post-arrest bail to the accused, subject to his furnishing bail bonds of Rs.500,000/- (Rupees five hundred thousand) with one surety was maintained.

Adil Aziz Qazi, Advocate Supreme Court and Sheikh Mehmood Ahmed, Advocate Supreme Court for Petitioner.

Raja Shafqat Abbasi, Deputy Attorney General Pakistan and Faisal, I.O FIA (for the State) for Respondents.

2023 S C M R 407

[Supreme Court of Pakistan]

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

IJAZ BADSHAH---Petitioner

Versus

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, CABINET BLOCK, CONSTITUTION AVENUE, ISLAMABAD and others---Respondents

Civil Petition No. 3813 of 2019, decided on 12th October, 2022.

(Against the judgment dated 24.07.2019 of the Federal Service Tribunal, Islamabad passed in Appeal No. 1860(R)CS/2017)

(a) Civil service---

----Penalty imposed by the competent authority---Proportionality and reasonableness---Judicial review of penalty by the Supreme Court---Scope---Supreme Court may examine and judicially review the executive discretion (in imposing penalty) on the ground of proportionality and reasonableness but at the same time the gravity of the charges raised in the statement of allegations are also to be considered---While exercising the role of judicial review in order to examine whether the punishment awarded by the competent authority may be converted into some lesser punishment or not, the set of circumstances of each and every case have to be considered minutely to determine whether the person deserves such treatment or not---In fact, it is the gravity of misconduct and charges which predominately guides the exercise of judicial review.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223 ref.

(b) Passports Act (XX of 1974)---

----S. 6---Civil service---Dismissal from service---Unauthorized leave---Civil servant in possession of five different passports travelling abroad frequently without obtaining a No Objection Certificate (NOC) from competent authority---In the present case, the magnitude of charges and the conduct of the petitioner (civil servant) explicated that, despite having full knowledge that, being a civil servant in BPS-19, he was not allowed to travel abroad without NOC and approval issued by the competent authority, he still travelled on different passports by deception and impersonation as a businessman---Moreover, , it was not understandable as to how he was in possession of five different passports, and frequently travelled using them without NOC, but nobody could check or trace such illegality and impropriety---Punishment of dismissal from service in the present case awarded to the petitioner was proportionate and reasonable to the act of misconduct committed by him, hence he does not deserve any indulgence for conversion of his punishment from dismissal of service to compulsory retirement---Petition for leave to appeal was dismissed.

Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019 SC 189 distinguished.

(c) Civil service---

----'Departmental inquiry' and 'award of punishment'---Scope---Primary objective of carrying out a departmental inquiry is to catch on the truth whether a case of misconduct is made out or not---Guilt or innocence of a civil servant can only be thrashed out from the outcome of the inquiry---Award of punishment is the dominion of the competent authority and the role of the Service Tribunal or Court is secondary unless the punishment imposed upon the delinquent employee is found to be unreasonable, disproportionate or against the law.

Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019 SC 189 ref.

(d) Civil service---

----Gross misconduct---Punishment, award of---Scope and purpose---Rationale of deterrent punishment in the case of gross misconduct is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure in order to maintain discipline for the general administration of the institution or organisation---If in cases of grievous misconduct any latitude is shown for conversion (reduction) of penalty, then it would also seriously prejudice the discipline of the civil servant's service structure.

Abdul Rahim Bhatti, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2023 S C M R 413

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

ARIF FAREED---Petitioner

Versus

BIBI SARA and others---Respondents

C.P. No. 5601 of 2021, decided on 6th December, 2022.

(Against the judgment dated 30.08.2021 passed by The High Court of Balochistan, Quetta in C.P. No.871 of 2021).

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

----S. 5 & Sched.---Family suits involving children---Technicalities and trappings of normal practice and procedure not suitable for such suits---Family litigation directly or indirectly causes long term effects on the emotional health of parties especially the children who become a silent victim of differences and disputes between contesting adults---Dilemma starts with our social and institutional conception of the child and childhood---Therefore, when a child comes to interact with the judicial system, the response must be facilitative, cooperative and backed by child-right driven approach---Technicalities and trappings of normal practice and procedure are not suitable to the cases where very young children are the party.

Douglas Hodgson, 'The Historical Development and 'internationalisation' of the Children's Rights Movement' (1992) 6 Australian Journal of Family Law 252; Qaisar Abbas, 'Child in Conflict with Justice: Hitting Below the Belt? Analytical Overview' [2008] Pakistan Law Journal 560 and Muhammad Afzal v. Hahnaz Shahzadi 1989 MLD 1362 ref.

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

----S. 5 & Sched.---Family suit involving child---Minor daughter of the parties not arrayed as a plaintiff in the suit---Whether Family court is competent to grant a decree in favour of such minor---Held, that in the present case, it was very much convenient for the Family Court to ask for the suitable amendments in the plaint or it could have itself impleaded the child as a plaintiff along with his mother and other siblings---However, in the given circumstances, there was no miscarriage of justice or that the case could have a different result if the child was technically impleaded as a party to the suit in formal manner---Disposal and settlement of family dispute should not take the form and contents of adjudication---Wherever, there is a procedural convenience, subject to the command of the statute, it must be resolved in favour of the women and children---Though the name of minor daughter has not been mentioned in the array of plaintiffs independently but in the body of the plaint her case for grant of maintenance has been clearly pleaded and further in the prayer clause specific maintenance allowance for the minor daughter has been sought by the plaintiff-mother---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 5, Sched. & 14---Constitution of Pakistan, Art. 199---Family suits---Practice of High Courts to entertain constitutional petitions in family cases---Supreme Court observed that the Family Courts Act, 1964 does not provide the right of second appeal to any party to the proceedings; that the legislature intended to place a full stop on the family litigation after it was decided by the appellate court, however, the High Courts routinely exercise their extraordinary jurisdiction under Article 199 of the Constitution as a substitute of appeal or revision and more often the purpose of the statute i.e., expeditious disposal of the cases is compromised and defied; that no doubt, there may be certain cases where the intervention could be justified but a great number (of cases) falls outside such exception, therefore, the High Courts should prioritize the disposal of family cases by constituting special family benches for such purpose.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2023 S C M R 418

[Supreme Court of Pakistan]

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

AMANULLAH KHAN---Petitioner

Versus

HOSPITAL DIRECTOR, KTH (MTI), PESHAWAR and others---Respondents

Civil Petition No. 2092 of 2019, decided on 12th October, 2022.

(Against the judgment dated 12.03.2019 of the Peshawar High Court, Peshawar passed in W.P. No. 4296-P of 2017)

(a) Civil service---

----Upgradation of a post---Scope---Upgradation of a post is not a vested right but it stems from a policy decision for its implementation for the particular set of employees as per scheme embedded in the policy which cannot be mixed up with the promotion---By and large, upgradation is accorded to all positions in a category upon completion of a required length of service in accordance with the benchmarks laid down by the competent authority as a policy decision.

(b) Civil service---

----'Upgradation of post' and 'promotion'---Distinction---Promotion involves advancement in rank, grade or a footstep en route to a higher position, whereas the facility or benefit of upgradation simply confers some monetary benefits by granting a higher pay scale to ventilate sufferings which is a translucent distinction between the two genres---Upgradation under a scheme is personal to the incumbents of a particular post for sufficient length of service without any progression or avenue of promotion---In the case of upgradation, the candidate continues to hold the same post without any change in his duties but he is accorded a higher pay scale in order to lessen the distress or misery as a result of stagnation. Fida Muhammad v. Government of Khyber Pakhtunkhwa, Secretary of Education Peshawar and others 2021 SCMR 1895 = PLJ 2022 SC 253 and Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456 ref.

(c) Civil service---

----Upgradation of a post---Scope---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.

Petitioner in person.

Nemo for Respondents.

2023 S C M R 421

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Muhammad Ali Mazhar, JJ

SHAHBAZ AKMAL---Petitioner

Versus

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

Criminal Petition No. 1496 of 2022, decided on 9th January, 2023.

(Against the order dated 24.10.2022 passed by Lahore High Court, Multan Bench, Multan in Crl. Misc. No. 2448-B/2022).

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

----S. 497--- Second/subsequent bail application, filing of---Maintainability---Another bail application on the same ground cannot be repeated before the same court; and, if a bail application is withdrawn during the subsistence of a ground on which bail is sought it cannot be taken again if the bail application was withdrawn.

PLD 2014 SC 241 and PLD 2015 SC 41 ref.

(b) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----R. 166---Constitution of Pakistan, Arts. 4(1), 4(2)(a) & 10A---Criminal trial---Strikes by lawyers causing delay in conclusion of trial---Breach of Fundamental rights of accused---Accused person like any other has the inalienable right to 'enjoy the protection of law and to be treated in accordance with law' but if advocates strike and trials are postponed this constitutional right of the accused is negated---If the trial of a detained accused is delayed on account of strike(s), and subsequently, the accused is acquitted then the additional incarceration suffered by the accused would have been detrimental to his liberty---Prestige of the legal profession should not be undermined by advocates who strike for a lesser cause than to protect and defend the Constitution in the public interest.

A detained accused must not be made to suffer because his advocate elects to strike or does so in solidarity with his colleagues. Duty of the Advocate is to appear in Court when a matter is called and 'make satisfactory alternative arrangements' if he is unable to. An Advocate representing an accused must discharge his duty towards his client. If an advocate representing a detained accused does not attend court, he fails to perform his professional duty and breaks his client's trust. An accused person like any other has the inalienable right to 'enjoy the protection of law and to be treated in accordance with law' but if advocates strike and trials are postponed this constitutional right of the accused is negated. The Constitution also mandates that 'no action detrimental to the … liberty' of anyone be taken 'except in accordance with law' therefore, if the trial of a detained accused is delayed on account of strike(s), and subsequently, the accused is acquitted then the additional incarceration suffered by the accused would have been detrimental to his liberty. Amongst the designated Fundamental Rights of an accused there is also the right to a fair trial and due process which rights are premised on proceeding with the trial of a detained accused. If an advocate strikes for a lesser cause than to protect and defend the Constitution in the public interest or for personal reason it would be appropriate to first return the professional fee received from the client. An Advocate should not strike at the expense of the client. At times a case is adjourned because the complaint's advocate is not in attendance. The Court does not have to wait for the complainant's advocate to attend court, much less adjourn a case due to his absence, because the State counsel, employed at taxpayers' expense, is required to prosecute cases. Supreme Court directed that copy of present order be sent to all provincial bar councils and the Pakistan Bar Council, who would remind advocates of their professional duties and would ensure that the prestige of the legal profession is not undermined by advocates who strike for a lesser cause than to protect and defend the Constitution in the public interest.

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

Ch. M. Sarwar Sidhu, Additional P.G. Punjab for the State.

Usman Sharif Khosa, Advocate Supreme Court for Respondent No.2.

2023 S C M R 459

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

PROVINCE OF SINDH through Chief Minister and others---Petitioners

Versus

SARTAJ HYDER and others---Respondents

Civil Petitions Nos. 943 to 954-K of 2022, decided on 21st October, 2022.

(Against orders dated 01.09.2022 and 06.09.2022 passed by the High Court of Sindh, Bench at Sukkur and Circuit Court Larkana in C.Ps. Nos.D-1064, D-1068, D-1072, D-1075, D-1077, D-1080, D-1081, D-1083, D-1084, S-790, S-797 and S-792 of 2022)

Per Ayesha A. Malik, J; Umar Ata Bandial, CJ and Syed Mansoor Ali Shah, J. agreeing (Majority view)

(a) Constitution of Pakistan---

----Art. 185(3)---Interim orders passed by High Court impugned before the Supreme Court---Supreme Court normally does not interfere with the interim orders of the High Court except in exceptional circumstances.

Federation of Pakistan through Secretary, Ministry of Energy (Power Division), Islamabad and others v. Shafiq ul Hassan and others 2021 PLC (C.S.) 292 and Dossani Travels Pvt. Ltd and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 ref.

(b) National Disaster Management Act (XXIV of 2010)---

----Ss. 3(2)(p), 6, 8, 13 & 18---Flood management in Province of Sindh---Citizens Committee in every Taluka of flood affected Division---Said Committees were constituted on orders of the High Court with the direction that such Committees be headed by a Civil Judge and that the said committees work under the supervision of the concerned District and Sessions Judge---Constitutionality---Role assigned to the judicial officers of overseeing the work of the executive by heading the Citizens Committees essentially meant that the judicial officers were performing executive functions which was against the principle of separation of powers---Inclusion of the members of the District Judiciary in the said Committees was not required given that there was an entire legal framework under the National Disaster Management Act, 2010.

The issue before the Court essentially is the exercise of jurisdiction by the High Court while creating the citizens committees and placing judges from the District Judiciary on these committees to oversee the work, being done by the committees. The role assigned to the judicial officers of overseeing the work of the executive by heading the citizens committees essentially means that the judicial officers are performing executive functions which is against the principle of separation of powers. The Constitution does not contemplate assumption of functions by one organ that essentially belongs to another. Moreover planning and strategy, coordination, monitoring and implementation are the functions of the executive and is best left for them to fulfil their duty and obligations in this regard. Furthermore, the work of these committees is a fulltime job which will require the judicial officers to spend time on these committees which in turn take them away from their judicial work that is also not practical nor expedient.

The relevant law on the subject is the National Disaster Management Act, 2010 ('the Act'), which establishes a National Disaster Management Commission (Commission) for the purposes of policy making. This Commission not only lays down the policy on disaster management but also approves a National Plan and Guidelines to be followed by the Federal and Provincial authorities in the event of a natural disaster.

Formation of the citizens committees by the High Court, in principle, was to facilitate relief efforts in different areas within the Province, however, the inclusion of the members of the District Judiciary was not required given that there is an entire legal framework under the Act to ensure relief work right down to the district level.

Supreme Court modified the impugned orders of the High Court to the extent that the Citizens Committee shall no more be headed by a Civil Judge notified by the District Judge concerned and the citizens committee shall no more work under the supervision of the concerned District and Sessions Judge.

(c) National Disaster Management Act (XXIV of 2010)---

----Ss. 3(2)(p), 6, 8, 13 & 18---Flood management in Province of Sindh---Citizens Committee in every Taluka of flood affected Division constituted on orders of the High Court---Participation of public and civil society in the National Disaster Management Authority (Authority), the Provincial Disaster Management Authority (PDMA), the District Disaster Management Authority (DDMA), and the National Disaster Management Commission (Commission)---Significance and benefits---Community participation is not only necessary for planning disaster management but also for implementing and monitoring purposes as it gives people the right to participate in the decisions that affect their lives; this creates more awareness and a sense of ownership and responsibility which is required, particularly in disaster management so to enhance effectiveness and engage the people with their communities to provide rescue, relief and rehabilitation efforts---Importance of inclusion of civil society in disaster management stated.

As per the scheme of the National Disaster Management Act, 2010, members of the civil community which include volunteers, NGOs, doctors and others can be made part of the Provincial and District Management Authorities to help relief efforts.

Participation by the public in the Provincial Disaster Management Authority (PDMA) and District Disaster Management Authority (DDMA) and even at the National Disaster Management Commission (Commission) level ensures that the flood affectees are able to bring first hand their vulnerabilities and priorities, which results in a more measured response and proper allocation of resources where required. It also gives the National Disaster Management Authority (Authority) greater insight into the affected communities enabling them to work more effectively and produce better result. Community participation is not only necessary for planning disaster management but also for implementing and monitoring purposes as it gives people the right to participate in the decisions that affect their lives. This creates more awareness and a sense of ownership and responsibility which is required, particularly in disaster management so to enhance effectiveness and engage the people with their communities to provide rescue, relief and rehabilitation efforts. Hence, citizens' participation in the PDMA and DDMA can improve coordination and response which will enable the government authorities to provide relief work in a more effective and efficient manner. It is fundamental to the composition of the Commission, the Authority, the PDMA and the DDMA that members of civil society are included in it.

To deal with the issue in hand, the Citizens Committees can work with DDMA to the extent of monitoring, coordination efforts and ensure that relief work reaches the affectees, who do not have sufficient assistance at the moment. The committees can also facilitate the PDMA and the DDMA of the Province in providing necessary information and data with reference to relief work and what is required which will improve the Authority's coordination with affected areas and communication with affected areas especially due to the challenges of accessibility and communication failure. The Citizens Committee can, therefore, monitor the efforts of the PDMA and the DDMA which will not only lead to better results in the relief work but will also create awareness within the affectees as to the manner in which the relief effort is being carried out and will encourage them to participate. This participatory approach to a natural disaster humanizes the work of the authorities so that affectees are provided with real time relief that they need and not what the paperwork suggests.

Supreme Court directed that the Citizens Committees shall oversee the work of the government authorities and provide necessary information and data to facilitate the work of the authorities; that the Citizens Committee itself shall not engage in directing or controlling the relief work being undertaken but shall participate in the process put in place by the DDMA to make it more effective and inclusive.

(d) National Disaster Management Act (XXIV of 2010)---

----Ss. 6, 8 & Chapts. III, IV---National Policy Guideline on Vulnerable Groups in Disasters 2014 (Policy Guidelines)---Flood management in Province of Sindh---Inclusion of women in disaster management, importance of---Citizens Committee in every Taluka of flood affected Division constituted on orders of the High Court---National Policy Guideline on Vulnerable Groups in Disasters 2014 (Policy Guidelines) requires the participation of women in disaster management plan at all levels to ensure integration of the gender perspective---Importance of inclusion of women in disaster management stated.

National Policy Guideline on Vulnerable Groups in Disasters 2014 (Policy Guidelines)requires the participation of women in disaster management plan at all levels to ensure integration of the gender perspective. As per the Policy Guidelines, women are at a greater risk from natural disasters than men. They are vulnerable and victims in natural disasters but also play a significant role throughout the disaster management cycle, without being adequately recognized and included in the decision making. Therefore, in line with the policies formulated, it is imperative that the citizens committees include women, older persons and persons with disabilities so that the required response is ensured and provided and that the Policy Guidelines formulated be implemented real time. In this context, the affected areas require maternity and healthcare for women so there is an increased need for female doctors, trainers and caretakers to attend to the health concerns. Women are often subjected to gender-based violence and harassment in times of such calamities, therefore safety and security concerns are also of significance for which appropriate response is also required. In this context, although the framework exists, an effort must go into ensuring that it actually functions and fulfils its mandate. Accordingly, the Citizens Committee should ensure the representation of the vulnerable groups, particularly of women, in order to strengthen its perspective.

Supreme Court directed that the Citizens Committees shall continue to operate with the given composition including that of vulnerable groups, particularly women for monitoring the relief work and provide necessary information to the District Disaster Management Authority (DDMA) to improve their efforts.

Per Syed Mansoor Ali Shah, J; Umar Ata Bandial, CJ and Ayesha A. Malik, J; agreeing (Majority view)

(e) National Disaster Management Act (XXIV of 2010)---

----Ss. 6(2)(g), 10(3)(a) & 17(3)(b)---Constitution of Pakistan, Arts. 9 & 14---Climate change adaptation plan --- Observations and directions recorded by the Supreme Court regarding importance of a climate change adaptation plan stated.

In view of the unprecedented damage (due to floods) and the likelihood of its recurrence, it is imperative that serious and practical efforts are undertaken for prevention and adaptation against such disasters induced by climate change. It is expected that existing policies or mechanisms catering to food insecurity etc. are mobilized as soon as possible and if no such policies or mechanisms exist, then the respective State functionaries should take urgent action to formulate such policies and create such mechanisms to prevent further exacerbation of the losses and damage already suffered due to the floods and for sustainable rehabilitation.

Climate justice was an important consideration at the 27th Conference of the Parties to the United Nations Framework Convention on Climate Change ("COP27") which concluded with a significant and positive development through the formation of a loss and damage fund for climate-vulnerable developing countries. Soon funds will be allocated to countries that have suffered loss and damage due to climate change. It is high time to develop a mechanism for the allocation of these funds and the identification of key adaptation infrastructural projects that will help build national climate resilience, especially against floods in the years to come. It is expected that the Ministry of Climate Change, Government of Pakistan shall drive this initiative and frame a policy and set up a mechanism to effectively and efficiently utilize such funds. It is therefore essential that these global funds are invested in building national climate resilience so that climate induced disasters can be minimized.

Climate Change is perhaps the most serious threat to the fundamental rights of the people in Pakistan. In order to protect their right to life and above all their right to dignity under Articles 9 and 14 of the Constitution, a climate resilient adaptation plan including a detailed mechanism for utilization of financial support coming to Pakistan from the loss and damage fund, is the need of the hour. Having failed to learn from the past floods, as has become apparent from the magnitude of the destruction caused by the recent floods, it is pivotal that effective steps are taken to prevent such catastrophes in the future.

Hassan Akbar, A.G., Sindh (via video link from Karachi), Iqbal Memon, Commissioner Karachi and Maqsood Soomro (PDMA Sindh) (via video link from Karachi) for Petitioners.

Ghulam Shabbir Sher, Advocate Supreme Court for Respondents (in C.P. No. 943-K of 2022).

Nemo for Respondents (in remaining cases).

Faisal Siddique, Advocate Supreme Court Amicus Curiae.

2023 S C M R 476

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Muhammad Ali Mazhar, JJ

COLLECTOR OF CUSTOMS, MCC (E&C) CUSTOMS HOUSE, PESHAWAR

and another---Petitioners

Versus

ZAIN UL ABIDIN and others---Respondents

Civil Petition No. 4145 of 2022, decided on 6th February, 2023.

(Against the judgment dated 06.09.2022 of the Peshawar High Court, Peshawar in Customs Reference No. 21-P of 2022)

Limitation---

----Condonation of delay---Scope---If decisions are assailed they should be done within the prescribed period, and it should not be assumed that delay would be condoned when there is no valid reason to condone the same.

Yousaf Ali, Advocate Supreme Court for Petitioners.

Nemo for for Respondents.

2023 S C M R 478

[Supreme Court of Pakistan]

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

NASIR AHMED---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 865 of 2017, decided on 12th December, 2022.

(Against the judgment dated 17.11.2017 passed by the Lahore High Court, Lahore in Murder Reference No. 10 of 2015 and Criminal Appeal No. 595-J of 2014)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Incident took place at 10.00 a.m. in the morning whereas the matter was reported to the police at 10:30 a.m. on the same day while the inter se distance between the place of occurrence and the Police Station was six kilometer---Such aspect clearly reflected that the matter was reported to Police promptly without there being any delay---As the occurrence has taken place in the broad daylight and the parties were known to each other, therefore, there was no chance of misidentification---Ocular account was furnished by the complainant and another witness, who 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---Complainant was inmate of the house where the occurrence took place, therefore, his presence was natural---So far as the presence of the other witness was concerned, it was admitted position that at the relevant time, the wedding ceremony of the deceased lady was taking place and he being a close relative had come to complainant's house to attend the ceremony---Medical evidence available on the record corroborated the ocular account so far as the nature, time, locale and impact of the injuries 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 involved the accused 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 his daughter and falsely involve the accused, who was his son-in-law and maternal nephew, without any reason---Neither the defence seriously disputed the motive part of the prosecution story nor the prosecution witnesses were cross-examined on this aspect of the matter---Admittedly, the accused remained absconder for a period of about six months and the same was also a corroboratory piece of evidence against him---Keeping in view the facts and circumstances of the present case, even if the recovery of weapon of offence was excluded from consideration, still there was ample evidence in the form of unimpeachable and trustworthy ocular account, medical evidence and motive to sustain conviction of the accused on the capital charge---Petition for leave to appeal was dismissed, leave was refused and death sentence awarded to the accused was maintained.

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

----S. 302(b)--- Qatl-i-amd--- Ocular account--- Medical evidence---Preference---Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused.

Muhammad Iqbal v. The State 1996 SCMR 908; Naeem Akhtar v. The State PLD 2003 SC 396; Faisal Mehmood v. The State 2010 SCMR 1025 and Muhammad Ilyas v. The State 2011 SCMR 460 ref.

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

----S. 302(b)---Qatl-i-amd---Minor discrepancies in ocular account and medical evidence---Not significant---Casual discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons---During occurrence when live shots are being fired, witnesses in a momentary glance make only tentative assessment of the distance between the deceased and the assailant and the points where such fire shots appeared to have landed and it becomes highly improbable to correctly mention the location of the fire shots with exactitude---Minor discrepancies, if any, in medical evidence relating to nature of injuries do not negate the direct evidence as witnesses are not supposed to give photo picture of ocular account---Even otherwise, conflict of ocular account with medical evidence being not material and not imprinting any dent in prosecution version would have no adverse effect on prosecution case.

(d) 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 especially when their relationship with the assailant is (also) close.

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

----S. 302(b)--- Qatl-i-amd---Minor discrepancies in evidence of witness---As long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence---Test is whether the evidence of a witness inspires confidence---If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same---While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth---Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety---Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored.

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

----S. 302(b)--- Qatl-i-amd---Death sentence---Recovery of weapon inconsequential due to no crime empties being recovered from crime scene---When ocular account is believed to be inspiring confidence and trustworthy, mere the fact that recovery (of weapon) is inconsequential by itself could not be a ground for imposing a lesser penalty than death sentence on the accused.

Muhammad Aslam v. The State 2004 SCMR 872 and Muhammad Afzal v. The State 2003 SCMR 1678 ref.

Syed Rifaqat Hussain Shah, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, D.P.G. for the State.

2023 S C M R 485

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Shahid Waheed, JJ

Mst. JAMEELA BIBI (DECEASED) through LRs---Petitioner

Versus

Mst. FATIMA BIBI (DECEASED) through LRs---Respondent

C.P. No. 3125 of 2020, decided on 19th January, 2023.

(Against the order dated 29.09.2020 of the Lahore High Court, Lahore, passed in Civil Revision No. 160480 of 2018)

Limitation Act (IX of 1908)---

----First Sched. & Art. 181---Civil Procedure Code (V of 1908), S. 115---Application for restoration of civil revision dismissed in default---Limitation period---Three years---Period of limitation for filing an application for restoration of a civil revision (dismissed in default) is three years under Article 181 of the First Schedule to the Limitation Act, 1908--- Petition for leave to appeal was converted into appeal and allowed with the Supreme Court expressing its concern that for applications for restoration of a suit and an appeal, the period of limitation under the Limitation Act, 1908 is 30 days, whereas the period for filing an application for restoration of a civil revision is three years; that the logic for such differentiation is not clear and may be taken up in some appropriate case for consideration.

Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712 ref.

Ch. Amir Hussain, Advocate Supreme Court (through video link from Lahore) for Petitioner.

M. Afzal Janjua, Advocate Supreme Court for Respondent.

2023 S C M R 487

[Supreme Court of Pakistan]

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

MUHAMMAD ABBAS and another---Petitioners

Versus

The STATE---Respondent

Jail Petition No. 355 of 2018, decided on 2nd January, 2023.

(On appeal against the judgment dated 22.02.2018 passed by the Lahore High Court, Multan Bench in Criminal Appeal No. 481 of 2012)

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

----Ss. 302(b) & 302(c)--- Qatl-i-amd--- Reappraisal of evidence---Incident took place at 9:00 p.m. whereas the matter was reported to the police on the same night at 01:20 a.m. while the inter se distance between the place of occurrence and the Police Station was 25 kilometers---Such aspect of the case clearly reflected that the matter was reported to Police promptly without there being any delay---As the parties were related to each other, therefore, there was no chance of misidentification---Prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the accused persons or adverse to the prosecution could be produced on record---Said witnesses remained consistent on each and every material point, 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 was in line with the ocular account so far as the nature, locale, time and impact of the injuries on the person of the deceased was concerned---Counsel for the accused persons could not point out any reason as to why the complainant would falsely involve the accused persons in the present case and let off the real culprit---Substitution in such like cases was a rare phenomenon---Since the occurrence took place at the spur of the moment, conviction of accused persons under section 302(b), P.P.C. was converted into 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--- 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.

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

----S. 302(b)---Qatl-i-amd---Minor discrepancies and contradictions in the statements of the eye-witnesses---Not significant---On account of lapse of memory owing to the intervening period, some minor discrepancies are inevitable and they may occur naturally---Accused cannot claim benefit of such minor discrepancies.

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

----Ss. 302(b) & 302(c)--- Qatl-i-amd--- Reappraisal of evidence---Conviction under section 302(b), P.P.C. converted into one under section 302(c), P.P.C.---Sentence, reduction in---Spur of the moment occurrence without any repetition of knife blows---Occurrence took place at the spur of the moment and there was no pre-meditation on the part of the accused persons---Admittedly, the occurrence took place in the house of the accused persons where the complainant party had brought a jirga for return of niece of the complainant, who was married with one of the accused against the will of her parents---Perusal of the record revealed that something happened immediately before the occurrence, which provoked the accused persons and they caused churri (knife) blows on the person of the deceased---Admittedly, both the accused persons did not repeat their act---Furthermore there was no deep rooted enmity between the parties---Taking a lenient view, the Supreme Court altered the conviction of accused persons from section 302(b), P.P.C. to section 302(c), P.P.C. and reduced their sentence of imprisonment for life to fourteen years rigorous imprisonment each---Petition for leave to appeal was converted into appeal and partly allowed.

Ms. Sabahat Rizvi, Advocate Supreme Court (Via video link from Lahore) for Petitioners.

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

Abdul Khaliq Safrani, Advocate Supreme Court (Via video link from Lahore) for the Complainant.

2023 S C M R 493

[Supreme Court of Pakistan]

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

NATIONAL HIGHWAY AUTHORITY through Ghulam Mujtaba, G.M, Lahore---Petitioner

Versus

MAZHAR SIDDIQUE and others---Respondents

Civil Petitions Nos. 819, 820 of 2017 and 939-L of 2015, decided on 21st August, 2022.

(Against the Judgment dated 26.01.2017 passed by Lahore High Court, Lahore in I.C.A. No. 616 of 2016, I.C.A. No. 617 of 2016 and Order dated 30.3.2015 in I.C.A. No. 357 of 2009)

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

----S. 11---Constitution of Pakistan, Art. 199---Land acquisition---Compensation, quantum of---Constitutional petition filed by land owners for compensation of acquired land---Maintainability---In the present case, after the remand of the case by the High Court to the Collector the subject matter squarely fell within the domain of Land Acquisition Act, 1894, and afterwards the High Court should not have extended its extraordinary jurisdiction under Article 199 of the Constitution---Land Acquisition Act, 1894 provides adequate and comprehensive mechanism for the determination of the compensation amount and recourse to the judicial forums to the aggrieved and interested parties---In case of disputed facts, High Court cannot exercise its extraordinary Constitutional jurisdiction.

Pakistan WAPDA Employees Pegham Union v. Member, National Industrial Relations Commission, Islamabad and others 2015 PLC 45; Fida Hussain v. Mst. Saiqa 2011 SCMR 1990 and Ahmad Developers v. Muhammad Saleh 2010 SCMR 1057 ref.

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

----S. 34---Land acquisition---Compound interest on compensation amount, payment of---Scope---Relevant starting date for the payment of compound interest on compensation amount, in terms of section 34 of Land Acquisition Act, 1894 is the date of taking possession of the acquired land till the date of payment by Collector where normal statutory procedure has been observed---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, the matter goes out of the penal consequences of section 34 of the Land Acquisition Act, 1894. Sheikh Muhammad Ilyas Ahmed and others v. Pakistan through Secretary Ministry of Defence, Islamabad and others PLD 2016 SC 64 and Syeda Nasreen Zohra v. Government of the Punjab 2022 SCMR 890 rel.

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

----S. 3---Constitution of Pakistan, Art. 204(2)---Use of contempt jurisdiction by the High Court as a substitute of execution proceeding---Supreme Court observed that such practice was undesirable.

Saeeda Sultan v. Liaqat Ali Orakzai PLD 2021 SC 671 and R.N. Dey and others v. Bhagyabati Pramanik and others (2000) 4 SCC 400 ref.

Barrister Haris Azmat, Advocate Supreme Court, Muhammad Ali, Dy. Dir.(L) and Hafiz Tanvir, G.M (M-II) for Petitioner.

Malik Noor Muhammad Awan, Advocate Supreme Court for Respondents.

2023 S C M R 501

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

ATTIQ UR REHMAN---Petitioner

Versus

Sh. TAHIR MEHMOOD and others---Respondents

Civil Petition No. 600 of 2020, decided on 26th January, 2023.

(Against the order of Lahore High Court, Lahore dated 04.02.2020 passed in W.P. No. 67 of 2020)

Constitution of Pakistan---

----Art. 185(3)---Interim orders passed by the High Court---Interference in such orders by the Supreme Court---Scope and exception---Settled policy of the Supreme Court is not to readily interfere in the interim orders passed by the High Court---Desirable course of action is that the court hearing the case finally decides the same before it is brought before the Supreme Court as piecemeal adjudication is not desirable---Only exception is when the interim relief granted by the High Court is arbitrary or unreasonable or reflects abuse of power or wanton exercise of discretion resulting in miscarriage of justice.

Muhammad Sadiq v. Bashir Ahmad PLD 1966 SC 717; Multan Development Authority v. Muhammad Ramzan PLD 1989 SC 629; Salah-Ud-Din v. Mst. Zia Farhat 1996 SCMR 1528 and Federation of Pakistan v. Shafiq Ul Hassan 2020 SCMR 2119 ref.

Dr. G.M. Choudhary, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2023 S C M R 503

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

COLLECTOR OF CUSTOMS, MODEL CUSTOMS COLLECTORATE, PESHAWAR---Petitioner

Versus

WASEEF ULLAH and others---Respondents

Civil Petitions Nos. 389, 696 to 742 of 2022, decided on 6th July, 2022.

(Against the judgment dated 01.12.2021 passed by the Peshawar High Court, Peshawar, in Custom References Nos.270-P to 317-P of 2020)

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

----S. 19--- Sales Tax Act (VII of 1990), S. 13(2)(a)--- Income Tax Ordinance (XLIX of 2001), Ss. 48 & 153---Hybrid Electric Vehicles (HEVs) falling under PCT Code 87.03, import of---Exemption from customs duty, sales tax and with-holding tax---Federal Government, vide S.R.O. 499(I)/2013 dated 12-6-2013 ('the S.R.O.'), exempted customs duty, sales tax and with-holding tax on import of Hybrid Electric Vehicles (HEVs) falling under PCT Code 87.03---During the existence of the S.R.O., the Assistant Collector of Customs issued a Circular ('the Circular') wherein a condition was sought to be imposed, beyond the purview of the original S.R.O., that the benefit of exemption of duties and taxes on the import of HEVs under the S.R.O. was only available to Fully Hybrid Vehicles which had larger batteries and a motor to drive the electric vehicle---Legality---Through the Circular, the Assistant Collector of Customs innovated a new criteria that the benefit in the original S.R.O. was only extended to the Fully Hybrid Vehicles which had larger batteries and a motor to drive the vehicles, but nothing was mentioned in this regard in the S.R.O. itself---Nothing was placed on record as to how the Assistant Collector of Customs, had any lawful authority to issue such Circular in order to make an amendment in the original S.R.O. whereby he added certain conditions under the guise of a so-called clarification which changed the complexion and substratum of the S.R.O. without any lawful authority---Both the Appellate Tribunal and High Court had rightly discarded the Circular which was unjustifiably and irrationally approved in the Appellate Order while describing the Circular as clarificatory in nature---In fact, the Federal government exempted duties on the import of HEVs falling under PCT Code 87.03 without any distinction of new or used hybrid vehicles, or large or small batteries, or with any specific qualification sine qua non for exemption---Anything which was being inferred extraneously or beyond the scope or tenor of the S.R.O. was not permissible under any rule of interpretation---Supreme Court observed that HEVs technology besides being fuel efficient, was also an alternative solution to cautiously concentrate on the issue of global warming; that the proper and futuristic use of this technology will not only improve and recuperate the atmosphere and ecosystem, but also alleviate destructive facets of climate change; that on the face of it, the exemption on the import of HEVs was logically issued for protection against climate change, and to minimize its adverse impact in the future, and it was also the need of the time and a pressing priority to promote and encourage HEVs more and more, rather than applying irrational interpretations resulting in unwarranted restrictions on the exemption already in field---Petitions for leave to appeal were dismissed and leave was refused.

(b) Interpretation of statutes---

----Statutory Regulatory Order (S.R.O) issued under a fiscal statute---S.R.O. requires purposive interpretation or construction which complements its effect to the purpose by following conscientious and exact meaning---S.R.Os are issued fundamentally in the aid of substantive principles of law set out in the parent legislation, and to give effect to administrative directions and instructions for the implementation of the law---If the words used are capable of one construction only, then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act.

(c) Taxation---

----Taxing statute---Exemption, benefit of---Burden of proof---Burden rests on the person who claims an exemption or concession to substantiate that he is entitled to the same.

(d) Interpretation of statutes---

----Taxing statute---Exemption, benefit of---In a taxing statute, there is no leeway or probability of any intendment but the manner of interpretation should be such which undoubtedly or unmistakably comes into sight from the plain language of the notification with the conditions laid down in it, but with the caution that the benefits arising from a particular exemption should not be defeated or negated---In case of any ambiguity or mischief, the taxing statute should be construed in favour of the assessee---By and large, an exemption notification is interpreted rigidly, but when it is found that the assessee has satisfied the exemption conditions, a liberal construction should be made---If the tax-payer is entitled for exemption in plain terms of a notification, then the department could not deny the benefit of an exemption which was intended for the benefit of the taxpayer so it should be construed accordingly.

N. S. Bindra's interpretation of Statutes (Tenth Edition), page 1118 ref.

(e) Taxation---

----Taxing statute---Exemption, benefit of---Substantial compliance, doctrine of---Said doctrine, though on one hand premeditated to avoid hardship, simultaneously safeguards the essential compliance of the prerequisites in which the exemption in tax or customs duty are invoked.

Abdul Rauf Rohaila, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2023 S C M R 518

[Supreme Court of Pakistan]

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

MUBARIK ALI BABAR---Petitioner

Versus

PUNJAB PUBLIC SERVICE COMMISSION through its Secretary and others---Respondents

Civil Petition No. 2045 of 2019, decided on 18th November, 2022.

(Against the judgment of Lahore High Court, Lahore dated 08.03.2019, passed in W.P. No. 20429 of 2016)

(a) Constitution of Pakistan---

----Arts. 9, 14, 18, 20, 22, 26, 27, 36, 37(a), 38(b), 38(d) & Preamble---Constitutional protections for minorities and persons with disabilities (PWDs) stated.

The Preamble of the Constitution provides that it is the "will of the people" of Pakistan to establish an "Order". The term "will of the people of Pakistan" is an inclusive term signifying all citizens irrespective of religion, caste, creed, race, sex, place of birth or personal abilities. Therefore, such a "will" is incomplete without including the will of the minorities and persons with disabilities ("PWDs").

The word "minorities" signifies merely a statistical number, representing a class of people in the country who are Non-Muslims and in no manner does it imply that they are lesser citizens or in any manner less entitled to the fundamental rights under the Constitution.

The minimum right to dignity of the minorities and PWDs is that they ought to be considered equally with the rest of the majority of Muslims and the majority of persons with fuller abilities. Under the Constitution there is no distinction and therefore, the fundamental rights are fully available to the minorities and PWDs in the country as they are available to all other citizens of Pakistan.

The Constitution uplifts PWDs, gives them additional protection so that every effort (reasonable accommodation) is made to bring differently-abled persons at par with fully-abled persons. Similarly, it mandates that minorities are equal citizens of Pakistan and must be protected from all kinds and forms of discrimination. The Constitution, therefore, not only caters to minorities and PWDs as equal citizens of Pakistan, having equal rights and safeguards, it also provides extra protection to them.

People with disabilities are segregated from community life and face discrimination due to pervasive attitudinal and systemic barriers that the law, policy and practice frameworks have failed to remove, such as inaccessible or unequal facilities of housing, transport and education, segregated settings, barriers in accessing justice and legal systems, and employment and health discrimination. The effects of such discrimination are further expounded when intersecting with sexism, ageism, racism and other forms of inequality.

Disabled People's Organization Australia, Segregation of People with Disability is Discrimination and Must End, Position Paper (September, 2020). https://dpoa.org.au/wp-content/uploads/2020/11/ Segregation-of-People-with­Disability_Position-Paper.pdf ref.

Lower rates of employment are persistently observed for PWDs. Lower education levels coupled with discrimination, stigma, negative attitudes, inaccessible transport and workplaces, and limited availability of accommodations for PWDs, play a significant role in limiting job opportunities. Due to these reasons, PWDs are pushed backwards and depressed at the hands of an unfriendly and unaccommodating ecosystem, making them fall under the rubric of the backward and depressed classes, as recognized by the Constitution. Under the Constitution, it is the obligation of the State to attend to the legitimate interests of these classes. Legitimate interests are all those interests which can help PWDs actualize their fundamental rights under the Constitution and enable them to become effective members of the society.

UN Department of Economic and Social Affairs, Disability and Development Report - Realizing the Sustainable Development Goals by, for and with persons with disabilities (2018). https://social.un.org/ publications/UN-Flagship-Report-Disability-Final.pdf; Indra Sawhney v. Union of India, AIR 1993 SC 477 and Muhammad Yousaf v. Chairman, FPSC PLD 2017 Lah. 406 ref.

In order to safeguard the rights of the minorities and PWDs and to provide equality of status and opportunities, the State has to endeavor to bridge the gap and ensure that the differently-abled persons and the Non-Muslim minority in our country get to enjoy their fundamental rights under the Constitution with the same fervour and force as enjoyed by the Muslim majority and majority of persons with fuller abilities.

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

----S. 10---Constitution of Pakistan, Arts. 14 & 36---Persons With Disabilities (PWDs)---Minorities---Seats reserved for PWDs and minorities in the Combined Competitive Examination conducted by the Punjab Public Service Commission---Constitutional right of PWDs and minorities---Other than the general seats, the additional provision of quota for the PWDs and the minorities reaffirms the constitutional commitment---In case the seats reserved for PWDs and the Non-Muslim minority are not filled by PWDs and the non-Muslim minority in a particular year, it was not permissible to open and make the said seats available to general quota as it would offend constitutional values, fundamental rights and the Principles of Policy---Seats earmarked for minorities or PWDs must be retained and carried forward; this quota is their constitutional right and cannot be reversed or made available to other citizens---Petition for leave to appeal was dismissed and leave was refused with the direction to respective governments that they shall ensure that the employment quota of the minorities is maintained at all levels and to strictly avoid discriminatory and demeaning advertisements (for posts) flouting the dignity and self-respect of the minorities.

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

----S. 10---Constitution of Pakistan, Art. 14---Persons With Disabilities (PWDs)---Combined Competitive Examination conducted by the Punjab Public Service Commission (PPSC) --- Use of the word 'disabled' in advertisements for posts---Supreme Court directed that the word "disabled" has already been put to disuse in the judgment reported as Malik Ubaidullah v. Government of Punjab and others (PLD 2020 SC 599) and, therefore, the PPSC shall ensure that the word "disabled" is not used and instead persons with disabilities or persons with different abilities is put to use---Supreme Court observed that it was hopeful that in the future these terms will be incorporated in the official correspondence as well as relevant notifications, including public advertisements, issued by the Government.

PLD 2020 SC 599 ref.

Petitioner in person.

Nemo for Respondents.

2023 S C M R 527

[Supreme Court of Pakistan]

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

AMANULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 75-L of 2021, decided on 15th November, 2022.

(Against the judgment dated 10.05.2016 passed by the Lahore High Court, Bahawalpur Bench in Criminal Appeal No. 399-J/ 2012/BWP and Murder Reference No. 63/2012/BWP)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Incident took place at 6:30 p.m. and the matter was reported to the Police instantly and the FIR was lodged on the same day at 8:40 p.m. i.e. just after two hours of the occurrence---Keeping in view the inter se distance between the place of occurrence and the Police Station i.e. 13.5 kilometers, the contention that the FIR was delayed had no force---Occurrence took place in the broad daylight whereas the parties were known to each other, therefore, there was no chance of misidentification---Although both witnesses of ocular account were not residents of the locality where the occurrence took place but they had reasonably explained their presence at the place of occurrence at the relevant time by stating that they had come to the house of their maternal uncle in connection with the matter of their land---Defence side did not deny anywhere that the said witnesses had no land in the vicinity---Presence of the said witnesses in the house of their maternal uncle could not be termed as unnatural---Said prosecution witnesses 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 of them remained consistent on each and every material point inasmuch as they made deposition according to the circumstances that surfaced in the case---Medical evidence available on the record further corroborated the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased was concerned---Injuries ascribed to the accused on the body of the deceased were found available by the doctor, who conducted postmortem examination---Counsel for the accused could not point out any plausible reason as to why the complainant would falsely involved 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 otherwise a rare phenomenon---Sufficient evidence was available to sustain the conviction of the accused under section 302(b), P.P.C.---Appeal was dismissed.

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

----S. 302(b)--- Qatl-i-amd--- Ocular evidence--- 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.

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

----S. 302(b)---Qatl-i-amd---Minor discrepancies in prosecution case---Even if there are some minor discrepancies, which do not hamper the salient features of the prosecution case, the same should be ignored---Accused cannot claim benefit of such minor discrepancies.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Recovery of weapon of offence disbelieved and inconsequential---Sentence of imprisonment justified---Admittedly the crime empties and the weapon of offence were sent to the office of Forensic Science Laboratory together, which made the recovery doubtful---Such recovery was rightly disbelieved by the High Court---So far as the quantum of punishment was concerned, keeping in view the fact that recovery was disbelieved, the High Court had already taken a lenient view and converted the sentence of death into imprisonment for life to meet the ends of justice, hence, it left no room for the Supreme Court for further deliberation on such score---Appeal was dismissed.

Sheikh Sakhawat Ali, Advocate Supreme Court (Via video link from Lahore) for Appellant.

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

Malik Muhammad Imtiaz Mahl, Advocate Supreme Court for the Complainant.

2023 S C M R 534

[Supreme Court of Pakistan]

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

COMMISSIONER INLAND REVENUE, ZONE-II, REGIONAL TAX OFFICE, (RTO) LAHORE---Petitioner

Versus

MIAN LIAQAT ALI PROPRIETOR, LIAQAT HOSPITAL, HOUSE NO.6, STREET NO.6, LAL PUL, PANJ PIR ROAD, MUGHALPURA, LAHORE---Respondent

Civil Petitions Nos. 648-L, 649-L and 650-L of 2021, decided on 31st May, 2022.

(Against order dated 26.01.2021 passed by the Lahore High Court, Lahore in I.T.Rs. Nos. 4919, 4922 and 4923 of 2021)

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

----Ss. 111(1)(d) & 122(5)---Concealment of business income from sales---Amendment of deemed assessment order---Words "chargeable to tax" as used at the end of sub-clause (i) of section 111(1)(d) of the Income Tax Ordinance, 2001 ['the sub-clause (i)']---Said words applied to the whole of the sub-clause (i), i.e., also to the suppressed production and/or sales---If "any amount" can be brought within the scope of sub-clause (i) only if, and to the extent, that it is "chargeable to tax" (i.e., constitutes "income" properly so called), then production and sales must be given the same treatment---Thus, it is only production or sales chargeable to tax that can be brought within the ambit of clause (d) to section 111(1) of the Ordinance---Both under section 122(5) and section 111(1)(d) of the Ordinance, the taxpayer is exposed to the same tax liability in respect of the income that has escaped assessment, or been suppressed, i.e., he is liable to tax on the "net" amount, or "income" properly so called---Appeals were dismissed.

Waris Meah v. The State and another PLD 1958 SC 157 and Jibendra Kishore Achharya Chowdhury v. Province of East Pakistan PLD 1957 SC 9 ref.

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

----Ss. 111(1)(d) & 122(5)---Concealment of business income from sales---Amendment of deemed assessment order---Words "chargeable to tax" as used at the end of sub-clause (i) of section 111(1)(d) of the Income Tax Ordinance, 2001 ['the sub-clause (i)']---Said words applied to the whole of the sub-clause (i), i.e., also to the suppressed production and/or sales---Directions given by the Supreme Court to the Federal Board of Revenue to align sections 122(5) & 111(1)(d) of the Income Tax Ordinance, 2001 closely with the principles laid down in the case reported as Waris Meah v. The State and another PLD 1958 SC 157 stated.

In order to further align sections 122(5) and 111(1)(d) of the Income Tax Ordinance, 2001 closely with the principles laid down in the case reported as Waris Meah v. The State and another PLD 1958 SC 157, Supreme Court directed that the Federal Board of Revenue (FBR), in exercise of its powers under the Income Tax Ordinance, 2001 ('the Ordinance') (whether under section 206 and/or section 237 or any other enabling provision), shall forthwith issue appropriate guidance and provide the necessary yardstick, measure, guidelines and standard to the tax authorities, consistent with the present judgment, inter alia as to when and how, and in which circumstances and against what taxpayers, action can be initiated under the first clause of section 122(5) on the one hand, or the two sub-clauses of clause (d) of section 111(1) of the Ordinance on the other; that in issuing such guidelines, the FBR must take into account, and appropriately incorporate therein, the following points:

(i) If the tax authorities intend to take action against a person within the time period permissible under section 122, then such action must ordinarily be taken in terms of subsection (5) (or any other applicable subsection, as the case may be) thereof and in a manner compliant therewith, rather than under section 111(1)(d). If at all during the said period the designated Officer of Inland Revenue (OIR) nonetheless intends to proceed under the latter provision then clear reasons must be given why this is being done. In respect of such reasons to be given, the onus will lie on the tax authorities to justify such action and the threshold will be a high one. Furthermore, the reasons will be subject to judicial scrutiny in terms, inter alia, of the hierarchy of remedies provided by and under the Ordinance.

(ii) If the tax authorities intend to take action under section 111(1)(d) against a person beyond or after the time period stipulated under section 122, and the taxpayer shows that the information on which such action is based was, or ought reasonably to be regarded either as being or such as could have been, in the knowledge of the tax authorities within the said time period, then the tax authorities will have to give reasons as to why action was not taken under section 122 --- The reasons to be given by the OIR if the taxpayer meets the initial burden cast upon him will be subject to judicial scrutiny in terms, inter alia, of the hierarchy of remedies provided by and under the Ordinance.

Ch. Muhammad Shakeel, Advocate Supreme Court, Naeem Hassan, Secretary (Litigation), FBR for Petitioner (in all cases).

Syed Mansoor Ali Bukhari, Advocate Supreme Court for Respondent (in all cases).

2023 S C M R 549

[Supreme Court of Pakistan]

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

WAQAS ASLAM and others---Petitioners

Versus

LAHORE ELECTRIC SUPPLY COMPANY LIMITED and others---Respondents

Civil Petition No. 4806 of 2019, decided on 7th December, 2022.

(Against the judgment of the Lahore High Court, dated 21.11.2019, passed in I.C.A. No.1412 of 2016)

Civil service---

----Appointment---Eligibility criteria---Judicial review by Courts---Overqualified candidates---Autonomy, agency and free choice of the employing institution must be respected and be allowed to recruit according to the criteria advertised and anyone overqualified for the said post, if not entertained by the employing institution, the same being an institutional policy, the Court must refrain from interfering in the internal governance of institutions.

While prescribing qualifications for a post and determining eligibility criteria, the employing institution is best suited to assess its needs based on the function and nature of the post; the aptitude or suitability to fulfill such requirements and the qualification required for the post. Where one of the policy decisions of the recruiting company is that a candidate must possess a specific qualification and anyone overqualified will not be inducted, this being an internal policy decision of the company, judicial review must tread warily and must not be extended to expand the ambit of the prescribed eligibility criteria.

Zahoor Ahmad Rather v. Imtiyaz Ahmad (2019) 2 SCC 404; Asaf Fasihuddin v. Government of Pakistan 2014 SCMR 676 and Abdul Hameed v. WAPDA 2021 SCMR 1230 ref.

In the absence of any such stipulation in the advertisement or the recruitment policy of the employing company, it is not possible for the Court to draw an inference that a higher qualification presupposes the acquisition of a lower qualification or that a candidate having a higher qualification is better suited for the post as opposed to a candidate possessing the requisite qualification that has been expressly prescribed in the advertisement according to the nature of the post and the requirement of the employer. It is not for the Court to examine the qualification and eligibility in a recruitment process. The Court, at best, can look into the legality of the recruitment process but cannot delve deeper into the design and need of the employing institution or second guess their selection criteria and job requirement. It is also not open to the Courts to embark upon comparing various degrees held by the applicants/candidates with the advertised qualifications and carry out the function of an employer by carrying out the comparison of the said qualifications. The power of judicial review by the Courts cannot be extended to determine equivalence or comparison of academic qualifications for a post or assume the role of a human resource department of an employing institution. It is a specific expert area and can be best resolved by the institution itself according to the suitability and requirements of a certain post as designed and desired by the employer. It is an area for which the Courts are not best suited.

Zahoor Ahmad Rather v. Imtiyaz Ahmad (2019) 2 SCC 404 and P.M. Latha v. State of Kerala (2003) 3 SCC 541 ref.

Furthermore, inducting candidates possessing a higher qualification than the advertised criteria would also have a social impact as it would deprive people with lesser education of employment opportunities and encourage people with higher qualification. It will cause injustice to those applicants who possessed a lower prescribed qualification in the advertisement, because applicants with a higher qualification would seek automatic preference based on their qualification even when such qualification is not prescribed in the advertisement. It will also disrupt the working of the institution by having overqualified people and affect their hierarchy in the organization. The Court must take into account socio-economic perspectives in order to ensure that employment opportunities are created for at all tiers of the society.

Sakhawat Ali v. Deputy Commissioner/Chairman Recruitment Committee, Narowal, 1998 PLC (C.S.) 19 and Zahoor Ahmad Rather v. Imtiyaz Ahmad (2019) 2 SCC 404 ref.

The autonomy, agency and free choice of the employing institution must be respected and be allowed to recruit according to the criteria advertised and anyone overqualified for the said post, if not entertained by the employing institution, the same being an institutional policy, the Court must refrain from interfering in the internal governance of institutions.

Afnan Karim Kundi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Munawar-us-Salam, Advocate Supreme Court and M. Sohaib Rashid, Advocate Supreme Court assisted by Muhammad Hassan Ali, Law Clerk for Respondents.

2023 S C M R 555

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar and Athar Minallah, JJ

Messrs DW PAKISTAN (PRIVATE) LIMITED, LAHORE---Petitioner

Versus

Begum ANISA FAZL-I-MAHMOOD and others---Respondents

Civil Petition No. 3989 of 2022, decided on 8th December, 2022.

(Appeal against the judgment dated 05.10.2022 passed by Lahore High Court, Lahore in Civil Revision No. 60593 of 2022)

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

----S. 12---Specific performance, relief of---Scope and pre-requisites for claiming the relief of specific performance stated.

The relief of specific performance of a contract is discretionary, however the said discretion cannot be exercised arbitrarily or unreasonably but can be invoked to promote fairness and equity. The person seeking specific performance has to put on show that he is geared up and fervent to perform his part of the contract, but the other side is circumventing or evading the execution of his obligations arising out of the contract. While deciding the suit for specific performance of a contract, the Court has to consider and come to a decision regarding whether the plaintiff is ready and willing to perform his part of the contract, which is in fact substantiated by dint of the conduct or demeanor of the plaintiff before and after instituting the lawsuit. The equitable remedy rests on the discretion which is obviously exercised according to the well-established standards and philosophy of law and not whimsically or capriciously.

Muhammad Jamil and others v. Muhammad Arif 2021 SCMR 1108 ref.

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

----S. 12---Suit for specific performance---Agreement to sell---Deposit of balance sale consideration in court---Rational for requiring the vendee to deposit balance sale consideration in Court explained.

The fundamental insightfulness of the Courts in directing the plaintiff in a suit for specific performance to deposit the sale consideration in Court in fact articulates that the vendee has the capacity to pay the sale consideration or balance sale consideration and is ready and willing to perform his obligations arising from the contract. An incessant readiness and willingness is a condition precedent for claiming relief of specific performance, which in unison also conveys the state of mind of the vendee, his capability to pay, keenness and commitment.

Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171; Muhammad Jamil and others v. Muhammad Arif 2021 SCMR 1108; Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2022; Sukhwinder Singh v. Jagroop Singh and others AIR 2020 SC 4865; Bhavyanath v. K.V. Balan (Dead) through L.Rs. (2020) 11 SCC 790 and P. Daivasigamani v. S. Sambandan (MANU/SC/ 1309/2022) ref.

In the suit for specific performance of a contract to sell, the deposit of sale consideration in the Court may be ordered by the Court. In fact the deposit of the amount in Court, besides showing readiness and willingness, will also put on view the good faith and bona fide intention, subject to the final outcome of the suit on merits, that the vendee was not incapable of performing his part of the contract, at least in terms payment of sale consideration as per the covenant, if not violative of any other essential term of the contract which may debar the relief.

The deposit of the sale consideration or balance consideration in the Court is not an automatic requirement but there must be an order of the Court for deposit. While passing the order for deposit of sale consideration or balance sale consideration by the Trial Court, some reasonable time to deposit the money in Court should also be afforded for compliance of the order along with the consequences of non-compliance of the order with clarity in advance.

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

----S. 12---Suit for specific performance---Agreement to sell---Cheque for balance sale consideration provided to Court by vendee deposited in a profit bearing scheme on directions of the High Court---Legality---After filing the suit for specific performance, on directions of the Trial Court, the petitioner/vendee tendered a cheque in Trial Court along with the bank statement for substantiating the sufficiency of funds in the bank account and capacity to pay the remaining consideration---Trial Court handed over the cheque to the officer of the Court to retain it in safe custody rather than encashing the same---Respondents/ vendors filed a revision petition in the High which was disposed with the direction to the Trial Court to deposit the subject matter cheque in a profit bearing account so that, at the conclusion of the trial, either of the parties may seek the benefit of the amount deposited pursuant to Court's order---Plea of petitioner/buyer that the impugned order of High Court imposed a direction to the Trial Court for encashment of the cheque for the balance sale consideration solely at the instance of the vendors which was unjustified---Validity---While handing over the cheque to the officer of the Court the Trial Court ignored that a cheque remain valid for certain time, thereafter it loses its efficacy/validity---When a cheque runs out its time it becomes unacceptable to the banker unless it is revalidated and confirmed by the drawer---Mere submission of a cheque, even with the bank statement of a particular period, in Court without its encashment neither expressly means or denotes that the petitioner will surely maintain the equivalent balance in the bank account at all times, nor does it guarantee or represent that the cash flow of the equivalent amount will be maintained and reserved for payment if the suit is finally decreed by the Trial Court---Even otherwise, if the cheque is not presented for encashment and only retained in the custody of the Court's officer, it will become stale after six months, and thereafter nothing will remain in Court to decipher the readiness and willingness of the buyer with good faith to perform his part of the contractual obligation---Thus, there was no rhyme or reason, nor any commonsense explanation for retaining the cheque in the shelf or vault for its cosmetic value without its encashment to gauge the readiness and willingness of buyer in the suit for specific performance---No illegality or perversity was found in the impugned order passed by the High Court---Petition for leave to appeal was dismissed and leave was refused.

Khalid Ishaq, Advocate Supreme Court for Petitioner.

Hafeez Saeed Akhtar, Advocate Supreme Court for Respondents.

2023 S C M R 566

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Jamal Khan Mandokhail and Athar Minallah, JJ

AMIR MUHAMMAD KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 297 of 2020, decided on 18th January, 2023.

(Against the judgment dated 27.06.2016 passed by the Lahore High Court, Rawalpindi Bench in Murder Reference No. 40/2013 and Criminal Appeal No. 338 of 2013)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt---Crime report was lodged after more than five hours of the occurrence---Distance between the place of occurrence and the police station was 21 kilometers---Nowhere in the entire evidence, the prosecution had explained the reason for the delay in reporting the matter to the police with such a delay---Delayed FIR showed dishonesty on the part of the complainant and that it was lodged with deliberation and consultation---Sole eye-witness of the occurrence stated that the accused allegedly decapitated the head of the deceased from the rest of his body, and that both the head and the body were separately picked up by the police---However, such stance of the witness was negated by the medical evidence and statement of investigating officer---Record showed that the accused was the grandson of the deceased and he was being brought up by the deceased---Appellant alleged that due to the apprehension that the deceased would transfer his whole property in the name of accused, his father i.e. the complainant committed murder of his deceased-father---When the accused had taken a specific stance and in support of the same had placed on record the relevant documents, the High Court ought to have taken into consideration the statement of the accused under section 342, Cr.P.C.---Except for his oral assertion the complainant did not produce any independent evidence to substantiate the motive part of the prosecution story, therefore the prosecution had failed to prove motive---So far as recovery of blood stained hatchet was concerned, the same was allegedly recovered on the pointation of accused from a thoroughfare, which was easily accessible to everyone, therefore, the same was inconsequential---Facts and circumstances of the present case were sufficient to cast a shadow of doubt on the prosecution case, which entitled the accused to the right of benefit of the doubt---Appeal was allowed and accused was acquitted of the charge.

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

----S. 302(b)---Qatl-i-amd---Heinous offence---Mere heinousness of the offence, if not proved to the hilt, is not a ground to punish an accused.

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

----S. 302(b)---Qatl-i-amd---Benefit of doubt---Scope---For the accused to be afforded the right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty, and if there is only one doubt, the benefit of the same must go to the accused.

Mst. Asia Bibi v. The State PLD 2019 SC 64; Tariq Pervaiz v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Abdul Jabbar v. State 2019 SCMR 129 ref.

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

Mirza Abid Majeed, D.P.G. for the State.

Nemo for the Complainant.

2023 S C M R 572

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Shahid Waheed, JJ

MUHAMMAD YOUSAF and others---Appellants

Versus

MUHAMMAD ISHAQ RANA (DECEASED) through LRs and others---Respondents

Civil Appeal No. 801 of 2021, decided on 14th December, 2022.

(On appeal against the judgment dated 25.06.2021 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in C.R. No.08-D of 2013)

(a) Benami transaction---

----Essential characteristics of a benami transaction stated.

In a benami transaction, there are three persons involved - the seller, the real owner, and the ostensible owner or benamidar, and, in the ordinary course of human conduct, it encompasses two different contracts, one is the contract, express or implied, between the ostensible owner and the purchaser (real owner) and it specifically mentions two things. First, the real owner expresses his desire or compulsion (also called motive) and obtains permission from the ostensible owner (Benamidar) to purchase the property in his name after paying the consideration amount to the seller, and second, it talks about the consent of the ostensible owner (Benamidar) that whenever the real owner demands, he will be bound to transfer the property to him. The other is a contract between the ostensible owner (Benamidar) and the seller of the property. Both such contracts, though differ from each other in their legal character and incidents, but complement each other to establish benami transaction, and thus, in cases of such transaction, the plaintiff must first state them, in detail, in his plaint, and then prove them by legal testimony, and failure to do so is fatal.

Sultan v. Nawab Mouladad PLD 1969 Kar. 221; Abdus Samad Khan v. Moulvi Abdullah 1989 CLC 1563 and Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146 ref.

(b) Benami transaction---

----Proof---Burden of proof---Evidentiary requirements for proving a benami transaction stated.

The case of benami dispute is not one in which the authenticity of the document is in question, but in such cases the execution of the document is an admitted fact and the seeker only intends rectification of the document and wants that in it the name of the Benamidar be delated and instead his name be written. For such purposes not only direct oral evidence but also circumstances and surroundings of the case have to be considered. The burden of proof lies heavily on the person who claims against the tenor of the document or deed to show that the ostensible vendee (owner) was a mere name lender and the property was in fact purchased only for his benefit. Such burden would be discharged by satisfying the well-known criteria, i.e., (i) the source of purchase money relating to the transaction; (ii) possession of the property, (iii) the position of the parties and their relationship to one another, (iv) the circumstances, pecuniary or otherwise, of the alleged transferee, (v) the motive for the transaction, (vi) the custody and production of the title deed, and (vii) the previous and subsequent conduct of the parties. Each of the said stated circumstance, taken by itself, is of no particular value and affords no conclusive proof of the intention to transfer the ownership from one person to the other. But a combination of some or all of them and a proper weighing and appreciation of their value would go a long way towards indicating whether the ownership has been really transferred or where the real title lies.

Since the very object of a benami transaction is secrecy, the evidence adduced in cases of such character should stand the test of strict scrutiny and satisfy the tests mentioned above. In other words, the evidence must be reliable and acceptable impelling the Court to take a view contrary to the recitals in the impugned document. The consideration of such evidence should be in a proper manner and in the right perspective.

Mina Kumari Bibi v. Bijoy Singh Dudhuria (1917) ILR 44 P.C. 662; Abdul Lajij Kazi v. Abdul Huq Kazi (1925) 28 CWN 62; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Muhammad Siddiqi through Attorney v. Messrs T.J. Ibrahim and Company and others 2001 SCMR 1443; Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577; Mst. Zohra Begum and 6 others v. Muhammad Ismail 2008 SCMR 143; Ghulam Murtaza v. Mst. Asia Bibi and others PLD 2010 SC 569 and Mst. Asia Bibi v. Dr. Asif Ali Khan and others PLD 2011 SC 829 ref.

Agha Muhammad Ali Khan, Advocate Supreme Court for Appellants.

Rashid Mehmood Sindhu, Advocate Supreme Court for Respondents Nos. 1 to 12.

2023 S C M R 581

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar and Shahid Waheed, JJ

MUHAMMAD TANVEER and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 1442 of 2022, decided on 1st December, 2022.

(On appeal against the order dated 02.11.2022 passed by the Lahore High Court, Lahore in Criminal Misc. No. 60863-B of 2022)

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), S. 440---Constitution of Pakistan, Art. 185(3)---Trespassing onto a field and destroying a standing crop---Ad interim pre-arrest bail, confirmation of---Pending civil litigation between the parties---Possibility of false implication---Allegation against the accused persons was that they plowed and destroyed a standing crop from the land of the complainant and caused him a loss of Rs.125,000---However, it was the stance of the accused persons that they were the owners of the land in question where the occurrence took place; that they were in possession of requisite title documents and in-fact the complainant party was the aggressor---Admittedly a civil suit for declaration qua the land in question was still pending adjudication before the court of competent jurisdiction, which was filed about one year earlier to lodging of the present FIR---In view of such matter, the possibility of false implication just to pressurize the accused persons to gain ulterior motives could not be ruled out---Trial Court after recording of evidence would decide about the guilt of the accused persons and as to whether section 440, P.P.C. was applicable or not---Even otherwise, all the six accused persons had been ascribed the role of jointly causing a loss of Rs.125,000/- to the complainant---Case of the accused persons squarely fell within the ambit of section 497(2), Cr.P.C. entitling for further inquiry into their guilt---Petition for leave to appeal was converted into appeal and allowed, and ad-interim pre-arrest bail granted to the accused persons was confirmed.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---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.

Salman Mansoor, Advocate Supreme Court along with Petitioners (Via video link from Lahore).

Mirza Muhammad Usman, D.P.G., Hassan Farooq, DSP and Sadiq, SI for the State.

2023 S C M R 584

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

Civil Appeals Nos. 1172 to 1178 of 2020 and Civil Petitions Nos. 3789 to 3796, 2260-L to 2262-L and C.P. 3137-L of 2020

(Against the judgment dated 30.11.2018, passed by the Punjab Service Tribunal, Lahore in Appeals Nos. 3780, 3779, 3852, 3778, 3425, 3851 of 2015, 3160 of 2014 and 214 of 2017) and C.M. Appeals Nos.23 and 33 of 2021 (Applications for impleadment in C.As. 1172 and 1178 of 2020 respectively)

Syed HAMMAD NABI and others---Appellants/Petitioners

Versus

INSPECTOR GENERAL OF POLICE PUNJAB, LAHORE and others---Respondents

Civil Appeals Nos. 1172 to 1178, Civil Petitions Nos. 3789 to 3796, 2260-L to 2262-L and C.P. No. 3137-L of 2020 and C.M. Appeals Nos. 23 and 33 of 2021, decided on 2nd November, 2022.

(a) Police Rules, 1934---

----R. 12.2(3)---Inspectors serving in (Punjab) Police---Seniority---Final seniority list of Inspectors will be reckoned from the date of confirmation of the officers and not from the date of appointment.

Rule 12.2(3) of the Police Rules, 1934 ('the Rules') provides for two stages for determining the seniority, one is prior to the probationary period and is to be reckoned from the first appointment and the final seniority is settled from the date of confirmation which is once the period of probation is successfully completed. Period of probation is important as the officers have to undergo various courses (A, B, C and D) and qualify the same. Once police officer has successfully undergone the said courses he stands confirmed at the end of the probationary period. The seniority is once again settled, this being the final seniority from the date of confirmation. The said rule is, therefore, very clear that final seniority list of Inspectors will be reckoned from the date of confirmation of the officers and not from the date of appointment.

1999 SCMR 1594; PLD 1985 SC 159 and Muhammed Yousaf and others v. Abdul Rashid and others 1996 SCMR 1297 ref.

(b) Constitution of Pakistan---

----Art. 185(3)--- Leave refusing order of the Supreme Court---Precedential value---Leave-refusing order which neither decides any question of law nor enunciates any principle of law in terms of Article 189 of the Constitution does not constitute binding precedent---Impression that a leave-refusing order endorses the statements of law made in the impugned orders and thus enhances the status of those statements as that of the Supreme Court is fallacious---Such impression is based on inference drawn from the leave-refusing orders, while 'a case is only an authority for what it actually decides' and cannot be cited as a precedent for a proposition that may be inferred from it.

Muhammad Salman v. Naveed Anjum 2021 SCMR 1675; Tariq Badr v. NBP 2013 SCMR 314; Quinn v. Leathem 1901 AC 495; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; SHCBA v. Federation PLD 2009 SC 879 and Khairpur Textile Mills v. NBP 2003 CLD 326 ref.

(c) Police Order (22 of 2002)---

----Preamble---Police Rules, 1934---Service matters relating to police---Interference by Courts in limited circumstances only---Disputes, if any, amongst the police officers must first be resolved by the Inspector General of Police or his representatives---Only in case of any legal interpretation or blatant abuse of the process provided under the Police Order or Rules should the courts interfere in the working of the Police force so that the force can maintain its functioning, autonomy, independence and efficiency.

It is best if the Police force is allowed to be regulated by its statutory framework i.e. the Police Order, 2002 and the Police Rules which provide a complete code of internal governance. Disputes, if any, amongst the police officers must first be resolved by the Inspector General of Police or his representatives. Only in case of any legal interpretation or blatant abuse of the process provided under the Police Order or Rules should the courts interfere in the working of the Police force so that the force can maintain its functioning, autonomy, independence and efficiency which is essential for Police which is charged with the onerous responsibility of maintaining law and order and with the onerous obligation to protect the life and property of the citizens of the country. More than any other organization, it is imperative that the Police must function as a rule based organization which is fully autonomous and independent in regulating its internal governance. Strong and smart Police force requires organizational justice firmly entrenched in the institution so that its officers are assured that they work for an institution that firmly stands for rules, fairness, transparency and efficiency. This upholds the morale of the police officers, especially junior police officers who are required to undertake dangerous and strenuous assignments on a daily basis and also uplifts the institution by making it more vibrant and progressive.

The issues of posting, transfer and seniority must be settled within the department strictly in accordance with the Rules and only matters requiring legal interpretation may come up before the Courts. Several junior officers approaching the courts for redressal of their grievance reflects poorly on the internal governance of the Police department when the elaborate Police Rules and the Police Order provide for such eventualities in detail.

Supreme Court observed that it was sanguine that in future the Police department will take charge of its internal governance strictly in accordance with law and will restore a Rule-based approach in addressing the grievances of the police officers so that courts are not unduly burdened.

(d) Constitution of Pakistan---

----Arts. 4(1), 14(1), 18, 25, 37 & 38---Civil service---Organizational justice---Concept of organizational justice and its importance stated.

Organizational justice focuses on how employees judge the behavior of the organization and how this behavior is related to employees' attitudes and behaviors regarding the organization. The employees are sensitive to decisions made on a day-to-day basis by their employers, both on the small and large scale, and will judge these decisions as unfair or fair. Decisions judged as unfair, lead to workplace deviance. Employees also believe procedures are fair when they are consistent, accurate, ethical, and lack bias. Organizational justice is concerned with all matters of workplace behaviour, from treatment by superiors to pay, access to training and gender equality. Ensuring organizational justice should be a priority for any organization - it can reduce the incidence of workplace deviance, absence, disengagement and counterproductive workplace behaviours and also encourage positive attributes like trust and progressive communication.

Dr. Annette Towler, The benefits of organizational justice and practical ways how to improve it CQNet ref.

Organizational justice stands firmly on the constitutional values and fundamental rights ensured to any person under the Constitution. The constitutional principle of social and economic justice read with due process and right to dignity, non-discrimination and right to a carry out a lawful profession and the right to livelihood are basic ingredients of organizational justice.

(e) Police Order (22 of 2002)---

----Preamble---Police force---Promotion and career progression---Organizational justice---Importance of organizational justice in the police force stated.

Organizational justice is necessary for the police officers to perform their duties with complete commitment, dedication and fidelity, because they must perceive that the institution is fair and just towards them. Police officers who have such perceptions of fairness would demonstrate less cynicism towards the job and are also likely to have a more amiable attitude towards the public. Uncertainty in the promotion structure and delay in promotions weakens such perceptions of serving police officers, resulting in inefficiency, likelihood of misconduct and low morale, thereby, also adversely impacting the trust of the public in the police. Therefore, for an efficient and effective police force, it is necessary to ensure the provision of organizational justice in the police as an institution, especially with regards to career progression and promotion. As such, there must be no ambiguity in the promotion structure and any grievance with regards to career progression/promotion must be redressed expeditiously under the law.

Volkov, M. "The Importance of Organizational Justice, Corruption, Crime and Compliance", 2015; Wolfe, Scott E., Justin Nix, and Justin T. Pickett. "The Measurement of Organizational Justice Matters: A Research Note", July 16, 2020 and Weimer, C. "How would Organizational Justice Shape Police Officer's Attitudes in the Workplace?", 2019 ref.

Mian Bilal Bashir, Advocate Supreme Court, Syed R.H. Shah, Advocate-on-Record, Ch. Zulifqar Ali, Advocate Supreme Court (through V.L. Lahore Registry), Maqbool Hussain Sh. Advocate Supreme Court and Talaat Farooq Sh. Advocate Supreme Court (through V.L. Lahore Registry) for Appellants/Petitioners.

Safdar Shaheen Pirzada, Advocate Supreme Court for Applicants (in C.M.A. 8616 of 2022).

Muddasar Khalid Abbasi, Advocate Supreme Court, Muhammad Ramzan Khan, Advocate Supreme Court, M. Sharif Janjua, Advocate-on-Record, Kaleem Ilyas, Advocate Supreme Court, Raja Muhammad Khan, Advocate Supreme Court for Respondents and Atta Muhammad-respondent-in-person.

Ashfaq Ahmad Kharral, Additional A.G. along with Kamran Adil, DIG (Legal), Sh. Asif, S.P., Amir Khalil Syed, S.P. and Kashif Butt, A.D. for the Government of Punjab.

2023 S C M R 596

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar and Athar Minallah, JJ

ALI ASGHAR alias AKSAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 190 of 2020, decided on 7th December, 2022.

(Against the judgment dated 21.10.2015 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 38-J of 2010, Criminal Revision No. 56 of 2010 and Murder Reference No. 100 of 2010)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Incident took place at 4.30 p.m. and matter was reported to the police and the FIR was lodged on the same day at 06.15 p.m. i.e. just after one hour and forty five minutes of the occurrence---Keeping in view the inter se distance between the place of occurrence and the police station i.e. 20 kilometer, the FIR was promptly lodged---Occurrence took place in the broad daylight whereas the parties were known to each other, therefore, there was no chance of misidentification---Ocular account was furnished by brother of the deceased i.e. the complainant and maternal uncle of the deceased---Both said witnesses were residents of the same locality where the occurrence took place, therefore, their presence at the place of occurrence on the fateful day and time was not unnatural---Prosecution witnesses 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 witnesses remained consistent on each and every material point inasmuch as they made deposition according to the circumstances that surfaced 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 further corroborated the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased was concerned---Counsel for the accused could not paint out any plausible 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 real brother---Substitution in such like cases is a rare phenomenon---According to the report of the Forensic Science Laboratory, the crime empties matched with the weapon recovered from the accused---In these circumstances, there was sufficient material available on record to sustain conviction of the accused---Conviction of accused under section 302(b), P.P.C was maintained---Appeal was partly allowed.

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

----S. 302(b)--- Qatl-i-amd---Ocular account 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.

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

----S. 302(b)--- Qatl-i-amd---Minor discrepancies in prosecution case---Even if there are some minor discrepancies, the same should be ignored if they do not hamper the salient features of the prosecution case---As long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence---Test is whether the evidence of a witness inspires confidence---If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same---While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth---Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety---Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---Motive not established---According to the prosecution, a quarrel took place between the accused and a servant of deceased---Deceased allegedly reprimanded the accused and due to this grudge, the accused committed the murder of deceased---Prosecution had also produced servant of the deceased, who in his statement deposed that the accused wanted him to work with him and asked him to leave the job of the deceased---Bare perusal of the statement of the servant revealed that the real motive of the accused was with the said servant, therefore, the actual motive to commit the murder of deceased remained shrouded in mystery---In these circumstances, the penalty of death awarded to the accused would be harsh---Consequently, while maintaining the conviction of the accused under section 302(b), P.P.C., his sentence of death was altered into imprisonment for life---Appeal was partly allowed.

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

----S. 302(b)--- Qatl-i-amd--- Sentence, reduction in---Mitigating factors---Motive not established---If a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence---Otherwise, the said motive might be considered a mitigating circumstance in favour of an accused.

Syed Rifaqat Hussain Shah, Advocate Supreme Court for Appellant.

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

Muhammad Bashir Paracha, Advocate Supreme Court for the Complainant.

2023 S C M R 603

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

FEDERATION OF PAKISTAN through Chairman Federal Board of Revenue

FBR House, Islamabad and others---Appellants

Versus

ZAHID MALIK---Respondent

Civil Appeal No.33-K of 2018, decided on 26th December, 2022.

(On appeal against judgment dated 25.07.2017 passed by Federal Service Tribunal, Karachi Bench in Appeal No. 191(K)CS/2015)

(a) Government Servants (Efficiency and Discipline) Rules, 1973 [since repealed]---

----R. 6---Constitution of Pakistan, Art. 10A---Inquiry proceedings---Right of accused to cross-examine witnesses deposing against him---Scope---Right of proper defence and cross-examination of witnesses by the accused is a vested right---Whether the evidence is trustworthy or inspires confidence could only be determined with the tool and measure of cross-examination---Possibility cannot be ruled out in the inquiry that a witness may raise untrue and dishonest allegations due to some animosity against the accused which cannot be accepted unless he undergoes the test of cross-examination which indeed helps to expose the truth and veracity of allegations---Not providing an ample opportunity of defence and depriving the accused from right of cross-examination of departmental representative who lead evidence and produced documents against the accused is against Article 10A of the Constitution.

In a regular inquiry, it is a precondition that than an evenhanded and fair opportunity be provided to the accused and if any witness is examined against him, then a fair opportunity should also be afforded to cross-examine the witnesses.

Right of proper defence and cross-examination of witnesses by the accused is a vested right. Whether the evidence is trustworthy or inspires confidence could only be determined with the tool and measure of cross-examination. The possibility cannot be ruled out in the inquiry that the witness may raise untrue and dishonest allegations due to some animosity against the accused which cannot be accepted unless he undergoes the test of cross-examination which indeed helps to expose the truth and veracity of allegations. The whys and wherefores of cross examination lead to a pathway which may dismantle and impeach the accurateness and trustworthiness of the testimony given against the accused and also uncovers the contradictions and discrepancies. Not providing an ample opportunity of defence and depriving the accused from right of cross-examination of departmental representative who lead evidence and produced documents against the accused is also against Article 10A of the Constitution.

Deputy Director Food and 2 others v. Akhtar Ali, Food Grains Inspector 1997 SCMR 343; Secretary to Government of N.W.F.P, and 2 others v. Saifur Rehman 1997 SCMR 1073; Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others 2010 PLC (C.S.) 559 and Union of India and another v. Tulsiram Patel and others AIR 1985 SC 1416 ref.

If the inquiry officer or inquiry committee is appointed for conducting inquiry in the disciplinary proceedings, it is an onerous duty of such Inquiry Officer or Inquiry Committee to explore every avenue so that the inquiry may be conducted in a fair and impartial manner and should avoid razing and annihilating the principle of natural justice which may ensue in the miscarriage of justice.

Despite the handiness and accessibility of well guided procedure for conducting an inquiry under the Government Servants (Efficiency and Discipline) Rules, 1973 (E&D Rules), the inquiry officer in the present case did not adhere to it religiously and conducted the inquiry in a slipshod manner. Inquiry report did not depict that any witness was called for recording evidence in support of the allegations leveled against the accused. On the contrary, the inquiry report put on view that against each charge only the defence of the accused officer is mentioned along with the rebuttal of the departmental representative and thereafter the finding of the inquiry officer is recorded and finally, the accused was found guilty of inefficiency, misconduct and corruption on account of charges. Mere reproduction of charges with defence submitted in writing by the accused and then the rebuttal submitted by the departmental representative in the inquiry report was not sufficient to prove the accused's guilt as there was no evidentiary value except two statements on record and allegations vice versa (words against words) which could only be proved one way or the other. Had the evidence been recorded, both the statements would have been subjected to cross-examination accompanied by other oral and documentary evidence for sifting the grain from the chaff. Without exploring and finding guilt of accused into the charges of misconduct, neither the inquiry report can be construed as fair and impartial, nor did it commensurate to the procedure provided under the E&D Rules for conducting an inquiry into allegations of misconduct. Inquiry report showed that no opportunity was provided to the accused to conduct cross examination even on the departmental representative who allegedly rebutted the defence of the accused in writing before the inquiry officer and also produced evidence against the accused; at least he should have been subjected to cross examination by the accused, particularly when no other witness was called for recording evidence. In such circumstances, the Service Tribunal had rightly converted major penalty of dismissal from service into minor penalty of stoppage of one increment for a period of one year with reinstatement in service.

Supreme Court observed that the matter of a departmental inquiry should not be conducted in a cursory or perfunctory manner and in order to improvise the norms and standards of departmental inquiry under the Civil Servants Act, 1973 and E&D Rules or in other enabling Rules, it would be advantageous that a "Handbook" of inquiry procedure be compiled by the Federal Government with the excerpts of all relevant Rules including the rule of natural justice and due process of law enshrined under Article 10-A of the Constitution for the step-by-step help and assistance of inquiry officers or inquiry committees so that in future, they may be well conversant with the precise procedure before embarking on the task of an inquiry and conduct the inquiry proceedings without ambiguities. Appeal was dismissed.

(b) Administration of justice---

----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.

Sohail Ahmad v. Government of Pakistan through Secretary of Interior Ministry, Islamabad and others 2022 SCMR 1387 and Inspector General of Police, Quetta and another v. Fida Muhammad and others 2022 SCMR 1583 ref.

(c) Remand---

----Remand of a case to the lower fora---Scope---Such remand cannot be claimed as a vested right, but it is always the province of the Court or Tribunal to first figure out whether any material error or defect was committed by the Court in the order or judgment which really and adversely affected the corpus of the case and caused serious prejudice or injustice to the party requesting remand on some essential questions of law or fact which was ignored by the courts below while deciding the lis.

Irfan Mir Halepota, Advocate Supreme Court and Mrs. Abida Parveen Channar, Advocate-on-Record for Appellants.

Malik Naeem Iqbal, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondent.

2023 S C M R 613

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Muhammad Ali Mazhar, JJ

ZAFAR IQBAL---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, FEROZEWALA and others---Respondents

Civil Petition No. 715 of 2020, decided on 17th February, 2023.

(Against the judgment dated 19.12.2019 passed by Lahore High Court, Lahore in W.P. No. 103227 of 2017)

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Amendment of plaint---Scope---Suit for specific performance of oral agreement to sell--- Respondents/plaintiffs (vendees) filed a suit for specific performance of a purported oral sale agreement against the defendant (vendor)---After filing of the said suit the vendor passed away and some of her legal heirs were brought on the record---Petitioner, who claimed to be one of the legal heirs of the vendor was not arrayed as a legal heir in the suit, therefore, he submitted an application for his impleadment in the suit as a defendant, which was allowed---Once the evidence in the suit was led and concluded, the respondents (vendees) filed an application seeking amendment of the plaint, alleging that the petitioner was not the son of the deceased vendor---Said application was dismissed by the Trial Court, however, the same was allowed by the revisional Court, whose order was sustained by the High Court in the impugned judgment---Validity---Interest of the respondents was better protected with the petitioner remaining a defendant, since in the eventuality that the suit were to be decreed without petitioner being arrayed as a party then he may file an application, under section 12(2), C.P.C., stating that the decree was obtained by fraud since he was a necessary party being a legal heir, yet was not arrayed as a defendant, and sought to set aside such decree---Respondents wanted to amend their plaint by challenging petitioner's paternity/maternity which had no connection with a suit which sought specific performance of a purported agreement---Defendants in the suit, including the petitioner, were keen to proceed with the suit, filed by the respondents nineteen years ago, but the respondents were delaying its conclusion, giving credence to the petitioner's contention that since the respondents were in possession of the suit property they did not want the suit to be decided---In the facts and circumstances of the case, Trial Court had rightly dismissed the respondents' application for amendment of the plaint---Petition for leave to appeal was converted into appeal and allowed, impugned orders of the revisional court and the High Court were set aside with costs imposed on the respondents throughout as they had abused the process of the court and indulged in unnecessary litigation.

Hafiz Muhammad Yusuf, Advocate Supreme Court for Petitioner.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 2 - 4.

2023 S C M R 616

[Supreme Court of Pakistan]

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

PAKISTAN TELEVISION CORPORATION---Appellant

Versus

NOOR SANAT SHAH---Respondent

Civil Appeal No. 284 of 2017, decided on 27th September, 2022.

(Against judgment dated 18.10.2016 of the Islamabad High Court, Islamabad passed in Regular Second Appeal No. 30 of 2015)

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

----S. 9---Tortious breach by a State Corporation resulting in pure economic loss to its employee---Suit for damages for tortious liability against the State entity/Corporation---Maintainability---Civil Court, jurisdiction of---Civil Court did not lack jurisdiction to try such a suit--- In the absence of any law regulating tortious breaches resulting in pure economic loss, the Civil Court as a Court of plenary jurisdiction has the power as well as jurisdiction to entertain, adjudicate and decree suits for damages.

(b) Tort---

----Tort of interest in property---Economic loss---Proof and burden of proof---Suit for damages arising out of an employment matter---Jurisdiction of Civil Court to award decree for damages caused by mental agony and torture---Respondent in his suit claimed that by virtue of litigation that had ensued between the parties, the appellant (State Corporation) had committed a tort of interest in property; that he had to spend his financial resources as well as physical integrity insofar as he was subjected to face anxiety, mental stress of having to approach various legal fora, arrange legal representation and expend his limited financial resources for enforcement of his legitimate rights---Held, that the main physical, perceivable and ostensible damages that the Respondent had arguably suffered was monetary/ economic in nature---Respondent could claim redressal from such a tort but in proving economic loss, the evidentiary burden of proof was on a claimant---At the time of filing the suit the respondent had annexed and subsequently exhibited all the relevant documentary evidence including legal fees and certificates aggregating a sum of Rs.310,000/-, therefore he successfully discharged the onus of proof on him---During cross-examination of the respondent conducted by the appellant no suggestion had ever been made to the respondent that he had frivolously instituted the suit for damages; that he had not suffered any loss due to actions of the appellant; or that he had instituted the suit for damages as vendetta or to settle a personal grudge---In the absence of such suggestions, it would be deemed that the appellants had admitted that the respondent had suffered loss due to the actions of the appellant---Said findings had also been upheld by all the courts below---Respondent had indeed suffered monetary/economic loss due to the actions of the appellant, that he had an actionable claim which he brought before the Trial Court in the form of a suit for recovery of damages, and that he was well within his rights to be compensated for such loss suffered---Trial Court/Civil Court was well within its jurisdiction to pass decree for payment of damages to the extent of Rs.310,000/-, and a sum of Rs.2,000,000/- in favour of the respondent for the mental agony and torture suffered by the respondent due to the actions of the appellant---Appeal was dismissed.

Munawar Ahmed, Chief Editor Daily Sama and another v. Muhammad Ashraf PLD 2021 SC 564 ref.

(c) Tort---

----Vicarious liability---Corporation vicariously liable for the acts of its employees---Employees of a Corporation not implementing orders of National Industrial Relations Commission---Factors to be considered by Courts when determining vicarious liability of the Corporation---First consideration that the courts have to look at when deciding whether an entity/organization is vicariously liable for breaches in tort committed by its employees is whether or not a tortious breach has actually been committed in the first place---Next consideration would be whether or not the tortious acts had been committed by an employee of an organisation during the course of his employment---Final consideration would be whether it would be fair, just and reasonable to hold an organisation/entity vicariously liable for the actions of its employees during the course of their employment which resulted in tortious acts.

First of many considerations that the courts have to look at when deciding whether an entity/organization is vicariously liable for breaches in tort committed by its employees is whether or not a tortious breach has actually been committed in the first place. In the present case the respondent-employee had to approach courts of law repeatedly for redressal of his legitimate grievances, and but for acts/ omissions of employees of the appellant Corporation, who were acting in the course of their employment, the respondent could have been spared the time, effort, expense and mental agony of repeatedly approaching different legal fora for years on end. A tort had been committed by the appellant against the respondent when the appellant failed to implement the order of the National Industrial Relations Commission (NIRC) as well as when the appellant forced the respondent to repeatedly arrange legal representation for other ancillary and connected matters before the NIRC.

Lister v. Hesley Hall Ltd, [2002] 1 AC 215; Dubai Aluminium Co Ltd. v. Salaam [2003] 2 AC 366 and Catholic Child Welfare Society and others v. Various Claimants and the Institute of the Brothers of the Christian Schools and others 2012 UKSC 56 ref.

The next consideration would be whether or not the tortious acts had been committed by an employee of an organisation during the course of his employment. In the present case it was never the case of the appellant before any of the courts below that the appellant had directed its employees to implement the NIRC order and that individual employees had flouted an express order of the appellant to implement the said order of the NIRC. It is also not the case of the appellant that the non-implementation of judgements/orders were done through unauthorised acts of which the appellant had no knowledge. On the contrary, there is enough material on record to show not only that at all relevant times the relevant officers/decision makers had knowledge of the acts in question but either directly, indirectly, or by implication, authorised tortious acts or failed to act where, by law, they were required to act or tacitly encouraged, condoned or approved of such acts. The appellant never distanced itself from the any of its employees by claiming that the said employees had failed to implement the order of NIRC of their own accord. In the absence of anything to the contrary, it would appear that the employees of the appellant who had failed to implement the NIRC order as well as those employees who were delaying the implementation of the said order were doing so in the course of their employment with the knowledge, consent and approval of the appellant. The appellant could have directed the employees under its control to implement the order of NIRC immediately after it was passed. The appellant, instead, not only delayed, hampered or procrastinated but also failed to implement the said order and initiated implementation actions only when the respondent approached the NIRC through his various petitions for implementation of the order. The consequences and responsibility for not implementing the NIRC order as expeditiously as possible must be borne by the appellant in the absence of any express order directing its employees to implement the NIRC orders in letter and spirit as expeditiously as possible.

The final consideration would be whether it would be fair, just and reasonable to hold an organisation/entity vicariously liable for the actions of its employees during the course of their employment which resulted in tortious acts. The lethargy and intentional lack of interest in implementing lawful orders of a court of competent jurisdiction shown by the appellant cannot be granted a premium by holding that, for policy reasons, it would not be fair, just and reasonable to find the appellant vicariously liable for the tortious breaches committed by its employees when it failed to implement the NIRC order. The appellant in the present case is a state-owned television broadcaster and falls within the administrative competence of the information and Broadcasting Division of the Federal. However, admittedly, the appellant is a non-statutory body having its own Service Rules as well as Memorandum and Articles of Association. Whilst it may be controlled and directed by the Federal Government through the Information and Broadcasting Division, it is, for all intents and purposes, a separate corporate entity. Therefore, the Respondent was not bound to follow the requirement laid down in section 79 of the C.P.C. read with Article 174 of the Constitution since the appellant cannot be considered a part of the Federal Government for the sole reason that the Government administers the appellant. The appellant has its own corporate personality and cannot be considered a part of the Government. It can therefore sue or be sued in its own name and there is no requirement for potential, claimants/plaintiffs to implead the Government when they wish to sue the appellant. Appeal was dismissed.

(d) Tort---

----Vicarious liability---Suit for damages for tortious liability against a State entity/Corporation--- Maintainability--- Sovereign immunity---Scope---State Corporation cannot claim that it cannot be sued vicariously for the actions of its employees by invoking sovereign immunity---Even otherwise, the defence of sovereign immunity and its application in Pakistan has been done away with by the Supreme Court in the case reported as Pakistan through Secretary to the Government of Pakistan, Ministry of Railways and Communications, Karachi v. Muhammad A. Hayat (PLD 1962 SC 28).

Pakistan through Secretary to the Government of Pakistan, Ministry of Railways and Communications, Karachi v. Muhammad A. Hayat PLD 1962 SC 28; Pakistan through Secretary, Ministry of Rehabilitation of Pakistan v. Muhammad Yaqoob Butt and others PLD 1963 SC 627; Ch. Muhammad Nawaz v. Province of Punjab PLD 1975 BJ 11 and Nazir Ahmed v. Islamic Republic of Pakistan through Secretary Establishment Division PLD 1991 Lah. 469 ref.

Muhammad Nazir Jawad, Advocate Supreme Court and Ahmad Nawaz Chaudhary, Advocate-on-Record for Appellant.

Malik Muhammad Qayyum, Senior Advocate Supreme Court (via V.L. from Lahore) and Chaudhary Akhtar Ali, Advocate-on-Record for Respondent.

2023 S C M R 636

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Amin-ud-Din Khan and Ayesha A. Malik, JJ

IMRAN AHMAD KHAN NIAZI---Petitioner

Versus

Main MUHAMMAD SHAHBAZ SHARIF---Respondent

C. P. 3436-L/2022 and C. P. 3437-L/2022, decided on 29th December, 2022.

(Against the consolidated order of the Lahore High Court, Lahore, dated 07.12.2022, passed in C.Rs. Nos.76624 and 76628 of 2022)

Per Syed Mansoor Ali Shah, J; Amin-ud-Din Khan, J agreeing; Ayesha A. Malik, J dissenting. (Majority view)

(a) Constitution of Pakistan---

----Art. 185(3)---Jurisdiction of the Supreme Court under Article 185(3) of the Constitution to grant leave to appeal---Such jurisdiction is discretionary---Conduct of a petitioner has a substantial bearing on the question of granting or declining such leave to him.

Noora v. State PLD 1973 SC 469; Pakistan v. Faizan 1983 SCMR 413; Bilqis v. Fazal 1987 SCMR 1441; Haider v. Manzur 1989 SCMR 1133; Amir v. Dad PLD 1990 SC 1078; State v. Akbar 1992 SCMR 964; Nawaz v. Hameed 1993 SCMR 1902; Seamlen Pipe Industries v. Security Leasing Corporation 2002 SCMR 1419; Sharif v. Hamayun 2003 SCMR 1221; Bank of Punjab v. Shahzad 2006 SCMR 1023; Ilahi v. Altaf 2011 SCMR 513; Ghulam Rasool v. State PLD 2022 SC 806; Tilawatunnisa v. Settlement Commissioner 1978 SCMR 225; Noor Khan v. M.B.R. 1984 SCMR 681; Zahida v. State 1984 SCMR 687; Deen Carpets v. I.T.O. PLD 1989 SC 516; Hassan Bano v. Mumtaz PLD 1989 SC 346; British Biscuits Company v. Atlas Investment Bank 2005 CLD 674; Ali Shan v. Essem Hotel 2007 SCMR 741 and Kamal v. Govt. of N.W.F.P. 2010 SCMR 1377 ref.

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

----O. XI, R. 21---Party failing to comply with any order to answer interrogatories, or for discovery or inspection of documents---Effect---Conduct of party---Scope---Conduct of a party is material for the purpose of exercising the court's discretion under Rule 21 of Order XI, C.P.C.: the court takes the penal action of dismissing the suit of the plaintiff or striking out the defence of the defendant when the party concerned is guilty of contumacious conduct by disregarding the specific order of the court, for compliance of which the court has granted a reasonable time and a sufficient opportunity---However, it is not only a deliberate failure to comply with a specific order of the court by a party that is regarded as his contumacious conduct but a series of separate inordinate delays caused by him at different stages of the proceedings of the case is also a convincing proof of such conduct.

Babbar Sewing Machine Company v. Trilok Nath AIR 1978 SC 1436; U.B.L. v. Yousuf 1988 SCMR 82; Culbert v. Stephen G. Westwell & Co [1993] PIQR 54; Grovit v. Doctor [1997] 1 All ER 417; Arbuthnot Latham Bank v. Trafalgar Holdings [1998] 2 All ER 181 and Choraria v. Sethia [1998] EWCA Civ 24 = [1998] Lexis Citation 20 ref.

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

----O. XI, Rr. 7 & 21---Defamation Ordinance (LVI of 2002) S. 14---Constitution of Pakistan, Art. 10A---Defamation---Suit for damages---Contumacious conduct of defendant---Defendant failing to comply with order to answer interrogatories and prolonging the proceedings---Effect---Striking out of the right of defence---[Per Syed Mansoor Ali Shah, J. (Majority view): Proceedings of the case were prolonged by the petitioner (defendant) at every stage of the case in the Trial Court to delay the decision of the case---During proceedings for delivering and answering the interrogatories by the parties under Order XI, C.P.C., the petitioner showed the same delaying tactics by which he had been hindering the progress of the suit earlier---Trial Court had provided the petitioner with more than sufficient opportunities to submit his answers to the interrogatories of the respondent, before taking the penal action under Rule 21 of Order XI, C.P.C.---Conduct of the petitioner had remained willfully contumacious and disobedient throughout the proceedings of the case in the Trial Court---Trial Court had not committed any illegality or material irregularity in the exercise of its jurisdiction by dismissing the objections (application) of the petitioner for rejection of the interrogatories of the respondent and directing him to submit the answers to those interrogatories and subsequently by striking out the right of defence of the petitioner due to non-submission of the answers to the said interrogatories]---[Per Ayesha A. Malik, J. (Minority view): In the present case the order of the Trial Court whereby the right of the petitioner's defence was struck out, the facts of the case did not establish that the petitioner committed willful default or intentionally and deliberately disobeyed an order of the Court---Effect of striking out the defence was that it deprived the party of its ability to defend itself in the case which was a serious matter---In the present case the Court had other alternatives, at its disposal, to regulate the pace of the proceedings as well as the conduct of the petitioner, one of which was to impose costs which would not only serve as a form of deterrence but would also lay the foundation for expeditious justice---Trial Court proceeded in a mechanical manner with the case, and granted numerous adjournments without so much as imposing cost so as to discourage the same---Order by which the right of defence of the petitioner was struck out, did not state that it was based on the history of the case or the overall conduct of the petitioner in the case---Petitioner's recent public shooting and injury at a political rally justified the grant of an adjournment for a reasonable time under the circumstances---Right to defence could not be struck out without considering all relevant factors---Impugned order of the Trial Court, whereby right of defence of petitioner was struck out, was set aside, and the case was remanded to the Trial Court to grant reasonable opportunity to the petitioner to file answers to the interrogatories and thereafter to proceed with the case in accordance with law]

Per Syed Mansoor Ali Shah, J. (Majority view)

Respondent instituted a suit for recovery of damages against the petitioner alleging the commission of his defamation by the petitioner. The petitioner filed his written statement. After the close of the pleadings, the trial court fixed the case for pre-trial proceedings of discovery and inspection under Order XI of the Code of Civil Procedure 1908 ("C.P.C."). Both the parties delivered their respective interrogatories. The respondent later withdrew some questions and delivered the amended interrogatories, with permission of the trial court. The respondent filed the answers to the interrogatories of the petitioner. The petitioner, however, filed objections (application) for rejection of the interrogatories of the respondent, instead of filing the answers thereto. The trial court observed that an application for rejection of the interrogatories could be filed under Rule 7 of Order XI, C.P.C. within seven days after service of the interrogatories, while the petitioner had first sought several adjournments for submitting the answers to the interrogatories and then filed such application (objections) after the lapse of about two months without any lawful justification and without seeking condonation of the delay. With these observations, the trial court overruled the objections of the petitioner and directed him to submit his answers to the interrogatories of the respondent, vide its order dated 20.10.2022. The petitioner was, thereafter, provided with several opportunities to file the answers to the interrogatories, but he failed to avail them. Consequently, the trial court struck out the right of defence of the petitioner under Rule 21 of Order XI, C.P.C., vide its order 24.11.2022, due to his non-submission of the answers to the said interrogatories. The petitioner challenged both the orders of the trial court by filing two revision petitions in the High Court, which petitions were dismissed by the impugned order and order of trial court was upheld.

Suit was instituted by the respondent, on 07-07-2017. The petitioner appeared in the suit through his counsel, on 09-09-2017. Petitioner and respondent filed several applications during proceedings of the case, wherein the petitioner was given warnings of "last and final" and "absolute last and final" opportunities to advance his arguments. Petitioner was provided with nine opportunities to file his written statement, again with warnings of "last and final" and "absolute last and final" opportunities. At last, the petitioner filed his written statement on 27-07-2021 after a period of about four (4) years since his appearance in the suit on 09-09-2017, which should have been filed by him till 09.10.2017 within a period of thirty days from the day of his appearance in the suit. Summary of the proceedings of the case in the trial court made during a period of four years, from the date of appearance of the petitioner on 09-09-2017 till 22-09-2021, gave credence to the contention of the respondent that the conduct of the petitioner had remained contumacious throughout the proceedings of the case in the trial court. The way the proceeding was prolonged by the petitioner at every stage of the case in the trial court, to delay the decision of the case, was more than evident.

Survey of the proceedings of the trial court as to delivering and answering the interrogatories by the parties under Order XI, C.P.C., from 05-01-2022 to 20-10-2022, showed the same delaying tactics of the petitioner by which he had been hindering the progress of the suit earlier.

Trial court had provided the petitioner with more than sufficient opportunities to submit his answers to the interrogatories of the respondent, before taking the penal action under Rule 21 of Order XI, C.P.C.

Overall conduct of the petitioner showed that he had protracted the proceedings of the case at every stage in the trial court, to delay the decision of the case.

Conduct of the petitioner had remained willfully contumacious and disobedient throughout the proceedings of the case in the trial court. Trial court had not committed any illegality or material irregularity in the exercise of its jurisdiction by dismissing the objections (application) of the petitioner for rejection of the interrogatories of the respondent and directing him to submit the answers to those interrogatories and subsequently by striking out the right of defence of the petitioner due to non-submission of the answers to the said interrogatories. Petitions for leave to appeal were dismissed and leave was refused.

Per Ayesha A. Malik, J. (Minority view)

The basic question in the present case was to determine whether there was willful default on the part of the petitioner whereby he deliberately and intentionally disobeyed the order of trial court requiring him to file answers to the interrogatories. Present case was not a case of willful default and the failure on the part of the petitioner to file his answers was due to circumstances beyond his control. On 03-11-2022, the petitioner, while leading a political rally, was shot at and was taken to the hospital where he was operated upon. This fact was shown on all national news channels and covered by the print media and was not denied by the respondent. The trial court itself accepted the reason of hospitalization and injury on 08-11-2022 as well as 17-11-2022 which was evident from its orders. Under the circumstances, there was sufficient cause for seeking the adjournment and the Court acted in haste by issuing a warning on 17-11-2022 and thereafter incorrectly recorded in its order of 24-11-2022 that there was no lawful justification for the grant of adjournments especially since it accepted these reasons on 08.11.2022 and 17-11-2022. Accordingly, there was sufficient ground to give the adjournment, and the default was not willful. Under these circumstances, it could not be said that there was willful default and it also could not be said that the conduct of the petitioner was willfully contumacious, obstinate and disobedient. Further it also could not be said that during the period from 08-11-2022 to 24-11-2022, the adjournments were sought with the intent to delay the proceedings.

Power for striking out of the defence under Order XI, Rule 21, C.P.C. can be exercised where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party; however, it is expected that before making an order for striking out of defence, the court must consider all the reasons given for the default which merits due consideration and assessment of facts. This is because the effect of striking out of the defence is that it will deprive the party of its ability to defend itself in the case which is a serious matter. In the present case, the court had other alternatives, at its disposal, to regulate the pace of the proceedings as well as the conduct of the petitioner, one of which was to impose costs which would not only serve as a form of deterrence but would also lay the foundation for expeditious justice and promote a smart legal system.

Qazi Naveed ul Islam v. District Judge 2023 SCP 32 ref.

In this case the trial court exercised its power mechanically and more importantly, the order by which the right of defence of the petitioner was struck out, did not state that it was based on the history of the case or the overall conduct of the petitioner in the case. In the event that the trial court was of the opinion that the conduct of the party suggested that there was willful disobedience or deliberate attempt to delay the proceedings then it had to record its findings accordingly. The trial court focused on the dates subsequent to the order by which it dismissed the objections (application) of the petitioner for rejection of the interrogatories of the respondent and directed him to submit the answers to those interrogatories, and not on the overall conduct of the petitioner, and reasoned that the adjournments were sought without cause and sufficient opportunities had been granted, i.e. the adjournments from 08-11-2022 to 24-11-2022. However, the order sheet did show that there were many adjournments, it also showed that oftentimes, the court had proceeded in a routine manner without much focus on the reasons for the adjournments.

The petitioner's recent public shooting and injury at a political rally justified the grant of an adjournment for a reasonable time under the circumstances. The right to defence could not be struck out without considering all relevant factors, and the court must weigh the balance between a fair trial and the circumstances at hand. The order sheet showed that the court proceeded in a mechanical manner with the case, and granted numerous adjournments without so much as imposing cost so as to discourage the same.

The striking out of the petitioner's right to defence, at present stage, while ignoring the legitimate factors in play, would be a gross injustice. The balancing act of justice must be upheld, and under these circumstances, the right to a fair defence must prevail. Accordingly, the impugned order of the trial court, whereby right of defence of petitioner was struck out, was set aside; and the case was remanded to the trial court to grant reasonable opportunity to the petitioner to file answers to the interrogatories and thereafter to proceed with the case in accordance with law.

Per Syed Mansoor Ali Shah, J [Majority view]

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

----O. XVII--- Constitution of Pakistan, Arts. 10A & 37(d)---Adjournments---Scope---Conclusion of litigation process within reasonable time period---Significance---Leniency shown on part of judges of Trial Court in the matter of accommodating unjustified requests for adjournment, even at the cost of disregarding the timelines provided in the relevant laws, is unwarranted---Peremptory order of the court, which specifies a time to do a certain act in the proceedings of the case with a warning of last opportunity, must be followed by the legal consequences prescribed by the relevant law for its non-compliance---Orders granting repetitive adjournments with warnings of "last and final" and "absolute last and final" opportunity become meaningless and shatter the confidence of the litigant public in the court orders and consequentially weaken the authority and fiat of the court---Toothless court is the worst form of injustice---Radical approach is required to tackle the problem of delay in the litigation process by enforcing a court-controlled case management system, which should ensure that once a litigant has entered the litigation process, his case proceeds in accordance with a timetable as prescribed by rules of court---Rules containing time limits for doing the specified acts necessary for the progress of a case are intended to accomplish the constitutional goal of fair trial and expeditious dispensation of justice by concluding the litigation process within a reasonable timeframe---Such rules should, therefore, be observed.

Moon Enterpriser v. SNGPL 2020 SCMR 300; Department of Transport v. Chris Smaller Transport [1989] 1 All ER 897 and Arbuthnot Latham Bank v. Trafalgar Holdings [1998] 2 All ER 181 ref.

(e) Administration of justice---

----Procedural law--- Timeframes provided in procedural law---Interpretation---Procedural rule prescribing the timeframe for doing a certain act in the course of the proceedings of a case should be followed as a rule and the departure therefrom can be made only as an exception in exceptional circumstances beyond the control of the party concerned.

The provisions of a procedural law are ordinarily directory in nature and are construed liberally to advance the cause of justice, as their main purpose is to facilitate the administration of justice. The same purposive approach is to be adopted while construing and applying a procedural provision which provides a timeframe for doing a certain act necessary to the further progress of the case. The main purpose of providing a timeframe in procedural rules is to expedite the hearing and conclusion of the case and to avoid unnecessary adjournments. Such rules are, therefore, to be adhered to for giving effect to the purpose of their making, else the non-compliance therewith would frustrate the objective of expeditious decision of the cases sought to be achieved by the legislature or the rule-making authority, as the case may be. The procedural rule prescribing the timeframe for doing a certain act in the course of the proceedings of a case should, therefore, be followed as a rule and the departure therefrom can be made only as an exception in exceptional circumstances beyond the control of the party concerned. The court may also ask for the filing of an affidavit or the necessary documents, depending on the facts and circumstances of the case, in support of those exceptional circumstances.

Kailash v. Nanhku AIR 2005 SC 2441 ref.

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

----O. XI, Rr. 1, 2, 6 & 7---Interrogatories submitted to the Court---Power of the Trial Court under Rules 1 and 2 of Order XI, C.P.C.---Scope---Power of the Trial Court under Rule 1 of Order XI, C.P.C. to examine the interrogatories before delivering the same to the party concerned under Rule 2 and reject any irrelevant interrogatory at that stage, is permissive, not obligatory; the non-exercise of which does not vitiate the order of the court delivering the interrogatories to the party concerned under Rule 2 for submitting the answers---Since Trial Courts are overburdened with high pendency of cases, they cannot be expected, in the prevailing circumstances, to make such examination of the interrogatories in every case, under Rule 1---Rather, it is more practicable in the prevailing circumstances and in our system of administration of civil justice, which is primarily adversarial, that the party concerned should invite the attention of the Trial Court for such examination, either (i) by making an application under Rule 7 of Order XI if all or most of the interrogatories delivered appear to be irrelevant by specifying the particular objection taken to each of such interrogatories separately, or (ii) by answering those interrogatories which he thinks are relevant and taking objection to those which he thinks are irrelevant as per Rule 6 of Order XI, C.P.C.

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

----O. XI, R. 21---Process of delivering interrogatories and requiring their answers---Non-compliance with order for discovery---Suo motu power of Trial Court to take penal action---Scope---Penal action under Rule 21 of Order XI, C.P.C. can be taken by a court not only on an application of the party, but also suo motu---Trial Court does have the power to take the penal action on its own if its order is not complied with despite giving the warning of last opportunity for compliance.

Abdul Aziz v. Raj Chhabra AIR 1968 All 119 and Namita Dhar v. Amalendu Sen AIR 1977 Cal 187 not relevant.

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

----O. XI, R. 21---Process of delivering interrogatories and requiring their answers---Non-compliance with order for discovery---Application under Rule 21 of Order XI, C.P.C.---Form---Expression "apply" used in Rule 21 includes oral application (request) also, and the application need not be in the written form necessarily.

Abdul Aziz v. Raj Chhabra AIR 1968 All 119 ref.

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

----O. XVII, R. 1---Adjournments---Scope---Power of the trial court under Rule 1 of Order XVII of the C.P.C. to grant an adjournment on being shown the sufficient cause is discretionary; therefore, an appellate court cannot interfere with the order of the Trial Court, either granting or refusing adjournment, unless it is found that the discretionary power has been exercised perversely or arbitrarily.

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

----O. XI, Rr. 1 & 2---Interrogatories---Significance---Interrogatories serve as a useful tool to shorten litigation and reduce expenses of litigation---However, the process of interrogatories should not be abused and misused to prolong the trial and add to the expenses---Such an abuse of the process of interrogatories has to be curbed with a heavy hand---Fair use of the process of interrogatories should be encouraged, for it would result in considerable saving of time and money and thus be beneficial to the parties of the case as well as to the administration of justice in general.

J&LS Goodbody v. Clyde Shipping Company and McCabe v. Irish Life Assurance [2015] 1 IR 346 ref.

Per Ayesha A. Malik, J; dissenting with Syed Mansoor Ali Shah, J. (Minority view)

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

----O. XI, R. 21---Party failing to comply with any order to answer interrogatories, or for discovery or inspection of documents---Effect---Consequence of noncompliance with an order of the Court directing for answers to the interrogatories, discovery or inspection is grave which is why the law is settled on this point that penal provisions should be strictly construed and used with caution where circumstances mandate the same---What the Court is essentially looking for under Order XI, Rule 21, C.P.C. is a default on the part of the plaintiff or defendant to comply with its order to file its answer to the interrogatories or for discovery, or for inspection of documents---Test to ascertain whether there has been a default in compliance with an order of the Court is to see whether such default was done willfully---Act of being willful means that it is done deliberately and intentionally and cannot be something that is done by accident or inadvertently or for reasons beyond the control of the party---Essentially, it goes directly to the conduct of a person with reference to the order for filing the answers to interrogatories, or for discovery or inspection and the intent behind such conduct.

Messrs United Bank Limited v. Yousuf Haji Noor Muhammad Dhadhi 1988 SCMR 82 and Messrs Babar Sewing Machine Company v. Tirlok Nath Mahajan (1978) 4 SCC 188 ref.

(l) Administration of justice---

----Procedural law, compliance with---Penal provisions, interpretation of---Exercise of discretion by court---Scope---Compliance with rules of procedure is fundamental to the pace and course of the litigation---When construing penal provisions, the exercise of judicial discretion by the Court has to be based on sound reasons that the circumstances justify---Judicial discretion in itself has inbuilt restraint which means that the Court cannot ignore facts and circumstances prevailing at the time and where such error can be corrected or condoned for adequate reasons, the court can condone the non-compliance in furtherance of justice because there has been no deliberate attempt to ignore an order of the court---Further penal provisions do not mandate that they be applied in a mechanical way in every case rather it must be a thoughtful step, based on circumstances, that indicates willful failure, deliberate default and intentional non-performance.

Asha Rani Gupta v. Vineet Kumar 2022 SCC OnLine SC 829; Miss Santosh Mehta v. Om Prakash and others (1980) 3 SCC 610 and Bilmal Chand Jain v. Sri Gopal Agarwal (1981) 3 SCC 486 ref.

Syed Ali Zafar, Advocate Supreme Court, Mian Muhammad Kashif, Advocate Supreme Court assisted by Imran Iqbal, Advocate for Petitioner (in both cases).

Mustafa Ramday, Advocate Supreme Court assisted by Ms. Zoe K. Khan, Akbar Khan, Saad Sibghatullah, Asfand Mir, Ms. Mahnoor Ahmed and Bakhtayar Malik, Advocates for the Respondent (in both cases).

2023 S C M R 670

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Sayyed Mazahar Ali Akbar Naqvi and Athar Minallah, JJ

SARFRAZ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 560 of 2020, decided on 2nd January, 2023.

(Against the judgment dated 24.01.2017 passed by the Lahore High Court, Lahore in Criminal Appeal No. 288-J of 2013 and Murder Reference No. 304 of 2013)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- During the course of proceedings before the Trial Court, the complainant stated before the Court that he moved an application for registration of case, which bears his signature, without disclosing time and the name of the subscriber of the application---Further it was not mentioned anywhere that where and when such application was drafted when it was an admitted fact that the "Police Karvai" was conducted in Police Station---Complainant was a distant relative of deceased residing at a distance of 6 kilometers while real son of deceased who was inmate of the same house was absent in every material aspect of the case, which was a serious lapse---Son of the deceased who was stated to have witnessed the occurrence, was given up at the time of trial---Occurrence had taken place in the odd hours of the night, however, no source of light had been mentioned by the Investigating Officer either in the FIR, rough site plan, scaled site plan or even during the course of proceedings before the Trial Court---Both the alleged witnesses of the ocular account were not residents of the locality and were residing at a distance of 5/6 kilometers away from the place of occurrence---Not a single person from the inmates of the house where occurrence took place or from surrounding inhabitants appeared in support of the prosecution version and the whole prosecution case was silent about this aspect of the matter---Record clearly reflected that the prosecution witnesses were not present at the place of occurrence, rather they managed to appear as witnesses after due consultation and deliberation---Record further showed that the complainant was inimical towards the deceased---In such circumstances, it seemed impossible that deceased would have invited an inimical person for his help before his death---Prosecution had failed to prove its case beyond any reasonable shadow of doubt---Appeal was allowed and accused persons were acquitted of the charge.

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

----S. 302(b)---Qatl-i-amd---Motive---Burden of proof---if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence---Otherwise, the same would go in favour of the accused.

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

----S. 302(b)---Qatl-i-amd --- Crime empty sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon---In such circumstances the positive report of the Laboratory looses its evidentiary value---Sending the crime empties together with the weapon of offence is not a safe way to sustain conviction of the accused and it smacks of foul play on the part of the Investigating Officer simply for the reason that till recovery of weapon, he keeps the empties with him for no justifiable reason.

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

----S. 302(b)---Qatl-i-amd---Heinousness of offence---Mere heinousness of the offence if not proved to the hilt is not a ground to punish an accused.

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

----S. 302(b)---Qatl-i-amd---Benefit of doubt---Scope---For the accused to be afforded the right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused.

Mst. Asia Bibi v. The State PLD 2019 SC 64; Tariq Pervaiz v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Abdul Jabbar v. State 2019 SCMR 129 ref.

Sagheer Ahmed Qadri, Advocate Supreme Court for Appellants.

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

Nemo for the Complainant.

2023 S C M R 679

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

SHAHZAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1353 and Civil Miscellaneous Application No. 1831 of 2022, decided on 6th December, 2022.

(On appeal against the order dated 15.07.2022 passed by the Islamabad High Court, Islamabad in Criminal Miscellaneous No. 805-B of 2022)

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

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 21 & 24---Penal Code (XLV of 1860), Ss. 109 & 509---Constitution of Pakistan, Art. 185(3)---Transmitting objectionable photographs and videos through mobile phone---Bail, grant of---Rule of consistency---Although the petitioner was nominated in the FIR with the specific allegation of transmitting objectionable photographs and videos of the complainant but the record revealed that the sim used for the purpose of transmitting the said photographs and videos was owned by person "A", co-accused, and according to "A" he forgot his sim at the house of person "T", another co-accused---Both "A" and "T" were brother-in-law of the complainant---Although according to the investigation, the mobile phone in which the said objectionable photographs and videos were available, was recovered from the possession of the accused but according to the prosecution while transmitting the said objectionable photographs and videos the sim owned by "A" was used---Bail had already been granted to "A" and in such eventuality, the accused had become entitled to the concession of bail on the principle of rule of consistency---Even otherwise, the accused had no previous criminal record---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---Constitution of Pakistan, Art. 185(3)---Bail---Offences not falling within the prohibition contained in section 497, Cr.P.C.---In such like cases grant of bail is a rule and refusal is an exception.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Arshad Hussain Yousafzai, Advocate Supreme Court for Petitioner.

Malik Javaid Iqbal, Additional Attorney General, Huma Khalil, SI and Waseem Sikandar, SI for the State.

Ch. Zafar Ali Warraich, Advocate Supreme Court along with Complainant in person.

2023 S C M R 681

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Muhammad Ali Mazhar, JJ

COMMISSIONER INLAND REVENUE ZONE-I, REGIONAL TAX OFFICE, QUETTA ---Petitioner

Versus

Messrs HAJVAIRY STEEL INDUSTRIES (PVT.) LIMITED, QUETTA and another---Respondents

Civil Petitions Nos. 3134 and 3135 of 2022, decided on 30th January, 2023.

(Against the judgment dated 22.06.2022 of the High Court of Balochistan, Quetta passed in Sales Tax Reference Applications Nos. 03 and 04 of 2021)

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

----Ss. 3(1A) & 71---Sales Tax Special Procedures Rules, 2007, R. 58H---Steel re-rolling mills---Scope and payment of sales tax---'Final discharge' of tax liability---Tax department (petitioner) contended that since the Sales Tax Special Procedure Rules, 2007 was applicable in the present case, the tax payers (respondents) were not liable under section 3 of the Sales Tax, Act, 1990 ('the Act'), but they would still be liable under section 3(1A) of the Act because amendments therein were made subsequently, that is, during the subsistence of section 71 of the Act---Validity---Section 71 of the Act enables special procedure to be made with regard to the scope and payment of tax to be made and the Sales Tax Special Procedures Rules, 2007 ('the Special Procedure') were made pursuant thereto, which contained an overriding, non obstante, clause, which uses categorical and clear language and must be given effect to, and the respondents were entitled to be treated in accordance therewith---Particular rate and mechanism for the imposition of sales tax on steel re-rollers was prescribed and it was stipulated that it 'will be considered as their final discharge of tax liability', which the respondents had discharged in accordance therewith---Petitions for leave to appeal were dismissed.

Zak Re-Rolling Mills (Pvt.) Ltd. v Appellate Tribunal Inland Revenue, 2020 SCMR 131 not applicable.

(b) Constitution of Pakistan---

----Art. 185(3)---Tax laws---Petitions for leave to appeal/appeals filed before the Supreme Court---Relevant provisions of the law to be attached with petitions/appeals---Supreme Court observed that tax laws in the country are subject to extensive changes almost every year, and at times more than once in a year, therefore, in tax cases the relevant provisions of the law as at the relevant time must be reproduced or attached with the appeal/petition filed in the Supreme Court, but more often than not, this is still not done; that resultantly considerable court-time is unnecessarily wasted in just trying to ascertain the law at the relevant time.

(c) Precedent---

----To constitute precedent the law which was interpreted must be the same or similar to the case in hand.

Ahsan Ahmad Khokhar, Advocate Supreme Court and Khalid Aziz, Assistant Director, RTO, Quetta for Petitioners (in both cases).

Tariq Mahmood, Senior Advocate Supreme Court for Respondent (has filed caveat) (in C.P. No. 3134 of 2022).

Nemo for Respondent (in C.P. No. 3135 of 2022).

2023 S C M R 686

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

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

Versus

GHULAM SHABBIR and others---Respondents

Civil Appeals Nos. 52-K to 71-K of 2022, decided on 30th December, 2022.

(Against the judgment dated 03.12.2021 passed by the Sindh Service Tribunal at Karachi in Appeals Nos. 508 to 526 of 2020 and Appeal No. 8 of 2021)

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

----R. 8-A---Promotion---Acting charge basis---Acting charge does not amount to an appointment by promotion on regular basis, nor does it confer any vested right for regular promotion to the post or grade held on acting charge basis.

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

----R. 8-A---Promotion on acting charge basis, regularization of---Effective date of promotion---Scope---Promotion of respondents was made on acting charge basis in the year 2017 but after three years the incumbents were promoted on regular basis, which demonstrated that there was no case of withdrawal, or dissatisfactory service, or complaint, or any recommendation of the Provincial Public Service Commission (PPSC) justifying the reversion from acting charge to the substantive post, rather the competent authority of its own volition and satisfaction regularized the promotion made on the basis of acting charge after three years on the recommendations of the Departmental Promotion Committee (DPC) which means that, after verifying the dossier with regard to the performance and antecedents of the respondent-employees, the recommendations for regularizing the promotions were acted upon by the competent authority---Despite this the matter was yet again sent to the DPC for effecting regularization for recommendations after a timespan of three years which did not stand to reason---Respondents merely approached the Tribunal for directions to consider the regularization of their acting charge promotion from the date when they were initially assigned the duties in BS-17 on acting charge basis rather than regularizing their promotion after three years with immediate effect, or else they should have been considered for the regularization of their acting charge promotion from the date when the posts had fallen vacant---Sub-rule 4 of Rule 8-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 ("the 1974 APT Rules"), provides that acting charge appointment can be made against posts which are likely to fall vacant for a period of six months or more and against vacancies occurring for less than six months, but in the case of the present respondents the acting charge continued for up to three years without any logical justification or reason and at the end of the day their promotion was regularized without any demur but with immediate effect---Command of Sub-rule 4 of Rule 8-A of the 1974 APT Rules was not adhered to despite the availability of vacant positions on which the promotion was regularized after a considerable period---Tribunal had not issued any directions for reckoning or regularizing the date of promotion on acting charge basis with effect from any specific date but in all fairness, the directions were issued to the competent authority to consider the promotion with effect from the dates when vacancies in their quota became available---No illegality was found in the impugned judgment of the Tribunal---Appeals were dismissed.

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

----R. 8-A--- Promotion / appointment on acting charge basis---Duration---To stretch or continue acting charge or ad hoc arrangement on own pay scale (OPS) for an extensive period rather than making timely appointments or filling the post by promotion according to the ratio or quota, as the case may be, creates misgivings and suspicions and such a tendency is highly destructive and deteriorative to the civil service structure---Where appointments on current or acting charge basis are necessary in the public interest, such appointments should not continue indefinitely and every effort should be made to fill posts through regular appointments in shortest possible time.

Secretary to Government of the Punjab, Communication and Works Department, Lahore and others v. Muhammad Khalid Usmani and others 2016 SCMR 2125; Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Abdul Jabbar Memon and others' case 1996 SCMR 1349 and Pakistan Railways through G.M., Lahore and another v. Zafarullah, Assistant Electrical Engineer and others 1997 SCMR 1730 ref.

(d) Civil service---

----Selection process--- Merit--- Nepotism and favoritism---Adverse consequences---Wrongful selection of blue eyed candidates founded on nepotism, favoritism or other extraneous considerations or pressures lead to chaos and turmoil in the civil service structure and also incites unrest and discontent amongst the civil servants with long-term and serious repercussions---Merit should be the sole criteria in the selection process which is an integral part of good governance.

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

----R. 8-A---Promotion on acting charge basis, regularization of---Effective date of promotion---Scope---Promotion cases of the candidates holding acting charge under the recommendations of the Departmental Promotion Committee (DPC) may be considered by the competent authority, with their fine sense of judgment and proper application of mind from the date when the posts in the promotion quota fall vacant

Dr. Muhammad Amjad and another v. Dr. Israr Ahmed and others 2010 SCMR 1466; Water and Power Development Authority through Chairman, Lahore and another v. Muhammad Nawaz Khan and another 1998 SCMR 640; Government of N.-W.F.P. and others v. Buner Khan and others 1985 SCMR 1158; S. Abu Saeed v. Government of N.-W.F.P. through Secretary to the Government of N.-W.F.P, Education Department, Peshawar and another 1990 SCMR 1623; B.S. Yadav v. State of Haryana, [1981] 1 SCR 1024; A. Janardhana v. Union of India [1983] 2 SCR 636; G.P. Doval v. Chief Secretary, Government of U.P. [1984] 4 SCC 329; Narender Chadda v. Union of India [1985] 2 SCC 157; A.N. Pathak v. Secretary to the Government [1987] Suppl. SCC 763; Keshav Chandra Joshi v. Union of India [1992] Suppl. 1 SCC 272; Rajbir Singh v. Union of India AIR (1991) SC 518; A.N. Sehgal v. Raje Ram Sheoran [1992] Suppl. 1 SCC 304; S.L Chopra v. State of Haryana [1992] Suppl. (1) SCC 391 and Baleshwar Das v. State of U.P. [1981] 1 SCR 449 ref.

Suresh Kumar, Additional A.G. Sindh and Bhouro Mal, Law Officer (SGA&CD) for Appellants.

M. Aqil Awan, Senior Advocate Supreme Court along with Danish Rashid, Associate for Respondents (in C.As. Nos. 52-K to 64-K of 2022).

Sohaib Shaheen, Advocate Supreme Court for Respondents (in C.As. 53-K to 63-K and 65-K to 71-K of 2022).

Faraz Ahmed Siddiqui, Ghulam Shabbir, Najeebullah Qureshi and Babar Nizamani for Respondents (Respondents in person).

2023 S C M R 700

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

NATIONAL HIGHWAY AUTHORITY---Appellant

Versus

Rai AHMAD NAWAZ KHAN and others---Respondents

Civil Appeals Nos.140-L, 141-L and 142-L of 2015, decided on 14th November, 2022.

(Against the judgments of the Lahore High Court, Lahore all dated 20.01.2015 passed in Regular First Appeals Nos.70, 71 and 122 of 2002)

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

----S. 23---Matters to be considered in determining compensation---Intention of the legislature behind section 23 of the Land Acquisition Act, 1894---Whenever a Court is determining the quantum of compensation to be awarded to those who had been subjected to exercise of the power of eminent domain under the Act, it needs to be considerate and sympathetic towards the claims made by those whose property was compulsorily taken by the State against their will for a public purpose---Section 23 allows a Court to compensate such landowners for giving up their properties for the greater good, on the doctrine of individual rights must give way to the greater public interest (salus populi suprema lex esto).

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

----S. 23---Matters to be considered in determining compensation---One-year market average (price) of the subject land---Basing compensation on a one-year average of the acquired land would defeat the intent of the legislature behind enacting section 23 of the Land Acquisition Act, 1894.

Pakistan Burmah Shell Ltd. v. Province of NWFP and 3 others 1993 SCMR 1700 ref.

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

----Ss. 28 & 34---Payment of interest---Compound interest---Scope, purpose and repugnancy to Injunctions of Islam---Benefit of section 34 of the Land Acquisition Act, 1894 ('the Act') is statutory in nature and its benefit cannot be withheld from property owners on the ground that such benefit constitutes riba and goes against the injunctions of Islam---Section 34 is meant to ensure that the State compensates citizens whose lands have been acquired through compulsory acquisition as soon as possible and any delay in compensating affected citizens would entail penal consequences---Whilst riba/usury may be predatory in nature, the interest under section 34 of the Act is beneficial, since it ensures that property owners are compensated in a timely manner.

Interest in terms of section 34 of the Land Acquisition Act, 1894 ('the Act') is not linked to whether or not the quantum of compensation has been enhanced in terms of section 28 but is instead a standalone provision. The legislature has, in its wisdom, ensured by way of section 34 that if the State fails to compensate citizens whose land has been acquired by means of an exercise of eminent domain, the State shall be liable to suffer penal consequences in the form of imposition of compound interest until such time that the entire amount of compensation has been deposited and ready to be disbursed to the citizens affected by the acquisition. The interest imposed in terms of section 34 is beneficial and not detrimental to the public at large and is not by any stretch of the language exploitative (as Riba is) since it ensures that if the State wishes to exercise eminent domain, it must adequately compensate citizens expeditiously and failure would entail penal consequences.

It is important to clarify that unlike riba/interest that arises/accrues in a financial transaction between parties, the word "interest" in section 34 of the Act is not interest stricto sensu. The interest which is imposed on the State or land-acquiring entity is awarded to the affectees of compulsory acquisition by way of compensation and where compensation originally awarded is found to be inadequate and is later enhanced by a competent forum, to cover the property owner by way of compensation for the time lag between when the property was taken and the time that he receives compensation for the same. Section 34 is therefore compensatory in nature and allow the Courts to cover that property owner (as far as possible) for the loss that he may have suffered by reason of compulsory acquisition of his property and delayed payment of compensation. Unlike a financial transaction where the parties enter into transactions of their freewill, an exercise of compulsory acquisition cannot in any sense be construed as either a consenting transaction between the parties involved (i.e. the State and the affected citizens) nor can it be assumed that the State and the affected citizens are equal in terms of bargaining power. The power of compulsory acquisition is, after all, unilaterally exercised by the government and no consent from the affected property owners is required under the law.

Sheikh Muhammad Ilyas Ahmed and others v. Pakistan through Secretary, Ministry of Defence and others PLD 2016 SC 64 ref.

The benefit of Section 34 is statutory in nature and its benefit cannot be withheld from property owners on the ground that the benefit of section 34 of the Act constitutes riba and goes against the injunctions of Islam. The said Section is meant to ensure that the State compensates citizens whose lands have been acquired through compulsory acquisition as soon as possible and any delay in compensating affected citizens would entail penal consequences. Whilst riba/usury may be predatory in nature, the interest under section 34 of the Act is beneficial since it ensures that property owners are compensated in a timely manner.

Malik Muhammad Tariq Rajwana, Advocate Supreme Court for Appellant.

Nemo for Respondents.

2023 S C M R 711

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

MUHAMMAD AKHTAR ALI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, KOT ADDU, DISTRICT MUZAFFARGARH and others---Respondents

C.P. No. 2337 of 2019, decided on 16th January, 2023.

(Against the order of Lahore High Court, Multan Bench dated 12.04.2019, passed in W.P. No. 1574 of 2019)

Criminal Procedure Code (V of 1898)---

----S. 516-A---Superdari of vehicle---Registered owner of a vehicle is prima facie entitled to the temporary custody (superdari) of that vehicle unless the dispute as to the title to the vehicle is decided by a court of competent jurisdiction.

Petitioner lodged an FIR for an offence under section 406, P.P.C. alleging therein that he handed over the subject car to a car dealer, for sale, who allegedly sold the car to respondent/alleged purchaser but did not pay the consideration amount to the petitioner nor was he returning his car to him. Thereafter, the petitioner, as well as, respondent (the alleged purchaser of the car) filed their respective applications for superdari of the said car, which was allowed by the Magistrate in favour of respondent.

Sindh Motor Vehicle Registration Authority ("Authority") placed on record report along with documents, which disclosed that the petitioner was the registered owner of the vehicle and there was no application for transfer of ownership of the vehicle in the name of respondent. The original papers of the vehicle had been sent to the petitioner as per report of the Authority. The argument that respondent had in his possession the original registration book of the vehicle was not sufficient to show that he was the lawful purchaser of the vehicle because the very allegation of the petitioner was that he had given the car for sale to the car dealer, who had not paid the consideration amount of the vehicle to the petitioner and had thus committed criminal breach of trust, therefore, any sale made by the car dealer in favour of respondent without a valid transfer deed executed by the petitioner, the registered owner, was prima facie of no consequence in respect of transferring the ownership of the vehicle. A registered owner of the vehicle was prima facie entitled to the temporary custody (superdari) of that vehicle unless the dispute as to the title to the vehicle was decided by a court of competent jurisdiction.

Petition for leave to appeal was converted into appeal and allowed, with the direction that the vehicle shall be handed over on superdari to the petitioner, subject to his furnishing surety bonds in the sum of Rs.2,000,000/ - (rupees two millions) with one surety in the like amount to the satisfaction of the trial court.

M. Arshad Hussain Yousafzai, Advocate Supreme Court for Petitioner.

Aftab Alam Yasir, Advocate Supreme Court and Fozi Zafar, Additional A.G., Sindh for Respondents.

2023 S C M R 714

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

SAIF POWER LIMITED---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law, Civil Secretariat

Islamabad and others---Respondents

Civil Petition No. 3263 of 2022, decided on 2nd November, 2022.

(Against judgment dated 06.06.2022 passed by the Islamabad High Court Islamabad in W.P. No. 2607 of 2012)

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

----Ss. 231, 263 & 265---Security and Exchange Commission of Pakistan (SECP)---Inspection of books of account by registrar, etc.---Investigation of affairs of company on application by members or report by registrar---Scope, nature and distinction between the SECP's power of inspection under Section 231 and the power of investigation under sections 263 and 265 of the Companies Ordinance, 1984 stated.

Section 231 of the Companies Ordinance, 1984 ('the Ordinance') empowers the Security and Exchange Commission of Pakistan (SECP), as a regulator, to inspect the books of account and related books and papers of a company. So, inspection is limited to books of account and related papers and books, and it does not include other record of the company which is unrelated to the accounts of the company. The exercise of this power is administrative in nature, essentially to ensure compliance with the regulatory requirements pertaining to the books of account. Books of account are the journals and ledgers which contain financial information related to the business and include books such as purchase books, cash books, sales books, debit ledger and credit ledger amongst others. There is also a corresponding obligation on the directors, officers and employees of the company to provide all books of account and papers and to give all assistance in connection with the inspection. An inspection under section 231 of the Ordinance is, therefore, restricted in its scope and requires every director, officer or employee of the company to produce the books of account and is not an open ended inspection. Further the officer who conducts the inspection must make a report to the SECP on the inspection. This goes to the scope of inspections which is to ensure regulatory compliances and to ensure that the books of account are duly maintained as required under the law. While, there exists an obligation to record reasons in writing for the exercise of power under section 231 of the Ordinance, there is no requirement under the Ordinance for the issuance of a show cause notice stating the reasons for the inspection, for which a reply is required before passing an order under Section 231 of the Ordinance. The obligation is to issue notice to inform the company of the reasons of the inspection simplictor. The difference being that the former contains allegations for which a reply and right of hearing is needed whereas the latter simply contains information of the inspection and the reasons for it.

On the other hand, sections 263 and 265 of the Ordinance deal with the exercise of power of investigation by the SECP. The powers under sections 263 and 265 are wider and also come with more procedural requirements. The SECP is empowered to initiate an investigation on an application by the members or on the basis of a report of the Registrar or it can initiate an investigation if there are circumstances suggesting that the business of the company is being conducted with intent to defraud the creditors, members or any other person, or if the business is being conducted for a fraudulent or unlawful purpose, or if the members concerned with the formation of the company are guilty of fraud, misfeasance, breach of trust or other misconduct. The spirit of sections 263 and 265 of the Ordinance is to ensure that the business is managed in accordance with sound business principles or prudential commercial practice and that the financial position of the company is not threatened. When carrying out an investigation, before passing an order, SECP is obligated to give an opportunity to the company to show cause against the investigation proposed to be taken. As per section 268 of the Ordinance, all officers, employees and agents of the company and all persons dealing with the company are to assist in connection with the investigation. The scope of who is to assist in investigations is wider than that of inspections. The inspector's report under section 269 of the Ordinance can form the basis of prosecution under section 270 of the Ordinance and an action under sections 271 and 272 of the Ordinance. The scope of the investigation is based on the allegations pertaining to the affairs of the company and requires a probe into the allegations to ascertain their veracity.

Thus, the provisions relating to inspection and investigation are distinct. An inspection is an administrative power exercised by the SECP to ensure compliance of regulatory requirements. This power is limited to the inspection of books of account of a company after recording of reasons for the inspection in this regard. Whereas, an investigation against a company is a serious matter, as it is capable of entailing consequences both financial and penal which will impact the goodwill of the company. Consequently, an investigation cannot be ordered except on statutory grounds which include allegations of fraud, illegalities into the affairs of the company, or misuse and misappropriation of funds of the company. It is then the duty of the SECP to consider and weigh multiple factors, such as the nature of the complaint and its source, ensure due process and follow the statutory process in good faith, without any bias, prejudice or ulterior motives. The Ordinance does not prescribe the same process for an inspection simply because its scope is limited as are its consequences.

Salman Aslam Butt, Senior Advocate Supreme Court and Muhammad Shoaib Rashid, Advocate Supreme Court for Petitioner.

Sultan Mazhar Sher Khan, Advocate Supreme Court, Ibrar Saeed and Syed Asif Ali, Public Prosecutors (SECP) for Respondents.

2023 S C M R 723

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Jamal Khan Mandokhail and Athar Minallah, JJ

AMAN ULLAH and another---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 883 of 2017 and Criminal Petition No. 1793-L of 2017, decided on 7th February, 2023.

(On appeal against the judgment dated 23.10.2017 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 1273 and 1125 of 2013, Criminal Revision No. 675 of 2013 and Murder Reference No. 209 of 2013)

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

----Ss. 302(b), 324 & 337-D---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah---Reappraisal of evidence---Incident took place at 10:30 a.m.---Deceased and injured witness were firstly taken to DHQ Hospital where the matter was reported to the Police---First Information Report was lodged on the same day at 1:45 p.m.---Distance between the place of occurrence and the Police Station was 32 kilometers whereas as per the record the place of occurrence was one hour away from the DHQ Hospital---Thus, it can be said that FIR was lodged with promptitude---Promptness of FIR showed truthfulness of the prosecution case and it excluded possibility of deliberation and consultation---Occurrence took place in broad daylight and the parties were known to each other, therefore, there was no chance of misidentification---Ocular account in the case had been furnished by the complainant, who lived in the adjacent house; an inmate of the same house; and an resident of the same locality---Therefore, presence of said witnesses at the place of occurrence was natural---Prosecution witnesses 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---Witnesses had given all necessary details of occurrence qua the date, time, place, name of accused, name of witnesses, manner of occurrence, kind of weapon used in the occurrence, the locale of injuries and the motive of occurrence---Injured witness sustained injuries during the occurrence, which had fully been supported by the medical evidence---Medical evidence available on the record further corroborated the ocular account so far as the nature, time, locale and impact of the injury on the person of the deceased and injured 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---Weapon of offence recovered at the instance of the accused and the crime empties collected from the place of occurrence were separately sent to the Forensic Science Laboratory and the report was positive---Conviction of accused under sections 302(b), 324 & 337-D, P.P.C was maintained---Petitions for leave to appeal were dismissed and leave was refused.

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

----Ss. 302(b), 324 & 337-D---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah---Ocular account---Preference over medical evidence---Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused.

Muhammad Iqbal v. The State 1996 SCMR 908; Naeem Akhtar v. The State PLD 2003 SC 396; Faisal Mehmood v. The State 2010 SCMR 1025 and Muhammad Ilyas v. The State 2011 SCMR 460 ref.

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

----Ss. 302(b), 324 & 337-D---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah---Medical evidence---Recovery evidence---Conviction---Value and status of medical evidence and recovery is always corroborative in its nature, which alone is not sufficient to sustain conviction.

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

----Ss. 302(b), 324 & 337-D---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah---Medical evidence---Discrepancies---Minor discrepancies, if any, in medical evidence relating to nature of injuries do not negate the direct evidence as witnesses are not supposed to give photo picture of ocular account.

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

----Ss. 302(b), 324 & 337-D---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah---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.

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

----Ss. 302(b), 324 & 337-D---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah---Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to life imprisonment---Motive not established---Motive behind the occurrence was statedly the love marriage of deceased, with the injured witness---However, the High Court had rightly discarded the same by holding that the love marriage had taken place about two years back and the grievance of the family of injured witness had been redressed as pursuant to a compromise the daughter of the deceased was given in the nikah of son of co-accused---Hence, the motive part of the prosecution case did not inspire confidence so as to term it is as a cause of the murder---Keeping in view the fact that motive was disbelieved, the High Court has rightly taken a lenient view and converted the sentence of death into imprisonment for life to meet the ends of justice, hence, it left no room to further deliberate on this point---Petitions for leave to appeal were dismissed and leave was refused.

Rana Ghulam Sarwar, Advocate Supreme Court for Petitioner (in J.P. 883 of 2017).

Shahid Tabbassum, Advocate Supreme Court for Petitioner (in Criminal Petition 1793-L of 2017 through video link from Lahore).

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

2023 S C M R 730

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Shahid Waheed, JJ

RUSTAM and others---Appellants

Versus

JEHANGIR (DECEASED) through LRs.---Respondents

Civil Appeal No. 106-L of 2010, decided on 19th December, 2022.

(On appeal against the order dated 21.11.2006 passed by the Lahore High Court, Lahore in Civil Revision No. 2282 of 2006)

Islamic law---

----Inheritance---Proof of relationship between deceased and legal hiers---Pedigree table appearing on a mutation---Significance---Pedigree-table alone and by itself is not a proof of relationship unless such relationship is proved through witnesses or other independent evidence---Simple production of pedigree-table through a counsel without any corroborative evidence is not sufficient to conclude that a party was not related to the deceased.

Bashir Ahmad through L.Rs. v. Muhammad Hussain and another 2010 SCMR 822 ref.

Tariq Masood, Advocate Supreme Court for Appellants.

Ms. Tasnim Amin, Advocate-on-Record for Respondents.

2023 S C M R 734

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar and Athar Minallah, JJ

MUHAMMAD NAWAZ alias KARO---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 1392 of 2022, decided on 8th December, 2022.

(On appeal against the order dated 05.09.2022 passed by the High Court of Sindh, Circuit Court Hyderabad in Criminal Bail Application No. S-­760 of 2022)

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

----S. 497---Penal Code (XLV of 1860), Ss. 395, 342 & 506---Constitution of Pakistan, Art. 185(3)---Dacoity, wrongful confinement, criminal intimidation---Bail, grant of---Further inquiry---Crime report was lodged after a lapse of nine months and sixteen days---Only explanation given by the complainant for such delay was that he was himself trying to find the robbed property, and when he got to know that it was the accused who had allegedly robbed his car, he approached him to return his property and on his refusal he lodged the crime report---Such explanation could not be accepted---Case record was silent as to on which date, the complainant got the information and when did he approach the accused---Nothing was on record to indicate as to why the accused kept mum for such a long period of time and did not even bother to inform the Police---No recovery had been affected from the accused despite of the fact that he remained with the police on physical remand for a considerable period of time---Accused was behind the bars for the last more than five months---Accused had made out a case for bail as his case squarely fell within the purview of section 497(2), Cr.P.C. entitling for further inquiry into his guilt, which even otherwise did not fall within the prohibitory clause of section 497, Cr.P.C---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

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

----Ss. 503 & 506---Criminal intimidation---Scope---Whenever an overt act materializes and ends into an overt act, the provision of section 506, P.P.C. would not be applicable and the only provision which will remain in the field is the overt act, which is committed in consequence of criminal intimidation.

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

-----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Offence not falling within the prohibitory clause of section 497, Cr.P.C.---Grant of bail in such like cases is a rule whereas its refusal is an exception.

Malik Altaf Hussain Kandawal, Advocate Supreme Court for Petitioner.

Zafar Ahmed Khan, Additional P.G. and Nabi Bux, SI for the State.

Junaid Iftikhar Mirza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Complainant.

2023 S C M R 737

[Supreme Court of Pakistan]

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

STATE BANK OF PAKISTAN---Petitioner

Versus

MOHAMMAD NAEEM and others---Respondents

Civil Review Petition No. 35-K of 2020 in Civil Petition No. 146-K of 2019, decided on 10th November, 2022.

(Review against the judgment of this Court dated 04.09.2020)

Supreme Court Rules, 1980---

----O. XI---Constitution of Pakistan, Arts. 188 & 185(3)---Constitution of Benches---Judgment of Division Bench of High Court altered by a two Member Bench of the Supreme Court without granting leave to appeal---Propriety---In the present case, though the two Member Bench of the Supreme Court (in the judgment under review) was inclined to grant leave to appeal to a limited extent vis-a-vis the rate of mark-up, but it was also true that no leave to appeal was granted against the impugned judgment of the High Court---In the judgment under review on the sole statement of the counsel for the respondent, the alleged excessive rate of markup was simultaneously modified in the judgment without recording any consensual statement of the petitioner's (bank's) counsel---Two Member Bench of the Supreme Court, taking into consideration the assiduousness and exactitudes of Order XI of the Supreme Court Rules, 1980, could grant leave or dismiss the civil petition for leave to appeal, but could not modify, alter or amend the judgment of Division Bench of High Court for which the matter should have been fixed before a three Member Bench of the Supreme Court as per the said Rules---Review petition was allowed and Civil Petition for Leave to Appeal was restored to its original number, with the direction that the same shall be fixed for hearing before a three Member Bench for leave to appeal.

Faisal Siddiqi, Advocate Supreme Court for Petitioner.

Arshad M. Tayebaly, Advocate Supreme Court (video-link from Karachi) and Tariq Aziz, Advocate-on-Record for Respondent No. 1.

Nemo for Respondents Nos. 2 and 3.

2023 S C M R 742

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

Peerzada WAQAR ALAM---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman, Islamabad and others---Respondents

C.P. No. 4729 of 2019, decided on 5th December, 2022.

(Against the judgment of Islamabad High Court, Islamabad dated 17.10.2019, passed in Writ Petition No.218 of 2016)

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

----S. 10--- United Nations Convention on Rights of Persons with Disabilities (CRPD), Art. 27---Persons With Disabilities (PWDs)---National Accountability Bureau (NAB)---Quota for Persons with Disability---Under section 10 of the Disabled Persons' (Employment and Rehabilitation) Ordinance, 1981 establishments (including NAB) are to employ persons with disabilities "not less than 3% of the total number" of persons employed at any time by the said establishment, and there is no limitation or distinction of grade in allocating 3% quota for persons with disabilities in any organization---Quota of 3% for persons with disability applies across the board in an organization, covering all tiers of posts in an organization and goes upto to the highest post including that of the Chairman, NAB---Said quota for PWDs must co-exist alongside the general category of posts---Given the variety of posts with different qualifications, skill sets, and descriptions it is only appropriate that the disability quota be apportioned and allocated against the sanctioned strength of various categories which have a separate selection criterion---Supreme Court directed NAB to immediately comply with the provisions of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 and earmark posts representing 3% quota for PWDs across the institution at all tiers.

Malik Ubaidullah v. Government of Punjab and others PLD 2020 SC 599 = PLC 2021 (C.S.) 65 ref.

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

----S. 10---Constitution of Pakistan, Arts. 9, 18 & 25---United Nations Convention on Rights of Persons with Disabilities (CRPD), Art. 27---Persons With Disabilities (PWDs)---Employment quota---Employment of PWDs is not a charity but a right---Constitutional values of equality and social justice, the fundamental rights to life, to carrying out a profession and to non-discrimination also extend to PWDs and make no distinction between PWDs and others--- Any law or policy relating to PWDs is rights-based and is not to be viewed as charity or pity or mercy---Universality, indivisibility, interdependence and interrelatedness of constitutional values and fundamental rights fully encompass the persons with disabilities and discrimination guarantees them full protection without discrimination.

Dr. G.M. Chaudhary, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Sattar Awan, DPG, NAB, Hafiza Mehnaz Nadeem Abbasi, S.P., NAB, Imran Sohail, Director (HRM) NAB Hqrs. and Adnan Nadeem, Dy. Director, NAB for Respondents.

Respondent No. 2 in person.

2023 S C M R 748

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Muhammad Ali Mazhar, JJ

BASHIR AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1278-L of 2020, decided on 14th March, 2022.

(Against the order dated 12.11.2020 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 52632-B of 2020)

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Pre-arrest bail, grant of---Further inquiry---Admittedly, it was the accused himself who stopped the payment of the cheque on the ground that the cheque had been removed from his cheque book illegally/unauthorizedly---Further there was inordinate delay in registration of FIR, which had not been explained---As yet no proof had been tendered to show that the disputed amount was paid to the accused by the complainant---No evidence was available on record, at present stage, with regard to the stated ingredients of section 489-F, P.P.C., which may bring it within the ambit of mala fide on the part of the complainant---In such circumstances this also made it a case of further inquiry---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to pre-arrest bail.

Barrister Danyal Ijaz, Advocate Supreme Court (through video-link from Lahore) for Petitioner.

Ahmed Raza Gillani, Additional Prosecutor General, Punjab and Waheed Hassan, SI/IO (through video-link from Lahore) for the State.

Malik Mateeullah, Advocate Supreme Court (through video-link from Lahore) for the Complainant.

2023 S C M R 750

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar and Shahid Waheed, JJ

MUHAMMAD IQBAL and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 614 and 618 of 2017, decided on 30th November, 2022.

(On appeal against the judgment dated 31,03.2017 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeals Nos. 228 and 284 of 2012 and Murder Reference No. 43 of 2012)

Penal Code (XLV of 1860)---

----Ss. 34, 148, 149, 302(a), 302(b) & 302(c)---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 sentencing of accused persons stated.

While dealing with cases of qatl-i-amd as embodied under section 300, P.P.C. in Chapter XVI of the Penal Code, the Trial Court has to evaluate as to whether the act is committed in furtherance of common intention/object or on the basis of individual liability to press in the provision of section 302(a), 302(b) or 302(c), P.P.C. and it has to give a definite finding qua the same. Any judgment which concludes that the offence of qatl-i-amd under section 302(b), P.P.C. was committed in furtherance of common intention or common object but the sentence is inflicted on the basis of individual liability, the same would be squarely in defiance of the intent and spirit of law on the subject. However, if the Court comes to the conclusion that the elements of common intention and common object have not been established, then each accused would be dealt with according to their individual role and severity of allegations and would be sentenced accordingly by the Court exercising its discretionary powers.

Bashir Ahmed v. The State 2022 SCMR 1187 and Muhammad Nawaz v. The State PLD 2022 SC 523 ref.

Basharatullah Khan, Advocate Supreme Court for Petitioners (in Criminal Petition No. 614 of 2017).

Ansar Nawaz Mirza, Advocate Supreme Court for Petitioners (in Criminal Petition No. 618 of 2017).

Mirza Muhammad Usman, D.P.G. and Muhammad Jaffer, Additional P.G. for the State.

2023 S C M R 755

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar and Shahid Waheed, JJ

CIVIL PETITION NO. 3760 OF 2019

(Appeal against the order dated 26.06.2019 passed by the

Lahore High Court, Rawalpindi Bench in W.P. No. 3111/2018) AND CIVIL PETITION NO.3759 OF 2019

(Appeal against the Order dated 26.06.2019 passed by the

Lahore High Court, Rawalpindi Bench in W.P. No.341/2019)

PROVINCE OF THE PUNJAB through Deputy Commissioner/District Collector, Rawalpindi and another---Petitioners

Versus

MUHAMMAD AKRAM and others---Respondents

Civil Petitions Nos. 3760 and 3759 of 2019, decided on 1st December, 2022.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Scope and object of O. I, R. 10, C.P.C.---Court, in exercise of powers conferred under O. I, R. 10, C.P.C. may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined be struck out and add the party who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved---Object of the said Rule is to bring on record all the persons who are parties to the dispute relating to the subject matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings.

Malik Asif Taufique Awan, Additional A.G., Punjab for Petitioners (in both cases).

Mudassar Khalid Abbasi, Advocate Supreme Court for Petitioners (in C.M.A. No. 10929 of 2019 in C.P. No. 3759 of 2019).

Nemo for Respondents.

2023 S C M R 761

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Ayesha A. Malik and Athar Minallah, JJ

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS and another---Petitioners

Versus

UMAR DARAZ---Respondent

Civil Petition No. 4618 of 2019, decided on 28th November, 2022.

(Against the judgment of Federal Service Tribunal, Islamabad dated 30.09.2019, passed in Appeal No. 1503(R) of 2016)

(a) Civil service---

----Incapacitated employee of Pakistan Railways---Visual impairment---Adjustment in another suitable and appropriate post keeping in view the degree and level of incapacitation---Perusal of Clauses 510 and 512 of the Personnel Manual of the Pakistan Railways reveals that in order to protect and safeguard the interest and right to employment of an officer who has been incapacitated during service, such an employee can be transferred or accommodated against a post in the organization which is more suitable and appropriate to his condition or disability---Under the said Manual efforts are to be made to ensure that the employee gets transferred to a post in an equivalent grade---In the present case the respondent-employee developed visual impairment and as a result was transferred to a post of lower grade against which the respondent agitated and finally the Tribunal transferred him to a post of an equivalent grade i.e. Ticket Collector Grade-I ("TCR")---In terms of the UN Convention on the Rights of Persons with Disabilities ("CRPD"),to which Pakistan is a party, it is the duty of an employer to ensure that reasonable accommodation is provided to persons with disabilities ("PWDs") and that those with disabilities are not discriminated against---Perusal of job description of the TCR provided in clause 6.18 of the Commercial Manual of Pakistan Railways revealed that a visual impaired officer could carry out the duties of TCR, as provided in the said Manual---Supreme Court directed Pakistan Railways to revisit the Personnel Manual in the light of the fundamental rights and principles of policy enshrined in the Constitution, as well as, the CRPD, in particular Article 27 thereof, so that the Personnel Manual was constitution compliant and met the international standards when dealing with persons with disabilities---Petition for leave to appeal was dismissed and leave was refused.

(b) Constitution of Pakistan---

----Arts. 9 & 38(d)--- Civil service--- Incapacitated employee---Adjustment in another suitable and appropriate post keeping in view the degree and level of incapacitation---In case an officer develops physical incapacitation the department has to reach out to said officer to ensure the best possible option available for the officer in his condition to continue to serve the department---Said transfer to another suitable post of the respondent is as a special case and is over and above the regular process of transfer, appointment or promotion---Such a special transfer is to provide "reasonable accommodation" to an employee who has been incapacitated during service and for no fault of his own suffers from a disability---Any such "reasonable accommodation" is a priority action item for the department and must be addressed at the earliest---Suitability of the new post must factor in the earlier job description as well as the grade so that the employee is not worse off in financial terms---Such reasoning finds support from Article 9 and 38(d) of the Constitution which provide for right to life, which includes right to a meaningful livelihood as an integral part of life and policies must be made by the State to safeguard the interest of persons suffering from infirmity or sickness.

Jawad Mehmood Pasha, Advocate Supreme Court (through video-link from Lahore) for Petitioners.

Nemo for Respondent.

2023 S C M R 766

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

PRESIDENT NATIONAL BANK OF PAKISTAN and others---Appellants

Versus

WAQAS AHMED KHAN---Respondent

Civil Appeal No. 441 of 2021, decided on 16th January, 2023.

(Against the judgment dated 22.09.2020 passed by the Peshawar High Court, Abbottabad Bench in Writ Petition No. 830-A of 2019)

(a) Civil service---

----Appointment---Bank employee---Practice or policy of appointing authority---Legitimate expectation, doctrine of---Scope---Doctrine of legitimate expectation connotes 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---Legitimate expectation ascends in consequence of a promise, assurance, practice or policy made, adopted or announced by or on behalf of government of a public authority---When such a legitimate expectation is obliterated, it affords locus standi to challenge the administrative action before the court of law---However, it is for the Court to decide as to whether the expectation is legitimate or not---Said doctrine is applied as a tool to watch over the action of administrative authorities and in essence imposes on all authorities to act fair and square in all matters encompassing legitimate expectation.

Model Customs Collectorate, Islamabad v. Aamir Mumtaz Qureshi 2022 SCMR 1861 ref.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199--- Judicial review--- Scope--- Administrative/ executive actions---Constitutional courts being guardians of the Constitution have the power to judicially review the administrative/ executive actions and the conduct of the public authorities but the same shall be on the touchstone of fairness, reasonableness and proportionality.

(c) Civil service---

----Appointment---Son-quota---Concealment of involvement in criminal case---Although the respondent was involved in a criminal case of murder of his wife and was acquitted subsequently pursuant to proceedings carried out under section 265-K, Cr.P.C., but it is settled law that even if the allegations leveled in the FIR are admitted to be false, even then without recording of evidence, it cannot be said 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---Respondent was offered the job of cashier in the Bank but when the Bank came to know that he has a criminal background, the Bank did not allow him to join the duty---Post of cashier is considered to be very important in a Bank, as it is the cashier who collects and disburses cash---While not allowing the respondent to join the duty, the Bank was well within its domain and acted naturally---High Court ought to have taken into consideration the such fact but it failed to do so---Appeal was allowed, and the impugned judgment of the High Court directing the Bank to allow the respondent to join his duty in pursuance of his appointment order was set-aside.

Rai Mohammad Nawaz Kharal, Advocate Supreme Court and Rafaqat Hussain Shah, Advocate-on-Record for Appellants.

Nemo for Respondents.

2023 S C M R 770

[Supreme Court of Pakistan]

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

ALLAH DITTA---Petitioner

Versus

DEPUTY POSTMASTER GENERAL (ADMN.), OFFICE OF THE POSTMASTER GENERAL, NORTHERN PUNJAB CIRCLE, RAWALPINDI and another---Respondents

Civil Petition No. 2602 of 2019, decided on 5th October, 2022.

(Against the judgment dated 20.05.2019 passed by Federal Service Tribunal, Islamabad in Appeal No.2321(R)CS of 2016)

(a) Civil service---

----Fraud and misappropriation of public money---In a case of proven fraud and misappropriation of public money, the delinquent cannot be exonerated---Embezzlement of public money cannot be treated as misconduct of a minor nature.

(b) Civil service---

----Fraud and misappropriation of public money---Long term of service is no ground for conversion of punishment of dismissal from service into compulsory retirement---If such type of leniency is shown in the heinous matters of misappropriation of public money or public funds, then it will amount to giving a license to all such civil servants to first join service, then serve at considerable length and commit crimes or misconduct at the verge of retirement without any fear of disciplinary proceedings, but with the confidence and assurance that the dismissal order from service will be converted into compulsory retirement by the competent authority or court by taking a lenient view.

(c) Civil service---

----Fraud and misappropriation of public money---Accused refunding the misappropriated amount---Not a mitigating factor to reduce quantum of punishment---Civil servant has no justification for claiming lenient treatment (in the matter of his punishment) merely for the reason that he refunded the misappropriated amount, which does not vitiate the gross misconduct of misappropriation, nor can this be treated as mitigating circumstance.

Ch. Afrasiab Khan, Advocate Supreme Court for Petitioner.

Malik Javed Iqbal Wains, Additional A.G.P. and M. Hafeez ur Rehman, Dept. Rep. for Respondents.

2023 S C M R 774

[Supreme Court of Pakistan]

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

PROVINCE OF PUNJAB through Secretary Agriculture Department, Lahore---Petitioner

Versus

SALEEM IJAZ and others---Respondents

C.P. No. 1336-L of 2021 to C.P. 1340-L of 2021, decided on 6th January, 2023.

(Against the consolidated order of Lahore High Court, Lahore dated 14.04.2021, passed in W.P. No. 121 of 2021/BWP, etc.)

(a) Agricultural Pesticides Ordinance (II of 1971)---

----Ss. 13, 16 & 17---Pakistan National Accreditation Council Act (VI of 2017), Ss. 4(a) & 4(d)---Punjab Agricultural Pesticides Rules, 2018, R. 22---Pesticide laboratory---Accreditation and certification---Rule 22 of the Punjab Agricultural Pesticides Rules, 2018 ('the 2018 Rules'), vires of---Laboratories (in Pakistan) can only be accredited or certified by Pakistan National Accreditation Council ("PNAC")---Rule 22 of the 2018 Rules to the extent where it requires that the pesticide laboratory shall be duly certified by ISO is not reconcilable with Section 13 of the Agricultural Pesticides Ordinance, 1971, and section 4 of the Pakistan National Accreditation Council Act, 2017 ('the 2017 Act')---Applying the principle of reading down, the Supreme Court saved the legality of Rule 22 of the 2018 Rules by directing that that the phrase "the pesticide laboratory shall be duly certified by International Organizations for Standardization (ISO)" is to be read down to mean that the pesticide laboratory shall follow the national and international standards as accredited by Pakistan National Accreditation Council ("PNAC") under 2017 Act.

Rule 22 of the Punjab Agricultural Pesticides Rules, 2018 ('the 2018 Rules') provides that the pesticide laboratory has to be duly certified by the International Organization for Standardization (ISO).However, under the Pakistan National Accreditation Council Act, 2017 ('the 2017 Act') the conformity assessment bodies or laboratories in the country, including pesticide laboratories, have to be accredited and certified by the Pakistan National Accreditation Council ("PNAC") to follow and implement national and international standards. Thus, Rule 22 of the 2018 Rules requiring the certification to be done by ISO is offensive to the provisions of the 2017 Act. In Pakistan laboratories can only be accredited or certified by PNAC.

Muhammad Asghar and 3 others v. Station House Officer and 2 others PLD 2020 Lah. 87 distinguished.

International Organization for Standardization (ISO) only sets standards, which are then adopted by the national accreditation body. Under the 2017 Act, PNAC establishes internationally recognized accreditation system inline with national and international standards. ISO does not perform certification of laboratories. ISO only develops international standards and is not involved in their certification and does not issue certificates. Thus a company or organization cannot be certified by ISO.

Rule 22 of the 2018 Rules to the extent where it requires that the pesticide laboratory shall be duly certified by ISO is not reconcilable with section 13 of the Agricultural Pesticides Ordinance, 1971 ('the Ordinance'), and section 4 of the 2017 Act, and in such a situation rule being a subordinate provision must give way.

Maxwell, Interpretation of Statutes, 11 ed, p 50 ref.

Applying the principle of reading down, the Supreme Court saved the legality of Rule 22 of the 2018 Rules by directing that that the phrase "the pesticide laboratory shall be duly certified by International Organizations for Standardization (ISO)" is to be read down to mean that the pesticide laboratory shall follow the national and international standards as accredited by PNAC under 2017 Act. Supreme Court further directed the Provincial Government to review Rule 22 of the 2018 Rules, and bring the same in conformity with the provisions of the Ordinance and 2017 Act. Petitions for leave to appeal were partly allowed.

(b) Interpretation of statutes---

----Rules made under a statute---Reconciling Rules with the parent statute---Scope---No rule can be framed so as to be in conflict with or in derogation from the statute under which it is framed or in conflict with any other statute, which is not inconsistent with the parent statute under which the rule is framed---However, before declaring so, the court should endeavour to reconcile the rule, that is to say, the rule may be so read, if the phraseology permits it, as to make it consistent with the provisions of the statute.

NS Bindra, Interpretation of Statutes, 10th edition, p.560 ref.

(c) Interpretation of statutes---

----Reading down a provision in a statute or a Rule---Concept of reading down stated.

The golden rule behind the rule of reading down is to recognize and respect the wisdom of the legislature and assume that legislature would never have intended to legislate an invalid law. The same principle applies to subordinate legislation as it is not expected that the subordinate legislating authority will frame rules in violation to the parent Act or any other statute. Rule of reading down a statutory provision is now well recognized rule of interpretation. This rule avoids striking down of statute or rule which carries curable constitutional or legal vice and instead by reading them down achieves to harmonize the statute or the rule with the general scheme of the Act and the Rules. It is a rule of harmonious construction under a different name. It is generally used to straighten the crudities or ironing out the creases to make a statute or a rule workable. The rule of reading down is used for a limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statues.

J. K. Udaipur Udyog Ltd v. State of Gujarat (Full Bench of High Court of Gujarat at Ahmedabad) - MANU/GJ/0499/2001 and Union of India v. Ind-Swift Laboratories Ltd, (2011) 4 SCC 635 ref.

Rana Shamshad Khan, Additional A.G., Asif Mehmood Cheema, Additional A.G., Zafar Zulqarnain Sahi, Additional A.G. along with Javed Iqbal, Law Officer, Faqeer Ahmed D.G. Pest Warning and Dr. M. Akram Director Soil Fertility Lahore for Petitioner.

M. Afzal Awan, Advocate Supreme Court assisted by Malik Ali Muhammad Dhol, Advocate for Respondents.

2023 S C M R 781

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

AHMED ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.48 of 2021, decided on 13th December, 2022.

(On appeal against the judgment dated 10. 12.2015 passed by the Lahore High Court, Lahore, in Criminal Appeal No.2831 of 2010)

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4, 5 & 6---Police Rules, 1934, Rr. 22.16, 22.18, 22.70, 27.11 & 27.12---High Court (Lahore) Rules and Orders (Civil and Criminal), Rr. 14-E, 14-F & 14-H---Criminal Procedure Code (V of 1898), S. 516-A---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Possessing and trafficking narcotics---Non-production of recovered narcotics or vehicle in Trial Court---Effect---Case property is always relevant for the decision of the case because if the narcotics are recovered from any accused, the same should have been shown in court, and then the report of the laboratory would be helpful to the prosecution---Likewise, in narcotics cases, the conviction and sentence are based on the possession of the narcotics or on aiding, abetting or associating with the narcotics offences---In such eventuality, it is incumbent upon the prosecution to produce the case property before the court to show that this is the narcotics/case property that was recovered from accused's possession---However, if the narcotics are destroyed under section 516-A, Cr.P.C, then, such destruction should be done after issuing notice to the accused, and the destruction should be done in the presence of the accused or his representative---Magistrate is required to prepare samples of the narcotics substance that was ultimately destroyed so that a representative (sample) of the destruction process could be produced in the Court; besides, the certificate so issued by the Magistrate would also be relevant and the same should be exhibited in the Court---When the material (narcotics) is neither produced nor exhibited, the presumption can be drawn that it is not in existence at all---When the best evidence, i.e., the case property/narcotics, vehicle, etc., is withheld by the prosecution and there is no plausible explanation for the non-production of the same in court, an adverse inference or assumption against the prosecution could be drawn under Article 129(g) of the Qanun-e-Shahadat, 1984, and it can easily be presumed that no such material/narcotics is in existence---In the present case, the exhibits include an application to the SHO, the FIR , a recovery memo and a report of the chemical examiner which were produced during trial; however, the narcotics substance and the vehicle, which formed the case property, were neither produced in court nor exhibited by the prosecution without plausible explanation---Prosecution had, thus, failed to prove its case beyond reasonable doubt---Appeal was allowed and accused persons were acquitted of the charge.

Qamar Zaman v. Waseem Iqbal and 5 others 2004 SCMR 1209; State of Islamic Republic of Pakistan through Deputy Attorney: General for Pakistan v. Kenneth Marshal and 2 others 2005 SCMR 594; Gul Dast Khan v. The State 2009 SCMR 431; Amjad Ali v. State 2012 SCMR 577; Ashok alias Dangra Jaiswal v. State of Madhya Pradesh (2011) 5 SCC 123; Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC 527 and Vijay Pandey v. The State of Uttar Pradesh (2019) 18 SCC 215 ref.

(b) Criminal trial---

----Proof, standard of---Harder the punishment, the stricter the standard of proof.

Ameer Zeb v. The State PLD 2012 SC 380 ref.

(c) Criminal trial---

----Benefit of doubt---Scope---For the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt--- Single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right.

Tajamal Hussain v. The State 2022 SCMR 1567; Sajjad Hussain v. The State 2022 SCMR 1540; Abdul Ghafoor v. The State 2022 SCMR 1527; Kashif Ali v. The State 2022 SCMR 1515; Muhammad Ashraf v. The State 2022 SCMR 1328; Khalid Mehmood v. The State 2022 SCMR 1148; Muhammad Sami Ullah v. The State 2022 SCMR 998; Bashir Muhammad Khan v. The State 2022 SCMR 986; The State v. Ahmed Omer Sheikh 2021 SCMR 873; Najaf Ali Shah v. The State 2021 SCMR 736; Muhammad Imran v. The State 2020 SCMR 857; Abdul Jabbar v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State PLD 2019 SC 64; Hashim Qasim v. The State 2017 SCMR 986; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Zaman v. The State 2014 SCMR 749; Khalid Mehmood v. The State 2011 SCMR 664; Muhammad Akram v. The State 2009 SCMR 230; Faheem Ahmed Farooqui v. The State 2008 SCMR 1572; Ghulam Qadir v. The State 2008 SCMR 1221 and Tariq Pervaiz v. The State 1995 SCMR 1345 ref.

Raja Rizwan Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Muhammad Jaffar, Additional P.G. Punjab (via video link from Lahore) for the State.

Raja Inaam Ameen Minhas, Advocate Supreme Court, Amicus Curiae.

2023 S C M R 795

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Jamal Khan Mandokhail and Athar Minallah, JJ

IMRAN MEHMOOD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 82 of 2022, decided on 13th February, 2023.

(Against the judgment dated 08.11.2016 passed by the Peshawar High Court, Abbottabad bench in Criminal Appeal No. 139-A of 2012)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Pre-meditated murder---Promptly lodged FIR---Daylight occurrence---Independent witnesses---Medical evidence corroborating ocular account---Motive proved---Positive report of Forensic Science Laboratory---Confession of guilt before Magistrate---In the present case, the crime report was lodged in the Casualty Ward of DHQ Hospital within an hour of the occurrence---Distance between the place of occurrence and the Police Station was 7 kilometers whereas the distance between Police Station and DHQ Hospital, was 7.7 kilometers---Thus, it could be safely said that FIR was lodged with promptitude---Promptness of FIR, prima facie, showed truthfulness of the prosecution case and it excluded possibility of deliberation and consultation---Occurrence took place in the broad day light and the parties were known to each, therefore, there was no chance of misidentification---Ocular account had been furnished by complainant and two court bailiffs---Said bailiffs of the Family Court were independent witnesses who went to the house of the accused in compliance with a decree passed by the Family Court---Witnesses of ocular account 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 had given all necessary details of occurrence qua the date, time, place, name of accused, name of witnesses, manner of occurrence, kind of weapon used in the occurrence, the locale of injuries and the motive 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 brutally murdered her father and uncle---Substitution in such like cases was a rare phenomenon---Said witnesses had reasonably explained the circumstances of their going to the house of the accused i.e. they went there to take the dowry articles pursuant to a decree issued by the Family Court---Medical evidence available on the record corroborated the ocular account so far as the nature, time, locale and impact of the injuries on the persons of the deceased is concerned---Neither the defence seriously disputed the motive part of the prosecution story nor the prosecution witnesses were cross-examined on such aspect of the matter---In such circumstances, the prosecution had successfully proved the motive against the accused---Investigating Officer had collected four crime empties from the place of occurrence and accused was arrested on the same day after couple of hours of the occurrence along with the weapon of offence---Although, the weapon of offence and the crime empties were sent to Forensic Science Laboratory together on but as the accused was arrested on the same day, therefore, the same was of no help to him---According to the positive report of FSL, the empties were found fired from the weapon recovered from the accused---Accused confessed to his guilt before the Magistrate and the proper procedure was followed for such purpose---When the accused was confronted with such confessional statement while recording his statement under section 342, Cr.P.C. he did not deny the same but stated that the same was extracted by the Police by using force with connivance of complainant party and the same was not recorded under the requirements of law---However, such assertion was just an afterthought---Evidence available on record clearly suggested that the accused did not inform the Judicial Magistrate about the alleged coercion at the time of making his judicial confession, and also did not place on record any evidence to show that the Investigating Officer was inimical towards him and forced him to confess his crime---Even otherwise, if the confessional statement of the accused was excluded from consideration, there was sufficient material available on the record in the shape of unbiased and unimpeachable ocular account supported by medical evidence, motive and recovery to sustain conviction of the accused---Pursuant to the outcome of proceedings carried out in a Family Court, the accused knew that the complainant was coming to the house to take her dowry articles---Accused was duly armed with a pistol and consequent events reflected his mindset---Such evidence was sufficient to indicate premeditation of accused, therefore, he did not deserve any leniency in the death sentence awarded to him---Appeal was dismissed and death sentence awarded to accused was upheld.

(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 out-rightly---If the presence of the related witnesses at the time of occurrence is natural and their evidence is straight forward and confidence inspiring then the same can be safely relied upon to award capital punishment.

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

----S. 302(b)---Qatl-i-amd---Ocular account---Medical evidence---Preference---Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused---Value and status of medical evidence and recovery is always corroborative in its nature, which alone is not sufficient to sustain conviction.

Muhammad Iqbal v. The State 1996 SCMR 908; Naeem Akhtar v. The State PLD 2003 SC 396; Faisal Mehmood v. The State 2010 SCMR 1025 and Muhammad Ilyas v. The State 2011 SCMR 460 ref.

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

----S. 302(b)---Qatl-i-amd---Ocular account---Medical evidence---Minor discrepancies---Minor discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons---During occurrence witnesses in a momentary glance make only tentative assessment of the distance between the deceased and the assailant and the points where accused caused injuries---In such a scenario it becomes highly improbable to correctly mention the number and location of the injuries with exactitude---Minor discrepancies, if any, in medical evidence relating to nature of injuries do not negate the direct evidence as witnesses are not supposed to give pen picture of ocular account---Even otherwise, conflict of ocular account with medical evidence being not material in imprinting any dent in prosecution version would have no adverse affect on prosecution case---Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety---Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored.

Haider Mehmood Mirza, Advocate Supreme Court for Appellant.

Raja Muhammad Rizwan Ibrahim Satti, Advocate Supreme Court for the State.

Complainant in person.

2023 S C M R 803

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

DIVISIONAL SUPERINTENDENT, POSTAL SERVICES, D.G. KHAN---Petitioner

Versus

NADEEM RAZA and another---Respondents

Civil Petition No. 3855 of 2022, decided on 17th January, 2023.

(Against the judgment of Federal Service Tribunal, Islamabad dated 30.8.2022, passed in Appeal No.384(R)CS of 2022)

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

----S. 5---Constitution of Pakistan, Art. 212(3)---Factual questions---Service Tribunal, jurisdiction of---Scope---Tribunal is the final forum for the purpose of determination of facts and the Supreme Court cannot go into the reappraisal of the said facts.

Secretary Revenue Division v. Iftikhar Ahmed Tabbasam PLD 2019 SC 563 ref.

(b) Civil service---

----Misappropriation--- Removal from service--- Duration of misappropriation and amount misappropriated nor relevant---Embezzlement or misappropriation constitutes misconduct and the duration of such embezzlement or misappropriation has little relevance---In the present case, the respondent admittedly misappropriated a sum of Rs. 1,24,305/- on account of electricity bills he collected from consumers before depositing the same in the Government exchequer after almost 23 days without any remorse---Tribunal approved the inquiry report which contains conceding statements on behalf of the respondent admitting that he had retained the said amount as he needed it because he was constructing a house, and therefore, did not deposit the same on time---Duration of this misappropriation, or the amount involved, is irrelevant as the act itself is sufficient to constitute misconduct---Tribunal has not given any reasons or explanation to examine the penalty imposed by the department on the touchstone of proportionality and with a stroke of a pen reduced the said penalty from "Removal from Service" to "reduction to three stages lower in pay scale for two years"---Such casual interference by the Tribunal in the penalty imposed by the department cannot be sustained---Even otherwise, in the facts and circumstances of the case, the penalty imposed by the department does not offend the law or the test of proportionality---Petition for leave to appeal was converted into an appeal and allowed, impugned judgment of the Tribunal was set-aside and order passed by the department awarding major penalty of "Removal from Service" was restored.

Divisional Superintendent, Postal Services v. Muhammad Arif Butt 2021 SCMR 1033 and Divisional Superintendent v. Siddique Ahmed 2021 SCMR 1398 ref.

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

----S. 5---Service Tribunal, powers of---Scope---Under Section 5 of the Service Tribunals Act, 1973 ("Act") the Tribunal is empowered to confirm, set aside, vary or modify the order appealed before it, however, such powers are to be exercised carefully, judiciously and after recording reasons for the same--- Tribunal has no jurisdiction to grant arbitrary relief to any person as the powers of the Tribunal under section 5 of the Act are neither unqualified and nor unlimited.

Chief Postmaster Faisalabad v. Muhammad Afzal 2020 SCMR 1029; Divisional Superintendent v. Muhammad Zafarullah, 2021 SCMR 400; Divisional Superintendent v. Muhammad Arif Butt 2021 SCMR 1033; Chairman Dr. A.Q. Khan, Research Laboratories v. Malik Muhammad 2010 SCMR 302 and Central Board of Revenue v. Shafiq Muhammad 2008 SCMR 1666 ref.

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

----S. 5---Service Tribunal, powers of---Limited power of the Service Tribunal to reduce penalty imposed by the department on a civil servant---Scope---Test of proportionality for interfering in quantum of penalty/punishment---Scope---Only in exceptional circumstances, i.e. where it is against the law or is unreasonable or fails the test of proportionality, that the Tribunal can interfere in the penalty imposed by the department and that too supported by detailed reasons---Where the Tribunal or the Court interferes in the quantum or nature of the penalty imposed by the competent authority by terming the same as unreasonable, perverse or harsh, or by exercising leniency, such interference is, in effect, only made when the Tribunal or the Court concludes that the penalty is disproportionate to the misconduct proved by employing the test of proportionality---Only where the penalty imposed by the department is so shockingly disproportionate to the misconduct or inefficiency proved that to let it stand would be unfair, unjust and inequitable, that the same would justify interference based on the test of proportionality.

Imposition of punishment under the law is primarily the function and prerogative of the competent authority and the role of the Tribunal or the Court is secondary unless it is found to be against the law or is unreasonable. This is because the department/competent authority, being the fact finding authority, is best suited to decide the particular penalty to be imposed keeping in view a host of factors such as the nature and gravity of the misconduct, past conduct, the nature and the responsibility of the duty assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in the department, as well as any extenuating circumstances. The question of interference with relation to the quantum or the nature of the penalty imposed by the department only arises when the Tribunal or the Court, in consonance with the decision of the competent authority, has also found the delinquent guilty of the same or some form misconduct or inefficiency. It is, therefore, only in the above exceptional circumstances, i.e. where it is against the law or is unreasonable, that the Tribunal or the Court can interfere in the penalty imposed by the department. The imposition of the penalty being against the law would entail that it cannot be held as legally sustainable, such as, when misconduct or inefficiency for which the penalty has been imposed has not been proved and a lesser form of misconduct or inefficiency, in the opinion of the Tribunal or the Court, is proved, or the procedure provided under the law for imposing the penalty has not been followed or the penalty imposed has not been provided for in the law or rules applicable, and therefore, the imposition of the penalty itself is not sustainable under the law, thereby, justifying interference. However, where the Tribunal or the Court comes to the conclusion that the misconduct or inefficiency, for which the penalty has been imposed by the department, has been proved, the procedure under the law has been followed and the penalty imposed is provided for under the law amongst other penalties for the like misconduct or inefficiency, interference in the discretion exercised by the department in imposing a certain penalty would only be possible if the penalty imposed is considered to be starkly unreasonable.

Government of Khyber Pakhtunkhwa v. Nargis Jamal 2022 SCMR 2114; Postmaster General Sindh Province v. Syed Farhan 2022 SCMR 1154; Secretary, Government of Punjab v. Khalid Hussain 2013 SCMR 817; Deputy Commissioner v. J. Hussain (2013) 10 SCC 106; B.C. Chaturvedi v. Union of India (1995) 6 SCC 749; Noor Muhammad v. Registrar, Lahore High Court 2008 PLC (C.S.) 1188; Muhammad Ali v. FOP 2008 PLC (C.S.) 428; Senior Superintendent v. Shahid Nazir 2022 SCMR 327; Muhammad Idris Khan v. Secretary/Chairman, Ministry of Railways 2007 PLC (C.S.) 247 and Member (ACE & ST), FBR v. Muhammad Ashraf 2008 PLC (C.S.) 1161 ref.

Where the Tribunal or the Court interferes in the quantum or nature of the penalty imposed by the competent authority by terming the same as unreasonable, perverse or harsh, or by exercising leniency, such interference is, in effect, only made when the Tribunal or the Court concludes that the penalty is disproportionate to the misconduct proved by employing the test of proportionality. However, the application threshold of the proportionality test remains high and interference in the penalty imposed by the department cannot be based on mere conjectures or surmises. Interference with the penalty imposed by the department has to be exercised cautiously and with circumspection where the order imposing the penalty is wholly perverse or ex facie so demonstrably disproportionate and excessive for the misconduct, that to let it stand would be unfair, unjust and inequitable. Merely observing that the penalty imposed is not commensurate with the offence is not enough and constitutes arbitrary capricious and unstructured exercise of jurisdiction on part of the Tribunal. The order must show that the Tribunal has applied its mind to the facts and circumstances of the case and exercised its discretion in a structured, lawful and regulated manner, duly supported by legally sustainable reasoning. Therefore, it is only where the penalty imposed by the department is so shockingly disproportionate to the misconduct or inefficiency proved that to let it stand would be unfair, unjust and inequitable, that the same would justify interference based on the test of proportionality.

Akhtar Ali v. Director, Federal Government 2011 PLC (C.S.) 808; Shibli Farooqui v. FOP 2009 SCMR 281; Muhammad Ali v. Federation of Pakistan 2008 SCMR 214; Muhammad Ali v. FOP 2008 SCMR 214; Commissioner Faisalabad Division v. Allah Bakhsh 2020 SCMR 1418; Government of Khyber Pakhtunkhwa v. Nargis Jamal 2022 SCMR 2114; Chairman v. Goparaju (2008) 5 SCC 569; B.C. Chaturvedi v. Union of India (1995) 6 SCC 749; Pravin Kumar v. Union of India, (2020) 9 SCC 471; Director General Federal Directorate v. Tanveer Muhammad 2021 SCMR 345; Deputy Postmaster General v. Habib Ahmed 2021 PLC (C.S.) 531 and Government of Pakistan v. Nawaz Ali Sheikh 2020 SCMR 656 ref.

(e) Civil service---

----Penalty, quantum of---Test of proportionality---Reasonableness for the purposes of assessing the quantum or nature of a penalty imposed by the department is to be gauged by applying the test of proportionality---Penalty imposed must be commensurate with the misconduct or inefficiency that has been proved.

Sabir Iqbal v. Cantonment Board PLD 2019 SC 189; Postmaster General Sindh Province v. Syed Farhan 2022 SCMR 1154; Government of Punjab v. Muhammad Arshad 2021 PLC (C.S.) 47 and Inspector-General (Prisons) v. Syed Jaffar Shah 2009 PLC (C.S.) 47 ref.

(f) Civil service---

----Misappropriation or embezzlement of public funds---Moral turpitude---Scope---Misappropriation or embezzlement of public funds while in Government service would be considered as gross misconduct involving moral turpitude.

Imtiaz Ahmed Lali v. Returning Officer 2008 PLC (C.S.) 934 and Ghulam Hussain v. Chairman, P.O.F. Board 2002 SCMR 1691 ref.

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

----S. 5---Service Tribunal, powers of---Moral turpitude---Punishment, quantum of---Test of proportionality for interfering in quantum of penalty/punishment imposed by department/competent authority---Scope---Notion of proportionality requires that the punishment ought to reflect the degree of moral culpability associated with the offence for which it is imposed---In order to render punishment compatible with justice, it is not enough to restrict punishment to the deserving, but also to restrict the degree of punishment to the degree that is deserved---Degree of wrongfulness is described variously as the "moral culpability", "gravity" or "depravity" associated with the offence---Therefore, along with the gravity of the misconduct, interference on the grounds of proportionality in the penalty imposed for misconduct is also assessed in view of the depravity or moral culpability associated with the same---Test of proportionality is, therefore, more stringent in cases of misconduct involving moral turpitude in view of the depravity or moral culpability involved.

Burgh, Richard W. Do the guilty deserve punishment? Journal of Philosophy 79 (4):193-210 (1982) and Ian P. Farrell, Gilbert and Sullivan and Scalia: Philosophy, Proportionality, and the Eighth Amendment, 55 Vill. L. Rev. 321 (2010). https://digitalcommons.law.villanova.edu/vlr/vol55/iss2/2 ref.

Hassan Nawaz Makhdoom, Additional A.G.P. and Ali, Assistant Superintendent for Petitioner.

M. Ramzan Khan, Advocate Supreme Court for Respondent No. 1.

Assisted by: Muhammad Hassan Ali, Law Clerk.

2023 S C M R 815

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar and Shahid Waheed, JJ

Rao ABDUL REHMAN (DECEASED) through legal heirs---Petitioner

Versus

MUHAMMAD AFZAL (DECEASED) through legal heirs and others---Respondents

Civil Petition No. 1133-L of 2016, decided on 16th January, 2023.

(Against the judgment dated 15.02.2016 passed by Lahore High Court, Lahore in Civil Revision No. 997/2010)

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

----Ss. 12 & 42---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell---Proof---Suit for specific performance and declaration---Property in question was measured as 10 Marlas and was jointly owned by "F" and "A" in equal shares---Petitioner/vendee in his evidence admitted that at the time of the agreements he did not know who the owner of the entire property was and did not check whether "F" was the absolute owner of the property---Property was not partitioned by metes and bounds which meant that no specific portion of the property was earmarked for signifying the specific share or location which could be dealt with independently, including the sale of an individual share out of the joint property---Petitioner filed his suit after 13 years of the execution of the agreements, and at least two years after it came into his knowledge that the whole property was not owned by "F"---Neither any legal proceedings were initiated by the petitioner during the life time of "F" for properly transferring the title of the property pursuant to the alleged sale agreements, nor did he offer any plausible reason which may justify his act or omission of nor approaching a court of law for the implementation of the agreements at the relevant time---Appellate Court rightly reached the conclusion that the agreements were not proved and that the co-owner "A" never signed the agreements---Petitioner was claiming the title merely on the strength of the agreement to sell by one co-owner while the other co-owner never signed any such agreement---In the alleged agreements no proper description or even exact location of the suit property was mentioned, instead the description of the property was jotted down in the plaint rather than in the alleged agreements---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 12 & 42---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell---Suit for specific performance and declaration---Scope---On the basis of a sale agreement, no legal character or right can be established to prove the title of the property unless the title is transferred pursuant to such agreement to sell, but in case of denial or refusal by the vendor to specifically perform the agreement despite the readiness and willingness of the vendee, a suit for specific performance may be instituted in the court, but suit for declaration on the basis of a mere sale agreement is not the solution for appropriate relief.

Muhammad Yousaf v. Munawar Hussain and others 2000 SCMR 204 ref.

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

----S. 12---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell---Suit for specific performance---person seeking specific performance has to establish that he is enthusiastic and vehement to act upon his obligations as per the contract but the opponent is refusing or denying its execution.

(d) Constitution of Pakistan---

----Art. 189---Judgments of the Supreme Court---Binding effect---Prospective in nature---Judgments of the Supreme Court unless declared otherwise operate prospectively.

Pakistan Medical and Dental Council and others v. Muhammad Fahad Malik and others 2018 SCMR 1956; Sakhi Muhammad and another v. Capital Development Authority, Islamabad PLD 1991 SC 777 and Pir Bakhsh and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

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

----S. 10---Contract---Terms and conditions of contract---Where an effective and enforceable contract is not structured by the parties, it is not the domain or province of the Court to make out a contract for them, and the lis would be decided on the basis of terms and conditions agreed and settled down in the contract.

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

----S. 12--- Decree for specific performance---Scope---Decree for specific performance may not be passed if the substratum of the contract suffers from shortcoming or legal infirmities which renders the contract unacceptable and unenforceable.

(g) Words and phrases---

----'Caveat emptor'--- Meaning, connotation and scope.

Broom's Legal Maxims (Tenth Edition), Chapter IX, (page 528); Black's Law Dictionary (Sixth Edition), page 222; Words and Phrases (Permanent Edition), Volume 6A (Pages 8 and 9); Wood v. Ross, Tex. Civ. App., 26 S.W. 148, 149; Kain v. Weitzel, 50 N.E.2d 605, 607, 72 Ohio App. 229; Sherwood v. Salmon, 2 Day, 128, 136; Burwell's Adm'rs v. Fauber, Va., 21 Grat. 446, 463; Major Law Lexicon (Fourth Edition), (page 6035-see page number); Gour Kishan v. Chunder Kishore, per Gart T CJ, (1876) 25 SUTH WR 45 (46) and Bahar Shah and others v. Manzoor Ahmad (2022 SCMR 284 ref.

(h) Appeal---

----Inconsistency between the findings of Trial Court and the Appellate Court---In such a case findings of the Appellate Court must be given preference in the absence of any cogent reason to the contrary.

Amjad Ikram v. Mst. Asiya Kausar 2015 SCMR 1; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others 2013 SCMR 1300 ref.

Agha Muhammad Ali, Advocate Supreme Court for Petitioner.

Jam Khursheed Ahmed, Advocate Supreme Court for Respondents Nos. 2 to 5.

2023 S C M R 826

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Munib Akhtar and Shahid Waheed, JJ

STATE LIFE INSURANCE CORPORATION and another---Appellants/Applicants

Versus

Mst. RAZIA AMEER and another---Respondents

Civil Appeal No. 929 of 2017 and C.M.A. No. 1708 of 2019, decided on 6th March, 2023.

(On appeal against the judgment dated 22.05.2017 passed by the Lahore High Court, Lahore in Insurance Appeal No. 1288 of 2015)

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

----S. 118--- Payment of liquidated damages on late settlement of claims---Scope---On completion of all formalities, if the claim is not satisfied/cleared within ninety days without any fault of the claimant when it becomes due, then, under the implied term of every contract of insurance the liquidated damages must be granted.

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

----S. 118---Group insurance contract---Legal heirs of insured person---Payment of liquidated damages on late settlement of claims---Entitlement of legal heirs to claim liquidated damages under section 118 of the Insurance Ordinance, 2000---Scope---Group insurance is designed to provide monetary benefits to the family of the assured person; particularly, if the assured person has not defaulted in payment of premium amount---In the present case the insurer had failed to prove that its failure to pay the claim within the stipulated time of 90 days (mentioned under section 118 of the Insurance Ordinance, 2000) was due to circumstances beyond its control---Claim of the widow and legal heirs of deceased assured person for payment of liquidated damages was well founded, and thus, they were entitled to receive it---Appeal was dismissed.

Madan Gopal v. Maran Bepari PLD 1969 SC 617 ref.

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

----S. 2(xlv)--- Insurance policy---Effective date---Policy/contract becomes effective from the date it is signed by the executants.

Bhaiyat v. L. Chong Kha and others AIR 1934 Rangoon 342 ref.

Mushtaq Ahmad Mohal, Advocate Supreme Court (via video link from Lahore) for Appellants.

Liaqat Ali Butt, Advocate Supreme Court (via video link from Lahore) for Respondent No. 1.

Sanaullah Zahid, Additional A.G. and Shahid Fiaz, DEO (S.E), Narowal for Respondent No. 2.

2023 S C M R 831

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Jamal Khan Mandokhail and Athar Minallah, JJ

AQIL---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 553 of 2017, decided on 16th February, 2023.

(On appeal against the judgment dated 06.06.2017 passed by the Lahore High Court, Lahore in Criminal Appeal No. 106-J/2014 and Murder Reference No. 79/2014)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---First Information Report was registered just after 1 hour and 25 minutes of the occurrence---Distance between the place of occurrence and the police station was 25 kilometers, thus, it could safely be said that FIR was lodged with promptitude---Promptness of FIR showed truthfulness of the prosecution case and it excluded possibility of deliberation and consultation---Occurrence took place in the broad daylight and the parties were known to each other, therefore, there was no chance of misidentification---Ocular account had been furnished by complainant and an another witness, who were residents of the same locality where the occurrence took place---Said witnesses had given all necessary details of occurrence qua the date, time, place, name of accused, name of witnesses, manner of occurrence, kind of weapon used in the occurrence, the locale of injuries and the motive of occurrence---Complainant had sustained injuries during the occurrence, which had fully been supported by the medical evidence; this clearly proved her presence at the place of occurrence---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 her mother and sister---Substitution in such like cases was a rare phenomenon---Medical evidence available on the record further corroborated the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and injured was concerned---Petition for leave to appeal was dismissed, leave was refused, and conviction of accused under section 302(b), P.P.C. was maintained.

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

----S. 302(b)---Qatl-i-amd---"Interested" witness---Witness "related" to deceased---Distinction---Term "related" is not equivalent to "interested"---Witness may be called "interested" only when he or she derives some benefit in seeing an accused person punished---Witness who is a natural one and is the only possible eye-witness in the circumstances of a case cannot be said to be "interested".

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

----S. 302(b)---Qatl-i-amd---Injured witness, testimony of---Scope---Testimony of an injured eye-witness carries more evidentiary value.

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

----S. 302(b)--- Qatl-i-amd---Ocular evidence--- Medical evidence---Preference---Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused. Muhammad Iqbal v. The State 1996 SCMR 908; Naeem Akhtar v. The State PLD 2003 SC 396; Faisal Mehmood v. The State 2010 SCMR 1025 and Muhammad Ilyas v. The State 2011 SCMR 460 ref.

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

----S. 302(b)--- Qatl-i-amd--- Medical evidence--- Recovery evidence---Value and status of medical evidence and recovery is always corroborative in nature, which alone is not sufficient to sustain the conviction of an accused.

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

----S. 302(b)---Qatl-i-amd---Ocular account provided by a witness---"Contradiction" and "minor discrepancies"---Distinction and effect---Contradiction in the statement of a witness is fatal for the prosecution case whereas minor discrepancy or variance in evidence will not make the prosecution case doubtful---Normal course of human conduct is that while narrating a particular incident there may occur minor discrepancies---Parrot-like statements are always discredited by the courts---In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounts to contradiction, regard is required to be made to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witnesses were making the statement---Normal discrepancies are always present, howsoever, honest and truthful a witness may be---Such discrepancies are due to normal errors of observation, memory due to lapse of time and mental disposition such as shock and horror at the time of occurrence---Material discrepancies are those which are not normal and not expected of a normal person.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Sentence, reduction in---Recovery of weapon of offence was inconsequential as admittedly no crime empty was recovered from the place of occurrence---High Court had rightly disbelieved the motive by holding that a divorce, which was the alleged motive for the occurrence, took place two years prior to the occurrence, therefore, what happened immediately before the occurrence, which provoked the accused to take lives of two innocent persons, remained shrouded in mystery---Hence, the motive part of the prosecution case did not inspire confidence so as to term it is as a cause of the murder---Keeping in view the fact that motive had been disbelieved and the recovery was inconsequential, the High Court has rightly taken a lenient view and converted the sentence of death into imprisonment for life---Petition for leave to appeal was dismissed, and leave was refused.

Rizwan Ibrahim Satti, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, D.P.G. for the State.

2023 S C M R 838

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Muhammad Ali Mazhar, JJ

Messrs MIDDLE EAST CONSTRUCTION COMPANY, KARACHI---Appellant

Versus

The COLLECTOR OF CUSTOMS, KARACHI---Respondent

Civil Appeals Nos. 2016 and 2017 of 2022, decided on 16th February, 2023.

(Against the judgment dated 10.05.2022 passed by the High Court of Sindh, Karachi in C.P. No. D-1390 of 2020 and SCRA No. 303 of 2020)

Customs Act (IV of 1969)---

----S. 196---Reference to High Court---Scope---Jurisdiction of High Court limited to questions of law---Imported vehicles, nature of---Tribunal was the last forum for the determination of facts---In the present case the Tribunal had concluded that the imported vehicles were prime movers---High Court realized the shortcomings in the references of the Customs department, therefore, it took it upon itself to ascertain the nature of the vehicles---High Court's jurisdiction under section 196 of the Customs Act, 1969 was limited to a question of law, therefore, it did not lay within the jurisdictional domain of the High Court to itself determine the nature of the imported vehicles---If the High Court preferred any particular reports which were before it, and if it was setting aside the judgments of the Tribunal then it should have given valid reasons for its preference---However, the High Court should not have embarked upon determining the nature of the vehicles itself, and to do so by relying upon material which had not been produced either before the adjudicating officer or the Tribunal---Manner in which the High Court took upon itself to ascertain the nature of the imported vehicles could not be endorsed---Appeals were allowed by setting aside the impugned judgments of the High Court, with the direction that the subject vehicles be released immediately on payment of the applicable duties and taxes, if the same had not already been paid.

Shahzada Mazhar, Advocate Supreme Court (through video-link, Lahore) for Appellant (in both cases).

M. Nadeem Qureshi, Advocate Supreme Court and Ms. Sania Rasool Bhutto, Assistant Collector (though video-link, Karachi) for Respondent (in C.A. No. 2016 of 2022).

Date of hearing: 16th February, 2023.

The learned counsel for the appellant states that both these appeals pertain to the import of four prime movers which were imported through two Goods Declarations wherein the appellant described the imported goods, as per Pakistan Customs Tariff Code 8701.2040, that is, 'Road tractors for semi-trailers (prime movers) of 280 HP and above'. The Customs authorities did not clear the goods alleging that they were trucks and also older than five years and as such could not be imported under the Import Policy Order, 2016. The orders of the adjudicating officer were assailed before the Customs Appellate Tribunal, Karachi ('the Tribunal') and the Tribunal set-aside the same vide judgments dated 17 January 2020.

1. The respondent assailed the judgments of the Tribunal in Special Custom Reference Applications Nos. 303 and 304 of 2020 and the appellant filed Constitution Petition No. D-1390 of 2020, since the Customs department was not complying with the judgments of the Tribunal.

2. The learned Mr. Shahzada Mazhar submits that the learned Judges of the High Court proceeded to determine facts, which in the last resort the Tribunal could only do, and did so by directly accessing what is stated to be the website of the manufacturer of the imported vehicles (Hino, Japan), and set-aside the well reasoned judgments of the Tribunal. He submits that the references filed by the respondent, Collector of Customs, did not call upon the High Court to undertake the exercise of logging on to any website, which, in any event, the High Court could not do, nor could it take it upon itself to do so. The learned counsel has also pointed to the photographs of the vehicles reproduced in the impugned judgments which he says are not in respect of the same vehicles as those imported by the appellant. The learned Mr. Shahzada Mazhar submits that the jurisdiction of the High Court is invoked under section 196 of the Customs Act, 1969 ('the Act') which permits only 'a question of law arising out of [the Tribunal's] such order' as per subsection (1) of section 196 of the Act, which is reiterated in sub­section (5) of section 196 of the Act whereby the jurisdiction of the High Court is limited to question of law.

3. On the other hand the learned Mr. Nadeem Qureshi, representing the respondent, has referred to the examination report and to the re­-examination report, which was ordered to be conducted by the adjudicating officer, and states that these reports clearly state that the vehicles could not be imported under the Import Policy Order, 2016 and that the imported vehicles were not prime movers, as stated, but were trucks. Concluding his submissions, he states that the judgments of the learned Judges of the High Court were well reasoned and do not call for interference by this Court.

4. We enquired from the learned counsel for the respondent whether the digital pictures taken at the time of inspection (at page 66 of CPLA No. 2057/2022) correctly depicted the vehicles under consideration and he stated that they did. However, these are different from the photographs inserted in the impugned judgments.

2023 S C M R 842

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Shahid Waheed, JJ

IJAZ AKBAR---Petitioner

Versus

The DIRECTOR GENERAL (EXT.) L&DD, PUNJAB, LAHORE and others---Respondents

C.P. No. 4835 of 2019, decided on 30th January, 2023.

(Against the judgment of the Punjab Service Tribunal (at Rawalpindi), dated 21.10.2019, passed in Appeal No. 3087 of 2019)

Civil service---

----Period of absence from duty after imposition of penalty---Such period has no bearing on the penalty and it does not undo the penalty imposed.

In view of the legal consequence of the absence from duty, a disciplinary authority, or an appellate authority, tribunal or court, when imposes a penalty lesser than dismissal or removal from service on a delinquent civil servant for his misconduct of being absent from duty, it has to make an incidental order as to what treatment should be given to the period of his absence for the purpose of giving continuity to his service; otherwise, the whole past service of the civil servant will stand forfeited, which would be the imposition of an additional penalty neither prescribed by the law nor imposed by the authority. The best possible incidental order, which may be made in such a situation, is therefore to make a fictional arrangement to account for such period of absence from duty in the service record of the civil servant by treating (deeming) the same as an extraordinary leave without pay, rather than any other kind of leave; as in case of treating the said period as a leave of some other kind of leave (even if found due), the delinquent civil servant may claim pay of that period also, which would amount to awarding him a benefit rather than awarding a penalty for his fault. Thus, after imposing a penalty other than dismissal or removal from service, the making of an incidental order as to treating (deeming) the period of absence from duty as an extraordinary leave without pay, in no way, washes out the misconduct committed.

LDA v. Nadeem Kachloo 2006 SCMR 434; Director-General, I.B. v. Muhammad Javed 2012 SCMR 165 and Sharif Abbasi v. WAPDA 2013 SCMR 903 over ruled.

NAB v. Muhammad Shafique 2020 SCMR 425 agreed with.

Imtiaz Lali v. Returning Officer PLD 2008 SC 355; Muhammad Ali Bukhari v. Federation of Pakistan 2008 SCMR 214; Federation of Pakistan v. Mamoon Malik 2020 SCMR 1154 and NBP v. Zahoor Mengal 2021 SCMR 903 ref.

Where the civil servant who is unauthorizedly absent does not resume duty and offer any satisfactory explanation, or where the explanation offered by him is not satisfactory, the departmental authority is to initiate the disciplinary proceedings and impose an appropriate penalty, which may range from a major penalty of dismissal or removal from service to a minor penalty of censure or withholding of increment for a specific period, mainly depending upon the nature of service, the position (duty) of the civil servant in that service, the period of absence and the cause for the absence. Where the penalty imposed on the delinquent civil servant is dismissal or removal from service, it may not be necessary to pass any incidental order relating to the period of absence, unless it is deemed necessary to recover any amount of pay, or other service benefits, received by the civil servant during the period of his absence from duty; but where any other penalty is awarded for the unauthorized absence from duty, it will be necessary to pass some incidental order as to how the period of absence should be accounted for and dealt with in the service record of the civil servant. If the unauthorized absence from duty remains unaccounted for, it will result in an interruption in service of the civil servant, thereby forfeiting his whole past service and affecting his seniority, pension etc. Such incidental order directing how the period of absence should be treated in the service record of the civil servant is thus an administrative arrangement, which does not affect or supersede the order imposing the penalty.

State of Punjab v. P.L. Singla AIR 2009 SC 1149 ref.

M. Bashir Khan, Advocate Supreme Court for Petitioner.

Sanaullah Zahid, Additional A.G., Punjab, Dr. Farooq, Additional Director, L&DD, Punjab and Wasim Ahmed, Superintendent, L&DD, Punjab for Respondents.

2023 S C M R 848

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Muhammad Ali Mazhar, J

FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABAD and another---Appellants

Versus

Dr. SHAHID HANIF---Respondent

Civil Appeal No. 64 of 2022, decided on 30th May, 2022.

(Against the Judgment dated 30.01.2018 passed by the Islamabad High Court, Islamabad in F.A.O. No.98/2017)

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

----R. 12---S.R.O. No. 1138(I)/2014, dated 17.12.2014, published in the Extraordinary Gazette of Pakistan on 23.12.2014, R. 4 & Sched.---Serial 5.2, Estacode, Edition 2015---Serial No. 12, Page 1245, Estacode Edition 2007---Post of Executive Director (BS-21) in the Federal Government Polyclinic (PGMI)---Experience required for post---Post-qualification experience---Scope---Corresponding to General Instructions of the Federal Public Service Commission, the post qualification experience as mentioned in Rule 12 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, means experience gained in regular full-time paid job, including experience of daily wages, contingent services and that of the on job training, subject to its relevancy acquired after attaining the requisite minimum advertised qualification---Genus of Post qualification experience deduces the experience and proficiency which is gained after achieving the specific degree/education in order to meet the qualifying standards for the selected vacancy or job with the characteristics and attributes of ability, suitability and fitness of a person to perform a particular job or task with excellence---In fact it depends on the fine sense of judgment of requisitioning authority to structure the yardstick of required qualification for the post and no relaxation can be claimed in the criteria fixed for the post qualification experience---Experience for the post in question in the present case meant experience gained in a regular full time paid job after obtaining the required qualification---Appeal was allowed, the impugned judgment of the High Court was set aside, and the recruiting authority was directed to re-advertise the post.

Ch. Aamir Rehman, Additional A.G.P., Kamran Riffat, DD FPSC and M.Abdullah, AD FPSC for Appellants.

Nemo for Respondent.

2023 S C M R 857

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Jamal Khan Mandokhail and Athar Minallah, JJ

GUL MUHAMMAD---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 1557 of 2022, decided on 9th February, 2023.

(On appeal against the order dated 28.11.2022 passed by the High Court of Sindh, Circuit Court Hyderabad in Criminal Bail Application No. S-1126/2022)

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 302, 324, 337-A(i), 337-F(i), 337-H(2), 504, 506, 114, 147, 148 & 149---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, grant of---Further inquiry---Allegation against the accused was that he while armed with a pistol launched an attack on the complainant party and made straight fire from his pistol on the complainant which hit on his ear and shoulder---However, it was stance of the accused that infact the complainant party while armed with firearms came at his village, attacked him and caused injury on his left arm, due to which his left arm had been amputated---Medical evidence available on record prima facie supported the stance of the accused---Accused also got registered a counter FIR against the complainant party---Present crime report was lodged after an inordinate delay of two days for which not a single word had been put forward by the complainant---Delayed registration of FIR prima facie showed deliberations and consultation on the part of the complainant---Trial Court after recording of evidence would decide about the guilt or otherwise of the accused and as to whether section 324, P.P.C. was applicable or not---Accused was behind bars for the last more than five months and merely on the basis of bald allegations, the liberty of a person could not be curtailed---Accused had made out a case for bail as his case squarely fell within the purview 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.

Mian Taj Muhammad Keerio, Advocate Supreme Court (through video link from Karachi) for Petitioner.

Hussain Bux Baloch, Additional P.G. for the State.

Complainant in person.

2023 S C M R 860

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

DIRECTOR MILITARY LANDS AND CANTONMENT QUETTA CANTT. QUETTA and others---Petitioners

Versus

AZIZ AHMED and others---Respondents

C.P.L.As. Nos. 211-Q and 5070 of 2017, decided on 18th January, 2023.

(Against the judgment dated 09.10.2017 passed by the High Court of Balochistan Quetta in C.P. No. 824 of 2011)

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Constitutional jurisdiction under Article 199 of the Constitution cannot be exercised to resolve factual controversies.

Government of Khyber Pakhtunkhwa v. Intizar Ali 2022 SCMR 472 and Amir Jamal v. Malik Zahoor-ul-Haq 2011 SCMR 1023 ref.

(b) Pakistan Cantonment Property Rules, 1957---

----R. 9---Class "C" land---Change in classification of land---Approval of Federal Government---Cantonment Board has no independent and exclusive authority to change the classification of the land, its lease or transfer, except with the previous approval of the Federal Government.

Federation of Pakistan through The Secretary, Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37 ref.

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

----S. 42---Suit for declaration---Decree---Pre-existing right---Through a declaration in civil matters claimed under section 42 of the Specific Relief Act, 1877, a pre-existing right can be declared, but a new right cannot be created by grant of a decree by the civil court.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---High Court under the Constitutional jurisdiction vested in it under Article 199 of the Constitution can declare a pre-existing right, and no new right can be created through a declaration issued under Article 199.

Ch. Aamir Rehman, Additional Attorney General and Adnan Basharat, Advocate Supreme Court on behalf of Cantonment Board Quetta for Petitioners.

Syed Ayaz Zahoor, Senior Advocate Supreme Court (through video link from Quetta) for Respondents.

2023 S C M R 866

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ijaz Ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

KIRAMAT KHAN---Petitioner

Versus

IG, FRONTIER CORPS and others---Respondents

Civil Petition No. 3287 of 2019, decided on 18th August, 2022.

(Against judgment dated 25.07.2019 of Federal Service Tribunal, Islamabad, passed In Appeal No.388(P)CS of 2019)

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

----S. 14---Exclusion of time of proceeding bona fide in Court without jurisdiction---Scope---In order to avail the benefit of section 14 of the Limitation Act, 1908 it is imperative that a litigant seeking benefit of the said provision must show that he was prosecuting his remedy with due diligence and in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it---Material words are "due diligence" and "good faith" in prosecuting a remedy before a wrong forum---Term "due diligence" entails that a person takes such care as a reasonable person would take in deciding on a forum to approach.

(b) Frontier Corps Ordinance (XXVI of 1959)---

----Preamble---Service Tribunals Act (LXX of 1973), S. 4---Service Tribunal, jurisdiction of---Employees of the Frontier Corps---Such employees shall be governed under the provisions of Frontier Corps Ordinance, 1959 and for the limited purpose would enjoy the status of civil servants---As such, they could avail their remedies before the (Service) Tribunal for redressal of their grievances.

IG, HQ Frontier Corps v. Ghulam Hussain 2004 SCMR 1397 and Commandant, Frontier Constabulary v. Gul Raqib Khan 2018 SCMR 903 ref.

(c) Limitation---

----Void order---Limitation would run even against a void order and an aggrieved party must approach the competent forum for redressal of his grievance within the period of limitation provided by law.

Parvez Musharraf v. Nadeem Ahmed (Advocate) PLD 2014 SC 585; Muhammad Sharif v. MCB Bank Limited 2021 SCMR 1158 and Wajdad v. Provincial Government 2020 SCMR 2046 ref.

Zia ur Rehman Tajik, Advocate Supreme Court for Petitioner.

Nasir Mehmood, Advocate Supreme Court for Respondents.

2023 S C M R 870

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Jamal Khan Mandokhail and Athar Minallah, JJ

Mst. HAJIRA BIBI alias SEEMA and others---Appellants

versus

ABDUL QASEEM and another---Respondents

Criminal Appeal No. 39-K of 2022, Criminal M.A. No. 113-K of 2022 and Criminal Petition No. 613 of 2022, decided on 6th February, 2023.

(Against the judgment dated 22.04.2022 passed by the High Court of Sindh, Karachi in Criminal Jail Appeals Nos. 126/2020, 185/2020 and Confirmation Case No. 03/2020)

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

----Ss. 302, 34, 109 & 202---Qatl-i-amd, common intention, abetment, intentional omission to give information of offence by person bound to inform---Reappraisal of evidence---No specific date, time and place where the conspiracy was hatched had been mentioned in the crime report---Name and number of witnesses to that extent also did not find mention in the crime report---Although three prosecution witnesses were subsequently brought into picture by the prosecution in support of its case but their testimonies also did not reveal any exact date and time when the conspiracy was hatched---Prosecution presented voice messages from the Whatsapp chat of the co-accused persons and the principal accused, however the transcript of the messages showed that the same did not constitute any offence---Appeal was allowed and the accused persons were acquitted of the charge.

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

----S. 109---Abetment---Scope---Essence of crime of abetment is that the abettor should substantially assist the principal culprit towards commission of offence---Concurrence in the criminal acts of another without such participation therein does not per se become culpable---Mere negligence in an act also does not bring a person within the purview of the offence of abetment.

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

----S. 302---Qatl-i-amd---Benefit of doubt---Scope---Any doubt arising in prosecution case is to be resolved in favour of the accused---For the accused to be afforded the right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused.

Mst. Asia Bibi v. The State PLD 2019 SC 64; Tariq Pervaiz v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Abdul Jabbar v. State 2019 SCMR 129 ref.

Mahmood Habibullah, Advocate Supreme Court for Appellants (in Cr. A. 39-K/2022 (via video link from Karachi)).

Amir Mansoob Qureshi, Advocate Supreme Court for Appellants (in Cr. P. 613/2022 (via video link from Karachi) also for Respondent No. 1 (in Criminal Appeal No. 39-K/2022).

Hussain Bux Baloch, DPG (through video link from Karachi) for the State.

2023 S C M R 877

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Shahid Waheed, JJ

DIRECTOR GENERAL, INTELLIGENCE BUREAU---Petitioner

Versus

RIAZ-UL-WAHAB and others---Respondents

C.Ps. Nos. 3447 to 3450 of 2022, decided on 7th February, 2023.

(Against four judgments of Federal Service Tribunal, Islamabad all dated 16.06.2022, passed in Appeals Nos. 62(R)CS, 417(R)CS, 114(R)CS and 115(R)CS of 2022)

(a) Civil service---

----Performance Evaluation Report---Scope and significance---Countersigning Officer and Reporting Officer---Significance of Performance Evaluation Report (PER) and the obligations of Countersigning Officer and Reporting Officer in preparation of the same stated.

Performance Evaluation Reports (PERs) are the most important documents in the service record of civil servants. They help the competent authorities in making informed decisions with regards to personnel administration matters, such as, selections for training, appointments/transfers, promotions, confirmations or screening of civil servants. An officer's promotion and retention in service mostly depends on what has been recorded in his/her PER. It is, therefore, essential that the PERs are written by the Reporting and Countersigning Officers most carefully and responsibly. The PER forms that elaborate the criteria against which the performance of a subordinate officer is to be evaluated, and the instructions issued with regards to properly recording the PERs, are designed to ensure reporting on an officer's strong and weak points more objectively, as only objective reporting can effectively serve the true purpose of such reports. If the Reporting or the Countersigning Officer is partial, his opinion is likely to cause incalculable damage to the officer reported upon, and if a PER is ambiguous or carelessly written, it would not serve the true purpose of recording PERs. Therefore, the Reporting and Countersigning Officers should evaluate the performance of the officer reported upon in a detached and objective manner, in accordance with the instructions issued on the subject.

A Guide to Performance Evaluation (Edition 2004), Establishment Division, Government of Pakistan, SECTION 1 and Government of Punjab v. Ehsanul Haq Sethi PLD 1986 SC 684 ref.

Recording of PERs must be undertaken with complete objectivity and fairness, and with a view to improve individual and organizational productivity.

https://openknowledge.worldbank.org/bitstream/handle/10986/35921/Performance­Management-in-the-Public-Administration-Seven-Success-Factors.pdf ref.

(b) Civil service---

----Performance Evaluation Report---Assessment by Countersigning Officer and Reporting Officer---Interference by Service Tribunal or Supreme Court---Grounds---Evaluation of the performance of a subordinate officer by his Reporting or Countersigning Officer, primarily being a matter of personal assessment based on the direct observation of the work of the officer concerned, is not to be usually interfered with by the Tribunal or the Supreme Court unless mala fide with full particulars, or the gross violation of the instructions, on the part of the Reporting or Countersigning Officer, as the case may be, is shown.

I.G.P. v. Altaf Majid 1994 SCMR 1348 and Noor Elahi v. Director of Civilian Personnel 1997 SCMR 1749 ref.

(c) Civil service---

----Performance Evaluation Report---Countersigning Officer and Reporting Officer---Prior counseling of subordinate officer---Requirement of prior counselling of subordinate officer before recording adverse remarks against him in his PER elaborated.

According to clauses 2.13(i)(ii) and 3.3(ii)(iv) of the Instructions contained in "A Guide to Performance Evaluation" (Edition 2004) published by the Establishment Division, as a general rule, an officer is to be apprised if his Reporting or Countersigning Officer is dissatisfied with his work, and the communication of such dissatisfaction with advice or warning should be prompt so that the officer may eradicate the fault and improve his performance. That is why it is emphasised that the Reporting or Countersigning Officers should not ordinarily record adverse remarks as to the performance of an officer without prior counselling. They are thus expected to apprise the officer concerned about his weak points and advise him/her how to improve, and to record the adverse remarks in the PER when the officer fails to improve despite counselling. The supervisory officers under whose supervision other officers work, must realise that the supervision does not mean cracking the whip on finding a fault in their performance, rather the primary purpose of the supervision is to guide the subordinates officers in improving their performance and efficiency, and that their role is more like a mentor rather than a punishing authority. As the purpose of counselling is to improve the performance of the officer and not to insult or intimidate him, the supervisory officers are also to see, having regard to the temperament of the officer concerned, whether the advice or warning given orally or in written form, or given publically in a general meeting of the officers or privately in a separate meeting with the concerned officer only, would be beneficial for the officer in improving his performance. The directions contained in the instructions, in this regard, on paying great attention to the manner and method of communicating advice or warning should be adhered to.

A Guide to Performance Evaluation (Edition 2004), Establishment Division, Government of Pakistan, SECTION 1 ref.

Raja M. Shafqat Khan Abbasi, D.A.G., Mrs. Ayesha Wani, Joint Secretary, Amin Tareen, Deputy Secretary and Sajid-ul-Hassan, Section Officer, Establishment Division, GOP for Petitioner.

Respondents in person.

2023 S C M R 884

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Jamal Khan Mandokhail and Athar Minallah, JJ

ABDUL REHMAN alias MUHAMMAD ZEESHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1619 of 2022, decided on 2nd February, 2023.

(On appeal against the order dated 08.12.2022 passed by the Lahore High Court, Lahore in Criminal Misc. No. 71061-B of 2022)

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

----Ss. 497(2) & 498--- Penal Code (XLV of 1860), Ss. 337-A(ii), 337-L(2), 147 & 149---Constitution of Pakistan, Art. 185(3)---Assault with a knife (churri)---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Crime report was lodged after an inordinate delay of five days for which not even a single word had been put forward by the complainant---Delayed registration of FIR prima facie showed deliberations and consultation on the part of the complainant---Co-accused persons, who were specifically named in the crime report, had already been granted pre-arrest bail---Possibility could not be ruled out that the accused had been involved in the case by throwing a wider net by the complainant especially when it was the case of the accused that the FIR was registered against a person named "Z" but the name of the accused had subsequently been added portraying his alias as "Z"---Accused was a young man having no criminal history and keeping him behind the bars with hardened criminals would not be in the interest of justice---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 accused was confirmed.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---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 PLD 2022 SCMR 1424 and Muhammad Ijaz v. The State 2022 SCMR 1271 ref.

Ch. Muhammad Ashraf Jalal, Advocate Supreme Court with Petitioner (via video link from Lahore) and Anis Muhammad Shahzad, Advocate-on-Record for Petitioner.

Ch. Muhammad Sarwar Sidhu, Additional P.G., Muhammad Nadim, D.S.P. and Muhammad Ashraf, SI for the State.

2023 S C M R 887

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

Mst. GHAZALA---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 54 of 2023, decided on 22nd February, 2023.

(Against the judgment of the Peshawar High Court, Peshawar dated 19.12.2022, passed in Bail Petition No.3875-P of 2022)

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

----S. 497(1), first proviso---Female accused---Offence falling within prohibitory clause of section 497, Cr.P.C.---Bail---Principles of law regulating the discretion of courts, under section 497(1), Cr.P.C., in the matter of granting post arrest bail to a women accused stated.

First proviso to section 497(1), Cr.P.C. makes the power of the court to grant bail in the offences of prohibitory clause of section 497(1) alleged against an accused under the age of sixteen years, a woman accused and a sick or infirm accused, equal to its power under the first part of section 497(1), Cr.P.C. It means that in cases of women accused etc. as mentioned in the first proviso to section 497(1), irrespective of the category of the offence, the bail is to be granted as a rule and refused only as an exception in the same manner as it is granted or refused in offences that do not fall within the prohibitory clause of section 497(1), Cr.P.C. The exceptions that justify the refusal of bail are the likelihood of the accused, if released on bail: (i) to abscond to escape trial; (ii) to tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice; and (iii) to repeat the offence.

Tahira Batool v. State PLD 2022 SC 764; Tariq Bashir v. State PLD 1995 SC 34; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488; Muhammad Tanveer v. State PLD 2017 SC 733 and Iftikhar Ahmad v. State PLD 2021 SC 799 ref.

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

----Ss. 497(1) & 497(2)---Bail---Grant of bail under section 497(1) and under section 497(2), Cr.P.C.---Distinction explained.

Grant of bail to the accused under section 497(2), Cr.P.C., is granted as of right if it appears to the court that there are no reasonable grounds for believing that the accused has committed the offence alleged against him rather there are sufficient grounds for further inquiry into his guilt. For the purpose of deciding the prayer for grant of bail in exercise of the discretionary power of the court under section 497(1), Cr.P.C., the availability of a sufficient incriminating material to connect the accused with the commission of the offence alleged against him is not a relevant consideration.

Syed Rifaqat Hussain Shah, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Arshad H. Yousafzai, Advocate Supreme Court for the Complainant.

Zahid Yousaf Qureshi, Additional A.G., Faqir Gul, DSP and Sabr Ali, I.O. for the State.

2023 S C M R 890

[Supreme Court of Pakistan]

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

KAUSER PARVEEN and another---Appellants

Versus

KASB BANK and others---Respondents

Civil Appeals Nos. 335 and 336 of 2010, decided on 22nd February, 2022.

(Against the order dated 25.05.2009 of Lahore High Court, Lahore passed in E.F.A. No. 91 of 2009)

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

----S. 19---Civil Procedure Code (V of 1908), S. 12(2) & O.XXI---Decree of Banking Court---Auction of mortgaged property by Bank---Co-owners of mortgaged property claiming fraud and objecting to auction of suit property---Held, that perusal of section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 showed that once the decree of Banking Court was passed in favour of the bank, the decree by itself constituted and conferred sufficient power and authority on the bank to sell or cause to be sold any and all mortgaged properties of the judgment-debtors along with their marketable titles---Banking Court was not bound to follow the procedure laid down in Order XXI of the C.P.C.; it could adopt any procedure in order to satisfy and execute the decree passed in favour of the respondent-Bank---Even otherwise, the auction was advertised and the bid of the auction purchaser for the suit property being the highest was accepted vide the Banking Court's order---Since second co-owner never took the ground that the decree was obtained fraudulently or that the auction purchaser had obtained the suit property fraudulently, he could not travel beyond his pleas taken before the lower fora and rely on the arguments raised by first co-owner---Even otherwise, second co-owner could not agitate the questions at present stage for the first time since he was not a party in the execution proceedings before the Banking Court---First co-owner in her objection petition admitted the fact that the suit property was mortgaged to the respondent-Bank; she did not raise any plea before the lower fora that the sale certificate should not be issued to defeat her proprietary interest in the suit property as well as the ground that she was unaware that the suit property had been auctioned off and sold in favour of the auction purchaser---First co-owner therefore could not, at present stage, raise a ground which she had not taken before the Banking Court---It did not appeal to reason that the first co-owner was unaware of the fact that the suit property was mortgaged; that a suit for recovery was pending against the suit property, and that her own father, brothers and sisters were judgment-debtors in the said suit---Since the sale certificate had been issued by the Banking Court after the objection petition of first co-owner was dismissed, the sale certificate could not be set aside on the ground that both the co-owners' proprietary right in the suit property would be affected---Appeals filed by the co-owners were dismissed.

Mujahid Karim and others v. National Bank of Pakistan and others 2016 SCMR 66; Nice 'N' Easy Fashion (Ltd.) and others v. Allied Bank of Pakistan and another 2014 SCMR 1662 and Habib and Company and others v. Muslim Commercial Bank Ltd. and others 2019 SCMR 1453 ref.

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

----O. VI, R. 7---Pleadings, departure from---Party is not allowed to improve its case beyond what was originally setup in the pleadings.

Muhammad Yaqoob_v. Mst. Sardaran PLD 2020 SC 338 and Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21 ref.

Muhammad Asad Manzoor Butt, Advocate Supreme Court for Appellants (in both cases).

Tariq Masood, Advocate Supreme Court, Raja Muqsit Nawaz Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

2023 S C M R 900

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar and Athar Minallah, JJ

ALI TAJ and another---Petitioners

Versus

The STATE---Respondent

Jail Petitions Nos. 255 and 272 of 2018, decided on 12th January, 2023.

(Against the judgment dated 08.03.2018 passed by the Lahore High Court, Rawalpindi Bench in Capital Sentence Reference No. 04-T/2014, Criminal Appeals Nos. 31/2014 and 11-J of 2014)

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

----Ss. 302(b), 324, 396, 353, 186, 412, 341, 225 & 148---Anti-Terrorism Act (XXVII of 1997), S. 7---Murderous assault, acts of terrorism---Reappraisal of evidence---Crime report was lodged just after two hours of the occurrence---Distance between the place of occurrence and the police station was five kilometers, thus, it could be said that FIR was lodged with promptitude---Promptness of FIR showed truthfulness of the prosecution case and it excluded possibility of deliberation and consultation---Both the witnesses of ocular account had sustained injuries during the occurrence, which were fully been supported by the medical evidence---Testimonies of said injured witnesses as well as the stamp of injuries on their person clearly proved their presence at the place of occurrence---Said witnesses had no relationship with the deceased nor had any animosity against the accused persons---In their testimonies said witnesses gave all necessary details of occurrence qua the date, time, place, name of witnesses, manner of occurrence, kind of weapon used in the occurrence and the locale of injuries---Counsel for the accused persons could not point out any reason as to why injured witnesses would involve the accused persons in the present case and let off the real culprits, who had committed murder of not only their colleague (police official) but also of an innocent taxi driver---After their arrest, the accused persons were identified by the witnesses during identification parade, which was conducted under the supervision of a Judicial Magistrate---Said Magistrate categorically stated that an injured witness had identified the accused in unambiguous terms and the process was repeated twice so that no ambiguity could be left and after completion of identification parade, he prepared the form and then issued the certificate---Medical evidence available on the record corroborated the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and the injured witnesses was concerned---According to the report of the Forensic Science Laboratory, the empties were found fired from the pistols recovered from the accused persons---Neither the defence seriously disputed the motive part of the prosecution story nor the witnesses were cross-examined on such aspect of the matter---Jail petitions were dismissed, leave was refused, and the sentences of death awarded to the accused persons were maintained.

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

----S. 302(b)---Qatl-i-amd---Police witnesses, testimony of---Testimony of police officials is as good as any other private witness unless it is proved that they have animus against the accused---Police officials are as good witnesses and could be relied upon, if their testimonies remain un-shattered during cross-examination.

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

----S. 302(b)--- Qatl-i-amd--- Ocular evidence---Medical evidence---Preference---Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused.

Muhammad Iqbal v. The State 1996 SCMR 908; Naeem Akhtar v. The State PLD 2003 SC 396; Faisal Mehmood v. The State 2010 SCMR 1025 and Muhammad Ilyas v. The State 2011 SCMR 460 ref.

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

----S. 302(b)--- Qatl-i-amd--- Ocular evidence--- Medical evidence---Minor discrepancies---Such discrepancies, if any, in medical evidence relating to nature of injuries do not negate the direct evidence as witnesses are not supposed to give photo picture of ocular account---Even otherwise, conflict of ocular account with medical evidence being not material, and not imprinting any dent in prosecution version, would have no adverse affect on prosecution case.

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

----S. 302(b)---Qatl-i-amd---Minor discrepancies in evidence---Effect---As long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence---Test is whether the evidence of a witness inspires confidence---If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same---While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth---Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety---Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored.

Qari Abdul Rasheed, Advocate Supreme Court for Petitioners.

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

2023 S C M R 908

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

OIL AND GAS REGULATORY AUTHORITY through Chairperson and others---Petitioners

Versus

SUI SOUTHERN GAS COMPANY LIMITED through Chairperson and others---Respondents

Civil Petitions Nos.797 of 2021, 1799-L, 171-L and 172-L of 2022 and 1657-L of 2021, decided on 31st January, 2023.

(Against judgment dated 13.12.2020, passed by the Islamabad High Court, Islamabad in W.P. No.67 of 2019 and judgment/order dated 24.8.2021, 6.12.2021 and 17.6.2021, passed by the Lahore High Court, Lahore, in W.Ps. Nos.51129 of 2021, 45581 of 2020, 12959 of 2021 and 45590 of 2020, respectively)

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

----Ss. 3, 4, 5(5), 5(6)(a), 6 & 31---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), Ss. 6(2)(i), 6(2)(k) & 11---Complaint Resolution Procedure [for Natural Gas, Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG) and Refined Oil Products] Regulations, 2003, Regln. 3---Gas Utility Court, jurisdiction of---Scope---Gas theft cases---Gas Utility Court has exclusive jurisdiction to decide gas theft cases---While Oil and Gas Regulatory Authority (OGRA) may entertain complaints against a licensee under the Complaint Resolution Procedure [for Natural Gas, Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG) and Refined Oil Products] Regulations, 2003, it does not enjoy concurrent jurisdiction with the Gas Utility Court which has exclusive jurisdiction to adjudicate upon all matters under the Gas (Theft Control and Recovery) Act, 2016 ('the 2016 Act')--- OGRA is, at best, a dispute resolution forum where disputes may be resolved informally, however, the Gas Utility Court is a court with all its inherent powers which has the authority to adjudicate upon and award punishment against offences made out under the 2016 Act.

The Gas (Theft Control and Recovery) Act, 2016 ('the 2016 Act') vests exclusive jurisdiction with the Gas Utility Court to resolve all matters defined in section 2, enumerated in sections 14 to 19 of the 2016 Act, as it has an overriding effect over all laws.

Section 5(5) of the 2016 Act clarifies that for matters which fall under the jurisdiction of the Gas Utility Court, it enjoys exclusive jurisdiction and no other court or authority can exercise jurisdiction with respect to these matters. Section 5(6)(a), however, allows the Gas Utility Court or consumer to seek remedy before any other forum prescribed under any law which will include Oil and Gas Regulatory Authority (OGRA). However, pursuant to this provision OGRA does not enjoy concurrent jurisdiction with the Gas Utility Court. It is clear that the purposes of both of the statutes i.e. the 2016 Act and the Oil and Gas Regulatory Authority Ordinance, 2002 ('the Ordinance') are different. The Ordinance was enacted to provide for the establishment of OGRA and to define its functions and jurisdiction for regulating its activities. Whereas, the 2016 Act was enacted to provide for prosecution of cases of gas theft and other offences relating to gas and to provide a procedure for recovery of amounts due. Therefore, even though the Ordinance gives OGRA the power to resolve dispute of consumers, it is a dispute resolution forum, where the issues provided for in the Complaint Resolution Procedure [for Natural Gas, Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG) and Refined Oil Products] Regulations, 2003 ('the Regulations') can be settled amicably by OGRA between the consumer and the gas company. It is not a court and cannot prosecute the matter like the Gas Utility Court. Consequently, section 5(6) of the 2016 Act, clarifies that the gas company or a consumer may seek any remedy before any court, tribunal or forum which may otherwise be available to it under the law, however, the Gas Utility Court is the only court which can prosecute cases of gas theft and the offences as prescribed under sections 14 to 19 of the 2016 Act. Accordingly, if a consumer does not want to prosecute a case before the Gas Utility Court, they may approach OGRA for resolution of their dispute.

While OGRA may entertain complaints against a licensee under the Regulations, it does not enjoy concurrent jurisdiction with the Gas Utility Court which has exclusive jurisdiction to adjudicate upon all matters under the 2016 Act. OGRA is, at best, a dispute resolution forum where disputes may be resolved informally, however, the Gas Utility Court is a court with all its inherent powers which has the authority to adjudicate upon and award punishment against offences made out under the 2016 Act.

Haroon Dugal, Advocate Supreme Court, Kashif Iqbal, JED (OGRA), Javed Iqbal, L.O. and Munawar Sajjad Gondal, A.R. for Petitioners.

Umer Sharif, Advocate Supreme Court (through video link from Karachi) and Farmanullah, Advocate Supreme Court (through video link from Lahore) for Respondents.

2023 S C M R 915

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and another---Appellants

Versus

MISRI LADHANI and others---Respondents

Civil Appeals Nos. 21 and 22 of 2022, decided on 2nd June, 2022.

(Against the judgment dated 24.09.2021 passed by the High Court of Sindh at Karachi, in C.P. No.D­-3228 of 2020)

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

----R. 7---Promotion Recommendation of Central Selection Board and Departmental Promotion Committee---According to Rule 7 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the competent authority may approve the promotion of an officer or official from the date on which the recommendation of Central Selection Board (CSB) or as the case may be, the Departmental Promotion Committee (DPC) was made but nowhere is it said that the competent authority is by all means bound to accept the recommendations and has no power or jurisdiction to remand or reject the recommendations of CSB or DPC.

Serial No.182 of ESTACODE (Edition 2000) and Serial No.192 of ESTACODE (Edition 2007), Volume I ref.

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

----R. 7---Promotion---Pro forma promotion---No vested right---It is the dominance and ascendancy of competent authority to prescribe benchmarks for awarding promotions in the higher grades or positions---Governing command of competent authority to revise the promotion policy evenhandedly and objectively in order to set the guidelines or benchmarks for promotion to the higher grade or position or exercising the power to remand the matter for reconsideration to Central Selection Board (CSB) and submit fresh recommendations cannot be demurred or opposed by a civil servant to assert the claim of pro forma promotion---Nobody has a vested right to promotion but is entitled to be considered evenhandedly and fairly for promotion in accordance with the rule and the terms and conditions of service conferring right of actual promotion or a right to be considered for promotion.

Muhammad Azam v. Muhammad Tufail and others 2011 SCMR 1871; Government of Punjab v. Muhammad Awais Shahid 1991 SCMR 696; Muhammad Iqbal v. Saeeda Bano 1991 SCMR 1559; Orya Maqbool Abbasi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 817; Union of India and others v. Sangram Keshari Nayak (2007) 6 SCC 704 and Hardev Singh v. Union of India and another, (2011) 10 SCC 121 ref.

Sohail Mehmood, Additional Attorney General and Sajid ul Hassan, S.O., Establishment for Appellants (in C.A. 21 of 2022).

Shakeel ur Reman, Advocate Supreme Court (video link from Karachi) for Appellants (in C.A. 22 of 2022)

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants (in C.A. 22 of 2022).

Respondent in person.

2023 S C M R 929

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

ANSAR and others---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 405 of 2021 and Criminal Petition No. 946 of 2021, decided on 2nd March, 2023.

(Against the judgment dated 31.03.2021 passed by the Lahore High Court, Lahore in Criminal Appeal No. 453-J of 2014)

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

----Ss. 302, 396, 324 & 149---Dacoity with murder, attempt to commit qatl-i-amd, unlawful assembly---Reappraisal of evidence---Matter was reported to the police and the formal FIR was registered on the same day---In the crime report, the names of the accused were not mentioned obviously for the reason that they were not known to the complainant party, however, their features were specifically given in the crime report---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 witness---Injuries sustained by the injured witness were fully supported by the medical evidence---Testimony of injured witness as well as the stamp of injuries on his person clearly proved his presence at the place of occurrence---All codal formalities and guidelines for the identification parade were observed by the Judicial Magistrate---Accused persons remained in the house of the complainant for a considerable length of time and the complainant had close proximity to remember them which enabled him to identify them later---Medical evidence available on the record further corroborated the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and injured was concerned---Petitions for leave to appeal were dismissed and leave was refused.

(b) Criminal trial---

----Evidence---'Discrepancies' and 'contradictions'---Distinction---Discrepancies have to be distinguished from contradictions---Contradiction in the statement of a witness may be fatal for the prosecution case but minor discrepancy in evidence will not make the prosecution case doubtful---Where discrepancies are of minor character and do not go to the root of the prosecution story and do not shake the salient features of the prosecution version, they need not be given much importance.

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

----Art. 22--- Test identification parade--- Scope--- Process of identification parade has to be carried out having regard to the exigencies of each case in a fair and non-collusive manner and such exercise is not an unchangeable ritual, inconsequential non-performance whereof, may result into failure of prosecution case, which otherwise is structured upon clean and probable evidence---Even otherwise, holding of identification parade is merely a corroborative piece of evidence---If a witness identifies the accused in court and his statement inspires confidence; he remains consistent on all material particulars and there is nothing in evidence to suggest that he is deposing falsely, then even the non-holding of identification parade would not be fatal for the prosecution case.

Tasar Mehmood v. The State 2020 SCMR 1013; Ghazanfar Ali v. The State 2012 SCMR 215 and Muhammad Ali v. The State 2022 SCMR 2024 ref.

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

----Ss. 391 & 396---Dacoity and dacoity with murder---Expression 'conjointly'---Meaning---Use of word 'conjointly' in sections 391 & 396, P.P.C. indicates that five or more dacoits act with knowledge and consent and in aid of one another or pursuant to an agreement or understanding, i.e., unitedly---For the offence of dacoity, the essential pre-requisite is the joint participation of five or more persons in the commission of the offence---If in the course thereof any one of them commits murder, all members of the assembly would be guilty of dacoity with murder and would expose themselves to the punishment stipulated in section 396, P.P.C.

Muhammad Ali v. The State 2022 SCMR 2024 ref.

Mrs. Tabinda Islam, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Criminal Petition No. 946 of 2021).

Mehnaz Bibi, sister of Ansar in person (in J.P. No. 405 of 2021).

Rashad Javaid Lodhi, Advocate Supreme Court for the Complainant.

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

2023 S C M R 939

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Muhammad Ali Mazhar, JJ

The COLLECTOR OF SALES TAX AND CENTRAL EXCISE, LAHORE---Petitioner

Versus

Messrs QADBROS ENGINEERING (PVT.) LTD., LAHORE---Respondent

Civil Petition No. 409-L of 2021, decided on 10th March, 2023.

(Against the judgment dated 12.11.2020 passed by the Lahore High Court, Lahore in S.T.A. No.13/2005)

(a) Companies Act (XIX of 2017)---

----S. 2(68)---Companies Ordinance (XLVII of 1984), Ss. 2(38) & 3 [since repealed]---'Sister concern'---Meaning and definition---No definition of "sister concern" is provided either in the repealed Companies Ordinance, 1984 or the present Companies Act, 2017, but this turn of phrase basically delineates two or more distinct businesses or ventures owned by one and the same conglomerate but such undertakings/concerns do not have any link or nexus with the operations of each other's business with the exception of conjoint ownership but legally or financially are not related to each other despite its affiliation with another company with a separate identity and workforces.

(b) Companies Act (XIX of 2017)---

----S. 2(68)---Companies Ordinance (XLVII of 1984), Ss. 2(38) & 3 [since repealed]--- 'Subsidiary' and 'wholly-owned subsidiary'---Definition provided.

Palmer's Company Law (2019 Edition), Volume 3, paragraph 9.303, page 9246; Halsbury's Laws of England (Fifth Edition), Volume 14 (pages 54-55) and C.R. Datta (Seventh Edition), Volume I, Chapter I (Page 1382-1383) ref.

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

----S. 7---Input tax---Company securing input adjustment of sales taxon purchases made from its alleged subsidiary/sister concern---Subsidiary/sister concern relationship---Not proved---Tax department completely failed to establish that respondent-company was the sister concern or a subsidiary company of the supplier-company---No tangible evidence was produced including the record, if any, obtained from the Securities and Exchange Commission of Pakistan (SECP) in relation to the incorporation and substratum of both the companies together with the verification of holding company of the alleged subsidiary company---Tribunal had judiciously examined the pith and substance of the transaction and then rightly reached the conclusion that the respondent-company was not a subsidiary or holding company of the supplier-company---Furthermore if the supplier issued invoices erroneously or in violation of law then the Department should have initiated legal action for recovery against them rather than the buyer (respondent) which was not the sister concern or subsidiary company of the supplier---If some fault was committed by the supplier-company while issuing invoices then the respondent-company could not be penalized or disqualified from claiming input tax adjustment in accordance with the law---Petition for leave to appeal was dismissed, and leave was refused.

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

----S. 7---Input tax ---Presumptive tax regime---Scope---Presumptive tax regime denotes that the tax so deducted or paid is treated as a final discharge of tax liability whereas the production capacity is reckoned by the Department according to the notified and applicable sales tax rates vis-à-vis the production as per comparative past and present physical production data including the machine ratings---Presumptive tax regime predominantly encompasses the usage of indirect means to determine tax liability, which diverges from the normal rules founded on the taxpayer's accounts to indicate a legal presumption that the tax liability is not less than the amount occasioning from the application of the indirect method.

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

----S. 47---Reference to the High Court---Powers of High Court under section 47 of the Sales Tax Act, 1990---Scope---Jurisdiction of High Court under section 47 is strictly confined to answering questions of law---Source of question must be the order of the Tribunal---Elementary characteristic of such jurisdiction is that it has been conferred to deal only with questions of law and not questions of fact---Question of law connotes a tangible and substantial question of law on the rights and obligations of the parties founded on the decision of the Tribunal---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.

Army Welfare Trust (Nizampur Cement Project), Rawalpindi and another v. Collector of Sales Tax (Now Commissioner Inland Revenue), Peshawar 2017 SCMR 9; Pakistan Match Industries (Pvt.) Ltd. and others v. Assistant Collector, Sales Tax and Central Excise Mardan and others 2019 SCMR 906 and Commissioner of Inland Revenue, Lahore v. Messrs Sargodha Spinning Mills (Pvt.) Ltd. Faisalabad and others 2022 SCMR 1082 ref.

Ch. Muhammad Zafar Iqbal, Advocate Supreme Court (through Video Link from Lahore) for Petitioner.

Nemo for Respondent.

2023 S C M R 950

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Jamal Khan Mandokhail and Ayesha A. Malik, JJ

Nawabzada ABDUL QADIR KHAN and others---Petitioners/Appellants

Versus

LAND ACQUISITION COLLECTOR MARDAN and others---Respondents

Civil Appeals Nos. 364-P, 365-P/19, 368-P to 391-P, 393-P to 403-P, 405-P, 407-P/2019 and C.P. 590-P/2019 and C.As. 409-P to 412-P/2019 and C.As. Nos. 04-P, 11-P, 12-P, 17-P, 20-P, 21-P/2020, decided on 5th September, 2022.

(Against the judgments dated 17.06.2019, 26.7.2019, 18.11.2019, 10.2.2020 passed by the Peshawar High Court, Peshawar in R.F.A. 267-P/2018, R.F.A. 294-P/2017, R.F.A. 167-P/2018, R.F.A. 186-P/2017, R.F.A. 18-P/2018, R.F.A. 172-P/2018, R.F.A. 173-P/2018, R.F.A. 175-P/2018, R.F.A. 176-P/2019, R.F.A. 177-P/2018, R.F.A. 178-P/2018, R.F.A. 180-P/2018, R.F.A. 20-P/2019, R.F.A. 30 P/2019, R.F.A. 31-P/2019, R.F.A. 96-P/2019, R.F.A. 168-P/2018, R.F.A. 169 P/2018, R.F.A. 170-P/2018, R.F.A. 171-P/2018, R.F.A. 179-P/2018, R.F.A. 174-P/2018, R.F.A. 93-P/2019, R.F.A. 94-P/2019, R.F.A. 95-P/2019, R.F.A. 97-P/2019,R.F.A. 180-P/2013, R.F.A. 142-P/2017, R.F.A. 249-P/2017, R.F.A. 49-P/2019, R.F.A. 59-P/2019, R.F.A. 60-P/2019, R.F.A. 61-P/2019, R.F.A. 62-P/2019,R.F.A. 72-P/2019, R.F.A. 50-P/2019, R.F.A. 131-P/2014, R.F.A. 67-P/2014,R.F.A. 72-P/2019, 12(2).P.24-P/2019 in R.F.A. 36-P/2018, R.F.A. 59-P/2019, R.F.A. 71-P/2019, R.F.A. 83-P/2019, R.F.A. 63-P/2019, R.F.A. 03-P/2018,R.F.A. 98-P/2019, R.F.A. 03-P/2018, R.F.A. 92-P/2019, R.F.A. 142-P/2013and R.F.A. 143P/2013).

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

----S. 23---Constitution of Pakistan, Art. 24---Matters to be considered in determining compensation---Loss caused to landowner because of being deprived of his proprietary rights---Scope---Whenever a Court is to consider the quantum of compensation, it must be duly aware and cognisant of the loss being caused to the landowners due to the Federal or Provincial Government's exercise of eminent domain under the Land Acquisition Act, 1894 ('LAA 1894')---In essence, landowners are deprived of their constitutionally-guaranteed proprietary rights under Article 24 of the Constitution whenever a government, be it Federal or Provincial, exercises eminent domain under the LAA 1894---Thus, it is only fair and just that the persons who are affected by the exercise of eminent domain are at the centre of consideration when it comes to determining the quantum of compensation.

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

----S. 23---Matters to be considered in determining compensation---Compensation based on a one-year average of the land acquired---Propriety---Intention of the legislature behind section 23 of the Land Acquisition Act, 1894 is one where a Court, when determining compensation under the said Section, needs to be considerate and sympathetic to those who have been subjected to eminent domain by the government---Section 23 allows the Court to bring landowners, who have been subjected to eminent domain, back to their positions before the eminent domain was exercised---To base compensation on a one-year average of the acquired land would defeat the intent of the legislature behind section 23.

Pakistan Brumah Shell Ltd. v. Province of NWFP 1993 SCMR 1700 ref.

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

----S. 34---Payment of interest---Riba---Whether payment of interest under section 34 of the Land Acquisition Act, 1894 is equivalent of riba---Held, that whilst riba/usury may be predatory in nature, the interest under section 34 of the Land Acquisition Act, 1894 is beneficial in nature since it allows landowners to be compensated after the Federal or Provincial Government's unilateral exercise of eminent domain and to cover the financial loss that the landowners would invariably suffer on account of loss of use of their land/property till the time they recover compensation for the same.

Unlike riba/interest that accrues out of a financial obligation between the parties, the word "interest" in section 34 of the Land Acquisition Act, 1894 ('LAA 1894') is not interest stricto sensu. The interest awarded to landowners under section 34 is compensatory in nature that allows the Court to compensate the landowners for the financial loss landowners would suffer from the date of acquisition till payment of compensation by the acquiring authority. Unlike a financial transaction, where parties are often assumed to be equal in bargaining power and are deemed to be consenting to a transaction, an exercise of eminent domain cannot in any sense be construed as either a consenting transaction between the parties involved (i.e. the State and the landowners) nor can it be assumed by any stretch of imagination that the state and the landowners are equal in terms of bargaining power. Eminent domain is, after all, a unilateral power of the government and no consent from the affected landowners is required under the law before the state can exercise eminent domain under the LAA 1894.

Sheikh Muhammad Ilyas Ahmed v. Pakistan through Secretary, Ministry of Defence PLD 2016 SC 64 ref.

Whilst riba/usury may be predatory in nature, the interest under section 34 of the LAA 1894 is beneficial in nature since it allows landowners to be compensated after the Federal or Provincial Government's unilateral exercise of eminent domain and to cover the financial loss that the landowners would invariably suffer on account of loss of use of their land/property till the time they recover compensation for the same.

Syed Haziq Ali Shah, Advocate Supreme Court, Tariq Aziz, Advocate-on-Record for Appellants (in C.A. 364-P of 2019 and Res: in C.A. 412 -P of 2019).

Muhammad Ajmal Khan, Advocate-on-Record (via video link, Peshawar) (in C.A. 365-P/19, C.A. 04-P/20 and Res: in C.A. 12-P/20).

Khalid Khan, Advocate-on-Record/Advocate Supreme Court (Via video link, Peshawar) for Appellants/Petitioners (in C.As. 368-P to 391-P, 393-P to 403-P, 405-P of 2019, C.As. 11-P, 12-P of 2020 and C.P. 590-P of 2019).

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa. Malik Akhtar Hussain, Additional A.G., Khyber Pakhtunkhwa and Qazi Ayaz, Litigation Officer for Petitioners (in C.As. 407-P, 409-P to 412-P of 2019).

Ghulam Mohyuddin Malik, Advocate Supreme Court (Via video link, Peshawar) for Appellants (in C.As. 17-P, 20-P, 21-P of 2020).

Abdul Ahad Khan, Advocate Supreme Court (via video link, Peshawar) for Respondents (in C.As. 371-P, 372-P, 375-P, 386-P, 390-P, 398-P, 411-P of 2019 and C.A. 17-P of 2020).

Nemo for other Respondents.

2023 S C M R 960

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

ZAKIR MEHMOOD---Petitioner

Versus

SECRETARY, MINISTRY OF DEFENCE (D.P), PAKISTAN SECRETARIAT, RAWALPINDI and others---Respondents

C.P. No. 2712 of 2020, decided on 12th April, 2023.

(Against the order of Federal Service Tribunal, Islamabad, dated 28.07.2020, passed in M.P. No.464/2020 in Appeal No.1872(R)CS of 2005)

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

----S. 5(2)---Appeals filed before the Service Tribunal---Principles governing first appeals under the C.P.C. apply to appeals before the Tribunal, and the powers of the first appellate court under the C.P.C. are available to it.

Ali Muhammad v. Commissioner Afghan Refugees 1995 SCMR 1675 and Shakeel Ahmed v. E.M.E., Rawalpindi 1998 SCMR 1970 ref.

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

----S. 5(2)---Civil Procedure Code (V of 1908), Ss. 35, 151 & O. XLI, R. 35(3)---Appeal filed before the Federal Service Tribunal ("Tribunal")---'Actual costs' and 'special costs'---Tribunal can impose actual costs and special costs while deciding the service appeal of a civil servant---First appellate court can award the actual costs incurred in appeal as per provisions of Rule 35(3) of Order XLI, C.P.C. and can also impose special costs in the exercise of its inherent powers under section 151, C.P.C. if the facts and circumstances of the case necessitate the making of such an order to secure the ends of justice or to prevent the abuse of the process of the court---Both these powers are also available to the Service Tribunal while deciding an appeal under the Service Tribunals Act, 1973.

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

----S. 5(2)---Civil Procedure Code (V of 1908), Ss. 12(2), 35, 35A, 141, 151 & O. XLI, R. 35(3)---Application under section 12(2), C.P.C. filed before the Federal Service Tribunal ("Tribunal")---'Actual costs' and 'compensatory costs'---First appellate court can award not only the actual costs incurred on an application under section 12(2), C.P.C. by virtue of section 35 read with section 141, C.P.C. but also compensatory costs under section 35A, C.P.C. or special costs under section 151, C.P.C.---Tribunal can also exercise these powers in awarding costs while deciding an application under section 12(2), C.P.C. or any other application.

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

----S. 5(2)---Civil Procedure Code (V of 1908), Ss. 12(2), 35B, 141, 151 & O. XLI, R. 35(3)---Costs of Litigation Act (XVII of 2017), Preamble---Appeal/application filed before the Federal Service Tribunal---'Special costs'---No upper limit---While deciding an appeal under the Service Tribunals Act, 1973 or an application under section 12(2) of the C.P.C., the Federal Service Tribunal ("Tribunal") has the powers to impose special costs, without any upper limit of amount, on a party to that appeal or application as the case may be, keeping in view the peculiar facts and circumstances of a particular case---Determining the appropriate amount of special costs has been left to the discretion of the court concerned---Tribunal is to exercise this discretion, like all other discretions, on the principles of fairness, equity and justice, not arbitrarily or perversely, while keeping in view the peculiar facts and circumstances of a particular case.

(e) Practice and procedure---

----Costs---Frivolous and vexatious cases---Unscrupulous litigants---Purpose and benefits of imposing costs on litigants stated.

Courts and tribunals should regularly exercise their powers to impose reasonable costs to curb the practice of instituting frivolous and vexatious cases by unscrupulous litigants, which has unduly burdened their dockets with a heavy pendency of cases, thereby clogging the whole justice system. The possibility of being made liable to pay costs is a sufficient deterrence to make a litigant think twice before putting forth a false or vexatious claim or defence before court. The imposition of these costs plays a crucial role in promoting fairness, deterring frivolous lawsuits, encouraging settlement, and fostering efficient use of resources: (i) promoting fairness: imposing costs in litigation helps to create a level playing field for both plaintiffs and defendants. By requiring both parties to bear the financial burden of litigation, the system encourages parties to consider the merits of their case before initiating legal action. This helps to ensure that only those with legitimate grievances pursue legal recourse, reducing the possibility of abuse; (ii) deterring frivolous lawsuits: imposing costs can discourage parties from filing baseless or frivolous claims, as the risk of incurring significant financial losses may outweigh any potential gains. This helps to protect defendants from having to defend themselves against meritless claims, reducing strain on the court system and preserving judicial resources; (iii) encouraging settlement: when parties are aware of the potential costs associated with litigation, they may be more inclined to engage in settlement negotiations or alternative dispute resolution methods. This can result in more efficient resolution of disputes, lower costs for all involved, and a reduced burden on the court system; (iv) fostering efficient use of resources: imposing costs in litigation incentivizes parties to focus on the most relevant and important aspects of their case, as both parties will want to minimize their expenses. This can lead to more efficient use of legal resources, including court time and the expertise of legal professionals, and may result in more focused and streamlined proceedings. The practice of imposing costs would thus cleanse the court dockets of frivolous and vexatious litigation, encourage expeditious dispensation of justice, and promote a smart legal system that enhances access to justice by taking up and deciding genuine cases in the shortest possible timeframe.

Qazi Naveed ul Islam v. District Judge PLD 2023 SC 298 ref.

Aftab Alam Yasir, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2023 S C M R 967

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

ADEEL MANZOOR---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 119-L of 2022, decided on 21st February, 2023.

(On appeal against the judgment dated 19.02.2022 passed by the Lahore High Court, Lahore, in Criminal Miscellaneous No. 32166-B of 2022)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 380 & 452---Constitution of Pakistan, Art. 185(3)---Stealing household articles---Pre-arrest bail, confirmation of---Mala fide of complainant---Complainant was husband of the sister of the accused, and she had filed a suit for recovery of dowry articles which was decreed ex-parte and in the execution proceedings, the bailiff was appointed to recover the said articles---On the date of occurrence of present FIR, the bailiff visited the house of complainant but failed to recover the articles---According to the bailiff, the complainant was not present in the house and he kept on waiting for two hours and thus proceedings remained unsuccessful---While lodging the FIR, the complainant had totally suppressed the relationship of the accused with the complainant and also suppressed the fact of ex-parte decree---Even the arrival of the bailiff had been suppressed---All such circumstances clearly indicated the mala fide and ulterior motive on the part of the complainant---Co-accused, who was the father-in-law of the complainant was also nominated as one of the accused but during the investigation it was opined by the Investigating Officer that he was not present there and his bail was confirmed, which order was not challenged---Case of the accused was at par with his co-accused because the role against both of them was the same, mentioned in the FIR---Accused had also joined the investigation---Since accused remained successful in proving the mala fide on the part of the complainant, petition for leave to appeal was converted into appeal and allowed, and pre-arrest bail already granted to the accused was confirmed.

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court (via video link from Lahore) for Petitioner along with Petitioner in person (at Islamabad).

Muhammad Jaffar, Additional P.G. Punjab, Amir Malik, DSP, Ghulam Mustafa, IO and M. Razzaq, SI (through video link from Lahore) for the State.

Muhammad Yaseen Hatif, Advocate Supreme Court (via video link from Lahore) for the Complainant.

2023 S C M R 969

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

PUBLIC INTEREST LAW ASSOCIATION OF PAKISTAN registered under the Societies Act, 1860 through authorized person Chaudhry Awais Ahmed---Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary, Civil Secretariat, Lower Mall, Lahore and others---Respondents

Civil Petition No. 55 of 2020, decided on 2nd February, 2023.

(Against order dated 18.11.2019, passed by the Lahore High Court, Lahore, in W.P. No. 56780 of 2019)

(a) Punjab Environmental Protection Act (XXXIV of 1997)---

----S. 12---Punjab Mining Concession Rules, 2002, R. 95---Punjab Environmental Protection (Review of Initial Environmental Examination and Environmental Impact Assessment) Regulations, 2022, Reglns. 3, 4 & 5, Sched. I(D) & Sched. II(C)---Grant of small-scale license or lease for mining minor minerals like sand, gravel and sandstone--- Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA) reports, significance of---Mining sector must adopt climate proof mining policy which must consider how climate change will impact mining areas so that the climate change risks are integrated into the environment assessment---Without an IEE or EIA, these matters are totally neglected---Not only do the IEE and EIA consider the environmental impact of the project but can also include standards and initiatives to improve sustainability of the sector---Mines and Minerals Department (MMD) is responsible for obtaining the IEE or EIA reports before initiating the process for bidding of the projects---Adverse impact on the environment due to exploration and mining of minor minerals stated.

The Punjab Environmental Protection (Review of Initial Environmental Examination and Environmental Impact Assessment) Regulations, 2022 (the Regulations) clearly specify the requirement of Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA) reports, which is a fundamental and basic step before a project starts, so as to ensure that an adverse effect on the environment has been considered and addressed. This is because even the exploration and mining of minor minerals has an adverse impact on the environment, which includes deforestation, pollution, production of toxic waste water, loss of habitats and disruption of the ecosystem. In particular, with reference to sand mining; deforestation, loss of biodiversity, soil erosion and acid drainage are some of the serious environmental impacts, which have to be given due consideration. Surface mining creates health hazards for miners and local communities as well as gives rise to air pollution and produces toxic waste water, and causes droughts all of which must be catered for. In this context, climate change is one of the biggest global threats and the combination of surface mining and climate change becomes a serious threat for the ecological system. Hence, the mining sector must adopt climate proof mining policy which must consider how climate change will impact mining areas so that the climate change risks are integrated into the environment assessment. Therefore, without an IEE or EIA, these matters are totally neglected. Hence, special attention must be given to all environmental aspects even with reference to the mining of minor minerals.

Jason Phillips, Climate change and surface mining: A review of environment-human interactions and their spatial dynamics, 74, Applied Geography, 95-108 (2016); Lukas Ruttinger and Vigya Sharma (2016) Climate Change and Mining: A Foreign Policy Perspective, Germany, adelphi and Sustainability 2017 - Review on Environmental Impacts of Sand Exploitation ref.

The relevance of the IEE and EIA cannot be ignored. Not only do the IEE and EIA consider the environmental impact of the project but can also include standards and initiatives to improve sustainability of the sector. This can be vital in projects of mining under the Mines and Minerals Department (MMD). They also prescribe mitigation measures and put in place a monitoring method through an Environment Management Plan (EMP). The EMP provides the basic framework for implementing and managing mitigation and monitoring measures. It identifies the environment issues, the risks and recommends the required action to manage the impact. This is vital because not only does the miner know what its obligations are, it also gives the MMD and the EPA a framework to follow and to ensure its compliance. Hence, all factors considered the IEE and EIA ensure that the project is sustainable and all possible environmental consequences have been identified and addressed adequately.

There is no timeline provided in the Regulations within which the IEE and EIA approvals are to be obtained nor does it specify any process to bind the successful bidder of the project to the terms of any EMP or other measures provided for in the IEE or EIA. However, the Regulations do clarify that the proponent of the project has to obtain the IEE or the EIA and in this case, the proponent of the project will always be the MMD, hence the practice of requiring a successful bidder to obtain an IEE or EIA after bidding of the project totally negates the purpose and impact of these reports. The impact on the environment must be looked into before bidding commences by the MMD and at the time of bidding a bidder must know the terms set out in the IEE or EIA that they are bound by and are required to comply with especially the mitigation measures and the EMP. Hence, it is the MMD that is responsible for obtaining these reports before initiating the process for bidding of the said projects. In this regard, it would be useful for the MMD to provide guidelines and SOPs to facilitate this process and also provide penalizing provisions within the license or lease for any violation of the EMP so as to ensure compliance.

(b) Punjab Environmental Protection Act (XXXIV of 1997)---

----S. 12--- Punjab Environmental Protection (Review of Initial Environmental Examination and Environmental Impact Assessment) Regulations, 2022, Reglns. 3, 4 & 5---Mining licences---Climate proof mining policy---Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA) reports, significance of---While mining is an essential part of the economy, it must be conducted in a responsible and sustainable manner to minimize its impact on the environment---By implementing best practices and adhering to strict guidelines and developing a climate proof mining policy, it can be ensured that mining continues to provide for the economy while also protecting the health of the planet and its inhabitants---Economic growth is important but it must be achieved in a way that is sustainable and respectful of the natural systems that support it.

Rafey Alam, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Qasim Ali Chohan, Additional A.G., Ashfaq Ahmed Kharal, Additional A.G., Noman Sarfraz, Deputy Director (Mines and Minerals) and Nawaz Majid, Deputy Director (L) Environment for Respondents.

2023 S C M R 975

[Supreme Court of Pakistan]

Present: Munib Akhtar and Muhammad Ali Mazhar, JJ

AHTISHAM ALI---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 13-K of 2023, decided on 22nd March, 2023.

(Against the order dated 04.01.2023 passed by the High Court of Sindh at Karachi in Criminal Bail Application No. 1548 of 2022)

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

----S. 498---Penal Code (XLV of 1860), Ss. 324, 380, 427, 337-A(i), 337-F(i) & 34---Constitution of Pakistan, Art. 185(3)---Attempt to commit qatl-i-amd, theft, illegal possession of property---Pre-arrest bail, refusal of---First Information Report was lodged by father (complainant) against his son, who forcibly tried to dispossess his father from his house---Version of the eye-witnesses fully supported the medical evidence and version of the complainant---Serious allegations were also made against the accused persons of devising and designing a false agreement to sell regarding the subject house with the sole intention of committing fraud and cheating the complainant and also misappropriating household items and the original file of the house---Offences under section 324 & 380, P.P.C. were both non-bailable---No specific details of any mala fide intention or ulterior motives had been alleged by the accused to explain why his father had set the law into motion against his own sons---Accused had also failed to demonstrate that his father wanted his arrest for some ulterior motives or to cause him any humiliation or to disgrace him in the public at large---Petition for leave to appeal was dismissed, leave was declined, and accused was refused pre-arrest bail.

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

----S. 34---Common intention---Scope---In order to constitute an offence under section 34, P.P.C., it is not required that a person should necessarily perform any act by his own hand, rather the common intention presupposes prior concert and requires a pre-arranged plan---If several persons have the common intention of doing a particular criminal act and if, in furtherance of their common intention, all of them join together and aid or abet each other in the commission of an act, then the one who has not actually done the act with his hands, but helps by his presence or by other act in the commission of the main act, he would be held to have himself done that act within the meaning of section 34, P.P.C.

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

----Ss. 498 & 497(2)---Pre-arrest bail---Scope and grounds---Grant of pre-arrest bail is an extraordinary relief which may be granted in extraordinary situations to protect the liberty of innocent persons in cases lodged with mala fide intention to harass the person with ulterior motives---While applying for pre-arrest bail, the petitioner has to satisfy the Court with regard to the basic conditions quantified under section 497 of the Code of Criminal Procedure, 1898 ("Cr.P.C.") vis-à-vis the existence of reasonable grounds to confide that he is not guilty of the offence alleged against him and the case is one of further inquiry.

Rana Abdul Khaliq v. The State and others 2019 SCMR 1129 and Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 ref.

Abdul Khursheed Khan, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Hussain Bux Baloch, Additional P.G. for the State.

2023 S C M R 981

[Supreme Court of Pakistan]

Present: Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

WAPDA through Chairman and others---Appellants

Versus

ALAM SHER and others---Respondents

Civil Appeal No. 2619 of 2016, decided on 28th March, 2023.

(On appeal against the judgment dated 08.09.2016 passed by the Peshawar High Court, D.I. Khan Bench in R.F.A. No. 103-D of 2013)

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

----S. 23---Land acquisition---Compensation, quantum of---After taking into consideration the documentary evidence in the shape of mutations, two years average of market value of land, bifurcation of the acquired land in two different blocks and oral statements of the landlords and property dealers of the area, which were also reduced into writing, and disturbance of irrigation sources of the acquired land, the Local Commissioner came to the conclusion that the fair market value of the land was Rs.25000/- per kanal---Local Commissioner also appeared before the Trial Court and recorded his statement, and despite lengthy cross-examination no deficiency in his report could be brought on record---Oral statements of the other landowners and property dealers of the same vicinity had been corroborated with other evidence produced on record, such as, (i) certain mutations in respect of the same mouza, (ii) two years average of value of land for the relevant period, (iii) aks shajra kishtwar, and (iv) khasra girdawri, which revealed that there was cultivation in the suit property up to the year 2004---Compensation enhanced by the Referee Court, which was upheld by the High Court, was in consonance with section 23 of the Land Acquisition Act, 1894---Appeal was dismissed.

Sarhad Development Authority NWFP v. Nawab Ali Khan 2020 SCMR 265 ref.

(b) Land Acquisition Act (1 of 1894)---

----S. 23---Constitution of Pakistan, Art. 185---Land acquisition---Compensation, quantum of---Appellate jurisdiction of the Supreme Court---Scope---Supreme Court in its appellate jurisdiction would generally not determine any ground or question of fact that had not been pleaded or raised by the parties at any stage before the Referee Court or the High Court and has been for the first time raised in appeal before the Supreme Court.

Ali Khan v. Soomar 1968 SCMR 565; Malik Ghulam Hussain v. Haji Muhammad Hayat PLD 1971 SC 573 and Sarhad Development Authority NWFP v. Nawab Ali Khan 2020 SCMR 265 ref.

Syed Abid Hussain Shah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Anwar Awan, Advocate Supreme Court for Respondents.

2023 S C M R 986

[Supreme Court of Pakistan]

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

MUHAMMAD HAZIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 285 of 2022, decided on 1st March, 2023.

(Against the judgment dated 19.09.2018 of the Peshawar High Court, Peshawar passed in Cr. A. No. 412-P of 2016)

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---Effect---In the present case neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned Forensic Science Laboratory was established by the prosecution because neither the Moharrar nor the Constable who deposited the sample parcels in the concerned laboratory was produced---Recovery was effected on 10.02.2015 whereas the sample parcels were received in the laboratory on 13.02.2015 and prosecution was silent as to where these sample parcels remained during this period, meaning thereby that element of tampering with samples was quite apparent in the present case---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---Appeal was allowed, and accused was acquitted of the charge.

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; Ekramullah and others v. The State 2015 SCMR 1002 and Amjad Ali v. The State 2012 SCMR 577 ref.

Arshad Hussain Yousafzai, Advocate Supreme Court for Appellant.

Sardar Ali Raza, Additional A.G. Khyber Pakhtunkhwa for the State.

2023 S C M R 988

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Syed Hasan Azhar Rizvi, JJ

MUHAMMAD RAFIQ---Appellant

Versus

Mst. GHULAM ZOHARAN MAI and another---Respondents

Civil Appeal No. 2613 of 2016, decided on 17th March, 2023.

(On appeal from the order dated 03.11.2016 of the Lahore High Court, Multan Bench passed in Civil Revision No. 331-D of 2013)

Gift---

----Proof---Purported gift to deprive mother and sister from their share in inheritance---Alleged donee/appellant, who was the beneficiary of the gift, had to establish it---Neither the gift deed (primary evidence) nor a certified copy thereof (secondary evidence) was produced by the appellant and instead a photocopy of the sub-registrar's register was produced, and on this the appellant's claim of the purported gift was based---Incidentally, neither the sub-registrar nor any officer/official from his office was produced/summoned by the appellant to testify that the photocopy which was produced was a true/certified copy from the said register---Appellant did not produce any tangible evidence of the purported gift, let alone to have established it---On the basis of a document which had no legal significance the appellant sought to deprive his mother and sister of their inheritance---Regarding the gift mutation entry made in the revenue record, if the revenue authority had changed the revenue record on the basis of a photocopy of the register maintained by the sub-registrar, they did not act in accordance with the law; they also did not issue notices to the heirs of to consider any objection that they may have had---Appellant fraudulently deprived the legal heirs of their share in the inheritance and then sought to reinforce the fraud by getting the revenue record changed and this was facilitated by the land revenue authority---In depriving the other legal heirs the appellant acted dishonestly, illegally and violated Qur'anic injunctions---Appeal was dismissed with costs throughout and also special costs in the amount of Rs.500,000 (five hundred thousand rupees) imposed on the appellant as the defence taken by him was vexatious and false, with the direction that if costs were not paid the same shall be recovered as arrears of land revenue from the appellant, and till costs were paid they shall continue to constitute a charge on the estate of the appellant.

Al-Qur'an, Surah An-Nisa (4) verses 11 to 14 and 176 ref.

Raja Inaam Ameen Minhas, Advocate Supreme Court for Appellant along with Appellant.

Tahir Mehmood, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 1.

Respondent No. 2, ex parte.

2023 S C M R 992

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

MUHAMMAD RAQEEB---Appellant

Versus

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

Civil Appeal No. 1414 of 2021, decided on 2nd March, 2023.

(On appeal from the judgment dated 18.02.2019 passed by the Peshawar High Court, Bannu Bench in W.P. No. 218-B of 2017)

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

----Ss.2(b) & 3---Qanun-e-Shahadat (10 of 1984), Art. 114---Pension---Project employee---No right to pension---On one hand, the appellant was pleading that he was a permanent employee and was requesting the grant of pensionary benefits, but on the contrary, in the earlier round of litigation up to the Supreme Court, he himself pleaded that some other project employees were regularized by the employer-Board, and therefore he should also be regularized in service, which was sufficient to divulge by his own conduct that he was not a regular employee but performing his duties as project employee---Status of the appellant as a project employee had already been examined and set at rest in the earlier round of litigation up to the level of the Supreme Court---In the case in hand, besides the doctrine of estoppel, the doctrine of election and doctrine of qui approbat non reprobat (one who approbates cannot reprobate) were also applicable---Even under the doctrine of past and closed transaction, the present controversy could not be reopened by the Supreme Court in the second round of litigation which on the face of it was an abuse of process of the Court---Appeal was dismissed.

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

----S. 11---Res-judicata, doctrine of---Scope---Said doctrine lays down the principle that the controversy flanked by the parties should come to an end and the judgment of the Court should attain finality with sacrosanctity and imperativeness which is necessary to avoid opening the floodgates of litigation---Once a judgment attains finality between the parties it cannot be reopened unless some fraud, mistake or lack of jurisdiction is pleaded and established---Foremost rationale of the doctrine of res judicata is to uphold the administration of justice and to prevent abuse of process with regard to the litigation and it also nips in the bud the multiplicity of proceedings on the same cause of action.

Anwar-ul-Haq, Advocate Supreme Court (via video link at Peshawar) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Waseem-ud-Din Khattak, Advocate Supreme Court (via video link at Peshawar) for Respondents Nos. 2 and 3.

Zahid Yousaf Qureshi, Additional A.G., Khyber Pakhtunkhwa for Respondents Nos. 1 and 4.

2023 S C M R 999

[Supreme Court of Pakistan]

Present: Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

NOOR KAMAL and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 1720 of 2022, decided on 30th March, 2023.

(On appeal against the judgment dated 14.11.2022 passed by the Peshawar High Court, Bannu Bench in B.A. No. 543-B of 2022)

Criminal Procedure Code (V of 1898)---

----Ss. 497(1), third proviso & 497(2)---Penal Code (XLV of 1860), Ss. 324 & 34---Constitution of Pakistan, Art. 185(3)---Attempt to commit qatl-i-amd, common intention---Bail, grant of---Delay in conclusion of trial---Further inquiry---Cross-version FIRs---As per the contents of the crime report, the allegation against the accused persons was that they while armed with firearms launched a murderous assault on the complainant party and made fire shots, which hit the complainant and the witness Mashal Khan on left rib and left knee respectively---However, it was stance of the accused persons that in-fact the complainant party was aggressor and committed murder of two persons from accused's side---One of the accused had also got registered an FIR under sections 302, 324 & 34, P.P.C. against the complainant party---In the present case only a general role had been ascribed to the accused persons and no details had been given as to which accused fired at which injured---Admittedly, the accused persons did not repeat the fire, which prima facie showed that they had no intention to kill the victims---Accused persons were behind the bars and despite lapse of more than 22 months, the conclusion of trial was not insight in near future---Such delay was not attributable to the accused persons, as admitted by the prosecution---Co-accused, who was ascribed a role similar to that of accused persons, had been granted post-arrest bail by the Supreme Court, therefore, the accused persons were entitled for the concession of post-arrest bail on such score alone---Case of the accused persons squarely fell within the ambit of section 497(2), Cr.P.C. entitling for further inquiry into their guilt---Petition for leave to appeal was converted into appeal and allowed, and accused persons were admitted to bail.

Ahmad Ali, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record for Petitioners.

Sardar Ali Raza, Additional A.G., Amir Khan, SHO and Waheed Ullah, I.O. for the State.

Complainant in jail.

2023 S C M R 1002

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

MUHAMMAD YOUSAF---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and others---Respondents

Civil Petition No. 6482 of 2021, decided on 8th February, 2023.

(Against the judgment dated 29.09.2021 passed by the Lahore High Court, Multan Bench, Multan in Writ Petition No. 7850 of 2019)

(a) Jurisdiction---

----Causes emanating from different jurisdictions cannot be consolidated in a single proceeding---Civil matter cannot be consolidated with a criminal matter, so also it cannot be consolidated with a family matter.

Muhammad Khalid v. Muhammad Naeern and 6 others PLD 2012 Lah. 490 and Manzoor Ahmad v. Messrs Facto (Pakistan) Ltd. and others 1996 MLD 265 ref.

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

----S. 5, Sched. & Part. I, Serial No. 10 [as added by the (Punjab) Family Courts (Amendment) Act (XI of 2015)]---Nikahnama---Suit challenging the validity of an entry in the Nikahnama---Such suit was to be tried exclusively by the Family Court.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Malik Allah Nawaz, brother of Respondent No. 3, Rao Ali Raza, Secretary UC Kabeer Pur Multan Respondent No. 5 and Muhammad Arshad, Nikah Registrar Respondent No. 6.

2023 S C M R 1005

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, Yahya Afridi and Syed Hasan Azhar Rizvi, JJ

JIND WADDA and others---Appellants

Versus

GENERAL MANAGER NHA (LM & IS), ISLAMABAD and others---Respondents

Civil Appeal No. 700 of 2014, decided on 15th March, 2023.

(Against the judgment dated 03.12.2013, passed by the Peshawar High Court, D.I. Khan Bench in R.F.A. No.61 of 2010)

(a) Land Acquisition Act (1 of 1894)---

----Ss. 18 & 23---Land acquisition---Dispute over quantum of compensation---Appellants (land owners) had failed to produce any independent, trustworthy and credible evidence for their claim qua enhancement of the compensation---Despite the fact that the Referee Judge accepted the reference petition of the appellants and enhanced the compensation from Rs. 33,657/- to Rs.96,830/- per kanal, the appellants failed to bring on record any document showing value of the land adjacent and surrounding to the land of the appellants to be more than Rs.96,830/- per kanal---Witnesses examined in evidence before the Referee Judge admitted the fact that the property surrounded by the acquired land was agricultural in nature and the compensation was granted in the award for agricultural type of land---Further one of the appellants admitted in his cross-examination that he had got no written proof about the sale/purchase of property at the rate of Rs.16,00,000/- per kanal in the vicinity of the acquired land, which was the rate that the appellants were claiming---Judgments passed by the High Court and the Referee Judge were well within the remit of law---Appeal was dismissed.

Commandant Indus Rangers v. Zaheer Muhammad Khan 2007 SCMR 1817 ref.

(b) Land Acquisition Act (1 of 1894)---

----Ss. 18 & 23---Land acquisition---Land owners seeking enhancement in compensation---Burden of proof---Burden of proof in such cases is 'incumbent' upon land-owners.

Land Acquisition Collector v. Muhammad Sultan PLD 2014 SC 696 ref.

Syed Mastan Ali Zaidi, Advocate Supreme Court for Appellant No. 1.

Sikandar Rashid, Advocate Supreme Court for Respondent No. 4.

2023 S C M R 1009

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

LAL JAN---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 493 of 2019, decided on 1st December, 2022.

(On appeal against the judgment dated 18.07.2019 passed by the Peshawar High Court, Peshawar, in Criminal Appeal No. 858-P of 2017)

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

----S. 9(c)---Possession of narcotics---Reappraisal of evidence---Safe transmission of samples to the Forensic Science Laboratory not established---Effect---Benefit of doubt---In the present case recovery was effected on 3.7.2015 whereas the sample parcels were received in the office of Forensic Science Laboratory on 15.7.2015 through a police constable, but the said constable was never produced by the prosecution to establish the safe transmission of the sample parcels to the concerned laboratory and there was no explanation as to why such evidence was withheld---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---Petition for leave to appeal was converted into appeal and allowed, and accused was acquitted of the charge by giving him benefit of 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 for Petitioner.

Aisha Tasneem, State Counsel for the State.

2023 S C M R 1011

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

COMMISSIONER INLAND REVENUE Z-III, CORPORATE REGIONAL TAX OFFICE, TAX HOUSE, KARACHI and another---Petitioners

Versus

Messrs MSC SWITZERLAND GENEVA and others---Respondents

Civil Review Petitions Nos. 432-K to 459-K of 2022 in Civil Petitions Nos. 672-K to 692-K of 2021 and 694-K, 724-K to 729-K of 2021, decided on 9th February, 2023.

(Review against the order of this Court dated 23.05.2022)

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

----S. 107--- Treaties for the avoidance of double taxation, interpretation of---Such treaties have to be given preference and would prevail over the provisions of income tax law.

Commissioner Inland Revenue (Legal Division), LTU, Islamabad v. Messrs Geofizyka Krakow Pakistan Ltd. 2017 SCMR 140 ref.

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

----S. 107--- Avoidance of Double Taxation Treaties (DTT(s)), interpretation of---When any definite and unambiguous stipulation is assimilated in the Double Taxation Avoidance treaty or Agreement, said provision will obviously supplant and supersede the general provisions encompassed under Tax Laws---However, the fact remains that the foremost purposefulness of a DTT is required to be explored in the background of ministering commercial relations between treaty partners and as being essentially a bargain between the two signatories thereof as to the division of tax revenues between them in respect of income falling to be taxed in both jurisdictions.

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

----Ss. 4B, 44(1), 107(1) & 109---Constitution of Pakistan, Art. 188---Review petition---Non-resident companies---Super tax, imposition of---Double Taxation Treaties---Convention between the Islamic Republic of Pakistan and the Swiss Confederation for the Avoidance of Double Taxation with respect to Taxes on Income ("Swiss DTT"), Art. 2---Held, that High Court considered the pros and cons of the entire controversy and the questions of law raised and thereafter reached to the analytical conclusion that the levy of Super Tax was identical to the levies that existed at the time the treaties in question came into force, hence the tax-payers within the realm of double taxation treaties are either exempt or, wherever applicable, liable to pay the Super Tax at reduced rates in terms of their respective treaties---No justification or rationale existed to entertain and consider the present review petitions when the High Court had extensively considered all the questions raised before it and comprehensibly discussed the pros and cons and passed a reasonable consolidated judgment which did not warrant any interference and was therefore affirmed by the Supreme Court through the order under review---Review petitions were dismissed accordingly.

(d) Constitution of Pakistan---

----Art. 185(3)---Leave refusing order passed by the Supreme Court---Scope---There is no hard and fast rule that in all circumstances the Supreme Court is obligated to pass a detailed leave refusing order---At the leave granting stage, the paramount factor is only to consider the soundness and aptness of the impugned judgment /order to ascertain whether a case for leave to appeal is made out or not for further proceedings in the matter.

(e) Constitution of Pakistan---

----Art. 188--- Supreme Court Rules, 1980, O. XXVI--- Review jurisdiction of the Supreme Court---Scope and principles of review jurisdiction stated.

Review may be entreated only in instances or occurrences of errors in the judgment or order, floating on the surface of record with a substantial impact on the final outcome of the lis, but it does not connote and entail a right of rehearing of the decided case despite there being a mindful and thoughtful decision on the point of law as well as of fact. Every judgment articulated by the Courts of law is presumed to be a solemn and conclusive determination on all points arising out of the lis. Mere irregularities having no significant effect or impact on the outcome would not be sufficient to warrant the review of a judgment or order, however, if the anomaly or ambiguity is of such a nature so as to transform the course of action from being one in the aid of justice to a process of injustice, then obviously a review petition may be instituted for redressal to demonstrate the error, if found floating conspicuously on the surface of the record, but a desire of re-hearing of the matter cannot constitute a sufficient ground for the grant of review which, by its very nature, cannot be equated with the right or remedy of appeal. The clemency by dint of review is accorded to nip in the bud an irreversible injustice, if any, done by a Court such as misconstruction of law, misreading of the evidence and non-consideration of pleas raised before a Court that would amount to an error floating on the surface of the record, but where the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not be competent. Review by its nature is neither commensurate to a right of appeal or opportunity of rehearing merely on the ground that one party or the other conceived himself to be dissatisfied with the decision of the court, nor can a judgment or order be reviewed merely because a different view could have been taken.

Messrs Habib and Company and others v. Muslim Commercial Bank and others PLD 2020 SC 227; Engineers Study Forum (Regd.) and another v. Federation of Pakistan and others 2016 SCMR 1961; Government of Punjab and others v. Aamir Zahoor-ul-Haq and others PLD 2016 SC 421; Haji Muhammad Boota and others v. Member (Revenue) BOR and others 2010 SCMR 1049; Sh. Mehdi Hassan v. Province of Punjab through Member, BOR and others 2007 SCMR 755; Abdul Rauf and others v. Qutab Khan and others 2006 SCMR 1574; Lt-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan PLD 1962 SC 335; Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through legal heirs PLD 2005 SC 311; Board of Intermediate and Secondary Education, Lahore through Chairman v. Bashir Ahmad Khan PLD 1997 SC 280; Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562; Abdul Hakeem and others v. Khalid Wazir 2004 SCMR 1770; Suba through legal heirs v. Fatima Bibi through legal heirs and others 1996 SCMR 158; Major (Retd.) Barkat All and others v. Qaim Din and others 2006 SCMR 562; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367; Messrs Sajjad Nabi Dar & Co. v. The Commissioner of Income-Tax, Rawalpindi Zone, Rawalpindi PLD 1977 SC 437; Messrs M. Y. Malik & Co. and 2 others v. Messrs Spendlours International 1995 SCMR 922; M. Moosa v. Muhammad and others 1975 SCMR 115; Engineers Study Forum (Regd.) and another v. Federation of Pakistan and others 2016 SCMR 1961; Mirza Bashir Ahmad v. Abdul Karim 1976 SCMR 417; Basharat Khan v. The State 1984 SCMR 1033(1); Muhammad Nazir v. The State 1979 SCMR 89; Kala Khan and others v. Misri Khan and others 1979 SCMR 347; Syed Saghir Ali v. Mehar Din and others 1968 SCMR 729; Wahajuddin and another v. Razia Begum and others 1979 SCMR 241; Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363; Irshad Masih and others v. Emmanuel Masih and others 2014 SCMR 1481; Akbar Ali Bukhari v. State Bank of Pakistan 1981 SCMR 518; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 941; Muhammad Nazir v. State 1979 SCMR 89; Kalal Khan v. Misri Khan 1979 SCMR 347; Saghir Ali v. Mehar Din 1968 SCMR 729; Justice Qazi Faez Isa and others v. President of Pakistan and others PLD 2022 SC 119; Mukesh v. State (NCT of Delhi) (2018) 8 SCC 149; Sow Chandra Kante and another v. Sheikh Habib, (1975) 1 SCC 674; Kamlesh Verma v. Mayawati and others (2013) 8 SCC 320; Messrs Thungabhadra Industries Ltd. v. Government of Andhra Pradesh through Deputy Commissioner, Commercial Taxes Anantapur AIR 1964 1372; Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi (1980) 2 SCR 650; Saijan Singh v. State of Rajasthan [1965] 1 S.C.R. 933, 948; G. L. Gupta v. D. N. Mehta [1971] 3 S.C.R. 748-760; O. N. Mahindroo v. Distt. Judge Delhi and another [1971] 2 S.C.R. 11, 27; Chandra Kanta v. Sheikh Habib [1975] 3 S.C.R. 933 and Delhi Administration v. Gurdip Singh Uban and others AIR 2000 SC 3737 ref.

(f) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O. XXVI---Review petitions filed before the Supreme Court---Practice of filing review applications fleetingly and unthinkingly in routine on the basis of certificates issued by the advocates with a plain replica of the grounds urged in the main petition or appeal without any accurate allusion to any error in the judgment or order which warrants or merits reversal---Supreme Court deprecated such practice which wastes the precious time of the Court with the exception in the clearest form, that while adverting to a provision or construction of any law and/or Constitution, some errors are apparent on the face of the record which cause substantial injury and which requires some remedial measures to advance the cause of justice for which not only the specific ground(s) should be mentioned in the certificate of the advocate, but it should be pinpointed also in the review petition rather than mentioning sweeping and stereotypical grounds having no significance or nexus with the case---Supreme Court observed that while issuing the certificate and drawing the review application, the advocates should be mindful and conscious that they are not issuing certificate for advocating vexatious or pointless review application; that in order to avoid wasting the precious time of the Court, especially keeping in mind the huge backlog of dockets waiting in the queue for disposal, the advocate should, before issuing the certificates, sincerely consider whether a fit case of review is made out or not.

Delhi Administration v. Gurdip Singh Uban and others AIR 2000 SC 3737 ref.

Dr. Shah Nawaz, Advocate Supreme Court and Irfan Mir Halepota, Advocate Supreme Court for Petitioners.

Syed Mehmood Abbas, Advocate-on-Record for Respondent No. 1 (in C.R.Ps. Nos. 432-K, 434-K, 435-K, 438-K, 440-K, 444-K, 447-K, 448-K, 452-K and 453-K).

2023 S C M R 1032

[Supreme Court of Pakistan]

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

MUHAMMAD AQIL---Appellant

Versus

MUHAMMAD AMIR and others---Respondents

Civil Appeal No. 32-K of 2018, decided on 20th October, 2022.

(Against the judgment of the High Court of Sindh at Karachi dated 31.05.2018 passed in Second Appeal No.46 of 2006)

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

----S. 12---Suit for specific performance of an agreement to sell immoveable property (suit property)---Minor having share in the suit property---In the absence of any evidence to indicate that the adult co-sharer was ever made the guardian of the minor co-sharer, the minor's share could not be sold by a de facto guardian---Suit for specific performance of the sale agreement could not be decreed to the extent of such minor's share in the suit property.

In his plaint, the appellant (vendee) had admitted that he was aware that one of the vendors was a minor girl at the time the sale agreement was drawn up; that the other vendor "A", who was the brother of the minor, failed to produce the guardianship certificate with respect to the minor, and that "A" failed to honour their promise to produce the guardianship certificate and permission for completion of selling her share in spite of receipt of the sale consideration and delivery of possession.

There was also nothing on the record to suggest that the said guardianship certificate, if it at all existed, or any specific order from any Court authorising the sale of minor's share in the suit house was ever brought on record by either of the parties before the Trial Court.

High Court rightly relied on the principle that a minor's share could not be sold by a de facto guardian when it dismissed the suit of the appellant to the extent of minor. In the absence of any evidence on the record to indicate that "A" was ever made the guardian of the minor by virtue of a guardianship certificate or an order from a Court authorising the sale of minor's share in the suit house, High Court rightly dismissed the suit of the appellant to the extent of the minor. In the absence of any evidence to the contrary, "A" was, at the time of the sale agreement, the de facto guardian of the minor and was barred from selling her share in the suit house in the absence of a guardianship certificate or an express order from a Court of competent jurisdiction. Appeal was dismissed.

Mt. Auto v. Mt. Reoti Kaur AIR 1936 All 837 and Muhammad Haneef v. Abdul Samad PLD 2009 SC 751 ref.

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

----S. 12---Suit for specific performance of an agreement to sell immoveable property (suit property)---Minor having share in the suit property---When the agreement to sell to the extent of minor was void ab initio, there was no need for such minor to challenge the said sale agreement after attaining majority since the same did not infringe or alter any of her legal rights in the suit property whatsoever---High Court rightly had rightly dismissed the suit of the appellant/vendee to the extent of the minor's share in the suit property---Appeal was dismissed.

Abdul Majeed v. Muhammad Subhan 1999 SCMR 1245 ref.

Muhammad Ali Lari, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (via video link from Karachi) for Appellant.

Muhammad Safdar, Advocate Supreme Court along with Mian Abdul Rauf, Advocate Supreme Court for Respondents.

2023 S C M R 1043

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA), ISLAMABAD---Appellant

Versus

PAKISTAN BROADCASTERS ASSOCIATION and another---Respondents

Civil Appeal No. 11 of 2022, decided on 10th November, 2022.

(On appeal against judgment dated 13.08.2021 passed by High Court of Sindh, Karachi in Constitution Petition No. D-2680 of 2020)

Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002) [as amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act (II of 2007)]---

----Ss. 13 & 30---Pakistan Electronic Media Regulatory Authority ('the Authority')---Power to vary conditions, suspend or revoke the licence--- Interpretation of section 13 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, and principles relating to delegation of power exercised by the Authority under section 30 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 to its Chairman stated.

Considered analytically, section 13 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') can be regarded as having three "parts", with the proviso as an (important) tailpiece. Firstly, and most obviously, the section states that the power of delegation is discretionary. The exercise of the power can be in terms general or special. Secondly, it identifies to whom, and of what, the delegation can be made. Here, the section has, prima facie, been cast in broad terms. This "part" can be regarded as having two aspects. Any power, responsibility or function of the Authority can be delegated. And such delegation can be to anyone, whether he is the "Chairman or a member or any member of its staff, or an expert, consultant, adviser, or other officer or employee". Thirdly, the section provides that the Authority may subject any delegation to conditions, which are to be provided for in the rules. The power to make rules, "to carry out the purposes of this Ordinance", is conferred on the Authority by section 39. It is however subject to the approval of the Federal Government. Finally, the proviso identifies what cannot be delegated.

The discretion conferred on the Authority by section 13 has to be understood and applied only in a properly structured manner. That structuring requires that the literal approach, which would regard the three "parts" of the section as essentially self-contained "units", is to be eschewed. The section has to be read as a whole and the three "parts" can only be regarded as, and applied, as an interlocking whole. Each "part" acts on, and interacts with, the others. It is only in this way that the section can function properly and in a lawful manner. And, in carrying out this exercise in the specific context of the power of suspension, the proviso also is to be taken into account.

The starting point for such exercise has to be the second "part". As noted above, it can be regarded as having two "elements": to whom the delegation can be made and what it is that is to be delegated. It is the second "element" that must constitute the first step, i.e., the Authority has to properly identify the power, responsibility or function that is to be delegated. Now, the powers, responsibilities and functions of the Authority are varied and manifestly of differing natures and importance. Thus, section 4(1) casts the functions of the Authority in broad and general terms. Some of the matters which come within the scope of section 13 may relate entirely to its internal functioning while others may involve the exercise of powers in relation to third parties, including especially the licence-holders. It is obvious that, when viewed from the perspective of possible delegation, they cannot all be lumped together and treated essentially in the same terms. Thus, the significance of what is to be done in terms of the power, responsibility or function being considered for delegation, in the context of its exercise and its impact on those affected by it are some (though by no means all) of the aspects that have to be kept in mind when deciding whether there is to be a delegation at all. This treatment leads naturally to a meaningful differentiation between not just the three categories identified in section 13 (i.e., powers, responsibilities and functions) but also within each category itself. This differentiation is of the essence of the power of delegation. In the context of section 13, the Authority must in a sense act as a sieve and "scale" its powers, responsibilities and functions in order of importance. The power of delegation cannot be properly exercised without such an exercise being carried out, or at the very least there being an awareness of the same when the decision is being taken whether to delegate or not. Indeed, this aspect goes to the very root of the matter, and any purported delegation absent such consideration would be unlawful. This leads naturally to the next conclusion. The more important the nature of the power, responsibility or function (i.e., the higher up it is on the "scale") the higher also in the hierarchy must be the person to whom the delegation can be made and the manner in which it is made (i.e., by general or special order).

The "third" part that must also be taken into consideration. At first sight it appears to confer unfettered discretion on the Authority, which is that it may (or may not) impose conditions on the delegation, as it may will. This cannot be so. This "discretion" must also be understood contextually and applied structurally. It cannot be read literally and in the open-ended and disjunctive manner. It is, rather, an integral adjunct to the rest of the section, i.e., the first two "parts". Identifying the power, responsibility or function to be delegated in the manner just described influences and affects both the identification of the person to whom it can be, and the manner in which it is to be, delegated. In like manner, this identification must also influence and affect the question whether any conditions are to be imposed in terms of the third "part". In other words, the Authority cannot simply choose to apply or ignore this "part" as it wishes, i.e., as being something entirely within its "discretion". That would be to misunderstand and misapply the power conferred by section 13 and result in an unlawful delegation. If the identification of the importance of the powers, responsibilities or functions being considered for delegation is to be regarded in terms of a "scale", then the less important matters would obviously be clustered at the bottom and the more important ones at the top. In parallel manner the question of whether conditions are to be imposed in terms of the third "part" can be understood in terms of "thresholds". The more important the power, responsibility or function being considered for delegation, the higher must be the "threshold" for the Authority in deciding not to impose any conditions and vice-versa. Put differently, the scope of the "discretion" conferred by the third "part" of section 13 to not impose any conditions must narrow as one moves up the "scale" of importance of the power, responsibility or function, such that for the most important of such matters, the threshold becomes so high that the "discretion", in effect, vanishes.

With regard to the power of suspension, it is clearly one of the most important powers conferred on the Authority. That section 30 lays out in the statute itself the procedure and scope for its exercise also attests to its importance in the scheme of things. In the "scale" of importance it is quite obviously in the very top tier. To this extent, its delegation to the Chairman (and to him alone) could be regarded as consistent with the manner in which section 13 can be lawfully applied. However, even here there must be a proper application of mind by the Authority as to whether this power ought to be delegated at all. Simply because the power to delegate exists and the proposed delegatee is the Chairman is not enough. The power of suspension, especially in the context of the provision of subsection (3) of section 30 whereby such power can be exercised without prior notice or hearing "for reason of necessity in the public interest" is simply too powerful and broad an instrument to be entrusted to anyone other than where the statute places it (i.e., in the hands of the Authority itself) on a ground so flimsy as the desire to take "prompt action". In the context of a power to suspend a licence without prior notice or hearing, both "public interest" and "necessity" can be rather malleable terms either of which can be bent hither or thither. But any delegation (and especially that aspect of the power which is contained in subsection (3)) must be for legally valid and sustainable reasons. The need or desire to take "prompt action", even if legally sustainable, is not to be confused or equated with the "necessity" to take action, especially when such necessity can only exist in the context of public interest. A strong case must be made out and there must be very serious application of mind by the Authority for it to be satisfied that the power of suspension ought to be delegated.

Richardson v. Mellish [1824] EngR 715, (1824) 2 Bing 229 ref.

Ahmed Pervaiz, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record, Tahir Farooq Tarar, Head Legal, PEMRA and Mohsin Hamid Dogar, Director Regulation, PEMRA for Appellant.

Faisal Siddiqi, Advocate Supreme Court for Respondent No. 1.

Mian Aqeel Afzal, Express News, Sajjad Haider, Capital T.V., Ibrar Istori, G.T.V., Abid Raza, Roze T.V., Afzal Javed, Aaj T.V. and Abid Abbasi, PNN for Attendance for Media Channels.

2023 S C M R 1055

[Supreme Court of Pakistan]

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

SNAMPROGETTI ENGINEERING B.V. through Special Attorney---Petitioner

Versus

COMMISSIONER OF INLAND REVENUE ZONE-II, L.T.U, ISLAMABAD and others---Respondents

Civil Petitions Nos. 3286 to 3289 of 2017, decided on 2nd August, 2022.

(Against the consolidated judgment of Islamabad High Court, Islamabad dated 15.06.2017, passed in ITR Nos. 160 of 2016, etc.)

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

----S. 107---International tax conventions, agreements or treaties---Interpretation---Reasons as to why treaty interpretation rules differ from domestic tax rules stated.

International tax conventions or agreements or treaties are of a special nature and the role of a state (being party to such a bilateral agreement) is more of implementing the terms of such agreement rather than that of interpreting the same and that too in a unilateral manner. Treaty interpretation rules differ from domestic tax rules for the following among other reasons:

(a) As international treaties, the Vienna Convention on the Law of Treaties of 23rd May 1969 ("VCLT") governs double tax agreements. Therefore, their interpretation is based on the rules of interpretation under customary international law. As these principles and procedures of interpretation of agreements differ from rules applied to domestic legislation, an interpretation under the domestic law as a taxing statute may be misleading and unsuitable;

(b) Unlike the domestic law which contains highly technical legislative language relevant to a specific jurisdiction, tax treaties are based on the mutual understanding among two or more contracting states. Moreover, more than one language may be involved. They must be applied by the tax authorities and the courts in each contracting state in auniform way (common interpretation) that may differ from the domestic laws and practices in each state;

(c) Tax treaties are primarily relieving in nature and do not impose tax, while the domestic tax law seeks to impose tax in specific circumstances. A treaty specifies general taxing principles to avoid double taxation. Moreover, as the life of a treaty can be long it must be flexible enough to adapt to changes in the domestic law while continuing to reflect the original negotiated balance of obligations and concessions;

(d) Tax treaties tend to be less precise and require a broad purposive "substance over form" interpretation. Therefore, they are often interpreted more liberally than domestic law in the context of their object and purpose. On the other hand, in states that prefer a liberal, purposive interpretation of their domestic law, the interpretation of the tax treaties may be stricter under the statutes. In both cases, a neutral interpretation and common understanding requires the use of an international fiscal language, which may not be found in the domestic laws and may provide a definition quite independent from domestic laws;

(e) Treaty interpretation is a subject in itself and not merely an extension of statutory interpretation despite the fact that treaties may be enforceable only when made part of the domestic law under a statute in certain countries. Therefore, tax treaties should be kept as free as possible from the interpretation rules under domestic law, unless specified in the treaty itself.

Roy Rohatgi, Basic International Taxation (Kluwer Law International Second Edition 2001); Commissioner of Taxation v. Lamesa Holdings BV (1997) 77 FCR 597; McDermott Industries (Aust) Pty Ltd. v. Commissioner of Taxation (2005) 142 FCR 134 and A.P. Moller v Taxation Officer of Income Tax 2011 PTD 1460 ref.

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

----S. 107(2)(c)---Convention between the Kingdom of the Netherlands and the Islamic Republic of Pakistan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income' ("Convention"), Arts. 5 & 7---Non-resident company---Engineering services provided by the petitioner (non-resident company) to a local company---Exemption from tax under the domestic tax regime of Pakistan---Petitioner (non-resident company) and the local company did not have a contractual relationship ascribing any building, construction, installation, assembly project or supervisory activities role to the former---Rather, the role of the petitioner was limited to providing engineering services only---Tax department failed to bring on record any evidence satisfying the threshold requirement of Clause 4 of Article 5 of the Convention that the petitioner had furnished services within Pakistan through employees or other personnel for a period or periods aggregating 'more than four months within any twelve months period', which was necessary for any activity of furnishing services to constitute a permanent establishment---Petitioner was entitled to the exemption provided in the Convention, and the income derived by the petitioner from providing the services to the local company was exempt from income tax in Pakistan because of not fulfilling the conditions necessary to constitute a permanent establishment as set out in Clause 4 of Article 5 of the Convention.

The petitioner-company, being a tax resident of the Netherlands, is entitled to the benefits and concessions under the Convention between the Kingdom of the Netherlands and the Islamic Republic of Pakistan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income' ("Convention"), in line with the provisions of section 107 of the Income Tax Ordinance, 2001 ('Ordinance'). Under subsection (2)(c) of section 107 of the Ordinance, the taxability of the petitioner's income is to be determined under the provisions contained in the Convention which override the Ordinance. The Convention involved in the present case was signed and enforced by Pakistan and the Netherlands in 1982. Its Article 7 provides that the business profits of an enterprise of one of the states shall be taxable in the other state only if the enterprise maintains a permanent establishment in the latter state and only to the extent that the profits are attributable to the permanent establishment.

The contract between the petitioner-company and the local company reflects that the petitioner was hired for the provision of engineering services only. The scope of the petitioner's work consisted of providing engineering services for the plants as well as for the procurement of two years' spare parts. The petitioner's obligations mainly included: (i) carrying out the work exercising due skill, care and diligence in accordance with good and internationally acceptable engineering, design and procurement practices; (ii) furnishing five sets of the final version of the engineering documents to the local company; (iii) providing on an ongoing basis engineering data including computer files to the local company for review of the work being performed by the petitioner; and (iv) witnessing at its own expense at the place of manufacture all such tests and inspections of the equipment and materials and other parts of work, as specified in the contract to ensure that they comply with the engineering developed by the petitioner on the basis of the desired standards. It is expressly clarified in the contract that notwithstanding anything to the contrary, the petitioner shall not be responsible for the construction and the overall management activities of the project which shall be the exclusive responsibility of the local company. The local company was to perform or cause to be performed the construction and erection activities for the implementation of the plants and be responsible for the management and administration of such activities and any associated cost and time schedule. The local company was to use an expert and competent construction contractor and was required to ensure that construction would be performed according to acceptable standards. All work excluded from the petitioner's work was the local company's responsibility to perform or cause to be performed.

The burden of proving the fact that the petitioner had a permanent establishment in Pakistan and must, therefore, suffer tax from the business generated from such permanent establishment was initially on the department. The recitals of the contract adequately show that the petitioner and the local company did not have a contractual relationship ascribing any building, construction, installation, assembly project or supervisory activities role to the former. Rather, the role of the petitioner was limited to providing services only. The Assessing Officer's view about the actual involvement of the petitioner in the construction activity is not supported by any material on record. Clause 3 of Article 5 of the Convention has, therefore, no relevance to the petitioner's case.

Assistant Director of Income Tax v. E-Funds IT Solution Inc. (2018) 13 SCC 294 and DIT (International Taxation), Mumbai v. Morgan Stanley and Co. Inc. (2007) 7 SCC 1 ref.

However, the petitioner's case may fit in the category identified under Clause 4 of Article 5 of the Convention if the petitioner had rendered services through its employees in Pakistan provided the services were rendered for a specified period. Clause 4 of Article 5 of the Convention provides that permanent establishment shall "encompass the furnishing of services including consultancy services, by an enterprise through employees or other personnel, engaged by the enterprise for such purpose, but only where activities of that nature continue (for the same or a connected project) within the country for a period or periods aggregating more than four months within any twelve month period." The view of the Assessing Officer about the impossibility of the implementation of the contract without the physical presence of the petitioner in Pakistan appears irrational and purely assumptive because he failed to take note of the fact that the employees/representatives of the petitioner admittedly stayed in Pakistan for 97 days only.

The language used in Clause 4 of Article 5 of the Convention with respect to calculating the period of four months necessary for any activity of furnishing services to constitute a permanent establishment shows that there may be a number of periods, interspersed with breaks, during which services are furnished by an enterprise. If the aggregate of these periods crosses the threshold of four months within any twelve-month period, a permanent establishment will stand constituted. The department has failed to bring on record any evidence satisfying the threshold requirement of Clause 4 of Article 5 of the Convention that the petitioner had furnished services within Pakistan through employees or other personnel for a period or periods aggregating more than four months within any twelve-month period. The furnishing of services as envisaged under the Convention does not, of itself, create a permanent establishment unless it continues for a period or periods aggregating more than four months within any twelve-month period.

The income derived by the petitioner from the provision of engineering services to the local company being not attributable to a permanent establishment located in Pakistan is not taxable in Pakistan as long as it is not covered by other Articles of the Convention that would allow such taxation. The petitioner is entitled to the exemption provided in the Convention, and the income derived by the petitioner from providing the services to the local company is exempt from income tax in Pakistan because of not fulfilling the conditions necessary to constitute a permanent establishment as set out in Clause 4 of Article 5 of the Convention. Petitions for leave to appeal were converted into appeals and allowed accordingly.

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

Babar Bilal, Advocate Supreme Court along with Shahid Soomro, Commissioner (Legal) for Respondents (in all cases).

2023 S C M R 1068

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Ayesha A. Malik, JJ

BAKHTI RAHMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 207 of 2023, decided on 15th March, 2023.

(Against the judgment dated 23.01.2023 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in Cr. M. B.A. No. 22-M of 2023)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 337-F(i), 337-A(ii), 337-A(iii) & 34---Constitution of Pakistan, Art. 185(3)---Ghayr-jaifah, shajjah-i-mudihah, shajjah-i-hashimah, common intention---Bail, refusal of---Rule of consistency not applicable---All the accused persons had been assigned their roles in the FIR but the effective role had been attributed to the present accused, hence his role was rightly found distinguishable from the role assigned to the other co-accused---First Information Report as well as the site plan and the medico legal report fully supported the prosecution case---Police recovered blood from the spot along with blood stained garments of the complainant and also recovered two iron rods as the weapons of the offence---So far as the rule of consistency or parity for considering the grant of bail to the accused was concerned, in the present facts and circumstances of the case the roles of the co-accused who were granted bail were distinguishable to the role assigned to the accused who caused the fatal injury to the complainant---Petition for leave to appeal was dismissed, leave was refused, and accused was refused bail.

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

Sardar Ali Raza, Additional A.G. for the State.

2023 S C M R 1072

[Supreme Court of Pakistan]

Present: Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

Pirzada NOOR-UL-BASAR---Appellant

Versus

Mst. PAKISTAN BIBI and others---Respondents

Civil Appeal No. 23-P of 2017, decided on 29th March, 2023.

(On appeal against the judgment dated 12.05.2017 passed by the Peshawar High Court, Peshawar in Civil Revision No. 699-P of 2013)

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Property given by husband (deceased) to his Parda Nashin wife in lieu of dower---Presumption of completeness of transaction---Scope---In the Nikah Nama, it was clearly mentioned that the suit property was given to the respondent-widow by her husband in lieu of dower---Husband was owner of the suit property and there was no bar on him to transfer the property to his wife in his lifetime---Land in question was in exclusive ownership of the respondent-widow and she used to receive Ijjara from the tenants---Two tenants of the respondent appeared in the witness box and stated on oath that they were cultivating the suit property for the last 40 years on behalf of the respondent; they also admitted that they were paying Ijjara to the respondent---Respondent was a Parda Nashin Lady and under no circumstances it can be presumed that she had the knowledge that after the Nikah and the Nikah Nama, the registration as well as the incorporation in the revenue record was mandatory---Under the bona fide belief, in our part of the world, the presumption of completeness of transaction, after the execution of Nikah Nama is there and since the Ijjara was being received by her, as such, she was under bona fide belief that during the lifetime of her husband as well as after his death, the transaction was complete and she was the owner of the property in question---Suit of respondent had been rightly decreed---Appeal was dismissed.

(b) Constitution of Pakistan---

----Arts. 185 & 187---Appellate jurisdiction of the Supreme Court---Scope---Supreme Court in its appellate jurisdiction would generally not determine any ground or question of fact that had not been pleaded or raised by the parties at early stage before the lower court and High Court and has been for the first time raised in appeal before the Supreme Court---Appellant has no right to raise an absolutely new plea before the Supreme Court and seek a decision on it nor could such plea be allowed to be raised as a matter of course or right on the pretext of doing complete justice.

Wali Jan v. Government of KPK 2022 PLC (C.S.) 336 ref.

Javed Iqbal Gulbela, Advocate Supreme Court (through video link from Peshawar) for Appellant.

Abdul Sattar Khan, Advocate Supreme Court (through video link from Peshawar) for Respondent No. 1.

Ex parte for the Respondents.

2023 S C M R 1077

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Ayesha A. Malik and Shahid Waheed, JJ

HIGHER EDUCATION COMMISSION H/9, ISLAMABAD through Project Director---Petitioner

Versus

ALLAH BAKHSH and others---Respondents

Civil Petition No. 5877 of 2021, decided on 26th April, 2023.

(On appeal against the judgment dated 14.09.2021 of the Islamabad High Court, Islamabad, passed in R.F.A. No. 358 of 2020)

Limitation Act (IX of 1908)---

----First Sched. & Art. 149---Higher Education Commission Ordinance (LIII of 2002), Ss. 4(2), 6, 10, 12, 14 & 19---Higher Education Commission ('HEC'), status of ---Suit for recovery of amount filed by HEC---Limitation---Higher Education Commission is an independent legal entity with an independent legal existence; it cannot be said to be an alter ego of the Federal Government, and thus, would not be governed by Article 149 of the Limitation Act, 1908.

Although the Higher Education Commission is owned and funded by the Government, and its Chairperson and members are appointed by the Prime Minister, it is, in the eye of the law, still a separate legal entity and has a separate legal existence. It is its own master and is answerable as fully as any other person or corporation of the State. It is not the Government, nor does it act on behalf of the Government, and as such, does not enjoy any immunity or privileges of the Government.

Privy Council in Fox v. Government of Newfoundland 1898 AC 667 and Tamlin v. Hannaford.10 (1950) 1 KB 18 ref.

Higher Education Commission is an independent legal entity and has an independent legal existence, and notwithstanding the fact that it is "Government aided" or "Government controlled" or "Government patronised", it cannot be said to be an alter ego of the Federal Government, and thus, would not be governed by Article 149 of the Limitation Act, 1908.

Manzoor Hussain, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2023 S C M R 1083

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

Dr. MUHAMMAD AMIN---Petitioner

Versus

ZARAI TARAQIATI BANK LIMITED through Board of Director, ZTBL, HO, Islamabad and others---Respondents

Civil Petition No. 2933 of 2019, decided on 10th August, 2022.

(Against the judgment dated 29.05.2019 passed by the Islamabad High Court, Islamabad in W.P. No. 1057 of 2018)

Civil Procedure Code (V of 1908)---

----O. II, R. 1 & 2---Civil service---Dismissal from service---Unauthorized absence from duty---Cases filed in multiple forums to challenge dismissal from service---Overlapping proceedings in Civil Court and High Court---Propriety---History of the petitioner's litigation showed that he selected multiple forums to institute multiple litigations to challenge the action of the management instead of jotting down all the causes of action available to him for suing in one go---Petitioner could unite both the causes of action such as the rejection order of the appeal and the dismissal order from service promptly instead of splitting the claims and opting to challenge them separately in the High Court and Civil Court which created the complication of overlapping the proceedings and also multiplicity of proceedings---Strange methodology was adopted by the petitioner in that the writ petition was filed in the High Court against the rejection of departmental appeal alone, whereas the dismissal order was challenged separately in a declaratory suit which was instituted after filing the writ petition---Ultimate challenge must have been to the dismissal order rather than assailing the rejection order of the appeal---Merely challenging the order of rejection of the appeal could not serve any purpose, unless, the declaratory suit was proceeded by the competent court of law to decide the fate of the petitioner's dismissal from service---Seemingly, the petitioner had already availed the appropriate remedy of filing a suit in the Civil Court for challenging his dismissal order---Order passed by Civil Court demonstrates that the judge recorded the statement of petitioner and Law Officer of employer-bank, who confirmed that an application to the management had been submitted by the petitioner for an amicable settlement on humanitarian and compassionate grounds which would be processed in accordance with law---After recording the statements, the suit was dismissed as withdrawn with the permission to file a fresh suit in case of further grievance---In view of this situation, there was no justification to interfere, in the impugned judgment of High Court---Supreme Court directed that if the management of the employer-bank had not decided the application moved by the petitioner till date, then the petitioner may avail a remedy of filing fresh suit or in the alternate, he was also at liberty to move proper application for resurrection of his suit and if such application was filed in the Trial Court and the suit was resurrected/restored to its original position, then the Civil Court shall decide the suit on merits within three months after providing an ample opportunity of hearing to the parties---Petition for leave to appeal was disposed of accordingly.

Petitioner in person.

Nemo for Respondents.

2023 S C M R 1087

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

Dr. SAYYID A. S. PIRZADA---Petitioner

Versus

The CHIEF SECRETARY, SERVICES AND ADMINISTRATION DEPARTMENT

and others---Respondents

Civil Petition No. 2009 of 2020, decided on 13th April, 2023.

(Against the judgment of the Punjab Service Tribunal, Lahore, dated 10. 12.2019 passed in Appeal No. 243 of 2008)

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

----Ss. 4(1)(a) & 5(1)---Appeal filed before the Service Tribunal after departmental authority fails to decide representation within 90 days---Service Tribunal, powers of---Scope---Once the appeal, application of review or representation, as the case may be, of a civil servant is not decided by the departmental authority within a period of 90 days and he has elected to approach the Tribunal through preferring an appeal after lapse of that period, then his appeal has to be decided on merits and the Tribunal cannot dispose of that appeal by issuing direction to the departmental authority to decide the appeal, application for review or representation of the appellant, because the said remedy already stands exhausted by virtue of the lapse of time.

If the departmental appeal, review or representation of a civil servant is not decided within a period of 90 days, the aggrieved civil servant need not endlessly wait for the decision of the departmental appeal, review or representation and can straight away approach the Tribunal by filing an appeal for the redressal of his grievance. The Punjab Service Tribunals Act, 1974 ('the Act') encourages a civil servant to first avail the remedy of departmental appeal, review or representation so that the matter can best be decided at the departmental level. However, if no progress is made on such departmental remedy within 90 days, the Act provides the civil servant with a higher remedy in the shape of an appeal before the Tribunal to agitate his grievance. When the aggrieved civil servant avails the higher remedy of appeal before the Tribunal after lapse of the prescribed period of 90 days, the departmental remedy of appeal, review or representation loses its significance and automatically comes to an end. Once the matter is brought before the Tribunal in accordance with the provisions of section 4 of the Act, the departmental remedy stands exhausted. Under section 5 of the Act, the Tribunal on appeal can only confirm, set aside, vary or modify the order appealed against. The Tribunal has no power under the Act to direct the departmental authorities to decide the departmental appeal, application for review or representation of the civil servant, which remained undecided for a period of 90 days.

Falak Sher v. Government of Punjab 1995 SCMR 962 ref.

Once the appeal, application of review or representation, as the case may be, of a civil servant is not decided by the departmental authority within a period of 90 days and he has elected to approach the Tribunal through preferring an appeal after lapse of that period, then his appeal has to be decided on merits and the Tribunal cannot dispose of that appeal by issuing direction to the departmental authority to decide the appeal, application for review or representation of the appellant, because the said remedy already stands exhausted by virtue of the lapse of time.

Petitioner in person.

Sanaullah Zahid, Additional A.G., Punjab, M. Safdar Abbasi, N.S., Waqar Malik, L.A. and Riaz Ahmed Muazzmi, Law Officer HED for Respondents.

2023 S C M R 1093

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Jamal Khan Mandokhail and Athar Minallah, JJ

MUHAMMAD TAIMUR---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU NAB HEADQUARTERS, ISLAMABAD and others---Respondents

Civil Petition No. 278 of 2023, decided on 17th April, 2023.

(Against the judgment dated 11.01.2023 of the Peshawar High Court, Peshawar passed in Writ Petition No.2964-P of 2022)

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

----Ss. 9 & 10---Constitution of Pakistan, Art. 185(3)---Cheating public at large through an online ponzy scheme---Bail conditions, propriety of---Bail was granted to accused by High Court on the ground of delay in conclusion of trial subject to the accused surrendering his passport and the Cryptocurrency code to the Investigating Officer of the National Accountability Bureau ('Bureau'), and name of accused was also ordered to be placed on the Exit Control List---Propriety---When the court comes to the conclusion that the accused is entitled to be released on bail then in such eventuality the grant of bail cannot be made subject to any rider or condition that would render the concession of bail granted by the court as ineffective or redundant---Even if bail is to be granted subject to conditions then they must not be unreasonable, disproportionate or excessive---Regarding the condition of surrendering the Cryptocurrency code, question as to whether the accused had the ability to access the Cryptocurrency could not have been decided at bail stage because it would require deeper appreciation of evidence, which was yet to be recorded during the trial---Such condition, therefore, appeared to be excessive and unreasonable because it denied the accused the right to liberty granted by the High Court by extending the concession of bail---Moreover, there were more than fifteen hundred witnesses on the list of the prosecution who would be entering the witness box---Early conclusion of the trial, therefore, was not foreseeable---Admittedly, the cellular phone and the sim belonging to accused were seized and they were in the custody of the Bureau---Investigating Officer had stated that if the sim could be blocked it would serve the purpose because in such an event access of the accused to the Cryptocurrency would be denied---Condition of surrendering the code, therefore, was excessive and disproportionate to the purpose which it sought to achieve---Petition for leave to appeal was converted into an appeal and the matter was remanded to the High Court to the extent of reconsidering the condition whereby the accused had been directed to surrender the Crypto currency code, with the direction that the High Court may, inter alia, seek assistance of an expert in order to set out reasonable condition(s) to prevent the accused from having access to the Cryptocurrency.

Javed Iqbal v. The State 2023 SCMR 401 ref.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Purpose---Primary purpose of granting bail is to ensure attendance of an accused before the court; it also enables the accused, who is presumed to be innocent, to pursue normal activities which are essential for life such as earning a livelihood or taking care of the needs of the family.

Barrister Syed Mudasser Ameer, Advocate Supreme Court for Petitioner.

Raja Rizwan Ibrahim Satti, Special Prosecutor for NAB.

2023 S C M R 1097

[Supreme Court of Pakistan]

Present: Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD USMAN---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 148 of 2022, decided on 11th April, 2023.

(On appeal against the judgment dated 15.02.2022 passed by the Lahore High Court, Rawalpindi Bench in Criminal Revision No. 205 of 2021)

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

----Ss. 324 & 337-F(iii)---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah---Reappraisal of evidence---FIR was lodged on the same day i.e. just after one hour of the occurrence---Thus, it can safely be said that FIR was lodged with promptitude---Promptness of FIR showed truthfulness of the prosecution case and it excluded possibility of deliberation and consultation---Ocular account in the case has been furnished by complainant and two other prosecution witnesses---Said prosecution witnesses 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---Said witnesses had given all necessary details of occurrence qua the date, time, place, name of accused, name of witnesses, manner of occurrence, kind of weapon used in the occurrence, the locale of injuries and the motive of occurrence---Ocular account furnished by the prosecution was reliable, straightforward and confidence inspiring---Medical evidence available on the record further corroborated the ocular account so far as the nature, time, locale and impact of the injuries on the person of injured was concerned---Complainant had received injury at the hands of the accused and his testimony as well as the stamp of injury on his person clearly proved his presence at the place of occurrence---Complainant and another prosecution witness were the inmates of the house where the occurrence took place, therefore, both said witnesses were the most natural witnesses---Defence did not seriously dispute the motive part of the prosecution story---In these circumstances, there was sufficient evidence available on the record to sustain conviction of the accused---Conviction of accused under sections 324 & 337-F(v), P.P.C. was maintained---Jail petition was converted into appeal and partly allowed.

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

----S. 324---Attempt to commit qatl-i-amd---Recovery of weapon from accused---Reliance---Where the weapon of offence is recovered from the accused but the same is not sent to the Forensic Science Laboratory, such recovery is inconsequential.

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

----Ss. 324 & 337-F(iii)---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah---Reappraisal of evidence---Sentence, reduction in---Spur of the moment occurrence---Single fire shot on non-vital part of body---Payment of Daman in instalments---As far as the sentence of 05 years awarded to the accused was concerned, the occurrence took place at the spur of the moment without there being any pre-meditation on the part of the accused---Complainant himself stated that his daughter was married with the accused and due to strained relations she was living in her parents house for the last one month---Accused came there to convince her and to take her to his house, and the parties took meal there---However, subsequently a quarrel took place between the parties, which resulted in the commission of the crime---Injured complainant only sustained one firearm injury and the accused did not repeat the same---Locale of the injury suggested that the accused had no intention to kill the injured---Accused had already suffered most of his sentence---In this view of the matter, while maintaining the conviction of the petitioner under sections 324 & 337-F(v), P.P.C., the sentence of 05 years rigorous imprisonment awarded to him under section 324, P.P.C. was reduced to the period which he had already undergone---Jail petition was converted into appeal and partly allowed with the direction that since the accused claimed to be poor and could not pay the Daman in one go, he may be released subject to his furnishing surety equal to the amount of Daman to the satisfaction of the Trial Court; that the Trial Court shall grant one year's time to the accused for payment of Daman amount, which would be payable in equal installments; that in case of any default in payment of monthly installment, the accused shall be taken into custody and dealt with in accordance with law.

Junaid Iftikhar Mirza, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record for Petitioner.

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

2023 S C M R 1103

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

NATIONAL HIGHWAY AUTHORITY through Chairman, Islamabad---Petitioner

Versus

Messrs SAMBU CONSTRUCTION CO. LTD. ISLAMABAD and others---Respondents

Civil Petition No. 3767 of 2020, decided on 13th February, 2023.

(Against the judgment of Islamabad High Court, Islamabad dated 21.09.2020 passed in F.A.O. No. 16 of 2014)

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

----S. 30---Arbitration award---Interference by Courts---Scope---Limited scope of judicial review of an Award announced by an Arbitrator stated.

The arbitrator alone is the judge of the quality as well as the quantity of the evidence. He is the final arbiter of dispute between the parties. He acts in a quasi-judicial manner and his decision is entitled to utmost respect and weight. Court is not supposed to sit as a court of appeal and make a roving inquiry and look for latent errors of law and facts in the Award. The arbitration is a forum of the parties' own choice its decision should not be lightly interfered by the court, until a clear and definite case within the purview of the section 30 of the Arbitration Act, 1940 is made out.

Mian Corporation v. Messers Lever Brothers of Pakistan Ltd. PLD 2006 SC 169 ref.

An arbitration Award is a final determination of the dispute between the parties. The grounds for challenging an Award are very limited. There are three broad areas on which an arbitration Award is likely to be challenged i.e. firstly, jurisdictional grounds (non-existence of a valid and binding arbitration agreement); secondly, procedural grounds (failure to observe principles of natural justice) and thirdly, substantive grounds (arbitrator made a mistake of law).

Nigel Blackaby and Constantine Partasides QC, Redfern and Hunter On International Arbitration (6th edn, Oxford University Press, United Kingdom 2015), 569-573 ref.

The review of an arbitration Award cannot constitute a re-assessment or reappraisal of the evidence by the court. An over-intrusive approach by courts in examination of the arbitral Awards must be avoided. The court is not supposed to sit as a court of appeal and must confine itself to the patent illegalities in the Award, if any.The jurisdiction of the Court under the Arbitration Act, 1940 is supervisory in nature. Where two findings are possible the Court cannot interfere with the Award by adopting its own interpretation. Interference is only possible if there exists any breach of duty or any irregularity of action which is not consistent with general principles of equity and good conscience.

Tony Cole and Pietro Ortolani, Understanding International Arbitration (1st edn., Routledge, New York 2020), Chapter-7, 216; Federation of Pakistan v. Messrs Joint Venture Kocks K.G./Rist, PLD 2011 SC 506; Gerry's International (Pvt.) Ltd v. Aeroflot Russian International Airlines 2018 SCMR 662 and Shahin Shah v. Government of Khyber Pakhtunkhwa 2022 SCMR 1810 ref.

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

----S. 30(a)---Arbitration award---Grounds for setting aside Award---Misconduct by Arbitrator---Meaning---Misconduct of an Arbitrator in the judicial sense means failure to perform his essential duty or any conduct inconsistent with his duties, resulting in substantial miscarriage of justice between the parties.

Brooke Bond (Pakistan) Ltd. v. Conciliator Appointed by the Government of Sindh PLD 1977 SC 237 ref.

(c) Supreme Court Rules, 1980---

----O. XXVIII, R. 3---Arbitration Act (X of 1940), S. 30---Frivolous and vexatious litigation---Abusing process of the Court---Costs, imposition of---Petitioner had dragged the Award in the courts for over 10 years, which passed for vexatious litigation; wasting the time of all courts below as well as the Supreme Court---Such frivolous litigation clogged the pipelines of justice causing delay in deciding genuine claims pending before the Supreme Court; and added to the pendency of cases which over-burdened the Court dockets and slowed down the engine of justice---Such vexatious and frivolous litigation must be dealt with firmly and strongly discouraged---Supreme Court imposed costs on the petitioner in the sum of Rs. 300,000/- with the direction that the same shall be paid to the respondent within a month and in case of its failure to pay the said costs, the same shall be recoverable as a money decree---Petition for leave to appeal was dismissed and leave was refused.

President of Islamic Republic of Pakistan v. Syed Tasneem Hussain Naqvi 2004 SCMR 590; Muhammad Ramzan v. Additional District Judge, Multan 2005 SCMR 1542 and Province of Punjab v. Messrs Sufi Construction Company 2005 SCMR 1724 ref.

Zahid Idris Mufti, Advocate Supreme Court for Petitioner.

Barrister Muhammad Mumtaz Ali, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record for Respondents.

2023 S C M R 1109

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Muhammad Ali Mazhar, JJ

FIDA HUSSAIN---Petitioner

Versus

CHIEF SECRETARY, KHYBER PAKHTUNKHWA, CIVIL SECRETARIAT and others---Respondents

Civil Petition No. 1777 of 2020, decided on 7th April, 2023.

(Against Order judgment 24.04.2020 passed by the Peshawar High Court, Peshawar in W.P. No. 4181-P of 2018)

Civil service---

----Disciplinary proceedings---De novo inquiry, directions for---Authorized officer (Member, Board of Revenue)---Authorized officer cannot issue directions to the competent authority to decide the disciplinary proceedings in a particular manner nor could he give directions to conduct a de novo inquiry if proceedings were dropped/filed after due consideration.

The Authorized officer cannot impose any condition or issue directions to the competent authority to decide the disciplinary matter in a particular manner. The holding of inquiry under Civil Servant laws on the allegation of misconduct is a routine affair and a common phenomenon which is triggered after the issuance of a show cause notice and statement of allegations, and when Inquiry Report is submitted to the competent authority then it is their domain, with proper sense of duty, to impose the penalty keeping in mind the gravity of charges, if proved, during the inquiry. It is not mandatory that, in all circumstances, the competent authority should agree with the recommendations of the Inquiry Officer or Inquiry Committee, but in case the competent authority decides to impose a penalty greater than that recommended by the Inquiry Officer, then obviously some reasons are to be assigned with proper application of mind, after providing a right of personal hearing to the accused, and in case the competent authority decides to file the Inquiry Report without taking any action thereon, with proper reasoning, then obviously there would be no justification to expect a de novo inquiry to start from scratch in each and every case without any lawful justification.

Petitioner in person.

Asif Hameed Qureshi, Advocate Supreme Court for Respondents.

Respondent No. 7 in person.

2023 S C M R 1113

[Supreme Court of Pakistan]

Present: Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

SARDAR MUHAMMAD (DECEASED) through LRs---Appellant

Versus

TAJ MUHAMMAD (DECEASED) through LRs and others---Respondents

Civil Appeal No. 840 of 2017, decided on 6th April, 2023.

(On appeal against the judgment dated 10.02.2017 passed by the Lahore High Court, Lahore in R.S.A. No. 135 of 2010)

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

----Ss. 13(2) & 13(3)---Suit for possession through pre-emption---Pre-requisites---Talb-i-muwathibat and Talb-i-ishhad---If performance of a single Talb is skipped or not proved, the superstructure and edifice of the suit for possession through pre-emption falls on the ground.

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

----S. 13(3)---Suit for possession through pre-emption---Notice of 'Talb-i-ishhad', sending of--- Service on only one of the two vendees---Effect---Not service in the eyes of law---In the present case to prove the notice of Talb-i-ishhad, although the plaintiff/pre-emptor had produced the Postman, however, a bare perusal of his statement showed that the notices were not directly delivered to the defendants/vendees "T" and "R"---Postman stated that it was defendant/vendee "B" who had received the notices on behalf of the other two defendants/vendees---Similarly, the notice sent to defendant/vendee "AJ" was received by another defendant "AG"---Such fact was also admitted by the plaintiff himself in his amended suit filed by him before the learned Trial Court---Suit for possession through pre-emption had been rightly dismissed---Appeal was dismissed.

Munawar Hussain v. Afaq Ahmed 2013 SCMR 721 ref.

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

----S. 13(3)---Suit for possession through pre-emption---Pre-requisite---Notice of 'Talb-i-ishhad'---Service of Talb-i-ishhad is a pre-requisite and if the performance of the same is not proved beyond any shadow as well as in the prescribed form, then the whole structure falls on the ground.

Salman Mansoor, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Malik Muhammad Kabeer, Advocate Supreme Court for Respondents.

2023 S C M R 1118

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Shahid Waheed, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence Rawalpindi and another---Petitioners

Versus

Messrs FARRUKH INTERNATIONAL (PVT.) LTD. through Proprietor---Respondent

Civil Petition No. 3185 of 2020, decided on 6th February, 2023.

(Against the order of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 07.09.2020 passed in C.R. No. 1294-D of 2016)

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

----O. IX, R. 6---Defendant proceeded ex parte---Despite non-appearance of the defendant, the Court should not act mechanically, rather ought to consider the legal and factual aspects of the case, on the basis of the material available before it.

Where on the date of hearing, only the plaintiff appears and the defendant despite being duly served does not appear, the Court by exercising powers under Order IX, Rule 6 of the Code of Civil Procedure ("C.P.C.") may proceed against the defendant ex parte and pass a decree without recording evidence. As per section 2(2) of the C.P.C., a "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint as well. The Court after proceeding with the defendant ex parte, may determine the rights of the parties either without recording evidence or may call the plaintiff to produce evidence, in order to satisfy itself on arriving at a proper conclusion of the matter presented before it, for the safe administration of justice. Thus, despite non-appearance of the defendant, the Court should not act mechanically, rather ought to consider the legal and factual aspects of the case, on the basis of the material available before it.

Ghulam Ali Shah and others v. Muhammad Khalid and others 2017 SCMR 1849 ref.

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

----Arts. 17(2)(a) & 79---Civil Procedure Code (V of 1908), O. IX, R. 6---Document pertaining to financial and future obligations---Execution and attestation---Two marginal witnesses---If the question of execution and attestation of any such document is put in issue by the Court, the party relying upon such document is required to produce its two marginal witnesses in order to prove its execution in accordance with the law---Said principle is applicable also to cases where the defendant is proceeded against ex parte.

A document which pertains to financial and future obligations is required to be attested by at least two witnesses, as provided by Article 17(2)(a) of the Qanun-e-Shahadat, 1984 ("Order, 1984"). Article 79 of the Order, 1984 mandates that any such document required by law to be attested by two witnesses shall not be used as evidence, save for two attesting witnesses appear before the Court to prove its execution, unless the same is admitted by the contesting parties, as stipulated by Article 81 of the Order, 1984. If the question of execution and attestation of any such document is put in issue by the Court, the party relying upon such document is required to produce its two marginal witnesses in order to prove its execution in accordance with the law. This principle is applicable to all such documents executed between private and/or public parties as well as in cases where the defendant is proceeded against ex parte.

Sheikh Muhammad Muneer v. Mst. Feezan PLD 2021

SC 538 ref.

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

----Art. 79--- Civil Procedure Code (V of 1908), O. XXXVII, Rr. 1 & 2---Suit for recovery on account of breach of contract---Contract---Proof---Petitioners/plaintiffs had relied upon a contract which admittedly pertained to financial and future obligations---Initial burden of proving the case and the documents was on the petitioners/plaintiffs---Despite the fact that the defendant was proceeded against ex parte, the Trial Court in order to satisfy itself with regard to the execution of the document, exercised its discretion by asking the petitioners/plaintiffs to produce evidence in support thereof---Law had provided a procedure for production of documents through the person concerned along with its original record---If the procedure for production of the document was not followed in the manner prescribed by law, the same could not be taken into consideration---Petitioners produced the document through their representative, who neither prepared nor attested the same---Even the original record of these documents were not produced in the Trial Court for comparison---Besides, production of the marginal witnesses of the documents in the Court was a condition precedent under Article 79 of the Qanun-e-Shahadat, 1984, but the needful was not done---Petitioners had failed to prove the execution of the documents relied upon, as such, did not confirm the contents of the plaint --- Petitioners had abused the process of law by filing vexatious and frivolous claims, wasting the precious time of the Courts---Petition for leave to appeal was dismissed with costs of Rs. 100,000, and leave was refused.

Manzoor Hussain v. Misri Khan PLD 2020 SC 749 and Federation of Pakistan and another v. Jaffar Khan and another PLD 2010 SC 604 ref.

Javed Iqbal Wains, Additional A.G.P. for Petitioners.

Nemo for Respondent.

2023 S C M R 1123

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Shahid Waheed, JJ

SUPREME COURT BAR ASSOCIATION through Vice-President, Islamabad

and others---Petitioners

Versus

PAKISTAN BAR COUNCIL through Secretary, Islamabad and another---Respondents

Constitution Petition No. 13 of 2023, decided on 9th May, 2023.

(Setting Aside Show Cause Notices Dated 12.4.2023 issued by Pakistan Bar Council to Muqtedir Akhtar Shabbir, Secretary and Malik Shakeel-ur-Rehman, Additional Secretary, Supreme Court Bar Association)

Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Rr. 118 & 125---Constitution of Pakistan, Art. 184(3)---Disciplinary proceedings---Show cause notices---De-seating orders---Show cause notices issued by Pakistan Bar Council ("PBC") to the Secretary and Additional Secretary Supreme Court Bar Association (SCBA) were followed by notification of their de-seating---Legality---Amicable settlement---Elected representatives of PBC and SCBA conveyed their proposals in Court for agreement/settlement and, after due deliberation and thoughtful consideration, they consensually reached to an amicable settlement---Terms and conditions of the settlement stated.

i. The show cause notices issued by Pakistan Bar Council ("PBC") to the Secretary and Additional Secretary of Supreme Court Bar Association (SCBA) are withdrawn with immediate effect. As a consequence thereof, the de-seating notifications of said office holders are also withdrawn forthwith.

ii. As a reciprocal gesture, the President SCBA, undertakes that, within one week, an application under Order XXIII, Rule 1, Code of Civil Procedure, 1908 shall be moved with an urgent motion for the withdrawal of suits filed by the SCBA against the PBC and its members in the Sindh High Court and certified true copies of the orders of withdrawal of the above suits shall be provided with covering letter to the PBC Secretariat for information and record.

iii. The minutes of both meetings dated 24.02.2023, convened at 11:30 a.m. and 7:00 p.m, are hereby cancelled. However, both the elected bodies of SCBA and PBC are at liberty to convene their meetings in accordance with the relevant Rules/byelaws.

iv. The President of SCBA also informed the Court that Finance Secretary, SCBA made a request in writing to Habib Bank limited, Supreme Court Branch, Islamabad, for freezing the bank accounts of SBCA. She undertakes that she will withdraw the letter by 10.5.2023 and a copy of withdrawal letter with the acknowledgment of Bank shall be provided in the SCBA Secretariat for information and record.

v. Court's attention was also invited to a Resolution dated 04.05.2023, circulated by Acting Secretary/Finance Secretary SCBA, whereby the memberships of seven Members of the SCBA was suspended. Since the matter has been resolved, therefore the representatives of both the parties, as well as all the Members of SCBA who passed the resolution and are present in Court have agreed to withdraw the aforesaid resolution with immediate effect.

vi. The letter dated 05.05.2023, issued by the Office Secretary of PBC to Admin Officer, Assistant Admin Officer and Accountant (all employees of SCBA) is also withdrawn.

vii. The letter dated 04.05.2023, issued by the Secretary SCBA, whereby the membership of ten Members of the Executive Committee was suspended is also withdrawn forthwith.

viii. The elected representatives of PBC and SCBA all have assured each other that they will follow this settlement and the mutually agreed decisions contained in paragraphs (i) to (vii) in letter and spirit, without committing any breach thereof.

Hamid Khan, Senior Advocate Supreme Court, Abid S. Zuberi, Advocate Supreme Court, Muqtedir Akhtar Shabbir, Advocate Supreme Court, Malik Shakeel ur Rehman, Advocate Supreme Court, Shoaib Shaheen, Advocate Supreme Court, Malik Ghulam Mustafa Kandwal, Advocate Supreme Court, Sh. Ahsan-ud-Din, Advocate Supreme Court, M. Ikram Chaudhry, Advocate Supreme Court, Niaz ullah Khan Niazi, Advocate Supreme Court, M. Saim Chaudhry, Advocate Supreme Court, Javed Ahmad Chattari, Advocate Supreme Court, Shafqat Mehmood Chauhan, Advocate Supreme Court, M. Maqsood Buttar, Advocate Supreme Court, Muhammad Aslam Zar, Advocate Supreme Court, Arshad Hussain Yousafzai, Advocate Supreme Court, Munawar Iqbal Gondal, Advocate Supreme Court, Ch. Hafeez Ullah Yaqub, Advocate Supreme Court, Tahir Faraz Abbasi, Advocate Supreme Court, Rana Zia Abdul Rehman, Advocate Supreme Court, Mian Muhammad Ismail Thaheem, Advocate Supreme Court, Shamim ur Rehman Malik, Advocate Supreme Court, Ali Hassan Bugti, Advocate Supreme Court, Taufiq Asif, Advocate Supreme Court, Ms. Shazia Bilal, Advocate Supreme Court, Ms. Bushra Qamar, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record, Ms. Amna Khalili, Advocate, Arif Ansari, Advocate and Agha Ali Durrani, Advocate for Petitioners.

M. Ahsan Bhoon, Advocate Supreme Court (via video link from Lahore), Hassan Raza Pasha, Advocate Supreme Court (for Executive Committee PBC), Ms. Hifza Bokhari, Advocate Supreme Court, Ms. Shireen Imran, Advocate Supreme Court and Anis M. Shahzad, Advocate-on-Record for Respondents.

Mansoor Awan, AGP on Court's Notice.

2023 S C M R 1128

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

FAKHAR NAWAZ---Petitioner

Versus

ADMINISTRATIVE SECRETARY/SENIOR MEMBER BOARD OF REVENUE, PESHAWAR and others---Respondents

C.M.A. 10945 of 2022 in C.P. 3884 of 2019, decided on 20th March, 2023.

(Restoration Application against the order dated 12.10.2022, passed in C.P. No.3884 of 2019)

Supreme Court Rules, 1980---

----O. IV, Rr. 6, 15, 23 & 24---Application for restoration of Civil Petition dismissed for non-prosecution---Violation of the Supreme Court Rules, 1980---Change of Advocate on Record (AOR) and Advocate Supreme Court (ASC) without consent of the earlier AOR or permission of the Court---Contents of the present restoration application, as well as, the submissions made by the counsel fail to meet the requirement of the Supreme Court Rules, 1980---Restoration application is not only silent regarding the legal requirements mentioned in the Supreme Court Rules, 1980 but is also in violation of the same---Restoration application fails to show how the present ASC has appeared in this case without the instructions of the earlier AOR as required under Rule 6 of Order IV of the Supreme Court Rules; the application does not disclose as to why the application was not filed by the earlier AOR as per Rule 15; how did the petitioner authorize and how did the new AOR file his power of attorney without the consent of the earlier AOR or without the leave of the Court as required under Rule 23; it is also not clear as to how the earlier AOR has been removed as no AOR can withdraw from the case without the leave of the Court as provided under Rule 24---Neither the petitioner, the AOR nor the ASC have bothered to pay any heed to the Supreme Court Rules, 1980 before filing the present application---Application being in flagrant disregard of the Supreme Court Rules, 1980 was not maintainable, and therefore, was dismissed with costs of Rs.20,000/- for being frivolous and having wasted the time of the Court.

Syed Amjad Ali Shah, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2023 S C M R 1131

[Supreme Court of Pakistan]

Present: Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 328 of 2023, decided on 18th April, 2023.

(On appeal against the order dated 08.03.2023 passed by the Lahore High Court, Lahore in Criminal Misc. No. 15722-B of 2023)

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss. 324, 148, 149, 337-L(1), 337-D, 337-F(v), 337-F(iii) & 336---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, refusal of---Delay in conclusion of trial deliberately caused by the accused---While deciding bail petition on statutory ground of delay in conclusion of trial, the Courts must examine the available material to first form an opinion that such delay was not occasioned due to any act of the accused himself or any other person acting on his behalf---If that be so, then bail even on ground of statutory delay could be declined---In the present case the High Court in its impugned order referred to four instances when although the prosecution witnesses were present before the Trial Court but their evidence could not be recorded because of the adjournment sought by the accused---High Court rightly observed that the accused was intentionally delaying the matter just to create a ground for bail in his favour---Perusal of record reflected that the complainant party was producing the witnesses before the Trial Court on each and every date but the accused was avoiding getting their evidence recorded---Accused side was lingering on the matter deliberately and was not cooperating to conclude the trial expeditiously---As many as eight persons from the complainant party sustained firearm injuries on different parts of their bodies---Petition for leave to appeal was dismissed, leave was refused and accused was refused bail.

Azmat Ullah Chaudhry, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2023 S C M R 1133

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Muhammad Ali Mazhar, JJ

AKBER-UD-DIN---Appellant

Versus

HEADMASTER GOVERNMENT HIGH SCHOOL RESHUN and others---Respondents

Civil Appeal No. 1494 of 2017, decided on 14th April, 2023.

(On appeal from the judgment dated 03.10.2017 of the Peshawar High Court, Circuit Court, Chitral passed in Civil Revision No. 27 of 2015)

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Dispute over Character Certificate issued by school---Suit for damages---Rejection of plaint---Abuse and misuse of the process of the court---Costs, imposition of---Appellant attended the school for hardly a year and upon his expulsion sought issuance of a character certificate, which was issued stating that the appellant was caught cheating in an examination, cheating material was recovered from him, he lost his temper and abused and tore the exam paper, whereafter his name was stuck off from the school's record---Somehow the appellant managed to procure a clean character certificate---But, still he was not satisfied, and after almost two decades he sued for damages---Said suit was hopelessly time-barred, yet it was entertained---High Court had put a stop to the abuse of the process of the court, but the appellant remained incorrigible---Appellant initiated litigation, including present appeal, which was entirely frivolous---Appellant was unnecessarily accommodated and the school and its staff were involved in endless litigation---Court time and public resources were squandered---Present appeal was dismissed with costs throughout and by imposing costs of fifteen thousand rupees, which the appellant was directed to pay to the school.

Asif Hameed Qureshi, Advocate Supreme Court (through video-link from Peshawar) for Appellant.

Muhammad Amir Malik, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 2.

Ex parte for Respondents Nos. 1, 3 and 4.

2023 S C M R 1135

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

Raja MUHAMMAD SHAHID---Petitioner

Versus

The INSPECTOR GENERAL OF POLICE and others---Respondents

Civil Petition No. 545-K of 2021, decided on 20th April, 2023.

(Against the order dated 18.02.2021 passed by the learned Sindh Service Tribunal, Karachi in Appeal No. 570 of 2019)

Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 6(2) & 4(1)(b)(ii)---Constitution of Pakistan, Art. 10-A---Compulsory retirement---No opportunity provided of cross-examining witnesses associated with inquiry proceedings---Effect---Defective inquiry---Breach of right to fair trial---During regular inquiry it is obligatory for the inquiry officer to allow an even-handed and fair opportunity to the accused to place his defence and if any witness is examined against him, then a fair opportunity should also be afforded to cross-examine the witnesses---When the statement of a witness is not subjected to cross-examination, its evidentiary value cannot be equated---It is an onerous duty of the Inquiry Officer or Inquiry Committee to explore every avenue so that the inquiry may be conducted in a fair and impartial manner and should avoid razing and annihilating the principle of natural justice which may ensue in the miscarriage of justice---Not providing an ample opportunity of defence and depriving the accused officer from his right of cross-examining departmental representative who led evidence and produced documents against the accused is also against the right to a fair trial enshrined in Article 10-A of the Constitution---In the present case various witnesses were associated in the enquiry and their statements were also recorded but neither any opportunity was afforded to the petitioner (Accountant in police force) to conduct cross-examination, nor was it mentioned that an opportunity of cross-examination was afforded, but was declined by the petitioner---Petition for leave to appeal was converted into appeal and allowed, and it was directed that the department shall conduct de novo inquiry; that in the course of de novo inquiry, ample opportunity of hearing should be provided to the petitioner; that petitioner shall be reinstated in service subject to the refund of dues within a period of one month as received by him from the department; that the de novo inquiry shall be concluded within a period of two months and the payment of back benefits, if any, shall also be subject to the final outcome of the inquiry.

Usman Ghani v. The Chief Post Master, GPO Karachi and others 2022 SCMR 745 ref.

Irfan Mir Halepota, Advocate Supreme Court (through video-link) for Petitioner along with Petitioner.

Saulat Rizvi, Additional A.G., Adeel H. Chandio, SSP Thatta and Ghaffar, DSP Legal for Respondents.

2023 S C M R 1140

[Supreme Court of Pakistan]

Present: Munib Akhtar, Sayyed Mazahar Ali Akbar Naqvi and Athar Minallah, JJ

SALMAN ZAHID---Petitioner

Versus

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

Criminal Petition No. 263 of 2023, decided on 27th April, 2023.

(On appeal against the order dated 22.02.2023 passed by the High Court of Sindh, Karachi in Criminal Bail Application No. 2107 of 2022)

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 337-J, 109 & 34---Constitution of Pakistan, Art. 185(3)---Death caused by means of a poisonous/intoxicating substance---Bail, grant of---Benefit of doubt---Further inquiry---Implication in offence on basis of belatedly recorded supplementary statement---Complainant got the FIR lodged against unknown persons---On the next day after lodging the FIR, the complainant got his statement recorded under section 161, Cr.P.C., wherein he did not name anyone as an accused---However after 12 days of the lodging of the FIR, the complainant recorded his further statement under section 161, Cr.P.C., in which he suspected the accused and others to be murderers of his son---Subsequently after a lapse of more than six months accused recorded another statement wherein he nominated the accused to be the real culprit---Bare look of the crime report and the subsequent statements of the complainant under section 161, Cr.P.C. showed that the complainant kept changing his stance---USB allegedly containing audio recording of conversation between the accused and the star witness had not been sent for forensic examination, therefore, it was unsafe to rely upon the same as a piece of evidence in a court of law---Cumulative effect of all such aspects created a doubt in the genuineness of prosecution version---Although the accused was found involved during Police investigation but guilt or innocence of an accused could not be depended upon ipse dixit of the Police as the same would be determined by Trial Court on the basis of evidence available on record---Accused was a young boy of 18/19 years of age and reportedly a heart patient; he was behind the bars for the last more than 14 months---Case of the accused squarely fell within the ambit of section 497(2), Cr.P.C. entitling further inquiry into his guilt---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675 ref.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Witness statement recorded belatedly---Effect---Any statement of the prosecution witnesses, if recorded at a belated stage, looses its sanctity.

Noor Muhammad v. The State 2020 SCMR 1049 ref.

(c) Criminal trial---

----Circumstantial evidence---Prosecution cases dependent upon circumstantial evidence---In such cases in order to justify the inference of guilt of an accused, the incriminating fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Benefit of doubt--- Scope---Benefit of doubt can even be extended at bail stage.

Muhammad Ejaz v. The State 2022 SCMR 1271; Muhammad Arshad v. The State 2022 SCMR 1555 and Fahad Hussain v. The State 2023 SCMR 364 ref.

Aamir Mansoob Qureshi, Advocate Supreme Court (via video link from Karachi) for Petitioner.

Hussain Bux Baloch, Additional P.G., Imtiaz Ali, Inspector, Rizwan Shah, Inspector (via video link from Karachi) for the State.

Saalim Salam Ansari, Advocate Supreme Court (via video link from Karachi) for the Complainant.

2023 S C M R 1144

[Supreme Court of Pakistan]

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

SAID WAZIR and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 197 and 198 of 2022, decided on 8th May, 2023.

(On appeal against the judgment dated 19.06.2019 passed by the Peshawar High Court, Peshawar, in Criminal Appeal No. 873-P of 2017)

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---Benefit of doubt---Recovery was effected on 09-06-2016 whereas sample parcels were received in the office of chemical examiner on 13-06-2016 without any plausible explanation as to where the samples remained during such period---Safe custody and safe transmission of the sealed sample parcels had also not been established by the prosecution as Moharrar, who kept the sample parcel in the Malkhana and the concerned Constable, who delivered the same parcel to the office of Forensic Science Laboratory were not produced 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 persons beyond any reasonable doubt---Prosecution even failed to prove the ownership of the vehicle---Appeal was allowed, and accused persons were acquitted of the charge by extending benefit of doubt to them.

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 Appellants (in Criminal Appeal No. 197 of 2022).

Ms. Farhana Naz Marwat, Advocate Supreme Court (via video link from Peshawar for Appellants (in Criminal Appeal No. 198 of 2022).

Ms. Aisha Tasneem, Advocate Supreme Court (as State Counsel, Khyber Pakhtunkhwa) for the State.

2023 S C M R 1147

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

AKHTAR KAMRAN (DECEASED) through Legal Heirs---Petitioner

Versus

PERVAIZ AHMED and others---Respondents

Civil Petition No. 492-K of 2023, decided on 26th April, 2023.

(Against the order dated 28.02.2023 of the High Court of Sindh, Karachi passed in C.P. No. S-1067 of 2019)

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

----S. 8---Fair rent, fixation of---Scope---Rise/increase in cost of construction, repair charges, taxes, labour charges etc. cannot be ignored while determining the fair rent---While determining fair rent, the Court is required to take into consideration all ingredients, which are reducing the value of money with each passing month.

State Life Insurance Corporation of Pakistan and another v. Messrs British Head and Footwear Store and others 2018 SCMR 581 ref.

Mian Mushtaq Ahmed, Advocate Supreme Court and Muhammad Iqbal Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2023 S C M R 1152

[Supreme Court of Pakistan]

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

MUHAMMAD IMRAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1212-L of 2022, decided on 1st March, 2023.

(On appeal against the order dated 21.09.2022 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 34009-B of 2022)

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

----Ss. 497(2) & 498---Penal Code (XLV of 1860), S. 379---Constitution of Pakistan, Art. 185(3)---Theft of crop---Ad-interim pre-arrest bail, confirmation of---Further inquiry---As per the contents of the crime report, the allegation against the accused was that he cut the standing crop of wheat from the land of the complainant; took away the same with him and caused her a loss of Rs.50,000---However, it was the stance of the accused that the complainant was not in possession of the land in question and it was the paternal aunt of the accused, who was in possession of the land and they had the requisite title documents with them---Primary dispute between the parties was with regard to the ownership/possession of the land---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---Crime report was lodged after a delay of 16 days for which the complainant did not utter a single word---In the crime report, only a general role had been ascribed to the accused and his three co-accused---Two co-accused had been declared innocent during investigation, and the third, who was ascribed a similar role as that of the accused, had been granted bail---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 accused was confirmed.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---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 PLD 2022 SCMR 1424 and Muhammad Ijaz v. The State 2022 SCMR 1271 ref.

Abdul Samad Khan Bisriya, Advocate Supreme Court along with Petitioner (both via video link from Lahore).

Nemo for the State

Nemo for the Complainant.

2023 S C M R 1155

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Jamal Khan Mandokhail, JJ

MUHAMMAD MUMTAZ SHAH (DECEASED) through LRs. and others---Appellants

Versus

GHULAM HUSSAIN SHAH (DECEASED) through LRs. and others---Respondents

Civil Appeal No. 514 of 2015 and C.M.A. No. 11606 of 2021, decided on 2nd September, 2022.

(Against the judgment dated 03.06.2013 of Lahore High Court, Lahore passed in R.S.A. No. 869 of 1979)

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

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Scope---Order XLI, Rule 27, C.P.C. states that generally, no evidence is to be produced at the Appellate stage---But there are two exceptions to the general rule i.e., additional evidence may be produced at the appellate stage if, (i) the court from where the appeal is preferred has refused to admit evidence which it ought to have admitted; or (ii) the Appellate Court requires any document in order for it to pronounce a judgment.

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

----Art. 92---Document, contents of---Genuineness---Presumption attached with written documents---Phrase 'acta probant sese ipsa'---Scope---Once a document has been proved in accordance with law, the genuineness of its contents can be presumed and the rule the "document speaks for itself" (acta probant sese ipsa) can be deployed---Even otherwise, the rationale behind the presumptions attached to written documents stern out of both principle as well as policy---Presumptions are a matter of principle because written documents are, by their very nature, to be accorded a higher degree of credibility as opposed to oral evidence---It would bring uncertainty and chaos if written documents (and valuable rights, if any, attached to them) were allowed to be set aside on the basis of oral evidence---That is why, as a general rule, documentary evidence cannot be overridden merely by oral evidence---However, this is still a rebuttable presumption and a party seeking to rebut such a presumption must do so by bringing on record cogent and reliable evidence to the contrary.

Muhammad Munir Paracha, Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Appellants.

Barrister Umer Aslam Khan, Advocate Supreme Court for Respondents Nos. 1 - 4.

Maulvi Anwar ul Haq, Advocate Supreme Court for LRs. of Respondent No. 5.

Syed Qalb-i-Hassan, Advocate Supreme Court for LRs. of Respondents Nos. 7, 7(iv), 7(vii), 7(ix), 8.

Khawaja Muhammad Farooq Mehta, Senior Advocate Supreme Court for Applicant (in C.M.A. No. 11606 of 2021).

Ex parte other Respondents.

2023 S C M R 1166

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Syed Hasan Azhar Rizvi, JJ

ALLIED BANK LIMITED---Petitioner

Versus

The COMMISSIONER OF INCOME TAX, LAHORE and others---Respondents

Civil Petition No. 6-L of 2023, decided on 23rd May, 2023.

(Against the judgment dated 20.10.2022, passed by the Lahore High Court, Lahore in ITR No. 63041 of 2022)

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

----Ss. 2(13), 122(5A), 210 & 211---Amendment of assessments---Commissioner (Inland Revenue)---Delegation of power under section 122(5A) of the Income Tax Ordinance, 2001 ('the Ordinance')---Scope---Powers exercised by the Commissioner under section 122(5A) of the Ordinance to amend or further amend an assessment order, if he considers that the assessment order is erroneous in so far as it is prejudicial to the interest of the revenue, could be delegated to the Additional Commissioner Inland Revenue under section 210 of the Ordinance.

The Bank of Punjab v. The Commissioner Inland Revenue, C.As. Nos. 1669 to 1692 of 2013, decided on 06.02.2019; Pak Telecom v. FBR, 2013 PTD 2151; Pakistan Tabacco v. Additional Commissioner 2013 PTD 747 and Shell (Pakistan) v. Pakistan 2013 PTD 1012 ref.

(b) Interpretation of statutes---

----Fiscal statute---Literal approach of interpretation---Literal approach is to be adopted while interpreting fiscal or taxing statutes, and the Court cannot read into or impute something when the provisions of a taxing statute are clear---While interpreting a taxing statute, the Court must look to the words of the statute and interpret it in light of what is clearly expressed therein, and it cannot imply something which is not expressed or import provisions in the statute so as to support any assumed deficiency.

Pearl Continental Hotel v. Government of NWFP 2010 PTD 2018; Commissioner of Income Tax v. Khurshid 2016 PTD 1393 and Hirjina v. Commissioner of Sales Tax 1971 PTD 200 ref.

(c) Words and phrases---

----Maxim "delegatus non potest delegare"---Scope and meaning---Delegation of power---It is a general principle of public law that where the legislature vests powers in a person, indicating that trust is being placed in his individual judgment and discretion, that person is prima facie required to exercise that power personally, however, the said principle is not absolute and yields to the language, scope and object of the statute conferring the said powers---Legislation may expressly provide for a statutory procedure to delegate such powers vested in an administrative authority, after the exercise of which, the delegate can then exercise the delegated power in their own right.

De Smith's Judicial Review 304-314 (Sweet and Maxwell, 6th ed. 2007) and Legal briefing - Delegations, authorisations and the Carltona principle, Australian Government Solicitor (June 16, 2022), https://www.ags.gov.au/publications/legal-briefing/lb-20220616#fn4 ref.

Dr. Ikram ul Haq, Advocate Supreme Court for Petitioner.

Ch. Muhammad Shakeel, Advocate Supreme Court and Naveed Akhtar, DC for Respondents.

Assisted by Muhammad Hassan Ali, Law Clerk, Supreme Court.

2023 S C M R 1171

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Sajjad Ali Shah and Munib Akhtar, JJ

ASHIQ MUHAMMAD and others---Appellants

Versus

Mst. SUHAGAN---Respondent

Civil Appeal No. 670 of 2018, decided on 4th January, 2022.

(Against the order dated 5.4.2018 passed by the Lahore High Court, Bahawalpur Bench in C.R. No. 652 of 2011/BWP)

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

----Ss. 39 & 42---Limitation Act (IX of 1908), S. 3---Suit for declaration and cancellation of mutation entries--- Limitation---Respondent/plaintiff had challenged mutation entries of the years 1959 and 1966 through a suit filed in 1996, and admittedly being out of possession had to justify such delay---Though in the plaint, the respondent had asserted that she had come to know about the impugned entries a year before filing the suit, however, neither the respondent nor her witnesses in their depositions uttered a single word to justify this inordinate delay in filing the suit---Consequently, the suit itself was hopelessly barred by time---Appeal was allowed.

Muhammad Sharif v. MCB Bank Limited 2021 SCMR 1158 ref.

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

----Ss. 39 & 42---Suit for declaration and cancellation of mutation entries---Oral lease (mustajri)---Proof---Respondent/plaintiff had set up a case that she had leased out the subject property to the appellant through an oral lease (mustajri) agreement and the lease money was being paid to her regularly---However, she admitted in her cross examination that she had no proof or receipt to show that any lease (mustajri) money was ever paid by the appellant---Evidence produced by the respondent to prove that the subject land was given to appellant on lease (mustajri) did not inspire confidence as the respondent in her deposition very categorically asserted that she herself entered into a lease (mustajri) agreement with the respondent and that there were no witnesses of lease whereas one of her witnesses in his cross examination stated that the terms of lease (mustajri) agreement were settled in his as well as his brother's presence---Suit filed by respondent was rightly dismissed---Appeal was allowed.

Barrister Umar Aslam, Advocate Supreme Court for Appellants.

A.R. Aurangzeb, Advocate Supreme Court for Respondent.

2023 S C M R 1174

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Syed Hasan Azhar Rizvi, JJ

MEHTAB PUBLICATION (PVT.) LTD.---Applicant

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) and others---Respondents

C.M.A No. 9009/2022 in Civil Petition No.361 of 2020, decided on 26th May, 2023.

(Application for recall of order dated 04.10.2022 and restoration of C.P. No.361/2020)

Supreme Court Rules, 1980---

----O. IV, R. 19 & O. III, R. 9---Mode and manner of informing the Advocates regarding fixation of the cases by the Supreme Court stated.

The process of informing the Advocates regarding fixation of case is through the supply of the cause list to the respective Advocate-on-Records (AORs) under Order IV, Rule 19 of the Supreme Court Rules, 1980 ("Rules"). Otherwise, informally as a matter of tradition and by way of standing practice, the cause lists are also put up in the Bar Rooms and SMS messages are also sent to the Advocates by the Court. However, the procedure covered by the Rules is the supply of cause list to the AORs. In case of a petitioner in person, notices are served to the petitioner under Order III, Rule 9 of the Rules.

The present application for restoration of Civil Petition, which was dismissed for non-prosecution, does not agitate that the above mentioned procedure was not followed. In addition, copy of the cause list has not been placed on record to show that the case or the name of counsel did not appear therein. Further, the application states that the AOR failed to inform the counsel, as well as, the petitioner about fixation of the case, however, it does not furnish any reason as to why the AOR, who had knowledge of the fixation of the case, failed to appear in the case himself. There is no affidavit filed by the AOR affirming the facts mentioned in the application. There is no sufficient ground for allowing the present application, which is accordingly dismissed.

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

Ahmad Peraiz Malik, Advocate Supreme Court (through V.L. Lahore Registry), Tahir Farooq Tarar (Head Legal PEMRA), Mohsin Hameed Dogar, (Dir. Regulations) and Barrister Syed Ali Asghar (Law Officer) for Respondents.

2023 S C M R 1176

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Shahid Waheed, JJ

KASHMALI KHAN and others---Appellants

Versus

Mst. MALALA---Respondent

Civil Appeal No. 795 of 2017, decided on 18th May, 2023.

(On appeal against the judgment dated 10.04.2017 passed by the Peshawar High Court, Peshawar in C.R. No.67 of 2010)

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

----S. 13(3)---Suit for possession through pre-emption---Talb-i-Ishhad, making of---Proof---It is mandatory for the plaintiff/pre-emptor to state the names of the witnesses for Talb-i-Ishhad in his plaint and then prove their attestation by producing them in Court.

Talb-i-Ishhad, or demand by establishing evidence, means the calling of two witnesses by the pre-emptor to attest his making of the first demand (Talb-i-Muwathibat) to strengthen his claim for preemption. The calling of witnesses is not necessary for the validity of his claim for pre-emption, it is on the other hand, intended to provide the pre-emptor with proof when the vendee denies the demand (Talb). This position of law unequivocally suggests that proving the presence of witnesses is one of the material facts, within the contemplation of Order VI, C.P.C., which establishes that the essential formalities for making Talb-i-Ishhad were observed by the pre-emptor. As such, it is mandatory for the plaintiffs to first state the names of the witnesses for Talb-i-Ishhad in their plaint and then prove their attestation by producing them in Court.

Sarjug Singh and another v. Jagmohan Singh and others AIR 1919 Patna 496 ref.

In the present case the plaintiffs had omitted to mention the names of the witnesses of Talb-i-Ishhad in the plaint. Such omission is fatal to the claim proffered by the plaintiffs. The right of pre-emption is but a feeble right. As it disseizes another who has acquired a property in bona fide manner for good value, it entails that the ritual of the Talbs must be observed to the letters, and any departure, howsoever slight it may be, defeats the right of pre-emption.

Dr. Pir Muhammad Khan v. Khuda Buksh 2015 SCMR 1243 ref.

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

----S. 13(3)---Suit for possession through pre-emption---Talb-i-Ishhad, making of---Scope---Mere signing and sending a notice to the vendee without confirming the intention to exercise the right of pre-emption is not sufficient for purposes of making Talb-i-Ishhad.

Muhammad Zahid v. Dr. Muhammad Ali PLD 2014 SC 488 ref.

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

----S. 13(3)---Suit for possession through pre-emption---Talb-i-Ishhad, making of---Omissions in notice of Talb-i-Ishhad, which creates doubt as to its making--- Benefit of such omissions must go to the vendee.

Mehmood Alam v. Mushtaq Ahmed and 5 others 2017 Law Notes 238 = 2017 CLC Note 110 ref.

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

----Ss. 13(3) & 14---Suit for possession through pre-emption---Talb-i-Ishhad made through an agent/lawyer---General rule and exceptions---Scope---In the present case the notice of Talb-i-Ishhad did not bear the signature or thumb impression of any of the pre-emptors/plaintiffs, but the signatures of both the witnesses and the counsel for the plaintiffs were there---Talb-i-Ishhad can be done by an agent, as provided in section 14 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, but this is only an exception in the case of person who is unable to make the demand personally--- Such exception cannot supersede the general rule---In the present case the pre-emptors/plaintiffs could not be allowed to avail themselves of this exception as it required them to prove two things: first, what was the disability which prevented them from making the demand themselves?; and second, was the agent specifically authorized to do so in explicit terms before making the demand---Evidence brought on record showed that the pre-emptors/plaintiffs were not suffering from any disability due to which they could not make a demand on their own---On the contrary, the statement of the one of the pre-emptor/plaintiff proved that he himself first made the Talb-i-Muwathibat and later he himself went to the lawyer and got the notice written---Same statement of the plaintiff also unfolded that no express authority was given to the lawyer before making the Talb-i-Ishhad---Such deficiency was sufficient to dismiss the pre-emption suit---Appeal was dismissed.

Medni Proshad and others v. Suresh Chandra Tewari and others AIR 1943 Patna 96; Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 and Unair Ali Khan v. Faiz Rasool PLD 2013 SC 190 ref.

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

----Ss. 5 & 13---Suit for possession through pre-emption---Right of pre-emption---Scope---Such right is strictissimi juris (strict rule of law) and the slightest deviation from the formalities required by law will prevent its accrual.

Abdul Samad Khan, Senior Advocate Supreme Court (via video link from Peshawar) for Appellants.

Zia-ur-Rehman Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

2023 S C M R 1182

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Syed Hasan Azhar Rizvi, JJ

HILAL KHATTAK---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 461 of 2023, decided on 24th May, 2023.

(Against the order of Islamabad High Court, Islamabad, dated 28.03.2023 passed in Criminal Misc. No. 326-B of 2023)

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 311, 324, 452, 365, 337-A(ii), 148 & 149---Qatl-i-amd, house-trespass, kidnapping or abducting with intent secretly and wrongfully to confine person, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Allegations against the accused as to his involvement in the crime were supported by the statements of witnesses recorded by the investigating officer under section 161 of the Code of Criminal Procedure 1898 ("Cr.P.C."), which included the statements of the injured witness, and three female residents of the house where the incident took place, in addition to the statement of the complainant whose son had died in the incidence---Incident was further supported by the footage recorded on the CCTV camera of a neighbouring house---Sufficient incriminating material was thus available on the record of the case to connect the accused with the commission of the alleged offences---Accused, therefore, had no case for grant of bail under subsection (2) of section 497, Cr.P.C.---In the facts and circumstances of the case the accused was not entitled to the relief of bail even if the question of his vicarious liability for the offence of qatl-i-amd was left to be determined in trial---Petition for leave to appeal was dismissed, leave was refused, and accused was refused bail.

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

----S. 497---Bail---Vicarious liability, question of---Although the question of vicarious liability of an accused can also be looked into at the bail stage and it is not an absolute rule that it must always be left to be determined in trial.

Nazar Muhammad v. State PLD 1978 SC 236; Muhammad Rashid v. State 1979 SCMR 92; Asandas v. State 1975 SCMR 237 and Ghulam Nabi v. State 1996 SCMR 1023 ref.

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

----S. 497(1)---Bail---Offences that do not fall within the prohibitory clause of section 497(1), Cr.P.C.---Exceptions to grant of bail in such offences---It is true that in such offences, bail is to be granted as a rule, but not as of right---Bail can be refused in such offences when the case of the accused falls within any of the three well established exceptions: (i) likelihood to abscond to escape trial; (ii) likelihood to tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice; and (iii) likelihood to repeat the offence.

Tariq Bashir v. State PLD 1995 SC 34; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488; Muhammad Tanveer v. State PLD 2017 SC 733 and Iftikhar Ahmad v. State PLD 2021 SC 799 ref.

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

----S. 497(1)---Penal Code (XLV of 1860), Ss. 302, 311, 324, 452, 365, 337-A(ii), 148 & 149---Qatl-i-amd, house-trespass, kidnapping or abducting with intent secretly and wrongfully to confine person, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Possibility of accused absconding or causing harm to alleged abductee---In the present case, the accused being the father of the alleged abductee appeared to have had the real motive for the commission of the alleged offences while the others abetted him in his cause---Most of the other accused persons were absconders, and the police had so far only succeeded to bring the accused and a co-accused person to justice---Thus there was a likelihood that the accused may also abscond if he was released on bail---Further, and more importantly, the alleged abductee had not yet been recovered---No one knew whether she was alive or not---There was a possibility that the accused may cause her harm or may coerce her to influence her evidence concerning the facts of the present case if he was released on bail---Two of the exceptions to grant of bail in offences not falling within prohibitory clause of section 497(1) Cr.P.C., i.e, likelihood of repeating the offence and influencing the witness were attracted in the present case---Case of the accused, therefore, attracted not one but almost all the three exceptions which justified the declining of bail even in offences that did not fall within the prohibitory clause of section 497(1), Cr.P.C.---Petition for leave to appeal was dismissed, leave was refused, and accused was refused bail with the directions that the concerned Inspector General of Police, shall personally look into the matter and depute a police officer not below the rank of Superintendent of Police to supervise the investigation of the case and to ensure recovery of the alleged abductee at the earliest; that on recovery of the alleged abductee, she may be lodged in Dar-ul-Aman (or some other similar institution) for at least two days before recording her statement as to the facts of the case, so that she may be in a position to make her statement voluntarily without the undue influence of anyone, and her statement should preferably be recorded by the Magistrate concerned under section 164, Cr.P.C.

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

----S. 497---Penal Code (XLV of 1860), Ss. 445, 446, 452 & 458---Lurking house-trespass or housebreaking by night after preparation for hurt, assault or wrongful restraint---Bail, refusal of---Facts alleged in the FIR prima facie constituted the offence of house-breaking by night after preparation for causing hurt, punishable under section 458 of the P.P.C., instead of section 452 of the P.P.C.---Accused and his accomplices allegedly committed house-breaking, that is, trespassed into the complainants' house by scaling over the wall of the house, as defined in clause (2) of section 445 and that housebreaking was also committed by night, that is, after sunset and before sunrise, as defined in section 446, P.P.C.---Offence under section 458 of the P.P.C. being punishable with imprisonment upto fourteen years fell within the prohibitory clause of section 497(1) of the Cr.P.C.---Therefore, even, if the actual role of the accused was considered, his case also fell within the prohibitory clause---Petition for leave to appeal was dismissed, leave was refused, and accused was refused bail.

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

----Ss. 455 & 458---Constitution of Pakistan, Art. 14---Sanctity and privacy of home---Scope---Offences of house-breaking committed after having made preparation for causing hurt or fear of hurt---Categorization as grave offences---It is the sanctity and privacy of home, as guaranteed by Article 14 of the Constitution, that the offences of house-breaking committed after having made preparation for causing hurt or fear of hurt have been categorised by the legislature as grave offences under section 455, P.P.C. (when committed at daytime) and section 458, P.P.C. (when committed at night), punishable with imprisonment upto ten years and fourteen years respectively---House of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose---It would be the worst position of a society if its people do not feel safe and secure even within their houses---Failure to provide protection to its citizens in their houses would amount to the failure of the State---All the organs of the State, including the judiciary, should therefore enforce the laws protecting the privacy of home strictly in letter and spirit.

Semayne case (1604) 5 Coke 91 ref.

Khalid Anwar Afridi, Advocate Supreme Court for Petitioner.

DSP Khalid Mehmood Awan, Inspector and Ashiq Shah, I.O. for the State.

Complainant in person.

2023 S C M R 1189

[Supreme Court of Pakistan]

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

HABIB BANK LIMITED through Attorney---Appellant

Versus

MEHBOOB RABBANI---Respondent

Civil Appeal No. 371 of 2020, decided on 4th May, 2023.

(Against the judgment of the High Court of Sindh at Karachi dated 14.05.2019 passed in High Court Appeal No. 57 of 2006)

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

----Preamble---Whenever a Court is adjudicating a civil suit, it is regulated by the requisite laws and civil procedure applicable to it at the time the suit is filed and adjudicated upon.

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

----First Sched. & Art. 22---Bank employee---Wrongful dismissal---Suit for damages---Limitation---Respondent-employee was dismissed from service on 3.10.1991 and his review petition dated 19.4.1992 was rejected by the Competent Authority on 5.7.1992---Respondent filed his suit for on 12.6.1993, after almost one year---Cause of action to file a suit for compensation/damages arose to the Respondent on 5.7.1992 and was therefore within the limitation of one year provided in Article 22 of the Limitation Act, 1908 for claiming compensation for any other injury to the person---Appeal was dismissed.

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

----S. 73---Breach of contract---Damages, award of---Purpose and scope---Damages are costs that are imposed not as a deterrent or as a means to punish person(s) or party(s) who has/have breached a contract but instead to bring the person(s) or party(s) who has/have suffered from the breach of contract into a position which they would have been had the breach of contract not accrued---Said principle is known as the principle of restitutio in integrum (restoration to original condition)---It therefore stands to reason that damages are in fact the compensation that the law awards when a breach of contract occurs as compensation for the loss that a person or party has suffered from a breach of contract.

Livingstone v. Rawyards Coal Co. (1880) 5 App. Cas. 25; Great Easter Shipping Co. Ltd. v. Union of India AIR 1971 Cal. 150 and Robinson v. Harmain (1848) 1 Exch 850 ref.

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

----S. 73---Breach of contract---General and special damages---Distinction and scope---Concept of awarding damages is, by its very nature, inclusive of awarding both general as well as special damages---However, the nature of general and special damages and proving the two are different compared to each other.

Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 PLC (C.S.) 571 ref.

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

----S. 73---Breach of contract---Damages, award of---Burden of proof---Onus would lie on a plaintiff or claimant to prove that there had been a contract entered into between the parties; that there had been a breach of contract; and the extent of the damages claimed thereof.

Hadley and another v. Baxendale [1854] EWHC Exch J70 and Messrs A.Z. Company, Karachi v. Government of Pakistan PLD 1973 SC 311 ref.

(f) Habib Bank Limited (Staff) Service Rules, 1981---

----R. 39---Contract Act (IX of 1872), S. 73---Bank employee---Wrongful dismissal---Suit for damages---Breach of employment contract by employer---Employee denied the right of an opportunity to defend himself and discriminated against---Effect---At no point did the Appellant-bank during cross-examination of the Respondent-employee ever try to rebut or deny the allegations made by him against the involvement of the General Management in the losses that had led to the initial preliminary inquiry and subsequent dismissal of the Respondent by the Appellant---In fact, the Appellant had agreed that it had allowed the General Manager, under whose instructions and supervision the Respondent worked, to resign as opposed to being dismissed from service---When the Respondent responded to the show-cause notice issued to him by the Appellant, he demanded a "full and complete" hearing before the Enquiry Committee---However, the Enquiry Committee constituted for probing the allegations against the Respondent dispensed with such requirement (under Rule 39 of the Habib Bank Limited (Staff) Service Rules, 1981) without giving any reason and proceeded to dismiss the services of the Respondent---Principle of audi alteram partem i.e. being granted a hearing before an adverse order is passed applies to employees who are to be dismissed from service since dismissal entails reputational as well as financial loss---Enquiry Committee by dispensing with the requirements of Rule 39 of the Habib Bank Limited (Staff) Service Rules, 1981 infringed the right of the Respondent to present oral evidence and cross-examine anyone who might have testified against him---Respondent was denied a fundamentally important right of an opportunity to defend himself---Furthermore, Respondent was discriminated against as admittedly the General Manager was the person who the Respondent reported to; under whose instructions the Respondent acted; and who admittedly appeared to be reason the branch of the Appellant faced colossal financial loss---Surprisingly, no civil proceedings were initiated by the Appellant against the General Manager and he was ultimately asked to resign from service whereas the Respondent was dismissed from service---Appellant had breached the Respondent's employment contract--- Appeal was dismissed.

Mrs. Anisa Rehman v. P.I.A.C. and another 1994

SCMR 2232 ref.

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

----S. 73---Habib Bank Limited (Staff) Service Rules, 1981, R. 39---Bank employee---Wrongful dismissal---Suit for damages---Breach of employment contract by employer---Employee denied the right of an opportunity to defend himself and discriminated against---Compensation, award of---Financial and economic loss naturally arising out of the wrongful dismissal---In the present case when the Respondent-employee was dismissed from service, it would have been difficult for him to be employed again owing to the fact that a dismissal from service on his record would have had the effect of either barring him from further employment or making it considerably more difficult for him to be employed again---Such blot on his service permanently marked the Respondent for the rest of his life and was only washed away when the Respondent passed away---Had the Appellant-bank treated the Respondent in a just and fair manner and conducted a fair, open and impartial inquiry giving him the opportunity to defend himself, the financial and reputational aspect of a claim in tort would have been non-existent or too remote---Dismissal from service is clearly a stigma and financial and reputational loss apart from mental torture, agony and distress are logical consequences---In the present case, owing to denial of the right to defend himself without just cause leads towards a conclusion of wrongful dismissal and financial as well as economic loss and therefore could naturally be considered to arise out of the wrongful dismissal of the Respondent by the Appellant---Since the Respondent had been wrongfully dismissed from service, the Appellant cannot be granted the premium of not being made to compensate the Respondent especially when the Appellant failed to prove that the damages the Respondent sought were too remote or did not naturally arise out of the breach of contract---Once the Respondent had proved that he had been wrongfully dismissed from service, the onus shifted on the Appellant to prove that the damages claimed by the Respondent were either too remote or did not arise out of the breach of contract---In the absence of anything to the contrary, the Respondent was entitled to such damages that in the opinion of the Court, considering the facts and circumstances of the case, arose directly out of the breach of contract as well as all damages claimed for wrongful dismissal from service---Appeal was dismissed.

Faisal Mehmood Ghani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (absent) for Appellant.

Umer Abdullah, Advocate Supreme Court and Mian Liaquat Ali, Advocate-on-Record (absent) for LRs. of Respondent.

2023 S C M R 1208

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Syed Hasan Azhar Rizvi, JJ

Dr. MOHAMMAD ASLAM KHAKI---Petitioner

Versus

Khawaja KHALID FAROOQ KHAN and others---Respondents

Civil Petition No. 3203 of 2017, decided on 19th June, 2023.

(Against the order dated 05.07.2017 of the Islamabad High Court, Islamabad passed in Writ Petition No. 1573 of 2010)

(a) Constitution of Pakistan---

----Arts. 184, 185 & 199---Jurisdiction conferred upon Superior Courts by the Constitution--- Jurisdiction conferred by law--- Scope---Jurisdiction conferred by the Constitution ranks higher than jurisdiction conferred by law---Jurisdiction which has been conferred by law may also, by law, be revoked, but the jurisdiction conferred by the Constitution cannot be revoked by law.

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3(2)--- Constitution of Pakistan, Arts. 185(3) & 199---Constitutional petition filed before the High Court dismissed by Single Judge of the High Court---Against such dismissal Petition for Leave to Appeal filed before the Supreme Court without exhausting the available remedy of filing an Intra Court Appeal ("ICA") under section 3(2) of the Law Reforms Ordinance, 1972 ("Ordinance") before the High Court---Maintainability---Appellate jurisdiction created by the Ordinance and through other laws does not take away the appellate jurisdiction of the Supreme Court conferred by the Constitution under its Article 185---However, since the Ordinance created an appellate forum, the Supreme Court will not ordinarily permit it to be bypassed, which does not mean that the appellate jurisdiction, which the Constitution vests in the Supreme Court, is made redundant---In appropriate cases the Supreme Court will not insist that an intra-court appeal provided under the Ordinance, be availed of first.

Commissioner of Income Tax v. Media Network PLD 2006 SC 787; Mst. Shohrat Bano v. Ismail Dada Adam Soomar 1968 SCMR 574; Province of Punjab v. Border Area Committee PLD 2011 SC 550; Federation of Pakistan v. Dewan Petroleum (Pvt.) Ltd. PLD 2012 SC 189 and Naeem Tahir v. Jahan Shah PLD 2023 SC 207 ref.

(c) Law Reforms Ordinance (XII of 1972)---

----S. 3(2)--- Constitution of Pakistan, Arts. 9, 14(1), 24, 185(3) & 199---National Police Foundation Housing Scheme ("the Housing Scheme")---Illegal allotment of second plot to Managing Director ("MD") of National Police Foundation ("the Foundation")---Park/green area in layout plan converted into a plot---Constitutional petition filed before the High Court challenging such illegal allotment was dismissed by the High Court on the ground that the Foundation was a private trust not susceptible to writ jurisdiction of the High Court---Against such dismissal Petition for Leave to Appeal was filed before the Supreme Court without exhausting the available remedy of filing an Intra Court Appeal ("ICA") under section 3(2) of the Law Reforms Ordinance, 1972 ("Ordinance") before the High Court---Maintainability---Federal Government had paid a considerable amount and had established the Foundation which is a charitable endowment with stated objectives to be adhered to---Committee of Administration of the Foundation comprises of serving government officers---Foundation's property can only be used as stipulated in its Scheme of Administration---In presence of such facts to contend that the High Court did not have jurisdiction under Article 199 of the Constitution is inexplicable---In the present case a number of Fundamental Rights are also involved, including the right to life and dignity of man---Therefore, the objection with regard to the petitioner directly assailing, under Article 185 of the Constitution, the impugned judgment of the Single Judge (of the High Court), without first availing of the Intra Court Appeal provided for under the Ordinance, in the facts and circumstances of the present case is not sustainable.

Present case involves important questions of law such as the conversion and allotment of a designated park/green area. Every designated park/green area must be preserved; these areas may also be for the use and/or benefit of the public. Designated parks and green areas must not be allowed to be converted for exclusive private use and/or private profit.

Suo Motu Case No. 11 of 2011 PLD 2014 SC 389 and Anjum Aqeel Khan v. National Police Foundation 2015 SCMR 1348 ref.

Another aspect of the case had to be considered and one which makes an intra-court appeal against the impugned judgment of High Court effectively redundant. A Divisional Bench of the same (Islamabad) High Court had already held in another case that since the Foundation was a charitable trust it was 'not amenable to the jurisdiction under Article 199 of the Constitution' which was the same point on which the petitioner had been non-suited in the present case by the Single Judge of the High Court. However, this determination, that the Foundation was a private charitable trust and was not amenable to writ jurisdiction, is factually and legally incorrect.

National Police Foundation v. Sher Zaman I.C.A. No. 218 of 2015 ref.

The Government of Pakistan had paid an amount of twenty million rupees in trust for a charitable purpose to be known as the National Police Foundation which was vested in the Treasurer of Charitable Endowments for Pakistan. The Government spends or allocates money from public funds and such money cannot be stated to constitute private money or fund. The Committee of Administration of the Foundation comprises of serving government officers. The Foundation's property can only be used as stipulated in its Scheme of Administration. In presence of these facts to contend that the High Court did not have jurisdiction under Article 199 of the Constitution is inexplicable.

In the present case a number of Fundamental Rights are also involved, including the right to life and dignity of man. A clean atmosphere and unpolluted environment undoubtedly includes availability of parks and open spaces for recreation. The right to use a park with all amenities involves enjoyment of life which is covered by the word life employed in Article 9 of the Constitution. In addition, when land secured for a park or designated as green or open area is illegally converted and then unlawfully transferred to private use the people are deprived of their common or collective use of such land which violates Article 24 of the Constitution.

Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; Javed Haider Kazmi v. Province of Sindh 2009 SCMR 1387; Suo Motu Case No. 10 of 2005, 2020 SCMR 361, Human Rights Cases Nos. 4668/2006, 1111/2007 and 15283-G/2010, PLD 2010 SC 759 and Mall Development (Pvt) Ltd. v. Waleed Khanzada 2022 SCMR 2080 ref.

Therefore, the objection with regard to the petitioner directly assailing, under Article 185 of the Constitution, the impugned judgment of the Single Judge (of the High Court), without first availing of the appeal provided for under the Ordinance, in the facts and circumstances of the present case is not sustainable. Petition for leave to appeal was converted into appeal and allowed.

(d) Remand---

----Scope---Generally, when a court fails to exercise jurisdiction vested in it and/or does not exercise jurisdiction for an incorrect reason, the case is remanded to that court for a decision on merits.

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

----Ss. 24, 56 & 55---Constitution of Pakistan, Arts. 9, 14(1) & 24---National Police Foundation Housing Scheme ("the Housing Scheme")---Illegal allotment of second plot to Managing Director ("MD") of National Police Foundation ("the Foundation")---Park/green area in layout plan converted into a plot---Legality---After the Managing Director ("MD") of the Foundation was allotted a plot, he misused his position to allot to himself a second plot, by illegally converting a designated park/green area---Within a year of being allotted the second the MD sold it and made a hefty (untaxed) profit on his investment---Both the MD and the Foundation had concealed from the buyer of the second plot the fact that the said plot had been designated as a park/green area and that it could not be converted into a residential plot, and sold---Sale agreement for the second plot between the MD and the buyer was void because its object, the sale and purchase of a designated park/green area, was unlawful---Therefore, the MD was not entitled to retain the amounts received by him and the buyer would be entitled to its refund/compensation.

The Foundation's 'Application/Membership Form' and the 'Terms and Conditions' printed thereon, which every applicant of a plot signs stipulates that, 'An applicant can apply for only one plot'. The Federal Government also confirmed this. Managing Director ("MD") of the Foundation was allotted a plot, the first plot, and then misused his position as Managing Director of the Foundation to allot to himself the second plot, by illegally converting a designated park/green area. The second plot was not needed by him to construct a house for himself, but for personal aggrandizement as he soon sold it. Many in power like him illegally procure land. They also deprive others of their entitlement, including the less privileged and those without any shelter. This elite dismantling of the division between private and public interest disrupts a just social order and the spirit of community. The Constitution requires that Pakistan be 'a democratic State based on Islamic principles of social justice'. Whenever a second plot is allotted to the same person it deprives another, and when this is done at subsidized or below market rates private interest subverts the interest of the State. Land is a valuable asset of the State, therefore, when land is given away for free or at subsidized rates to the powerful elite by an impoverished State it harms the State because selling it at market rate would have alleviated the debt burden which condemns to servitude and poverty those not born yet.

It was expected that the Foundation would have welcomed the filing of present petition, but the Foundation's representatives and counsel fought tooth and nail to ensure that wrongdoing goes unchecked and a park/green area is illegally converted to residential use. The only conceivable reason for this unprofessional and unbecoming conduct was to benefit the MD of the Foundation, and to do so at the expense of the Foundation, which they were paid to serve. Present case was a classic example of a member of the elite, an Inspector General of Police, audaciously taking land to which he had no entitlement and to then abuse his official position (as Managing Director) and make the Foundation defend the indefensible. Within a year of being allotted the second the MD sold it and made a hefty (untaxed) profit on his investment. The first plot was also sold by him. While there may be justification to assist serving and retired government servants to have a residence of their own and for this purpose to allot them a plot of land at subsidized or below market rates there can be none if the same is misused for monetary gain. In blatant disregard of the people and the country the elite capture land.

The second plot bought by the MD was sold to a third party ('the buyer'). Both the MD and the Foundation had concealed from the buyer the fact that the said plot had been designated as a park/green area and that it could not be converted into a residential plot, and sold. If requisite disclosure, which a seller is required to make, had been made then it is most unlikely that the buyer would have entered into the Sale Agreement by paying the then market rate for the plot. The 'Sale Agreement' between the MD and the buyer was void because its object, the sale and purchase of a designated park/green area, was unlawful. Therefore, the MD is not entitled to retain the amounts received by him and the buyer would be entitled to its refund/compensation. The Foundation too is not entitled to retain any amount paid to it for the second plot, which was illegally converted and allotted. And since the MD had sold the second plot to the buyer the Foundation should refund the amount received in respect thereof to the buyer, and the balance amount/compensation is to be paid by the MD to the buyer within thirty days of the announcement of present judgment, failing which the buyer will be within his rights to file a suit for recovery, compensation and/or damages. Supreme Court declared that the 'Sale Agreement' entered into between the MD and the buyer was unlawful; and that the limitation period for filing a suit for recovery, compensation and/or damages will commence from the date of announcement of the present judgment. Petition for leave to appeal was converted into appeal and allowed.

Ghulam Mehboob Khokhar, Advocate Supreme Court and Dr. Mohammad Aslam Khaki, Advocate Supreme Court (Petitioner in person) for Petitioner.

Syed Asghar Hussain Sabzwari, Senior Advocate Supreme Court for Respondent No. 1.

Ch. Aamir Rehman, Additional Attorney-General for Pakistan for Respondent No. 2.

Syed Khawar Ameer Bokhari, Advocate Supreme Court for Respondent No. 3.

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

Sardar Abdul Raziq, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Respondent No. 5.

2023 S C M R 1232

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

ALLIED BANK LIMITED---Petitioner

Versus

HABIB-UR-REHMAN and others---Respondents

Civil Petition No. 2537 of 2020, decided on 25th May, 2023.

(Against the judgment dated 20.07.2020 of the Peshawar High Court, Peshawar passed in Civil Revision No. 399-P of 2020)

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

----Ss. 42 & 54---Suit for declaration, permanent injunction and recovery of benevolent funds---Employee of private bank---Pensionary benefits changed through a revised scheme---Through a Circular the appellant-bank introduced a new retirement benefits scheme ('the new scheme')---New revised scheme was made effective from 01.07.2002 and it, generally, was applicable to all the employees of the appellant-bank unless an employee submitted a "written option" for the pension on frozen basic pay by 30.09.2002; and, in case of non-submission of such a written option by the cut-off date, the employee would be governed by the new revised scheme---By introducing the new revised scheme, the pension up to 30.06.2002 was protected and new retirement benefits in the shape of Contributory Provident Fund (CPF) and gratuity were introduced from 01.07.2002--- New scheme, unequivocally, froze the basic pay as on 30.06.2002 for the purpose of the calculation of pension for an employee of appellant-bank who opted for the old scheme---Respondent admittedly, did not submit a "written option" to opt for the old scheme, and as such his case was to be dealt with in accordance with the new pension scheme---Respondent, being an officer in a position as high as the Vice-President of the bank, was fully conversant with the command as well as the operation of the new scheme and it was a matter of record that he had already received the retirement benefits in accordance with the new scheme and did not raise any objection thereto at the relevant time---Having received the benefits under the newly revised policy, he was now estopped to question the legality of the said new scheme---Trial Court had rightly dismissed the suit of the respondent---Petition for leave to appeal was converted into appeal and allowed.

(b) Precedent---

----Binding precedent, doctrine of---Scope---Doctrine of binding precedent promotes certainty and consistency in judicial decisions, and ensures an organic and systematic development of the law.

Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 296; The Province of East Pakistan v. Abdul Basher Cohwdhury PLD 1966 SC 854; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Gulshan Ara v. The State 2010 SCMR 1162; Zahid Rehman v. The State PLD 2015 SC 77; WAK Limited Multan Road v. Collector Central Excise and Sales Tax 2018 SCMR 1474; Shafqat alias Shafaat v. The State PLD 2019 SC 43 and Mst. Samrana Nawaz v. M.C.B. Bank Ltd. PLD 2021 SC 581 ref.

(c) Constitution of Pakistan---

----Art. 189---Decisions of Supreme Court binding on other Courts---Scope---Where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of Article 189 of the Constitution and is binding on all Courts in Pakistan---However, not every statement or observation in a judgment of the Supreme Court creates a precedent to become binding on courts---Decision not expressed, not accompanied by reasons, and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 189 of the Constitution.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483; Muhammad Shifa v. Meherban Ali 2022 SCMR 647 and Arnit Das v. The State of Bihar AIR 2000 SC 2264 ref.

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

Respondent No. 1 in person.

2023 S C M R 1243

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

JAMALUDDIN and another---Petitioners

Versus

The STATE---Respondent

Criminal Petitions Nos. 41-K and 42-K of 2023, decided on 29th May, 2023.

(On appeal against the order dated 30.01.2023 passed by the High Court of Sindh, Sukkur in Crl. Bail Applications Nos. S­-678/2022 and S-32/2023)

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss. 324, 148 & 149---Constitution of Pakistan, Art. 185(3)---Murderous assault with firearms--- Ad-interim pre-arrest bail, confirmation of---Bail, grant of---Further inquiry---First Information Report was lodged after an inordinate delay of about three days---Only explanation put forth by the complainant was that firstly they got the Police letter for treatment from Civil Hospital and after the treatment they lodged the FIR---However, this explanation did not seem to be impressive, especially when the Police was allegedly approached by the complainant on the very first day---Complainant and the injured prosecution witness received injuries on the non-vital parts of the body and the accused and co-accused did not repeat the fire despite having ample opportunity to do so---In this view of the matter, the question whether section 324, P.P.C. would be applicable in the case or not would be determined by the Trial Court after recording of evidence---Case of the accused and co-accused squarely fell within the ambit of section 497(2), Cr.P.C. entitling for further inquiry into their guilt---Petitions for leave to appeal were converted into appeals, and allowed, ad interim pre-arrest bail granted to the accused was confirmed, whereas the co-accused was admitted to post-arrest bail.

Zuber Ahmed Rajput, Advocate Supreme Court for Petitioner along with Petitioner in person (via video link from Karachi).

Hussain Bukhsh Baloch, Additional P.G. Sindh for the State.

2023 S C M R 1247

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

Mian AZAM WAHEED and 2 others---Petitioners

Versus

The COLLECTOR OF CUSTOMS through Additional Collector of Customs, Karachi---Respondent

Civil Petitions Nos. 3215, 3644, 3656, 3657 to 3689, 3731 to 3732, 3216, 3745 to 3749, 3217, 3634 to 3643, 3645 to 3655, 3690 to 3730, 3733 to 3744, 3750 to 3780 of 2021, decided on 7th June, 2022.

(Against the judgment passed by the High Court of Sindh at Karachi dated 22.03.2021 in SCRAs. Nos. 212-323, 324-329 and 330-361 of 2016)

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

----Ss. 25, 25A & 25D---Constitution of Pakistan, Art. 199---Valuation Ruling ('the Ruling') issued by Customs department---Constitutional petition before the High Court challenging such Ruling---Maintainability---Alternate remedy of review under section 25D of the Customs Act, 1969 not availed---Effect---Instead of challenging the Valuation Ruling directly in the High Court, the best course available to the petitioners (importers) was to file a Review Petition against the said Ruling under section 25D of the Customs Act, 1969 which was an appropriate remedy provided under the law in which all factual disputes with regard to the valuation as well as transactional value could be raised, but this statutory remedy was circumvented---Legislature had purposely and consciously provided this remedy under section 25D of the Act to an aggrieved person to assail the Valuation Ruling and, at the same time, it also provides an opportunity to the Director General Valuation to rectify the legal or factual defects, if any, made while issuing the Valuation Ruling---In the present case the impugned Valuation Ruling could not be construed as violative or in contravention of any provision of Customs Act, 1969 for the purposes of challenging it within the domain or realm of Constitutional jurisdiction of High Court, however, the remedy provided under section 25D had its own wide scope and parameters where an aggrieved person may file review petition to challenge the Ruling which was the best available remedy rather than approaching the High Court directly---Writ petitions had been rightly dismissed by the High Court due to lack of jurisdiction---Petitions for leave to appeal were dismissed and leave was refused.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Exhaustion of remedies, doctrine of---Scope---Writ jurisdiction of the High Court cannot be exploited as the sole solution or remedy for ventilating all miseries, distresses and plights regardless of having equally efficacious, alternate and adequate remedy provided under the law which cannot be bypassed to attract the writ jurisdiction---Doctrine of exhaustion of remedies stops a litigant from pursuing a remedy in a new court or jurisdiction until the remedy already provided under the law is exhausted---Profound rationale accentuated in this doctrine is that the litigant should not be encouraged to circumvent or bypass the provisions assimilated in the relevant statute paving the way for availing remedies with precise procedure to challenge the impugned action.

(c) Interim order---

----Principles---No interlocutory order survives after the original proceeding comes to an end---Interim orders are made in the aid of the final order that the court may pass and they merge into the final order and do not survive after the final adjudication.

Gen. (Retd.) Pervez Musharraf through Attorney v. Pakistan through Secretary Interior and others PLD 2014 Sindh 389 and PLD 2016 SC 570 ref.

Shafqat Mehmood, Advocate Supreme Court for Petitioners.

Dr. Farhat Zafar, Advocate Supreme Court for Respondent.

2023 S C M R 1258

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Munib Akhtar and Jamal Khan Mandokhail, JJ

ALLIED BANK LIMITED---Appellant

Versus

FEDERATION OF PAKISTAN through Collectorate of Customs, Peshawar

and others---Respondents

Civil Appeal No. 196-P of 2014, decided on 30th May, 2023.

(Against the judgment of the Peshawar High Court, Peshawar dated 22.09.2010 passed in Writ Petition No. 2064 of 2010)

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

----S. 126---Bank guarantee---Contract of guarantee---Scope---Since a guarantee is, for the purposes of the Contract Act, 1872 a contract under the law, the parties to the guarantee are deemed to be regulated by the terms of the guarantee which they have mutually agreed upon keeping in view the legal principle of consensus ad idem (meeting of the minds) when it comes to construction of contracts---Once a guarantee is executed between the parties (i.e. between a guarantor/surety and a creditor), they would be bound by the terms and conditions of the guarantee irrespective of any independent obligation of the principal debtor towards the creditor---Once a bank issues a guarantee, it is duty-bound to pay the beneficiary of a guarantee in terms of the guarantee itself.

EFU General Insurance Ltd. v. Zhongxhing Telecom Pakistan (Private) Limited 2022 SCMR 1994; Edward Owens Engineering Ltd. v. Barclays Bank International Ltd. [1977] 3 W.L.R. 764; Commercial Bank of Ceylon PLC v. Ace Containers (Pvt.) Ltd. [2015] 1 S.L.R. 223;U.P. State Sugar Corporation v. Sumac International Ltd. [1997] 1 SCC 568 and Simon Carves Ltd. v. Ensus UK Limited [2011] EWHC 657 (TCC) ref.

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

----S. 126---Customs Act (IV of 1969), S. 202---Bank guarantee, encashment of---Scope---Expiry of bank guarantee---Recovery of Government dues by the Customs department---Contract of guarantee is a standalone and independent contract between the guarantor (in this case, the appellant-bank) and the beneficiary (in this case, the Customs department) for a limited period (unless the guarantee contract specifically states that it is a continuing guarantee or language to that effect and no date or event of expiry thereof is specified) and for a limited purpose (that is, to pay the amount mentioned therein on a call being made within the time specified) without reference to any third party or the underlying transaction that constituted the basis for issuance of the guarantee---Parties to the guarantee contract are bound by the terms and conditions of the guarantee including its date of expiry---Unless a valid call is received by the Guarantor within the time specified in the guarantee, the Guarantor is released of any and all obligations under the contract and the contract itself expires---Guarantor (bank), by reason of issuing the guarantee, does not become subject to section 202 of the Customs Act, 1969 in the sense understood by the High Court by reason of guaranteeing payment of certain sums---Guarantor does not become liable to pay "government dues" referenced to in section 202 of the Customs Act, 1969 because such liability continues to be attached to the person who owes such dues to the Customs Department---Department can, therefore, rely on section 202 to recover the said dues from the person/company---Appeal filed by the bank was allowed and impugned judgment of High Court was set-aside.

Muhammad Ajmal Khan, Advocate-on-Record/Advocate Supreme Court (via video link from Peshawar) for Appellant.

Abdul Rauf Rohaila, Advocate Supreme Court (via video link from Peshawar) for Respondents Nos. 1- 4.

Nemo for Respondent No. 5

Raja Muhammad Shafqat Abbasi, DAG on Court's Notice.

2023 S C M R 1267

[Supreme Court of Pakistan]

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

Dr. ABDUL NABI, PROFESSOR, DEPARTMENT OF CHEMISTRY, UNIVERSITY OF BALOCHISTAN, SARIAB ROAD, QUETTA---Petitioner

Versus

EXECUTIVE OFFICER, CANTONMENT BOARD, QUETTA---Respondent

Civil Petition No. 47-Q of 2016, decided on 21st March, 2023.

(Against Order dated 29.03.2016 passed by the High Court of Balochistan, Quetta in C.P. No.112 of 2014)

(a) Interpretation of statutes---

----Deeming clause---Scope---In order to interpret a statute, the Court is obligated to give effect to the deeming provisions while taking into consideration the object of a legal fiction and also dredge up the rationales of statutory fiction to its cogent finale vis-à-vis the intention of legislature so it should not cause any injustice---Legal fictions give rise to explicit objectives restricted to the purposes which should be construed contextually but should not be elongated further than the legislative wisdom for which it has been created.

Black's Law Dictionary, Ninth Edition, Pg. 477-478; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2012 SC 1; Anwar Aziz Chaudhry v. The State 1991 SCMR 994; Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 and Central Bureau of Investigation, Bank Securities and Fraud Cell and others v. Ramesh Gelli and others (2016) 3 SCC 788 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---"Adequate remedy"---Meaning---Extraordinary jurisdiction under Article 199 of the Constitution is envisioned predominantly for affording an express remedy where the unlawfulness and impropriety of the action of an executive or other governmental authority could be substantiated without any convoluted inquiry---Expression "adequate remedy" signifies an effectual, accessible, advantageous and expeditious remedy which should also be remedium juris i.e. more convenient, beneficial and effective---To effectively bar the jurisdiction of the High Court under Article 199 of the Constitution, the remedy available under the law must be able to accomplish the same purpose which is sought to be achieved through a writ petition---Extraordinary jurisdiction (of the High Court) is provided as remedy to cure an illegality which can be established without any elaborate enquiry into disputed facts.

Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 ref.

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

----Ss. 60 & 99A---University of Balochistan Act, 1996, S. 39(1)---Constitutional petition--- Maintainability--- S.R.O. 156(I)/2004 dated 13.03.2004 issued by Ministry of Defence under section 99A of the Cantonments Act, 1924---Cantonment dues---Exemption or rebate of 60% for Government servants---Professor at the University of Balochistan [BPS-21] (petitioner)---Notice of demand was issued to petitioner for payment of Cantonment Board dues and arrears without granting him the 60% exemption or rebate under S.R.O.156(I)/2004 dated 13.03.2004 ('the SRO'), on the basis that he was not an employee of Provincial Government---Constitutional petition filed by the petitioner before the High Court was dismissed on the basis that he did not avail the alternate remedy of appeal under section 84 of the Cantonments Act, 1924 ('the Act')---Validity---Petitioner was a public servant---Right of appeal provided under section 84 of the Act was provided against the assessment or levy of or against the refusal to refund any tax under the Act---Conspicuous distinctiveness existed between a claim of exemption under the SRO issued under section 99A of the Act and challenge to an assessment of house tax etc. made by the competent authority under the provisions of the Act---Framework and skeleton of the writ petition moved by the petitioner in the High Court was in relation to the enforcement of SRO, and did not challenge any assessment order of tax, therefore in all fairness, he was wrongly non-suited on the ground of non-availing the alternate remedy of appeal which was not applicable in the present case---On the contrary, petitioner's claim of exemption or rebate could be easily decided in writ jurisdiction in view of the terms and conditions of the SRO wherein no factual controversy or disputed question of facts were involved to determine the petitioner's entitlement in view of the available documents and correspondence---Petitioner was entitled to claim the exemption/rebate under the SRO---Appeal was allowed.

Gohar Yaqoob Yousafzai, Advocate-on-Record for Petitioner.

Adnan Basharat, Advocate Supreme Court, (For Cantonment Board) and Abdul Zahir Kakar, A.A.G., Balochistan for Respondent.

2023 S C M R 1278

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

ABDUL WAHID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 446 of 2020, decided on 6th June, 2023.

(On appeal against the judgment dated 20.12.2016 passed by the Lahore High Court, Lahore in Murder Reference No. 201 of 2013 and Criminal Appeal No. 789 of 2013)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Crime report was lodged one hour and fifty five minutes after the incident---Keeping in view the fact that the deceased was firstly taken to hospital, which was situated at a distance of more than five kilometers from the place of occurrence where he succumbed to the injuries and the matter was reported from the hospital, it would be considered a promptly lodged FIR---Promptness of FIR prima facie showed truthfulness of the prosecution case and it excluded possibility of deliberation and consultation---Accused was known to the deceased and another witness, as such, there was no chance of misidentification---Witnesses of ocular account had reasonably explained their presence at the place of occurrence at the relevant time---Said witnesses had given all necessary details of occurrence qua the date, time, place, name of accused, name of witnesses, manner of occurrence, kind of weapon used in the occurrence, the locale of injuries and the motive of occurrence---Witnesses had no enmity or ill-will against the accused to falsely involve him in the case---Medical evidence available on the record corroborated the ocular account so far as the nature, time, locale and impact of the injuries on the persons of the deceased was concerned---Appeal against conviction was dismissed.

(b) Criminal trial---

----Witnesses related to the deceased---Testimony, reliance on---Scope---If the presence of the related witnesses at the time of occurrence is natural and their evidence is straightforward and confidence inspiring then the same can be safely relied upon to sustain conviction of an accused.

(c) Criminal trial---

----Ocular account---Medical evidence---Preference---Where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused.

Muhammad Iqbal v. The State 1996 SCMR 908; Naeem Akhtar v. The State PLD 2003 SC 396; Faisal Mehmood v. The State 2010 SCMR 1025 and Muhammad Ilyas v. The State 2011 SCMR 460 ref.

(d) Criminal trial---

----Recovery evidence---Medical evidence---Scope---Value and status of medical evidence and recovery is always corroborative in its nature, which alone is not sufficient to sustain conviction.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Recovery evidence---Where the empty of cartridge and the weapon of offence i.e. .12 bore pump action gun were sent together to the Forensic Science Agency, such recovery (evidence) was inconsequential---Appeal against conviction was dismissed.

Sagheer Ahmed Qadri, Advocate Supreme Court for Appellant.

Irfan Zia, D.P.G. for the State.

Nemo for the Complainant.

2023 S C M R 1284

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

CHANCELLOR PRESTON UNIVERSITY, KOHAT and others---Appellants

Versus

HABIBULLAH KHAN---Respondent

Civil Appeal No. 1833 of 2019, decided on 10th March, 2023.

(Against the judgment dated 17.04.2015 passed by Peshawar High Court, Peshawar in R.F.A. No. 122 of 2010)

Preston University Ordinance (LII of 2002)---

----S. 4---Higher Education Commission Ordinance (LIII of 2002), S. 10---Pakistan Engineering Council Act (V of 1976), S. 14---Unaccredited university---Suit for damages filed by student on the basis that the University established its Faculty of Engineering without accreditation from the Pakistan Engineering Council ("the Council"), consequently, his degree would not be recognized by the Higher Education Commission ("HEC") and he would not be recognized with the Council---Held, that in absence of its accreditation, the University was not competent to offer engineering education and enrol students---Degree issued by an unaccredited institution would be worthless like a piece of paper, as such, would be of no value---Since the University was not accredited, the respondent/plaintiff rightly decided to discontinue his education to secure his future---Respondent lost his precious nine months due to fault on part of the University's administration for not obtaining accreditation prior to offering admission, therefore, he was left with the only remedy of recovering the expenses incurred for the period he remained in the University, and for the damages on the grounds mentioned in his plaint---Suit for damages filed by respondent was rightly decreed.

Appellant-University offered multiple courses, including Bachelor of Engineering (B.Eng). Its administration was required to comply with the provisions of the Preston University Ordinance, 2002 ('the Ordinance, 2002') and the requirements necessary for establishment of its Faculty of Engineering in accordance with the Statute proposed by the Board of Governors ('the Statute'). It must also have complied with the provisions of the Higher Education Commission Ordinance, 2002 ('the HEC Ordinance'), the Pakistan Engineering Council Act, 1976 ('the PEC Act') and the Engineering Council Regulations for Engineering Education in Pakistan ("the Regulations"), in order to obtain its accreditation status. It is a fact that the University did not disclose its accreditation status while offering admission to students, including the respondent/plaintiff for the reason that it was not accredited. The respondent alleged that after getting admission and completing his first semester, he came to know that the University had not received its accreditation status from the Pakistan Engineering Council ("the Council"), which was revealed for the first time when the list of unaccredited universities/institutions was published by the HEC. The respondent inquired into the matter from the University administration which admitted the fact that the University was not accredited. After filing of suit by the respondent, the appellants filed their written statement, but did not reply to the contention of the respondent with regard to the University's accreditation status. It was contended that since the University was affiliated with the HEC, it was competent to issue an engineering degree. The appellant for the first time in its appeal before the High Court and in the memo of appeal before the Supreme Court, alleged that the University had applied to the Council for its accreditation, but the process remained incomplete till date. This proves the fact that the University is not accredited by the Council. In absence of its accreditation, the University was not competent to offer engineering education and enrol students. Without accreditation of the University from the Council, the degree of B.Eng issued by it would not be recognized by the HEC and the Council will not register a person holding such degree. Under such circumstances, the degree issued by an unaccredited institution would be worthless like a piece of paper, as such, would be of no value. Since the University was not accredited, the Respondent rightly decided to discontinue his education to secure his future. In view of the fact that the Respondent lost his precious nine months due to fault on part of the University's administration for not obtaining accreditation prior to offering admission, therefore, he was left with the only remedy of recovering the expenses incurred for the period he remained in the University, and for the damages on the grounds mentioned in his plaint. Suit for damages filed by respondent was rightly decreed. Appeal was dismissed.

Yasir Nawaz and others v. Higher Education Commission and others PLD 2021 SC 745 ref.

Khurram Mumtaz Hashmi, Advocate Supreme Court for Appellants.

Mian Iqbal Hussain, Advocate Supreme Court (through video link from Peshawar) for Respondent.

2023 S C M R 1292

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Syed Hasan Azhar Rizvi, JJ

SALMAN ASHRAF---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Civil Petition No. 2000-L of 2020, decided on 26th May, 2023.

(Against the order of the Lahore High Court, Lahore, dated 08.12.2020, passed by in Writ Petition No.64232 of 2020)

(a) Administration of justice---

----Concurrent civil and criminal proceedings---Stay of criminal proceedings---Principles---Object of a civil proceeding is to enforce civil rights and obligations while that of a criminal proceeding is to punish the offender for the commission of an offence---Therefore, both the civil proceeding and criminal proceeding relating to one and the same matter can be instituted and ordinarily proceeded with simultaneously---Although there is no bar to the simultaneous institution of both proceedings, the trial in the criminal proceeding may be stopped in certain circumstances---Guiding principle in this regard is that where the criminal liability is dependent upon or intimately connected with the result of the civil proceeding and it is difficult to draw a line between a bona fide claim and the criminal act alleged, the trial in the criminal proceeding may be postponed till the conclusion of the civil proceeding---Thus, where either of these two conditions is not fulfilled, i.e., where the subject matter of civil proceeding and that of criminal proceeding are distinct, not intimately connected, or where the civil proceeding is instituted mala fide to delay the criminal prosecution, not bona fide, the criminal proceeding may not be stayed.

Aslam Zaheer v. Shah Muhammad 2003 SCMR 1691; Rafique Bibi v. Muhammad Sharif 2006 SCMR 512; Khalid Saleem v. Muhammad Ashraf 2006 SCMR 1192; Seema Fareed v. State 2008 SCMR 839; Sikandar Ali v. SHO 2021 SCMR 1486; Muhammad Akbar v. State PLD 1968 SC 281; Manak Ji v. Fakhar Iqbal 1969 PCr.LJ 411; Muhammad Tufail v. State 1979 SCMR 437; Abdul Haleem v. State 1982 SCMR 988; Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353; Muhammad Anwar v. Badshah Begum 1999 SCMR 1475; Sheraz Ahmad v. Fayyaz-ud­-Din 2005 SCMR 1599; Abdul Ahad v. Amjad Ali PLD 2006 SC 771; Zafar v. Umar Hayat 2010 SCMR 1816; Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95; Muhammad Aslam v. State 2017 SCMR 390 and Mohammad Ahmad v. State 1972 SCMR 85 ref.

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

----S. 9 & O. VII, R. 11---Civil Court---Bar of jurisdiction---Scope---Rejection of plaint, application for---Bar on the jurisdiction of the civil court to try a suit of civil nature or on the maintainability of a suit envisaged by section 9 or clause (d) of Rule 11 of Order VII, C.P.C. is that which is created either expressly or impliedly by some statutory law enacted by the legislature---Courts in Pakistan, cannot import an implied bar from another country's jurisprudence.

Akram v. Farman Bi PLD 1990 SC 28 ref.

(c) Administration of justice---

----Concurrent civil and criminal proceedings---Scope---Standard of proof required in civil and criminal proceedings is different---In the former, a mere preponderance of probability is sufficient to decide the disputed fact but in the latter, the guilt of the accused must be proved beyond any reasonable doubt---Therefore, there are chances of giving divergent judgments by the civil and criminal courts on the facts that give rise to both civil and criminal liabilities.

Zakaullah Khan v. Muhammad Aslam 1991 SCMR 2126; Richard Benjamin v. Ismail 1980 PCr.LJ 1172 and Aijaz v. Karachi Transport Corporation 2004 MLD 491 ref.

Hafeez Saeed Akhtar, Advocate Supreme Court for Petitioner.

Ch. Zulfiqar Ali, Advocate Supreme Court (via video link from Lahore) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents.

2023 S C M R 1299

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

NAZIR AHMED---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 169 of 2021, decided on 1st June, 2023.

(On appeal against the judgment dated 16.03.2021 passed by the Lahore High Court, Lahore in Criminal Appeal No. 76554 of 2017)

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

----S. 7(ff)---Explosive Substances Act (VI of 1908), S. 5---Acts of terrorism, possession of explosives, detonators and safety fuses---Reappraisal of evidence---Police officials/witnesses appeared to prove the factum of recovery whereas Bomb Disposal Commander/witness gave his report to the effect that the detonators and safety fuses were alive---Testimonies of said witnesses were reliable, straightforward and confidence inspiring, and they had no enmity with the accused to falsely implicate him in the present case---Parcel containing sample of recovered explosive substance was sent to the office of Forensic Science Laboratory and according to the report of the Agency the sample contained explosive material---Conviction and sentences passed against the accused were maintained---Petition for leave to appeal was dismissed and leave was refused.

(b) Criminal trial---

----Police/official witnesses, testimony of--- Reliance--- Scope---Testimony of official witnesses 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 judicially recognized fact and no legal bar or restriction has been imposed with respect to considering statements of official witnesses---Police/official witnesses are as good witnesses and could be relied upon, if their testimonies remain un-shattered during cross-examination.

(c) Criminal trial---

----Minor contradictions/discrepancies on prosecution evidence---Scope---As long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence---Test is whether the evidence of a witness inspires confidence---If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same---While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth---Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety---Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored.

Sikandar Zulqarnain Saleem, Advocate Supreme Court (via video link from Lahore) for Petitioner.

Mirza Abid Majeed, D.P.G. and Haseeb Ashraf, D.O. CTD for the State.

2023 S C M R 1305

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

MUHAMMAD RIAZ---Petitioner

Versus

MUHAMMAD RAMZAN and others---Respondents

Civil Petition No. 446-L of 2014, decided on 4th May, 2023.

(Against Judgment dated 11.02.2014 passed by the Lahore High Court, Lahore in R.S.A. No. 177 of 2005)

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

----Ss. 5 & 6(1)--- Suit for possession through pre-emption---Pre-emption, decree for---Scope---No partial decree is possible in a pre-emption suit as the right of pre-emption is one of substitution, even in the case of pre-emption under statute law, unless the statute itself has made a departure in this regard to any extent---From the doctrine that the right of pre-emption is one of substitution it follows that, unless the statute conferring the right of pre-emption otherwise provides, the pre-emptor must take over the whole bargain, that is to say, the pre-emptor must seek pre-emption of the whole of the subject-matter of the sale and pay the entire price paid by the vendee as consideration---This, however, is subject to certain limitations which, at any rate, do not include the vendor's defective or want of title---Pre-emptor is not bound to seek pre-emption of the whole of the property sold and pay the full sale price if his right of pre-emption extends over only a portion of the property sold or if a portion of the property is capable of pre-emption and the other is not---In case of any such limitation, partial pre-emption on payment of proportionate price may be permitted as of necessity and not because the pre-emptor wants it.

Mst. Bashiran and others v. Abdul Ghani and others 1995 SCMR 1833 and Malik Hussain and others v. Lala Ram Chand and others PLD 1970 SC 299 ref.

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

----Ss. 13(2) & 13(3)---Suit for possession through pre-emption---Talb-i-Muwathibt and Talb-i-Ishhad--- Proof--- Petitioner (pre-emptor) produced two witnesses before the Trial Court to establish Talb-i-Muwathibat, however neither of the two witnesses deposed regarding the date on which the petitioner made Talb-i-Muwathibat---On of them also deposed that he was not aware of the other witnesses/signatories to the notice of Talb-i-Ishhad, and merely speculated as to who they could be, and was unaware of the contents of the notice and its recipients---Moreover, neither of the two witnesses deposed any specific date on which Talb-i-Ishhad was made---No receipt of acknowledgement due was produced in evidence, nor was any evidence or witness brought to show that the respondents (vendees) had refused to be served with the notice---It was for the petitioner to produce the postman during the evidence stage in order to establish the factum of Talb-i-Ishhad, which he failed to do---Suit for possession through pre-emption was rightly dismissed---Petition for leave to appeal was dismissed and leave was refused.

Mst. Bibi Fatima v. Muhammad Sarwar 2022 SCMR 870 ref.

Zafar Iqbal Klasoon, Advocate Supreme Court (through Video Link from Lahore) for Petitioner.

Nemo for Respondents.

2023 S C M R 1311

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Syed Hasan Azhar Rizvi, JJ

Prof. Dr. MANZOOR HUSSAIN and others---Petitioners

Versus

ZUBAIDA CHAUDHRY and others---Respondents

Civil Petition No. 1942 of 2022, decided on 26th May, 2023.

(Against the judgment dated 03.03.2022, passed by the Islamabad High Court, Islamabad in W.P. No. 3563 of 2017)

Federal Ombudsmen Institutional Reforms Act (XIV of 2013)---

----S. 14(4)---Federal Ombudsmen Institutional Reforms (Processing of Representations) Rules, 2014, Rr. 2(1)(b) & 8(3)---Officer nominated by the President under section 14(4) of the Federal Ombudsmen Institutional Reforms Act, 2013, powers of---Such officer only processes the representations filed before the President---Decision-making powers of the President are not delegated to the said officer as the final decision on the representation is taken only by the President.

The nominated officer under section 14(4) of the Federal Ombudsmen Institutional Reforms Act, 2013 ('the Act') only processes the representation before sending the case to the President for his decision. Processing the representation comprises of the actions or steps towards achieving the required objective i.e. a decision on the representation by the President. The views so expressed by the nominated officer in the form of recommendations/proposals form part of the procedure to process the representation before the case is sent to the President and the final decision thereon is taken only by the President.

President is specifically authorized to nominate an officer to process a representation by preparing the case and giving his/her views on the said representation, which are likely to be only in the shape of recommendations/proposals, and in no manner can it be stated that the nominated officer is deciding the representation. The case is then placed before the President for decision thereon and the power to decide the representation resides solely with and is exercised only by the President after due application of mind.

Power to process a representation, by preparing the case, and the power to decide that representation, after due application of mind, are inherently distinct functions and cannot be equated or conflated. The function of processing a representation by the nominated officer is only ancillary to the main objective of decision on the representation by the President.

For practical purposes, the role of the nominated officer is only to consolidate and simplify the record, and prepare the case before him so that it can be presented before the President for his decision. This in no manner dilutes the decision-making powers of the President because the discretion to accept or reject a representation is retained and vested entirely in the President himself, who, while deciding the representation, may agree with the recommendations/proposals so forwarded by the nominated officer, by adopting the reasons given by the nominated officer and/or also for his own reasons, or disagree with them for his own reasons and decide the representation after assessing the available record and independently applying his mind to the matter. Consequently, the power of the President to decide the representation himself remains intact and cannot be said to have been delegated to any other officer nominated by him under section 14(4) of the Act.

United Woollen Mills Ltd. Workers' Union v. United Woollen Mills 2010 SCMR 1475; Mollah Ejahar v. Government of East Pakistan PLD 1970 SC 173; Gouranga v. The Controller of Import and Export PLD 1970 SC 158; Government of Pakistan v. Farheen 2009 PLC (C.S.) 966 and Razia Jafar v. Government of Balochistan 2007 SCMR 1256 ref.

Sabir Hussain Tanoli, Advocate Supreme Court along with Muhammad Zahid, Assistant Registrar for Petitioners.

Respondent No. 1 in person along with Ruqia Samee, Advocate Supreme Court.

Raja Shafqat Abbasi, D.A.G. and Muhammad Saleem, Dir. Legal (President House) for Government of Pakistan.

Assisted by Muhammad Hassan Ali, Law Clerk, Supreme Court.

2023 S C M R 1319

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

COLLECTOR CUSTOMS, MODEL CUSTOMS COLLECTORATE, PESHAWAR---Petitioner

Versus

MUHAMMAD ISMAIL and others---Respondents

Civil Petition No. 2682 of 2022, decided on 11th May, 2023.

(Against Judgment dated 17.05.2022 passed by the Peshawar High Court, Peshawar in Customs Reference No. 106-P of 2019)

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

----Ss. 157, 168 & 180--- Vehicle used in smuggling--- Vehicle, confiscation of---Legality---Non-issuance of show cause notice to the owner of the vehicle---Effect---Present case related to the confiscation of vehicle and admittedly no show cause notice was issued to the owner of vehicle despite the disclosure of his name in the inventory memo, rather the show cause notice was issued to the driver of the vehicle and owner of the smuggled goods---Penal action was taken against the owner of vehicle without complying with the requisite formalities envisaged under section 180 of the Customs Act, 1969---Principles of natural justice required that the delinquent should be afforded a fair opportunity to converge, give explanation and contest it before he was found guilty and condemned---Seized vehicle had rightly been released unconditionally by the Appellate Tribunal and the High Court---Petition for leave to appeal was dismissed and leave was refused.

University of Dacca through Vice Chancellor and another v. Zakir Ahmed PLD 1965 SC 90 and Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 ref.

(b) Administration of justice---

----'Audi alteram partem' rule of---Show cause notice---Scope---Show cause notice is served by an authority under the relevant provisions of law in order to provide a reasonable opportunity to defend the allegations and to explain as to why any penal action should not be taken against him---In essence, it is a well-structured process to provide a fair chance to the accused to respond to the allegations and explain their position within the stipulated timeframe or, in other words, it provides a levelheaded course of action to ensure impartiality, justness and rectitude to the person in receipt of notice with an opportunity to explain why he is not guilty of any violation of law---Show cause must contain all the allegations categorically and unambiguously, including the legal provisions related to the transgression of law or default.

Mukhtar Ahmad Maneri, Advocate Supreme Court (via Video Link from Peshawar) and Muhammad Sharif Janjua, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2023 S C M R 1325

[Supreme Court of Pakistan]

Present: Umer Ata Bandial, C.J., Yahya Afridi and Ayesha A. Malik, JJ

NATIONAL LOGISTICS CELL, GOVERNMENT OF PAKISTAN, HQ NLC, KARACHI---Petitioner

Versus

The COLLECTOR OF CUSTOMS, MODEL CUSTOMS COLLECTORATE, PORT MUHAMMAD BIN QASIM, KARACHI and others---Respondents

Civil Petitions Nos. 1600 to 2807 of 2021, decided on 23rd June, 2023.

(Against the judgment dated 24.11.2020 passed by the High Court of Sindh, Karachi in Special Customs Reference Application No. 9 of 2015 along with SCRAs Nos. 10 to 14, 45 to 54, 204 to 295, 1161 to 1216, 1239 to 1338, 1389 to 1488, 1662 to 1710, 2188 to 2287, 2290 to 2389, 2394 to 2493, 2610 to 2609(sic.), 2618 to 2717, 2721 to 2791 of 2015 and 559 to 792 of 2017)

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

----Ss. 194-B & 196---Income Tax Ordinance (XLIX of 2001), Ss. 132 & 133---Sales Tax Act (VII of 1990), Ss. 46 & 47---Constitution of Pakistan, Art. 185---Findings of fact recorded by the Appellate Tribunal under various tax statutes---Inference with such facts by the High Court and Supreme Court---Conditions for such interference stated.

Generally, it is for the Appellate Tribunal, being the last fact-finding adjudicator, to finally determine the factual aspects of the controversy, and such findings are not interfered with by the High Court, while exercising its jurisdiction under various tax statutes; as the scope and extent of the power of the High Court hearing matters under the tax statutes in reference jurisdiction, as well as of the Supreme Court hearing appeals against decisions of the High Court made in such reference jurisdiction, is limited to deciding the question(s) of law, which may arise from the order passed by the Appellate Tribunal. This rule is, however, not absolute. Where the Appellate Tribunal has based its decision on some perverse or totally incorrect finding of fact, which is contrary to the material available on record or which is based on surmises and conjectures; the decision based on such erroneous finding of fact can be corrected by the High Court. In cases, where the High Court has relied on the findings of the Appellate Tribunal, without a proper appraisal of the material before it, the Supreme Court being the appellate court of the High Court, may positively exercise the jurisdiction that is vested in the High Court but having not been exercised by it, in order to correct the perverse or arbitrary findings of fact.

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; Messrs Squibb Pakistan v. Commissioner of I.T. 2017 SCMR 1006; 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 and Messrs Irum Ghee Mills v. I.T. A.T. 2000 SCMR 1871 ref.

The exception to the rule of not interfering with the findings of fact, recorded by the Appellate Tribunal, is by no means to be exercised in order to facilitate a delinquent party, with a chance to fill up the lacunas in his case. Thus, this exception is not meant for allowing the additional material, particularly in circumstances, where in the grounds of appeal, a case for additional evidence has not been set out, or any independent formal application has been moved for the purposes of producing additional evidence.

Abdul Aleem v. Idara N.I.C.F.C. 2016 SCMR 2067 and Muhammad Tariq v. Shamsa Tanveer PLD 2011 SC 151 ref.

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

----Ss. 194-B & 196---Income Tax Ordinance (XLIX of 2001), Ss. 132 & 133---Sales Tax Act (VII of 1990), Ss. 46 & 47---Constitution of Pakistan, Art. 185---Findings of fact recorded by the Appellate Tribunal and High Court under various tax statutes---Inference with such facts by the Supreme Court---Scope---Whether the Supreme Court, while hearing a petition arising from a tax statute, can for the first time consider additional material relating to factual aspects of the case---Held, that the Supreme Court can accept additional material produced before it for the first time, provided that: firstly, it is relevant to resolving the controversy in the case; and that the additional material proposed to be adduced was neither in the possession nor knowledge of the party seeking to produce the same in evidence; and finally, that the party proposing to introduce that additional material in the evidence has been prompt in seeking its production without any delay---Once the Supreme Court finds it just and proper to consider the additional material, it would then have to decide; whether it is to pass a finding thereon or refer the matter to a lower forum.

Secretary to the Govt. of W.P. v. Gulzar Muhammad PLD 1969 SC 58 ref.

(c) Constitution of Pakistan---

----Art. 184(3)---Suo motu powers of the Supreme Court---Scope---No one can dispute the efficacy of the exercise of the Suo Motu jurisdiction vested in the Supreme Court under Article 184(3) of the Constitution, in matters of public importance involving enforcement of any of the fundamental rights, which require urgent attention of the Court to ensure that the rule of law in the country prevails---However, the exercise of this jurisdiction by the Court is intended to be the need of the hour to ensure and enforce the rule of law; and not to undermine the lawful authority of the departments, institutions, authorities or offices---Not to mention the prejudice it may cause the parties who would not have any right of appeal against the orders passed by the Supreme Court in its Suo Motu jurisdiction and the adverse effect it may have on the adjudicatory process that may ensue---Supreme Court, while exercising its Suo Motu jurisdiction, therefore should not only be very cautious on what matters it exercises this jurisdiction, but also very mindful of the directions it makes, so that, the lawful authority of the investigating authorities or the adjudicatory forums is not undermined.

Muhammad Anas Makhdoom, Advocate Supreme Court assisted by Saad Rasool, Advocate for Petitioner (in all cases).

Raja Muhammad Iqbal, Advocate Supreme Court for Respondents (in all cases).

2023 S C M R 1339

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan and Shahid Waheed, JJ

MUHAMMAD MUNIR and others---Appellants

Versus

UMAR HAYAT and others---Respondents

Civil Appeals Nos. 1731, 1732 and C.M.As. Nos.13433, 13475 of 2021, decided on 24th May, 2023.

(On appeal against the judgment dated 22.10.2021 passed by the Lahore High Court, Lahore in Civil Revisions Nos. 3332 and 3333 of 2010)

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

----Ss. 11 & 12---Unsoundness of mind---Proof---Registered sale deed and exchange deed executed by plaintiffs' father challenged on the plea that their father had been suffering from paralysis for a long time; his hands and other limbs were affected with tremors and trembles; he could not relieve himself of his natural urges, and even to talk he used to express himself in gestures; and because of his illness he was very weak and could not walk around---Validity---Crucial point of determination in case a plea of insanity or unsoundness of mind is taken is the time of execution of the contract---In the present case, the disputed documents were registered in 1996 while plaintiffs' father (executant) died in 1998 and thus the plaintiffs were to clearly state when their father had an attack of paralysis; did this occur before the documents were executed or after it?---This was a material fact that ought to have been disclosed in the plaint, but was conspicuously omitted, and since the plaintiffs could not go beyond the scope of their pleadings, they could not even be allowed to put in any statement or material to rectify the omission during the course of evidence, and as such, it would be fair to hold that the plaintiffs had failed to discharge their burden of pleadings, and tumbled at the first stage of the trial of their claim---Best evidence of the father's mental disorder could have been the medical attendant (hakeem) who treated him at the relevant time---However said physician (hakeem) was not examined, nor was any explanation furnished why he was not presented---One of the plaintiffs, who was also son of the executant, stated in his examination-in-chief that his father was ill and suffering from paralysis; but he did not say that his father was mentally challenged---However, during cross-examinations he said that his father had tremor in his body before his death, and that in the year 1995-1996, his father had sold his other land to another person---Such statement proved that the father (executant), though ill, was of sound mind and able to look after his own affairs at the time of registration of the disputed sale deed and exchange deed---Burden of proving their father's unsoundness in the first place was on the plaintiffs and when they failed to do so, the Court could not cure that infirmity by reading the statement of the defendants' witness, such as the lambardar who had verified the father's thumb impression on the disputed documents---In the ordinary course of life, the said witness (lambardar) was not supposed to have any information about the father's health and the details of his medication---Contents of the disputed documents and of the statement of the witnesses, particularly of the Sub-Registrar did not support the inference, drawn by the High Court, that the father did not understand the value of the property he was selling or of which he was exchanging---Even if it was accepted that the father had paralysis and tremors, it cannot be said that the father did not comprehend the nature and effect of the disputed documents at the time of their writing and registration---Suits for declaration filed by the plaintiffs were rightly dismissed by the Trial Court and the First Appellate Court---Appeals were allowed and impugned judgments and decrees of High Court were set-aside.

Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338 ref.

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

----Ss. 11 & 12---Unsoundness of mind---Scope---Permanent paralytic affection, though it somewhat saps the physical energy of the sufferer, does not necessarily impairs his mental power to such an extent to render him incapable of transacting business.

Sajid Ali v. Ibad Ali (23 Cal. 1) ref.

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

----S. 42---Suit for declaration---Registered sale deed and exchange deed---Plea of fraud---Not established---Sale deed and exchange deed executed by plaintiffs' father was challenged on the plea that their father was unable to walk due to illness, so the defendants produced another person before the Sub-Registrar and got the disputed documents registered fraudulently, and that the Sub-Registrar did not mention their father's identity card number on the disputed documents---Validity---Neither the plaintiffs in their plaint nor any of their witnesses had alleged that the Sub-Registrar was in cahoots with the defendants---Disputed documents were registered by the Sub-Registrar/Naib Tehsildar, and he was produced as a witness by the defendants; he clearly stated in his examination-in-chief that the disputed documents were presented before him by the father himself, and he was identified by the lambardar, the statements of witnesses were recorded, and the father admitted that consideration amount had been received, and also acknowledged the exchange of land---During cross-examination, the Sub-Registrar/Naib Tehsildar admitted that the father's identity card number was not mentioned on the disputed documents, but stated that if there was no identity card number, the document was registered on the identification of a proper person, which included lambardar, councillors etc.---Plaintiffs' father was identified by the lambardar, who appeared in Court and confirmed it---Even without so, the father's identification would not have been difficult to ascertain as he was a lambardar himself, and generally the Sub-Registrar/Naib Tehsildar knows the lambardar of his area---Thus, in the given circumstances, merely on the basis of non-recording of the father's identity card number, it could not be said that any other person had appeared instead of the father at the time of registration of the disputed documents, and any fraud was committed---Since the plaintiffs, had failed to discharge their initial burden, it did not shift to the defendants to prove the transactions---Defendants not only produced all the witnesses to the disputed documents, the identifier, and the Sub-Registrar, but also produced all their records from the custody of the Record-Keeper before the Trial Court and from the statements of all of them, the transactions recorded in the disputed documents were proved---Suits for declaration filed by the plaintiffs were rightly dismissed by the Trial Court and the First Appellate Court---Appeals were allowed and impugned judgments and decrees of High Court were set-aside.

Khalil Ahmad v. Abdul Jabbar Khan and others 2005 SCMR 911; Messrs SAZCO (Pvt.) Ltd. v. Askari Commercial Bank Limited 2021 SCMR 558 and Haji Muhammad Yunis (deceased) through Legal heirs and another v. Mst. Farukh Sultan and others 2022 SCMR 1282 ref.

Agha Muhammad Ali Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in both cases).

Malik Matee Ullah, Advocate Supreme Court (via video link from Lahore) for Respondents Nos. 1 - 3 (in both cases).

Ex-parte for Respondent No. 4 (in both cases).

2023 S C M R 1348

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) through Chairman, Islamabad and others---Petitioners

Versus

SOUTHERN NETWORKS LIMITED, KARACHI---Respondent

Civil Petition No. 5469 of 2021, decided on 11th August, 2022.

(Against the order/judgment dated 02.09.2021 passed by High Court of Sindh, Karachi in M.A. 7 of 2017)

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

----Ss. 25 & 30(1)(d)---Pakistan Electronic Media Regulatory Authority Rules, 2009, Rr. 7(e), 9(5), 13(3) & 16(2)---Multi-Channel Multi-Point Distribution Service (MMDS) license, revocation of---Change in management of licensee without prior permission from PEMRA---Unlawful conduct of PEMRA and licensee---Remand of case to PEMRA---Before the 10 year term of respondent's license expired, the CEO of the respondent-company handed over its management to a new set of persons---New directors/major shareholders informed PEMRA about the change in management of the company---Thereafter an application for renewal of license was made by the new CEO which was granted by PEMRA---Respondent company paid Rs.45 million by way of revalidation fee that was due from it---Subsequently PEMRA issued a show cause notice to the company threatening suspension/revocation of the license and imposition of fine under the provisions of section 30(1)(d) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('PEMRA Ordinance, 2002') read with Rule 16(2) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 ('PEMRA Rules, 2009') for unlawful change in its management without prior permission from PEMRA---PEMRA revoked the license of the respondent company---Such action was appealed by the company before the High Court---While the appeal was pending in the High Court, the respondent company again changed its management twice---Be that as it may, the High Court remanded the matter back to PEMRA---On remand PEMRA once again revoked all licenses of the respondent company---Legality---PEMRA gave a post facto validation of the license to the respondent company, until the date its license was revoked---Such stance may possibly have been meant to mitigate the past conduct of PEMRA when having granted renewal of the license on 15-10-2012 to the new management of the respondent, PEMRA had thereafter taken a contrary stand by issuing the respondent a show cause notice on 19-3-2014 and then revoking its license on 5-5-2014---In the impugned judgment High Court failed to consider the statutory conditions laid down in section 30(1)(d) of the PEMRA Ordinance, 2002 read with Rule 16(2) of PEMRA Rules, 2009---Furthermore, the impugned judgment did not take into account the specific conditions applicable to the scrutiny of an application for transfer of management of a licensee company laid down in section 25 of the PEMRA Ordinance 2002 read with Rules 13(3), 9(5) and 7(e) of the PEMRA Rules, 2009---High Court had over emphasized PEMRA's requirement demanding the outgoing directors of the respondent company to be present whilst considering the application by the respondent company for change in its management---Accordingly, the conditions of remand directed the impugned judgment disregarded the mandatory requirement of prior permission imposed by the statute in the provisions of the PEMRA Ordinance 2002---Said statutory provisions had mandatory effect and could not be overlooked merely because an unlawful or unreasonable condition of personal appearance of the outgoing directors before PEMRA had been imposed by the latter authority---Such condition of personal appearance may be relevant for processing the application for change of management of a licensee under particular circumstances, therefore, the same could not be ruled to be altogether irrelevant for consideration by PEMRA---In the present case PEMRA had itself misled the respondent company by a course of action that justified the consideration of the latter's change of management application on its merits---PEMRA could only be justified to insist upon the revocation of license as the only consequence attracted by the delinquent conduct of a licensee when it had acted lawfully in the enforcement of the statutory provisions---Supreme Court remanded the matter to PEMRA to consider the change of management application filed by the respondent strictly in accordance with law--- Petition for leave to appeal was disposed of accordingly.

Barrister Haris Azmat, Advocate Supreme Court along with Tahir Farooq Tarar, Head Legal PEMRA, Mohsin Ahmed Dogar, Dir (Regulations) and Wakeel Khan, DG (Licensing) for Petitioners.

Salahuddin Ahmed, Advocate Supreme Court for Respondent.

2023 S C M R 1353

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

Messrs BENTONITE PAKISTAN LIMITED through Director/Chief Executive---Petitioner

Versus

BANKERS EQUITY LIMITED and others---Respondents

Civil Petition No. 1123 of 2020, decided on 15th February, 2023.

(Against the order dated 12.12.2019 of the High Court of Sindh, Karachi passed in J.C.M. No. 15 of 2000)

Companies Act (XIX of 2017)---

----S. 310---Limitation Act (IX of 1908), First Sched. & Art. 181---Applications filed under the Companies Act, 2017---Limitation---There is no specific provision in the Limitation Act, 1908 which deals with the applications or proceedings filed under the Companies Act, 2017, except Article 112 thereof, which deals with "a call by a company registered under any Statute or Act" therefore, the general provision dealing with the applications would be applicable to the applications filed under the Companies Act, 2017---General provision, which deals with the applications, where no period of limitation is provided in the Limitation Act, 1908, etc., is Article 181 thereof---Any application filed under the Companies Act, 2017 would be governed by Article 181 of the First Schedule to the Limitation Act, 1908 and there would be a period of limitation of three years for such applications.

Nadeem-ud-Din Malik, Advocate Supreme Court for Petitioner.

Dr. Chaudhry Waseem Iqbal, Official Assignee/Official Liquidator for Respondent No. 1.

2023 S C M R 1357

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD---Petitioner

Versus

YAR MUHAMMAD SOLANGI and others---Respondents

Civil Petitions Nos. 101 to 110 of 2020, decided on 29th March, 2022.

(Against the judgment dated 30.10.2019, passed by the High Court of Balochistan, Quetta, in C.Ps.1000, 1002 to 1005, 1007 to 1009, 1019 and 1020 of 2019)

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9 & 10---Corruption and corrupt practices---Development Schemes---Works done and executed by contractors under the supervision of the Assistant Executive Engineer not as per specifications and payments made in the measurement books---Petition for cancellation of pre-arrest bail, dismissal of---National Accountability Bureau (NAB) did not seek the arrest of any of the accused persons during the course of initial inquiry or during the investigation---Counsel for NAB was unable to explain why NAB sought their arrest now, at present stage, given that the Reference had been filed and the matter was now before the Trial Court---Furthermore, the accused persons had fully cooperated during the course of the investigation, as they had been attending all proceedings and did not misuse the concession of bail---According to the prosecution they were no longer required for investigation---Further, NAB had taken into possession all the relevant record and no recovery was to be effected from the accused persons---Contents of the Reference showed that the role of each of the accused had yet to be proven with reference to the work allegedly done by each contractor contrary to the measurement books---Similarly, in each case, it had yet to be determined the exact loss caused to the government exchequer and the benefit derived by the accused persons---Hence, the accused persons had to face trial for a determination by a court of competent jurisdiction about their involvement with the Assistant Executive Engineer (co-accused) and the monetary gains made, if any---Petitions for leave to appeal seeking cancellation of pre-arrest bail granted to accused persons were dismissed, and leave was refused.

Malik Din v. Chairman National Accountability Bureau and another 2019 SCMR 372 and Tallat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 SC 112 distinguished.

Mumtaz Yousaf, Deputy Prosecutor General, NAB for Petitioner (in all cases).

Nemo for Respondents.

2023 S C M R 1361

[Supreme Court of Pakistan]

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

INJUM AQEEL---Petitioner

Versus

LATIF MUHAMMAD CHAUDHRY and others---Respondents

Civil Petitions Nos. 3059 and 3060 of 2021, decided on 18th May, 2023.

(Against Judgment dated 01.03.2021 passed by the Islamabad High Court, Islamabad in R.F.As. Nos. 1 and 2 of 2018)

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

----S. 30(a)---Ex-parte arbitration award, setting aside of---No plausible objections raised---Merely filing an objection under section 30 of the Arbitration Act, 1940 carries no great weight and is inconsequential unless some substantial grounds are alleged in the objections warranting and deserving the setting aside of the award, which the petitioner failed to underline in the present case---Record reflected that ample opportunity was afforded to the petitioner to join the (arbitration) proceedings but the petitioner was so reckless and reluctant to join for which the Arbitrator cannot be blamed---Even no plausible grounds are raised in the objection which may infer, corroborate or substantiate any act of misconduct on the part of the Arbitrator which could be proved to the satisfaction of the Court---Petitions for leave to appeal were dismissed and leave was refused.

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

----S. 30(a)---Grounds for setting aside arbitration award---Legal misconduct by Arbitrator---Scope---Arbitrator misconducts the proceedings when (i) there is a defect in the procedure followed by him; (ii) he commits breach and neglect of duty and responsibility; (iii) he acts contrary to the principles of equity and good conscience; (iv) he acts without jurisdiction or exceeds it; (v) he acts beyond the reference; (vi) he proceeds on extraneous circumstances; (vii) he ignores material documents; or (viii) he bases the award on no evidence.

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

----S. 30(a)---Grounds for setting aside arbitration award---Arbitrator, duties of---Moral misconduct by Arbitrator---Scope---It is essential that there must be abundant good faith, and the arbitrator must be absolutely disinterested and impartial, as he is bound to act with scrupulous regard to the ends of justice---Arbitrator must be a person who stands indifferent between the parties---Arbitrator should in no sense consider himself to be the advocate of the cause of the party appointing him, nor is such party deemed to be his client---When a claim or matter in dispute is referred to an arbitrator, he is the sole and final Judge of all questions, both of law and of fact---Arbitrator cannot act arbitrarily, irrationally, capriciously or independently of the contract---Deliberate departure or conscious disregard of the contract not only manifests a disregard of his authority or misconduct on his part, but it may also be tantamount to mala fide action and vitiate the award.

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

----S. 30---Arbitration award---Non-interference by courts---Scope---Opinion/decision of the Arbitrator should not be lightly interfered by the court while deciding the objection thereto, until a clear and definite case within the purview of the section 30 of the Arbitration Act, 1940 is made out.

Court cannot review the award, nor entertain any question as to whether the arbitrators decided properly or not on a point of law or otherwise. It is not open to the Court to re-examine and reappraise the evidence considered by the arbitrator to hold that the conclusion reached by the arbitrator is wrong. Where two views are possible, the Court cannot interfere with the award by adopting its own interpretation. The general principle underlying the concept of arbitration as translated in the scheme of the Arbitration Act, 1940 is that, as the parties choose their own arbitrator to be the Judge in the dispute between them, they cannot, when the award is good on the face of it, object to his decision, either upon law or fact. The error or infirmity in the award which rendered the award invalid must appear on the face of the award and should be discoverable by reading the award itself. The arbitrator is the final Judge on the law and facts and it is not open to a party to challenge the decision of the Arbitrator, if it is otherwise valid. An award cannot be lawfully disturbed on the premise that a different view was possible. Arbitration is a forum of the parties' own choice and is competent to resolve the issues of law and the fact between them, which opinion/decision should not be lightly interfered by the court while deciding the objection thereto, until a clear and definite case within the purview of the section 30 of the Arbitration Act, 1940 is made out. The Court does not sit in appeal over the award and should not try to fish for or dig out the latent errors in the proceedings or the award. It can set aside the award only if it is apparent from the award that there is no evidence to support the conclusions or if the award is based upon any legal proposition which is incorrect. The Court can set aside the award if there is any error, factual or legal, which floats on the surface of the award or the record.

Gerry's International (Pvt.) Ltd. v. Aeroflot Russian International Airlines 2018 SCMR 662 ref.

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

Nemo for Respondents.

2023 S C M R 1371

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

MUHAMMAD ASLAM and others---Appellants

Versus

MUHAMMAD ANWAR---Respondent

C.A. No. 781 of 2017, decided on 4th May, 2023.

(Against the judgment dated 31.10.2016 passed by the Lahore High Court, Lahore in R.S.A. No. 93 of 2011)

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

----O. VI, R. 1---Pleadings---Scope---Plaintiff cannot lead evidence beyond the pleadings.

Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others 2015 SCMR 1698; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Province of Punjab through Chief Secretary and 5 others v. Malik Ibrahim and Sons and another 2000 SCMR 1172 and Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 ref.

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

----S. 55---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Time "essence" of the contract---Scope---Terms of the agreement to sell immoveable property showed that time was essence of the contract when date for performance and consequences for non-performance by the plaintiff-vendee were specifically mentioned, and it was provided that the agreement shall be cancelled and earnest money will be confiscated---Plaintiff admitted that he could not arrange the remaining consideration amount even on the date of performance and even three months thereafter and further he dishonestly pleaded that he approached the legal heirs of the vendor as he had passed away before the date of performance which was factually incorrect, and his own evidence as well as the evidence of his witnesses contradicted his pleadings---In the present case time was essence of contract, and the consequence was to be in accordance with the agreement---When fault was with the vendee-plaintiff he was absolutely not entitled for the discretionary relief in the shape of a decree for specific performance---Appeal was allowed, the judgments and decrees passed by the three fora below were set aside, and as a result suit filed by the plaintiff-respondent was dismissed with costs.

Sh. Usman Karim ud Din, Advocate Supreme Court for Appellants.

Iftikhar Ahmed Chaudhary, Advocate Supreme Court for Respondent.

2023 S C M R 1375

[Supreme Court of Pakistan]

Present: Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD IJAZ---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 206 of 2019, decided on 8th May, 2023.

(On appeal against the judgment dated 11.03.2019 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 394 of 2018)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Incident took place at 02:30 p.m. whereas the matter was reported to the Police on the same day at 06:05 p.m.---Distance between the place of occurrence and the Police Station was 18 kilometers, thus, it could safely be said that FIR was lodged with promptitude---Complainant and another witness had heard the gunshot and witnessed the accused fleeing away from the place of occurrence after commission of offence with a pistol in his hands---Evidence of said witnesses was in the nature of wajtakar, the probative strength of which rested in the doctrine of res gestae in view of Article 19 of the Qanun-e-Shahadat Order, 1984---Said doctrine of res gestae was based upon the assumption that statements of witnesses that constituted part of the res gestae were attributed a certain degree of reliability because they were contemporaneous making them admissible by virtue of their nature and strength of their connection with a particular event and their ability to explain it comprehensively---Prosecution witnesses in question were residents of the same locality, therefore, their presence at the place of occurrence was natural---Said witnesses 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---Said witnesses gave all necessary details of occurrence qua the date, time, place, name of accused, name of witnesses, manner of occurrence, kind of weapon used in the occurrence, the locale of injuries and the motive of occurrence---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 daughter---Substitution in such like cases was a rare phenomenon---Medical evidence available on the record further corroborated the prosecution case so far as the nature, time, locale and impact of the injuries on the person of the deceased was concerned---Accused remained absconder for a long period of more than five years, which was also a corroboratory piece of evidence against him---Petition for leave to appeal was dismissed, leave was refused and conviction and sentence awarded to accused was maintained.

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

----S. 302(b)---Qatl-i-amd---Related witness, evidence of---Scope---Related witness cannot be termed as an interested witness under all circumstances---Related witness can also be a natural witness---If an offence is committed within the presence of the family members then they assume the position of natural witnesses---In case, their evidence is reliable, cogent and clear, the prosecution case cannot be doubted---However, a related witness would become an interested witness when his evidence is tainted with malice and it shows that he is desirous of implicating the accused by fabricating and concocting evidence---Evidence of an eyewitness who is a near relative of the victim should be closely scrutinized by the Court.

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

----S. 302(b)---Qatl-i-amd---Minor discrepancies in statements of eye-witnesses/prosecution witnesses---Effect---Where discrepancies are of minor character and do not go to the root of the prosecution story and do not shake the salient features of the prosecution version, they need not be given much importance.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Sentence, quantum of---Sentence of imprisonment for life awarded to accused instead of death sentence---Justified---Report of the Forensic Science Laboratory was negative, therefore, the recovery of weapon of offence was inconsequential---So far as motive part of the prosecution story was concerned, the Trial Court had rightly disbelieved the motive by holding that was a vaguely formulated motive because no material evidence could be placed on record to prove the motive---Courts below had already taken a lenient view while awarding the sentence of imprisonment for life to the accused (instead of death sentence)---Petition for leave to appeal was dismissed, leave was refused and conviction and sentence awarded to accused was maintained.

Syeda B.H. Shah, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, D.P.G. for the State.

2023 S C M R 1381

[Supreme Court of Pakistan]

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

NATIONAL DATABASE AND REGISTRATION AUTHORITY (NADRA) through Chairman, Islamabad and others---Petitioners

Versus

JAWAD KHAN and 2 others---Respondents

Civil Petitions Nos. 596 to 598 of 2021, decided on 8th May, 2023.

(Against Judgment dated 01.12.2020 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in W.Ps. Nos. 1043-M to 1045-M of 2018)

(a) Civil service---

----Appointment---Legitimate expectation, doctrine of---Applicability---Appointments made to posts other than the ones advertised---Applications were invited by National Database and Registration Authority (NADRA) through newspapers for the posts of Customer Service Executive (CSE)---Respondents participated in the recruitment process and qualified the test and interview but they were appointed as Data Entry Operators (DEOs) rather than CSEs which was the originally advertised post---This was a violation of the terms and conditions of the recruitment process formulated for the appointment of CSEs---Respondents took the plea before High Court that they had accepted the said offer on the promise made to them that they would be appointed to the advertised posts on completion of one month on-job training, however despite the successful completion of training and achieving qualifying scores, NADRA failed to appoint them on the posts applied for and continued to employ them as DEOs---Respondents applied for the posts of CSEs and, after qualifying the prerequisites, they legitimately expected their appointment on the applied posts unless their credentials were rejected, which was not the case in the present case---Neither their applications were rejected after due diligence, nor the recruitment process was scrapped for any reason---High Court rightfully granted relief to redress the grievance of the respondents---Petitions for leave to appeal were dismissed and leave was refused.

(b) Legitimate expectation, doctrine of---

----Scope of the doctrine of legitimate expectation stated.

The doctrine of legitimate expectation connotes 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 ascends 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 is obliterated, it affords a locus standi to challenge the administrative action and even, in the absence of a substantive right, a legitimate expectation may allow an individual to seek judicial review of a wrongdoing; and in deciding whether the expectation was legitimate or not, the Court may consider that the decision of the public authority has breached a legitimate expectation and, if it is proved, then the Court may annul the decision and direct the concerned authority/ person to live up to the legitimate expectation.

Uzma Manzoor v. Vice-Chancellor, Khushal Khan Khattak University 2022 SCMR 694 ref.

(c) Promissory estoppel, doctrine of---

----Pre-requisites for lodging a right or entitlement under the doctrine of promissory estoppel stated.

The essential prerequisites for lodging a right and entitlement under the doctrine of promissory estoppel are that there must be a promisor and a promisee, and the promisee suffered a loss due to renunciation of promise. In such a situation, the Courts may put into operation this doctrine for administering justice to an aggrieved person. The doctrine of promissory estoppel cannot be repressed in line with equivalent constriction as estoppel in the stricto sensu, rather it is an equitable course of therapy developed by the Courts for doing justice against a valid cause of action. It is not necessary in all circumstances for the attraction of this doctrine that the promisee who placed trust and dependence on the promise should sustain harm, but what is actually necessary is that the promisee should have changed his position in reliance on the promise and was caused prejudice.

National Saving Central Directorate, Islamabad and another v. Muhammad Farooq Raja PLD 2021 SC 320; Azra Riffat Rana v. Secretary, Ministry of Housing and Works, Islamabad and others PLD 2008 SC 476; Federation of Pakistan and others v. Ammar Textile Mills (Pvt.) Limited and others 2002 SCMR 510; Words and Phrases (Permanent Edition), Volume 34 (At page 533-534); Wharton's Concise Law Dictionary (15th Edition) (At page 834) and Halsbury's Laws of England (Fifth Edition), Volume 47 (At page 355) ref.

(d) Constitution of Pakistan---

----Art. 199---Contractual employees of National Database and Registration Authority (NADRA)---Appointments made to posts other than the ones advertised---Constitutional petition filed before the High Court---Maintainability---In the present case the respondents had applied for the position of Customer Service Executive (CSE) and qualified the test and interview but they were offered the post of Data Entry Operators (DEOs) without any rhyme or reason, which is a violation of the terms and conditions of the recruitment process formulated for the appointment of CSEs---Neither the respondents were terminated employees, nor did they challenge any dismissal or termination order from service, nor did they seek any relief from the High Court for regularization of their contractual services into permanency, rather they only invoked the writ jurisdiction (of the High Court) for their appointment as CSEs for which they applied and fulfilled the criteria and not as DEOs---High Court was not only justified in entertaining the petition, but also rightfully granted relief to redress the grievance of the respondents---Petitions for leave to appeal were dismissed and leave was refused.

Chairman NADRA v. Muhammad Ali Shah and others 2017 SCMR 1979 and Maj. (Retd.) Syed Muhammad Tanveer Abbas v. Federation of Pakistan and another 2019 SCMR 984 distinguished.

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

Nemo for Respondents.

2023 S C M R 1390

[Supreme Court of Pakistan]

Present: Munib Akhtar and Jamal Khan Mandokhail, JJ

SAID RASOOL---Appellant

Versus

MAQBOOL AHMED and others---Respondents

Civil Appeal No. 102-L of 2017, decided on 17th May, 2023.

(On appeal from the judgment of the Lahore High Court, Lahore dated 24.03.2017 passed in C.R. No. 2095 of 2012)

Contract Act (IX of 1872)---

----Ss. 2(h) & 10---Qanun-e-Shahadat (10 of 1984), Arts. 17(2) & 79---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of an agreement to sell immoveable property---Unsigned agreement---Whether an unsigned agreement was valid, and its specific performance could be ordered.

Where the parties intend to bind themselves orally or by their conduct, but have the further intention of reducing their agreement into writing after the oral agreement is made, in such situation, the written agreement of the completed oral contract remains unaffected even if it is not signed by either party. The requirement of signing the agreement by the parties is to show their free consent and intention to be legally bound by their oral offer and acceptance. In circumstances where the agreement is reduced into writing and is not signed by either or one of the parties, it may still be valid and enforceable, however, its legal effect will be limited and the enforceability may be more difficult to establish in such case. It is, therefore, necessary that it must be pleaded in the pleadings and the requirements of a valid contract must be proved through cogent evidence by the party relying upon it. These factors will be considered by the courts in determining the intent of the parties and steps partially taken for giving effect to the agreement. Thus, if the courts are satisfied that the party relying upon an unsigned agreement has proved the necessary ingredients for its validity, it may be enforced in favour of the party claiming its performance.

PLD 1971 SC 784; 2006 SCMR 721; 2017 SCMR 98 and 2020 SCMR 832 ref.

The record of the present case reveals that the respondents (successors of the plaintiff) in their plaint have pleaded the execution and the fact of part payment of the consideration for the subject matter of the agreement in advance. In order to prove the validity and existence of the agreement between the parties with their free will and consent, the respondents produced marginal witnesses before the Court. They were cross-examined at length by the counsel for the appellant/defendant, but nothing favourable was extracted therefrom. Rather the witnesses have confirmed the contents of the plaint and the terms and conditions of the agreement between the parties, on the basis whereof the Trial Court decreed the suit. The appeal filed by the appellant was partly allowed by the Appellate Court, directing him to return the amount received by him from the predecessor of the respondents as part of the consideration. By not challenging the judgment of the Appellate Court, the appellant has accepted the part payment made by the predecessor of the respondents; which was one of the terms and conditions of the agreement. The intention of the appellant to enter into a valid agreement is evident from his deeds, by accepting the amount and signing the agreement with his free will and consent, which bound both of the parties. The steps taken for the part performance of the agreement prove its execution. Under such circumstances, irrespective of the absence of the signatures of the respondents' predecessor on the agreement, it is held to be valid, therefore, the appellant cannot deny its existence and enforceability. Appeal was dismissed.

Ch. Iqbal Javed Dhillon, Advocate Supreme Court for Appellant.

Zafar Iqbal Chohan, Advocate Supreme Court (through video link from Lahore) for Respondents.

2023 S C M R 1394

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

Syed AMIR RAZA---Petitioner

Versus

Mst. ROHI MUMTAZ and others---Respondents

Civil Petition No. 2865 of 2022, decided on 5th May, 2023.

(Against the Order dated 13.06.2022 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No.1674 of 2022)

Family Courts Act (XXXV of 1964)---

----S. 10(5)---Dissolution of marriage through khula---'Deferred dower'---Entitlement of wife---Scope---Per section 10(5) of the Family Courts Act, 1964 ('the Act'), in a suit for dissolution of marriage, if reconciliation fails, the Family Court shall immediately pass a decree for dissolution of marriage and in case of dissolution of marriage through khula, may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty-five percent of her admitted prompt dower to the husband---In the present case the house from the petitioner/husband, as mentioned in Nikahnama, was the deferred dower and as per the khula judgment, the respondent/wife was only entitled to fifty percent(50%) of the house (deferred dower)---This premise was grounded in Section 10(5) of the Act that while obtaining dissolution on the sole basis of khula, the respondent was bound to surrender fifty percent (50%) percent of her share in deferred dower---Wife, in case of khula, had to forego the dower amount as per section 10 of the Act---Petition for leave to appeal was converted into appeal and allowed, impugned order was modified to the extent of the deferred dower and the respondent/wife was held entitled only to fifty percent (50%) share in the house in question or market value thereof.

Muhammad Arif v. Saima Noreen 2015 SCMR 804 ref.

Sh. Ahsan-ud-Din, Advocate Supreme Court for Petitioner.

Sh. Muhammad Suleman, Advocate Supreme Court for Respondents.

2023 S C M R 1397

[Supreme Court of Pakistan]

Present: Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

SAEED ULLAH and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No. 245 of 2023, decided on 4th May, 2023.

(On appeal against the judgment dated 20.02.2023 passed by the Peshawar High Court, D.I. Khan in Criminal M.B.C. No. 123-D of 2022)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324 & 34---Constitution of Pakistan, Art. 185(3)---Murderous assault with firearms---Bail, grant of---Further inquiry---Only a general role had been ascribed to the accused persons and no details had been given as to which of the accused fired at which part of the body of the complainant---Complainant received injuries on the non-vital parts of the body---Bare perusal of the medico legal report revealed that at the one hand the medical officer declared the injuries as "simple" and on the other hand he held the same to be "grievous"---Law Officer admitted that none of the injuries exposed the bone---Complainant sustained injuries on non-vital parts of the body whereas more than 37 empties had been recovered from the place of occurrence, which prima facie showed that the accused had no intention to kill the complainant despite having ample opportunity to do so---In this view of the matter, the question whether section 324, P.P.C. would be applicable in the case or not would be determined by the Trial Court after recording of evidence---Case of the accused persons squarely fell within the ambit of section 497(2), Cr.P.C. entitling for further inquiry into their guilt---Petition for leave to appeal was converted into appeal and allowed, and accused persons were admitted to bail.

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

----Ss. 497 & 498---Constitution of Pakistan, Art. 185(3)---Bail---If two views are possible from the evidence adduced in the case then the view favourable to the accused is to be adopted.

Saghir Ahmed v. State 2023 SCMR 241 and Sahib Ullah v. The State 2022 SCMR 1806 ref.

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

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Bail, cancellation of---Guidelines for the purpose of cancellation of bail stated.

Following are the guidelines for the purpose of cancellation of bail:

(i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice.

(ii) That the accused has misused the concession of bail in any manner.

(iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses.

(iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of court.

(v) That the accused has attempted to interfere with the smooth course of investigation.

(vi) That accused misused his liberty while indulging into similar offence.

(vii) That some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused.

Samiullah v. Laiq Zada 2020 SCMR 1115 quoted.

Aftab Alam Yasir, Advocate Supreme Court for Petitioners.

Sultan Mazhar Sher Khan, Additional A.G. for the State.

Raja Muhammad Farooq, Advocate Supreme Court for the Complainant.

2023 S C M R 1402

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

Mst. FAHEEMAN BEGUM (DECEASED) through L.Rs and others---Appellants

Versus

ISLAM-UD-DIN (DECEASED) through L.Rs and others---Respondents

Civil appeal No. 1300 of 2019, decided on 3rd May, 2023.

(Against Judgment dated 12.03.2019 passed by the Lahore High Court, Multan Bench in Civil Revision No. 96-D of 2003)

(a) Gift---

----Gift/tamleek mutation---Proof---Immoveable property gifted by a sister to her brother---Respondents/donees had substantiated the fact of tamleek through cogent evidence in the form of the revenue record and witnesses produced before the Trial Court---Furthermore the suit of appellants was badly barred by time as the mutation in dispute was executed on 29.12.1981, whereas the suit was filed with a delay of almost 15 years on 3.5.1997---Appellant had no locus standi to challenge the legality of the (gift) mutation on a vague allegation of fraud when the donor had never challenged the same in her life time and the mutation had been given effect in the revenue record---Suit for declaration and permanent injunction filed by appellants was rightly dismissed---Appeal was dismissed.

Abdul Haq and another v. Mst. Surrya Begum 2002 SCMR 1330; Taj Muhammad Khan through L.Rs and another v. Mst. Munawar Jan and others 2009 SCMR 598 and Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299 ref.

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

----S. 115---Revisional jurisdiction of the High Court---Scope of such jurisdiction stated.

If the concurrent findings recorded by the lower fora are found to be in violation of law, or based on misreading or non-reading of evidence, then they cannot be treated as being so sacrosanct or sanctified that they cannot be reversed by the High Court in revisional jurisdiction which is pre-eminently corrective and supervisory in nature. In fact, the Court in its revisional jurisdiction under section 115 of the Code of Civil Procedure, 1908 ("C.P.C."), can even exercise its suo motu jurisdiction to correct any jurisdictive errors committed by a subordinate Court to ensure strict adherence to the safe administration of justice. The jurisdiction vested in the High Court under section 115, C.P.C. is to satisfy and reassure that the order is within its jurisdiction; the case is not one in which the Court ought to exercise jurisdiction and, in abstaining from exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law, or with material irregularity, or by committing some error of procedure in the course of the trial which affected the ultimate decision. The scope of revisional jurisdiction is restricted to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality in the judgment of the nature which may have a material effect on the result of the case, or if the conclusion drawn therein is perverse or in conflict with the law.

Anwar Mubeen Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Nemo for Respondents.

2023 S C M R 1407

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

Messrs RAJBY INDUSTRIES KARACHI and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petitions Nos. 4700, 310-K to 314-K, 423-K to 426-K, 553-K and 493-K of 2021, decided on 1st June, 2022.

(Against the common judgment dated 24.12.2020, passed by High Court of Sindh at Karachi, in C.P. No. D-187/2017, C.P. No. D-5604/2016, C.P. No. D-2475/2017, C.P. No. D-4491/2018, C.P. No. D-2613/2019, C.P. No. D-6211/2016, C.P. No. D-272/2017, C.P. No. D-925/2017, C.P. No. D-7674/2017, C.P. No. D-3455/2019 and C.P. No. D-2713/2019)

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

----Preamble---Laws which impose tax on sales---Interpretation---Such laws, being tax laws, are subject to a strict construction in accordance with the tax statutes generally---In other words, a sales tax statute must be strictly construed in considering its coverage and no strained construction may be indulged in against the taxpayer simply because of the apparent purpose to raise needed revenue, nor will such statutes be given a retroactive operation, unless such an effect is clearly intended by the lawmakers.

Crawford's Statutory Construction, Interpretation of Laws, Chapter XXVIII, page 738-739, para-359 ref.

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

----Ss. 4, Second Proviso & 8(1)(b)---Notification S.R.O. 491(I)/2016 dated 30.06.2016---Notification S.R.O. 1125(I)/2011 dated 31.12.2011, condition (x), first proviso ("the impugned proviso") [as substituted vide Notification S.R.O. 491(I)/2016 dated 30.06.2016]---Notification S.R.O. 777(I)/2018 dated 21.06.2018---Input tax adjustment---Disallowance of input tax on packing material---Withdrawal of a proviso in an SRO---Effect---Whether retrospective effect could be given to such withdrawal---In the present case the restriction imposed for reclaiming input tax on packing material by way of Notification S.R.O. 491(I)/2016 dated 30.06.2016 ('the impugned S.R.O.') was not illegal, unlawful or without jurisdiction but it was within the realm and domain of powers vested in the Federal Government under section 8 of the Sales Tax Act, 1990---Petitioners (tax payers) had only challenged the constitutionality of the 'impugned proviso', which debarred them from lodging the claim on packing material---Challenge to the legitimacy of the impugned proviso was based on a misconceived notion; the impugned proviso was intra vires and could not be construed as ultra vires to any provision of Sales Tax Act, 1990 or the Constitution---Challenge to the vires of the impugned proviso substituted vide the impugned S.R.O had subsided when vide S.R.O. 777(I)/2018 dated 21.06.2018, the impugned proviso was omitted---Although the impugned proviso was withdrawn on 21.06.2018, but in clause (2) of the S.R.O. 777(I)/2018, the withdrawal was made effective from 01.07.2018 without any express or seeming intention or language to construe that it was promulgated with retrospective effect, nor was it deemed to be a declaratory statute which came into field for rectifying any defect, omission and/or oversight in the original S.R.O. 1125(I)/2011 or S.R.O. 491(I)/2016, whereby the proviso was added and input tax credit or refund was made inadmissible on packing material of all sorts---Plea of petitioners that withdrawal of the impugned proviso should be made applicable with retrospective effect was a misconstrued notion---Petitions for leave to appeal were dismissed and leave was refused.

(c) Interpretation of statutes---

----Non-obstante clause---Meaning and scope---Expression "Non-obstante" in Latin terminology connotes 'notwithstanding anything contained'---Said phrase, for all intents and purposes invests powers in the legislature to set down any provision which may have an overriding effect on any other legal provision under the same law or any other laws, being a legislative apparatus and method of conferring overriding effect over the law or provisions that qualifies such clause or section of law---Non-obstante clause is commonly put into operation to signify that the provision should outweigh regardless of anything to the contrary.

(d) Ultra vires, doctrine of---

----Scope---Doctrine of ultra vires envisages that an authority can exercise only so much power as is conferred on it by law---Any action of the authority is intra vires when it falls within the limits of the power conferred on it but ultra vires if it goes outside this limit---If an act entails legal authority and it is done with such authority, it is symbolized as intra vires (within the precincts of powers) but if it is carried out shorn of authority, it is ultra vires.

(e) Interpretation of statutes---

----'Proviso' to a section---Scope---Normal function of a proviso is to except something out of the enactment or to qualify something enacted therein---If the enacting portion of a section is not clear a proviso appended to it may give an indication as to its true meaning.

(f) Interpretation of statutes---

----Curative and remedial legislation---Purpose and scope-- Retroactive/retrospective application---Curative statute is meant for lawmakers to recuperate the prior enactment for rectifying the defect or omission---In order to find out whether any beneficial, remedial or curative legislation has a retrospective effect, the litmus test is to explore whether it is intended to clear up an ambiguity or oversight in the prevailing or standing law and in its pith and substance, it corrects or modifies an existing law or an error that interferes with interpreting or applying the statute---Scope of curative legislation is clarificatory in nature but if it has no such character or essence, it cannot be deduced to be retroactive merely for the reason that it amounts to beneficial legislation---Retroactive application of curative legislation can be gauged and measured from the plain language and intention of legislature---It is by and large passed to supply a conspicuous omission or to elucidate misgivings as to the meaning of the previous law.

Words and Phrases -Permanent Edition, Volume 36-A; Words And Phrases - Permanent Edition, Volume 10-A; Black's Law Dictionary-Ninth Edition; Crawford's Statutory Construction (At page 105); Fawad Ahmad Mukhtar and others v. Commissioner Inland Revenue (Zone-II), Regional Tax Office, Multan and another 2022 SCMR 426; Zila Council Jehlum through District Coordination Officer v. Messrs Pakistan Tobacco Company Ltd. and others PLD 2016 SC 398; Member (Taxes) Board of Revenue Punjab, Lahore and others v. Qaisar Abbas and others 2019 SCMR 446; Zila Council Jhelum through District Coordination Officer v. Messrs Pakistan Tobacco Company Ltd. and others PLD 2016 SC 398; Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279; Messrs AMZ Spinning and Weaving Mills (Pvt.) Ltd. through Manager v. Appellate Tribunal, Customs Sales Tax and Federal Excise, Karachi 2006 PTD 2821 and Collector of Sales Tax and Central Excise, LTU, Karachi v. Messrs Pak Suzuki Co. Ltd., Karachi 2016 PTD 867 ref.

Arshad Shahzad, Advocate Supreme Court, Nadeem Qureshi, Advocate Supreme Court (Video link from Karachi) for Petitioners.

Dr. Shah Nawaz, Advocate Supreme Court, Irfan Mir Halepota, Advocate Supreme Court and Mrs. Abida Parveen Channar, Advocate-on-Record (Video link from Karachi) for Respondents.

2023 S C M R 1421

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

FEDERATION OF PAKISTAN through Secretary Revenue Division/Chairman, Federal Board of Revenue, Islamabad and others---Appellants

Versus

SUS MOTORS (PVT.) LTD. and others---Respondents

Civil Appeals Nos. 565/2011, 772 to 780/2012, 768 to 772/2014, 1070/2015, 132 to 156/2017, decided on 24th July, 2023.

(On appeal against the judgments/orders dated 12.11.2010, 04.06.2011, 29.11.2013, 24.07.2015 and 21.09.2016 passed by the High Court of Sindh, Karachi in C.P. No. D-1285/2008, SCRAs Nos. 150-158/2010, 117 to 121/2010, 218/2012 and 70 to 94/2010)

Customs Act (IV of 1969)---

----S. 81---Imported goods---Provisional determination of liability---Scope---Subsection (4) to section 81 of the Customs Act, 1969 provides that if the final assessment is not completed within the specified given under subsection (2) to section 81 then provisional assessment shall become final.

Imported goods are assessed to duty when the bill of entry, later changed to goods declaration, is filed under section 80 of the Customs Act, 1969. If however imported goods could not immediately be assessed to duty they would be provisionally assessed/reassessed by the concerned officer of Customs and within the stipulated period finally assessed/reassessed. If within the stipulated period the goods could not be assessed/reassessed the Collector of Customs was empowered in exceptional circumstances to extend the period for final assessment/ determination. The law enables the Collector to extend the period 'in circumstances of exceptional nature.'

Subsection (4) to section 81 of the Customs Act, 1969 provides that if the final assessment is not completed within the specified given under subsection (2) to section 81 then provisional assessment shall become final. In other words, subsection (4) to section 81 is a penal provision incorporated in the scheme for the benefit of the assessees/ importers/exporters to save them from unnecessary harassment by the Customs Authorities by way of lingering on their cases for indefinite period on the pretext of finalizing the assessment.

Collector of Customs, Lahore v. S. Fazal Illahi and Sons 2015 SCMR 1488; Collector of Customs v. Auto Mobile Corporation of Pakistan 2005 PTD 2116 and Dewan Farooque Motors Ltd v Customs, Excise and Sales Tax Appellate Tribunal 2006 PTD 1276 ref.

M. Khalil Dogar, Advocate Supreme Court (through Video Link, Karachi) for Appellants (in C.As. Nos. 565/11, 132-156/17).

K. A. Wahab, Advocate-on-Record (through Video Link, Karachi) for Appellants (in C.As. Nos. 565/11, 765-772/14, 1070/15, 132-156/17).

Raja Muhammad Iqbal, Advocate Supreme Court for Appellants (in C.As. Nos. 772-780/12, 768-772/14 and 1070/15).

Makhdoom Ali Khan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.As. Nos. 772-780/12).

Qari Abdur Rasheed, Advocate-on-Record for Respondents (in C.As. Nos. 768-772/14).

Khalid Javed Khan, Advocate Supreme Court for Respondents (in C.As. Nos. 132-156/17).

2023 S C M R 1427

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ

ASRAR AHMED and others---Petitioners

Versus

CHAIRMAN PAKISTAN AERONAUTICAL COMPLEX BOARD, KAMRA and others---Respondents

Civil Petitions Nos. 657 to 662 of 2020, decided on 5th July, 2022.

(Against the judgment dated 11. 12.2019 passed by the Federal Service Tribunal, Islamabad, in Appeals. Nos. 1096(R)CS/2019, 1103(R)CS/2019, 1106(R)CS/2019, 1107(R)CS/2019, 1108(R)CS/2019 and 1109(R)CS/2019)

(a) Pakistan Aeronautical Complex Board Ordinance (XXVIII of 2000)---

----Ss. 3 & 7(a)---PAC Board Employees (Service) Rules, 2002, Rr. 2 & 4(g)---Employees of Mirage Rebuild Factory, Kamra appointed before promulgation of the Pakistan Aeronautical Complex Board Ordinance, 2000 ('the PACB Ordinance')---Whether civil servants or employees of the Pakistan Aeronautical Complex Board ('the PAC Board')---Option to remain a civil servant not exercised---Approbate and reprobate, doctrine of---Applicability---On one hand, the petitioners (employees) were asserting that they submitted the option ( to remain civil servants) but on the other hand, their never-ending and non-stop attempts in the departmental examination unambiguously corroborated that they never submitted any option (to remain civil servants) in keeping with the requirements laid down in the PACB Ordinance---Petitioners intermittently appeared in the departmental examinations starting from the year 2012 to 2018, but nobody could qualify the examination which was a precondition for awarding promotion---Demeanor of petitioners signified they assented and acquiesced to be governed by the PACB Ordinance and the PAC Board Employees (Service) Rules, 2002 ('the PACB Rules'), rather than being governed under the Civil Servants Act, 1973 and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ('the APT Rules')---It was clear from the conduct of the petitioners that, after failure in the departmental examinations, a fall back stand was set in motion that the promotion cases of the petitioners should be processed in accordance with the APT Rules, being civil servants, and not as the employees of the PAC Board without submitting their option at the relevant time when they were afforded an opportunity to segregate themselves from the purview of the PACB Rules, but they failed to do so despite receiving an evenhanded and fair opportunity---Plea of the petitioners was also hit by the doctrine of approbate and reprobate---It was also beyond any logical comprehension that according to the petitioners they were forced to sit in the examination, but they never put forward any objection or reservation, nor anything was brought on record to show that they appeared in the examinations without prejudice to their right to challenge---First right of refusal was extended in terms of PACB Ordinance to opt the new service rules and service structure of the PAC Board according to the scheme of restructuring and reorganization, which cannot be construed the violation or infringement of any fundamental rights of the petitioners but it was founded on consensual act of every individual employee without any compulsion or pressure and the particular portion or provision of law inviting options from the employees was never challenged by the petitioners---Petitions for leave to appeal were dismissed and leave was refused.

Pakistan Aeronautical Complex through Chairman and others v. Nazar-ul-Islam 2019 SCMR 1933 ref.

(b) Words and phrases---

----Maxim 'qui approbat non reprobat' (one who approbates cannot reprobate)---Meaning and scope---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.

Muhammad Aftab Alam Rana, Advocate Supreme Court for Petitioners.

Ayaz Shaukat, DAG, Wing Commander, Muhammad Kamran Haider Ali, Superintendent for Respondents.

2023 S C M R 1434

[Supreme Court of Pakistan]

Present: Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

M. HAMAD HASSAN---Petitioner

Versus

Mst. ISMA BUKHARI and 2 others---Respondents

Civil Petition No. 1418 of 2023, decided on 17th July, 2023.

(Against the judgment dated 16.12.2022, passed by the Peshawar High Court, Peshawar, in W.P. No. 3885-P of 2019)

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Constitutional jurisdiction of the High Court, as provided in Article 199 of the Constitution, is well-defined and its invocation is limited in scope against appellate decisions---Objective of Article 199 of the Constitution is to foster justice, protect rights and correct any wrongs, for which, it empowers the High Court to rectify wrongful or excessive exercise of jurisdiction by lower courts and address procedural illegality or irregularity that may have prejudiced a case---However, constitutional jurisdiction cannot be invoked as a substitute for a revision or an appeal---High Court in constitutional jurisdiction cannot reappraise the evidence and decide the case on its facts---Interference is on limited grounds as an exception and not the rule---High Court, in its capacity under Article 199, lacks the jurisdiction to re-examine or reconsider the facts of a case already decided by lower courts---Its role is limited to correcting jurisdictional errors and procedural improprieties, ensuring the proper administration of justice.

Shajar Islam v. Muhammad Siddique PLD 2007 SC 45; Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another 2023 SCMR 246 and Arif Fareed v. Bibi Sara and others 2023 SCMR 413 ref.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of the High Court---Scope of constitutional jurisdiction of the High Court while hearing petitions against appellate decisions, particularly in family cases---In the absence of a second appeal, the decision of the appellate court is considered final on the facts and it is not for High Court in its constitutional jurisdiction to offer another opportunity of hearing, especially in family cases where the legislature's intent to not prolong the dispute is clear---High Court in its constitutional jurisdiction should not substitute and adjudicate on the facts and tender its opinion, as it amounts to having an appeal out of the Appellate Court's judgment.

In the present case the respondent (wife) and her minor son filed a suit before the family court for recovery of dower, maintenance allowance and dowry articles, etc. The suit was decreed and later upheld by the appellate court. Subsequently, the petitioner (husband) filed a writ petition before the High Court challenging the factual determinations of the lower courts in respect of the quantum of maintenance allowance, dower amount, recovery of dowry articles amongst other grounds. Regrettably the High Court fell in error and adjudicated upon the case on facts which falls outside the mandate of Article 199 of the Constitution. The High Court could have interfered to prevent miscarriage of justice, which is not established in the instant case. In fact the High Court substituted and adjudicated on the facts and tendered its opinion, which amounts to having an appeal out of the Appellate Court's judgment.

Petitioner pursued his case through the family court and its appeal in the district court and then also invoked the High Court's constitutional jurisdiction to reargue his case amounting to a wrongful exercise of jurisdiction whereby the High Court upheld the factual findings of appellate court after making its own assessments on the same. Allowing a re-argument of the case constituted to arguing a second appeal which should not have been entertained regardless of the outcome of the case.

The right to appeal is a statutory creation, either provided or not provided by the legislature; if the law intended to provide for two opportunities of appeal, it would have explicitly done so. In the absence of a second appeal, the decision of the appellate court is considered final on the facts and it is not for High Court to offer another opportunity of hearing, especially in family cases where the legislature's intent to not prolong the dispute is clear. The purpose of this approach is to ensure efficient and expeditious resolution of legal disputes. However, if the High Court continues to entertain constitutional petitions against appellate court orders, under Article 199 of the Constitution, it opens floodgates to appellate litigation.

Once a matter has been adjudicated upon on fact by the trial and the appellate courts, constitutional courts should not exceed their powers by re-evaluating the facts or substituting the appellate court's opinion with their own - the acceptance of finality of the appellate court's findings is essential for achieving closure in legal proceedings conclusively resolving disputes, preventing unnecessary litigation, and upholding the legislature's intent to provide a definitive resolution through existing appeal mechanisms. Petition for leave to appeal was dismissed and leave was declined.

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner along with Petitioner in person

Nemo for Respondents.

2023 S C M R 1442

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

SPECIAL SECRETARY-II (LAW AND ORDER), HOME AND TRIBAL AFFAIRS DEPARTMENT, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and others---Petitioners

Versus

FAYYAZ DAWAR---Respondent

Civil Petition No. 3750 of 2020, decided on 14th June, 2022.

(Against the judgment dated 08.09.2020 passed by the Peshawar High Court, Peshawar in W.P. 2683-P of 2019)

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Disputed questions of fact---Expression 'alternate remedy'---Meaning---Scope and purpose of constitutional jurisdiction of High Court stated.

Disputed questions of facts cannot be entertained and adjudicated in the writ jurisdiction (of the High Court).

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 and Fida Hussain and another v. Mst. Saiqa and others 2011 SCMR 1990 ref.

In the constitutional jurisdiction, the High Court cannot go into miniature and diminutive details which could only be resolved by adducing evidence by the parties vice versa. The extraordinary jurisdiction under Article 199 of the Constitution is envisioned predominantly for affording an express remedy where the unlawfulness and impropriety of the action of an executive or other governmental authority could be substantiated without any convoluted inquiry. The expression "adequate remedy" signifies an effectual, accessible, advantageous and expeditious remedy.

Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 ref.

To effectively bar the jurisdiction of the High Court under Article 199 of the Constitution the remedy available under the law must be able to accomplish the same purpose which is sought to be achieved through a petition under Article 199. The other remedy in order to be adequate must be equally convenient, beneficial and effective and the relief afforded by the ordinary law must not be less efficacious, more expensive and cumbersome to achieve as compared to that provided under Article 199.

Gul Ahmed Textile Mills Ltd v. Collector of Customs Appraisement 1990 MLD 126; Pak. Metal Industries v. Assistant Collector 1990 CLC 1022; Allah Wasaya v. Tehsildar/AC 1st Grade 1981 CLC 1202; Syed Riaz Hussain Zaidi v. Muhammad Iqbal PLD 1981 Lah. 215 and Abdul Hafeez v. Chairman, Municipal Corporation PLD 1967 Lah. 1251 ref.

The object of proceedings under Article 199 of the Constitution is the enforcement of a right and not the establishment of a legal right and, therefore, the right of the incumbent concerned which he seeks to enforce must not only be clear and complete but simpliciter and there must be an actual infringement of the right.

Asadullah Mangi and others v. Pakistan International Airline Corporation 2005 SCMR 445 ref.

(b) Constitution of Pakistan---

----Art. 199---Compensation claim under a Government Policy---Constitutional petition, filing of---Laches---Principles---If the remedy of filing a constitutional petition is not availed within reasonable time, the interference can be refused on the ground of laches---Question of laches in constitutional petition is always considered in the light of the conduct of the person invoking the constitutional jurisdiction.

If the remedy of filing a constitutional petition is not availed within reasonable time, the interference can be refused on the ground of laches. Delay would defeat equity which aids the vigilant and not the indolent. Laches in its simplest form means the failure of a person to do something which should have been done by him within a reasonable time. Question of laches in constitutional petition is always considered in the light of the conduct of the person invoking the constitutional jurisdiction.

Umar Baz Khan v. Syed Jehanzeb and others PLD 2013 SC 268; Farzand Raza Naqvi and others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400; State Bank of Pakistan v. Imtiaz Ali Khan and others 2012 SCMR 280 = 2012 PLC (C.S.) 218 and Asghar Khan and others v. Province of Sindh and others 2014 PLC (C.S.) 1292 ref.

In the present case the alleged claim of compensation is based on the damages caused in the year 2007, but the respondent filed his writ petition in the year 2019, which is virtually after 12 years. Notwithstanding the crucial aspect that a factual controversy cannot be decided in writ jurisdiction, the writ petition was also hit by laches which essential point at issue was not considered by the High Court in the impugned judgment. Merely advancing a plea that the respondent/ affectee was engaged in correspondence with different government officials for pursuing his claim does not protect or save the respondent from the drawbacks or impediments of the doctrine of laches which explicates that a party may have a right which was otherwise enforceable but loses right of its enforcement in case it is hit by laches. Petition for leave to appeal was converted into appeal and allowed, impugned judgment of the High Court was set-aside and the writ petition filed by the respondent in the High Court was dismissed.

Shumail Aziz, Additional A.G. Khyber Pakhtunkhwa, Zayed Safi, AC and Mir Ali for Petitioners.

Respondent in person.

2023 S C M R 1450

[Supreme Court of Pakistan]

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

MUHAMMAD UMER SHAHZAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 1618-L of 2022, decided on 6th June, 2023.

(Against the order dated 03.10.2022 passed by Lahore High Court, Lahore in Crl. Misc. No. 49630-B of 2022)

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss. 324, 379, 337-A(i), 337-L(2), 109, 148 & 149---Murderous assault---Bail, grant of---Statutory delay in conclusion of trial---In the present case, the statutory period was one year, whereas the accused was behind bars for a period of more than two years----Charge in the case was framed for the first time on 17-01-2023 and since then there was no fault on the part of accused qua delay in the trial---Although subsequently certain dates were obtained but they were not relevant because prior to framing of charge there was no delay on part of accused and he became entitled to concession of bail on statutory ground of delay in conclusion of trial---Petition for leave to appeal was converted into appeal and allowed, and accused was enlarged on bail.

Naveed Inayat Malik, Advocate Supreme Court (through video link for Lahore) for Petitioner.

Complainant in person.

Mirza Abid Majeed, D.P.G. Punjab, Javed Iqbal, ASI and Kamran, SI for the State.

2023 S C M R 1451

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Muhammad Ali Mazhar, J

ABID JAN---Petitioner

Versus

MINISTRY OF DEFENCE through Secretary, Islamabad and others---Respondents

Civil Petition No. 2467 of 2020, decided on 4th April, 2023.

(Against Order dated 18.08.2020 passed by the Federal Service Tribunal, Islamabad in Appeal No. 141(P)CS/2022)

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

----S. 4---Constitution of Pakistan, Arts. 199 & 212---Constitutional petition filed by the civil servant before the High Court instead of approaching the Federal Service Tribunal (FST)---High Court instead of dismissing or non-suiting the petitioner on the question of jurisdiction, observed that the writ petition should be treated as a Service Appeal and remitted it to the FST for its disposal in accordance with law---High Court directed the Office to retain a copy of the writ petition and send the original memo of the petition along with its annexures to the FST at the earliest possible date---Federal Service Tribunal (FST) dismissed the appeal on the ground of limitation rather than deciding the appeal on merits---Legality---High Court's purpose of sending the original memo of petition to the FST was to entertain and register it as a Service Appeal rather than subpoenaing the petitioner (civil servant) to submit any fresh or amended memo of appeal---When the original writ was directed to be transmitted to the FST by the High Court, then it was neither within the dominion of the petitioner to present the fresh memo of appeal by himself, nor was he obligated to submit a fresh memo of appeal which would otherwise have become time barred when, in order to save the lis from the rigors of limitation, the writ petition was converted into an appeal---Indeed, the matter of transmitting the memo of the writ petition after its conversion to the FST was, in all fairness, a matter between the Office of the High Court and FST---When the writ petition was treated as a Service Appeal and transmitted to the FST, then non-suiting the petitioner on the ground of limitation was not justified and the proper course was to issue notice to the respondent and, after providing ample opportunity of hearing to the parties, the Service Appeal should have been decided on merits as opposed to a technical knock-out---Petition for leave to appeal was converted into an appeal and allowed, impugned judgment of the Federal Service Tribunal was set aside and the matter was remanded back to decide the appeal afresh after providing a proper opportunity of hearing to both the parties.

Muhammad Akram v. DCO, Rahim Yar Khan and others 2017 SCMR 56; Abdul Qadoos v. Commandant Frontier Constabulary, KPK, Peshawar and another 2023 SCMR 334 and Government of the Punjab, through Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others 2022 SCMR 25 ref.

(b) Administration of justice---

----Maxim 'actus curiae neminem gravabit'---Scope---It is the foremost duty of a Court and Tribunal to do complete justice---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 that an act of the Court shall prejudice no one, and this principle also denotes the extensive pathway for the safe administration of justice---It 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 beyond doubt that no person should suffer because of a delay in procedure or the fault of the Court---Court and Tribunal should be conscious and cognizant that nobody should become a victim of injustice as a consequence of their mistake and, in the event of any injustice or harm suffered by mistake of the Court, it should be remedied by making the necessary correction forthwith---According to the principle of restitution, 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.

Homoeo Dr. Asma Noreen Syed v. Government of the Punjab through its Secretary Health, Department and others 2022 SCMR 1546 = 2022 PLC (C.S) 1390 ref.

Riaz H. Rahi, Advocate Supreme Court for Petitioner.

Nasir Mehmood, Advocate Supreme Court (through video link at Peshawar) for Respondents.

2023 S C M R 1502

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

Messrs TRI-STAR INDUSTRIES (PVT.) LIMITED---Petitioner

Versus

TRISA BURSTENFABRIK AG TRIENGEN and another---Respondents

Civil Petition No. 1496-K of 2021, decided on 27th April, 2023.

(Against judgment dated 15.7.2021 passed by the High Court of Sindh at Karachi in M.A. No. 10 of 2004)

(a) Interpretation of statutes---

----Directory and mandatory provisions---Distinction---In order to comprehend the true spirit of any provision, whether it is mandatory or directory, the conception, acumen and stratagem of the Act and the enabling Rules should be considered for proper resolution---For such purpose Court has to scrutinise the pith and substance and not exclusively the form---Sometimes a provision in the legislation seems to be mandatory, but substantially it is directory and, inversely, sometimes a provision seems to be directory but in quintessence it is found to be mandatory for compliance, therefore, for all practical purposes, it is the fundamental nature which counts and should take preference and affinity more than the form---If a provision gives a power as well as a duty, it is mandatory and the enabling text of law and rules should be interpreted as obligatory so that the underlying principle and raison d'etre is not contravened or flouted.

(b) Trade Marks Act (V of 1940) [since repealed]---

----S. 15(2)---Revised Trade Marks Rules, 1963. Rr. 30 & 76---Trademark---Opposition to registration of trademark---Limitation---Extension of time to file opposition---Registrar of Trademarks, discretion of---Scope---While exercising power to grant the extension of time to file opposition, the Registrar of Trademarks must be satisfied that the circumstances are such as to justify an extension of time with a further rider that the extension granted shall not exceed a period of more than one month at a time, provided that the total period of such extensions shall not exceed six months against each statutory period prescribed---Registrar should act with proper application of mind inasmuch as the powers conferred by the Rule do not permit the Registrar to entertain and grant extension in a mechanical or perfunctory manner.

A perusal of Rule 76 of the Revised Trade Marks Rules, 1963 ('the Rules') clearly expounds that, while exercising power to grant the extension of time to file opposition, the Registrar of Trademarks must be satisfied that the circumstances are such as to justify an extension of time with a further rider that the extension granted shall not exceed a period of more than one month at a time, provided that the total period of such extensions shall not exceed six months against each statutory period prescribed. The exactitudes of the aforesaid rule accentuate that before granting extension, the Registrar should act with proper application of mind inasmuch as the powers conferred by the Rule do not permit the Registrar to entertain and grant extension in a mechanical or perfunctory manner, rather he should be satisfied that the extension is justified.

The jurisdiction and powers to grant extension up to six months period is not an automatic or unstructured exercise but it should be justiciable and rational coupled with the precondition of "satisfaction" of the Registrar before granting any extension. According to Rule 76, no extension could be accorded longer than a month at a time which reckons that the extension should have been sought on a monthly basis and after satisfying himself the Registrar could consider the grant of extension or refuse the same. Neither it is the intention of the Rule making authority that since outer limit of six months is provided under the Rules, therefore, without complying with the provisions contained under Rule 76, the Registrar may entertain delayed requests ipse dixit and/or allow all requests for extension in one go or all at once and grant the requests, nor that the person seeking extension may apply for antedated extensions without incorporating plausible reasons for extension, nor can he dispatch all applications or requests simultaneously without being sensitized to the insinuated rudiments for applying extension on monthly basis consistent with the precisions of Rule 76.

In the present case it is clearly manifesting from the decision of the Registrar Trade Marks that the petitioner filed four requests for extension of time to file opposition in one go and on the same date. The petitioner attached all four requests with a Civil Miscellaneous Application which shows that stereotypical applications for extension of time were filed without providing any justification or reason for extension. All four requests were transmitted by post on one and the same date i.e. 11.03.2003, and in every application a one month extension was sought. The first request is dated 22.11.2002; second is dated 22.12.2002; third is dated 22.1.2003; last one is dated 22.2.2003 and all requests were sent to the Registrar by post on 11.03.2003 and he condoned the delay of 108 days without adverting to the ground reality and without adhering to statutory compliance that extension of time could not exceed a period of more than one month at a time, provided that the total period of such extensions shall not exceed six months.

The Registrar down rightly failed to consider that neither any satisfactory reason was assigned in the applications for extension except that "more time is required to prepare opposition application", nor extension was applied for promptly on a monthly basis. Despite that antedated extension was accorded by the Registrar by dint of his decision which was rightly set aside by the High Court. Petition for leave to appeal was dismissed and leave as refused.

(c) Administration of justice---

----Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law without deviating from the prescribed procedure, and where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all.

Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505; State Life Insurance Corporation of Pakistan through Chairman and another v. Director-General, Military Lands and Cantonments, Rawalpindi and others 2005 SCMR 177; Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086; Province of Punjab through Secretary, Excise and Taxation Department, Lahore and others v. Murree Brewery Company Limited and another 2021 SCMR 305; Federation of Pakistan through Secretary, Finance, Islamabad and another v. E-Movers (Pvt.) Limited and another 2022 SCMR 1021; Nazir Ahmad v. King Emperor [1936 SCC OnLine PC 41] and Chandra Kishore Jha v. Mahavir Prasad and others (1999) 8 SCC 2661 ref.

(d) Interpretation of statutes---

----Principles relating to interpretation of statutes stated.

It is a fundamental canon of interpretation and understanding that the statute should be read in its mundane, natural and grammatical meaning in order to give effect with proper construction. If the language of the statute is plain and instantly recognizable then there should be no question of its construction or interpretation by the Court. A construction which diminishes the statute to a futility has to be avoided rather it should be construed as a workable instrument. It is the foremost duty of the Court to figure out the intention of the legislature through word for word meaning and if it admits only one meaning, no further interpretation is required except that meaning which should be put into effect in view of the legal maxims "Absoluta sentential expositore non indiget" (clear and unambiguous text should be read according to its plain meaning rather than with reference to secondary sources of interpretation); "Ut res magis valeat quam pereat" (An enacting provision or a statute has to be so construed to make it effective and operative); and, "A verbis legis non-est recedendum" (A provision of the law shall not depart or from the words of law there must be no departure).

Muhammad Umar Lakhani, Advocate Supreme Court and Tahir Ahmed, Director, Tri-Star Industries for Petitioner.

Hassan Irfan Khan, Advocate Supreme Court (via video link from Islamabad), Ms. Amna Salman, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondent No. 1.

S. Atta Muhammad Shah, Assistant Registrar, Trade Mark for Respondent No. 2.

2023 S C M R 1514

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

JUNAID ALI---Petitioner

Versus

The STATE through Advocate-General, Khyber Pakhtunkhwa and another---Respondents

Criminal Petition No. 1578 of 2022, decided on 15th February, 2023.

(Against the order dated 03.10.2022, passed by the Peshawar High Court, Peshawar in Criminal Miscellaneous Bail Application No. 2330-P of 2022)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, unlicensed possession of arms---Bail, grant of---Further inquiry---No direct evidence available against the accused---Counsel for complainant and law officer could not point out any material connecting the accused with the crime---At present stage, except the statement of the complainant under section 164, Cr.P.C., in which although he had pointed out his accusing finger towards the accused, but the said pointation was without any source or material---Due to such reasons the case of the accused called for further enquiry falling under subsection (2) of section 497, Cr.P.C.---Petition for leave to appeal was converted into an appeal and allowed, and the accused was released on bail.

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

Muhammad Akram Gondal, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Respondent No. 2.

Zahid Yousaf Qureshi, Additional Advocate General, Khyber Pakhtunkhwa for the State.

2023 S C M R 1516

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

Messrs ISLAMABAD ELECTRIC SUPPLY COMPANY LIMITED (IESCO)

through Finance Director, Islamabad---Petitioner

Versus

The APPELLATE TRIBUNAL INLAND REVENUE (H.Q), ISLAMABAD through Chairman and others---Respondents

Civil Petitions Nos. 1920 to 1924 of 2022, decided on 10th August, 2022.

(Against the Judgment dated 09.03.2022 passed by the Islamabad High Court, Islamabad in I.T.Rs. Nos. 205, 208, 206, 209, 207 of 2015)

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

----Ss. 161, 177 & 205---Islamabad Electric Supply Company Limited (IESCO)---Failure to deduct and collect withholding tax---Order passed under sections 161 & 205 of the Income Tax Ordinance, 2001 without recourse to proceedings under section 177---Legality---Course of action and benchmark enumerated under section 161 of the Income Tax Ordinance, 2001 ('the Ordinance') is not contingent upon the compliance of pre-audit requirements mentioned under section 177, nor does section 177 of the Ordinance override or overlap the provisions contained under section 161 of the Ordinance as a precondition of audit, rather both the provisions are, in all fairness, seemingly independent with self-governing corollaries---In the present case the proceedings initiated by the Deputy Commissioner (IR) under sections 161 & 205 read with section 124 of the Ordinance reflected that the Principal Officer of the petitioner (Electric Supply Company) was confronted with the Audited Accounts electronically filed for the concerned tax years showing huge payments of operating cost and P & L expenses, which were cross-matched with the withholding statements, and Income Tax Returns, whereby it was found that petitioner had not discharged their responsibility as a withholding agent in the prescribed manner---Petitioner was called upon to file documentary evidence of payments with CPR Numbers, so that the tax deduction amount could be verified and credit of tax deduction could be allowed accordingly---Proceedings under sections 161 & 205 of the Ordinance were finalized and an order was issued with the tax demand, however, on an appeal filed before the Commissioner, the Commissioner Inland Revenue (Appeals), remanded the matter---After remand, the petitioner was asked to provide detail of payments made on account of various expenses with relevant supporting documents but the petitioner repeatedly asked for adjournments on one pretext or another and avoided submitting relevant documents or an explanation on the issue of non-deduction/non-collection of tax as required under the Ordinance---Order of the Deputy Commissioner (IR) passed after remand, the Appellate Order of the Commissioner Inland Revenue, and order of Appellate Tribunal Inland Revenue, all pointed out the same fact that sufficient opportunities were provided to the petitioner but it failed to provide relevant documents or details, hence no option was left except to pass the order on the basis of the available record---Petitions for leave to appeal were dismissed and leave was refused.

Commissioner Inland Revenue Zone-I, LTU v. MCB Bank Limited 2021 SCMR 1325 distinguished.

(b) Interpretation of statutes---

----Well recognized rule of construction or interpretation of any statute or its particular provision is that the intention of the legislature must be discovered from the words used---If the words used are capable of one construction only, then it would not be open to the courts to adopt any other hypothetical construction---If the words of a statute or its any provision are readily understood without any ambiguity, then obviously, it is not for the court to raise any doubt as to what they mean for any contrary view, rather the same should be implemented without any hesitation.

Fawcett Properties v. Buckingham County Council [1961] AC 636 ref.

(c) Interpretation of statutes---

----Legislature doesn't use superfluous or insignificant words in a provision or statute therefore, while interpreting any word or terms in a statute a construction that makes the statute operative and the words pertinent must be preferred to the one that renders the words ineffective, void and useless---Statute is supposed to be an authentic repository of the legislative will and the function of a court is to interpret it according to the intent of who made it---Court should as far as possible avoid that construction which attributes irrationality to the legislature---It must obviously prefer a construction which renders the statutory provision constitutionally valid rather than that which makes it void.

CST v. Mangal Sen Shyam Lal AIR 1975 SC 1106; K.P. Varghese v. ITO [1981] 131 ITR 597 (SC) and State of Punjab v. Prem Sukhdas [1977] 3 SCR 403 ref.

Haseeb Shakoor Paracha, Advocate Supreme Court for Petitioner (in all cases).

Dr. Farhat Zafar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in all cases).

Naeem Hasan Secretary (Lit), FBR.

2023 S C M R 1560

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

TELENOR MICROFINANCE BANK LIMITED---Petitioner

Versus

SHAMIM BANO and others---Respondents

Civil Petitions Nos. 329-K to 391-K of 2022, decided on 28th April, 2023.

(On appeal from Order dated 03.12.2021 of the High Court of Sindh Circuit Court, Hyderabad in M.As. Nos. 3-12/2021 and 31-83/2021)

Microfinance Institutions Ordinance (LV of 2001)---

----S. 6(1)---Civil Procedure Code (V of 1908), O. XXXVII, Rr.1 & 2---Negotiable Instruments Act (XXVI of 1881), Ss. 4 & 13---Microfinance institution/bank---Default in payment of loan---Promissory note integral part of finance agreement---Summary suits filed by the Bank before Trial Court on basis of promissory notes---Maintainability---High Court directed the petitioner-Bank to file civil suits for recovery in the plenary jurisdiction of the civil court instead of summary suits under Order XXXVII, C.P.C.---Validity---Trial Court and the Appellate Court both ignored the fact that the promissory note was an integral part of the finance agreement and a specific condition was incorporated in the finance agreement which expounded that the borrowers of the loan, being the customers and guarantors, solemnly declared that their signatures and thumb impression shall be deemed as the whole agreement or acceptance for all documents including but not limited to the finance agreement, promissory note, hypothecated goods, letter of pledge, MODT, authority of encashment, marking of lien and all relevant affidavits with regard to loan and authorized the bank to use each of them as part of the agreement under their relationship---Petitioner-bank rightly invoked the jurisdiction of the Court under the summary chapter on the strength of the promissory note which was printed in the finance agreement in a separate head---Concurrent finding recorded by the Courts below that the suits for recovery should have been filed in the plenary jurisdiction of the civil court rather than summary jurisdiction was misconceived and erroneous---Courts below only relied upon the finance agreement without adverting to its terms and conditions and the integral documents appended thereto and returned the plaint in a slipshod and injudicious manner---All the prerequisites required to be followed were fulfilled at the time of issuing the promissory notes and the summary suits were rightly filed under the summary chapter---Petitions for leave to appeal were converted into appeals and allowed.

Jahanzeb Awan, Advocate Supreme Court assisted by Rasheed Mehar and Subhan Tasleem, Advocates and Muhammad Iqbal Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2023 S C M R 1568

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

MASKEEN ULLAH and another---Petitioners

Versus

The STATE and another---Respondents

Jail Petition No. 816 of 2017 and Criminal Petition No. 775-L of 2016, decided on 14th June, 2023.

(On appeal against the judgment dated 16.05.2016, passed by the Lahore High Court, Lahore in Criminal Appeal No. 232 of 2012 and Murder Reference No. 81 of 2012)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Day time occurrence--- Promptly lodged FIR--- Prompt post-mortem examination---Occurrence had taken place in a broad day light that too, at a place where certain shops were also available and the place of occurrence as well as the time of occurrence had not been disputed---Occurrence took place at 5:15 p.m. and after the occurrence, it was the priority of eye-witnesses, being father and brother of the deceased to shift the injured/deceased to the hospital, but he succumbed to the injuries on the way---Thereafter, they brought back the dead body to their house and complainant proceeded to the Police Station which was at a distance of 21 kilometers away from the place of occurrence and lodged the report at 8:00 p.m.; so there was no conscious delay in lodging the FIR, as prior to that the anxiety of the close relatives was to make efforts to save life of their nearer one---Promptness of the FIR also eliminated the chance of consultation and deliberation. It is also a circumstance that after registration of the FIR, the police party again travelled back to the house of the complainant, where dead body was lying---Inquest report and injury statement was prepared there and thereafter dead body was dispatched to the hospital where on the same night at 5:00 a.m. the postmortem was conducted. So any delay in conducting the postmortem was also explained from the circumstances, especially when Police Station was at a distance of 21 kilometers from the place of occurrence---Both the Courts below after appraisal and re-appraisal of the entire evidence rightly came to the conclusion regarding guilt 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--- Reappraisal of evidence---Eye-witnesses closely related to deceased---Inconsequential---Ocular account consisted of statements of two witnesses, who were close relatives of the deceased but they had no motive to falsely implicate the accuse in this case---Both of them remained consistent on each and every material point and despite cross-examination their testimonies could not be shattered---Although said witnesses made statement against the accused after about more than five and half years of the occurrence, thus, minor discrepancies were bound to occur after such a long span of time---Both the witnesses gave details of the occurrence and also clarified the manner in which the accused along with co-accused attacked upon the complainant and it was the accused who fired three shots upon the deceased---Eye-witnesses being close relatives of the deceased were not expected to let off the real culprit and involve the accused in this case falsely especially, when it was not even suggested that they had any enmity, animosity or reason to falsely implicate him in this case---From the testimony of both the witnesses it was quite clear that they were truthful and reliable witnesses---Willful and unexplained abscondence of accused fully corroborated the ocular account as he did not give any plausible explanation of his long abscondence---Both the Courts below after appraisal and re-appraisal of the entire evidence rightly came to the conclusion regarding guilt of the accused---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Medical evidence corroborating ocular account---Ocular account was fully supported by the medical evidence---Duration given by the doctor also coincided with the time of occurrence---According to the witnesses, accused fired three shots upon deceased and the doctor also found three entry wounds on the person of the deceased, so the medical evidence fully supported the ocular account which otherwise was truthful and reliable---Both the Courts below after appraisal and re-appraisal of the entire evidence rightly came to the conclusion regarding guilt of the accused---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Petition for enhancement of sentence, dismissal of---Mitigating circumstances already taken into consideration by the High Court---High Court while taking into consideration that the motive was not established by the prosecution, and that the crime empties were not recovered from the place of occurrence and there was no positive report of Forensic Science Laboratory, reduced the sentence of the accused from death to life---Not a single eye-witness of the motive was ever produced; even the ladies who were allegedly teased were not produced, and no report for the same was lodged in the Police Station---High Court had rightly disbelieved the motive---Petition seeking enhancement of sentence of accused was dismissed.

Malik Matee Ullah, Advocate Supreme Court (via video link from Lahore) for Petitioners (in J.P. No. 816 of 2017).

Muhammad Zubair Saeed, Advocate Supreme Court for Petitioners (in Criminal Petition No. 7750-L of 2016).

Muhammad Jaffar, Additional P.G. Punjab (via video link from Lahore) for the State.

2023 S C M R 1595

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

CIVIL APPEAL NO. 1275 OF 2009, AND C.M.A. NO. 6731 OF 2018

(On appeal from the judgment dated 09.02.2005 passed by the High Court of Sindh at Karachi in I.T.A. No. 915 of 1999)

CIVIL APPEALS NOS. 1292 TO 1296 OF 2009 AND CIVIL APPEAL NO. 227 OF 2011

(On appeal from the judgments dated 15.04.2008 and 22.06.2009 passed by the Lahore High Court, Multan Bench, Multan in T.Rs. Nos. 3, 4, 5, 6, 7 and 8 of 2008)

The COMMISSIONER OF INCOME TAX, COMPANIES ZONE-II, NEW INCOME TAX BUILDING, SHAHRAH-E-KAMAL ATTATURK, KARACHI and another---Appellants

Versus

Messrs PAK SAUDI FERTILIZERS LTD., KARACHI through M.D. and another---Respondents

Civil Appeal No. 1275 of 2009, C.M.A. No. 6731 of 2018, Civil Appeals Nos. 1292 to 1296 of 2009 and Civil Appeal No. 227 of 2011, decided on 13th March, 2023.

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

----S. 80-C---Contract Act (IX of 1872), S. 182---Sale of Goods Act (III of 1930), Ss. 19 & 20--- Presumptive tax regime--- Fertilizer manufacturing company and marketing company---Whether principal-agent relationship---Income Tax Appellate Tribunal held that as marketing company was an agent of the fertilizer manufacturing company, hence, keeping in view the relationship of agent and principal, the manufacturing company could not claim any benefits under the presumptive tax regime provided under section 80-C of the Income Tax Ordinance, 1979 ('ITO 1979') and was liable to dealt with through normal assessment under section 62 of the I.T.O., 1979---High Court, however, held that the agreement between the two companies envisaged the outright sale of fertilizers manufactured by the manufacturing company to the marketing company, thus, the advance income tax deducted under section 50(4) of the I.T.O., 1979 upon the payments made by the latter to the former qualified to be treated as the income of the manufacturing company under section 80-C of the I.T.O., 1979 and the assessment should be finalized for the year in question under section 80-C of the I.T.O., 1979---Held, that survey and analysis of the terms and conditions of the 'Agreement' between the two companies showed that it was an agreement for outright sale by means of which the payments were being made in full after deduction of the advance income tax by the marketing company for settlement of invoices---Neither substratum of the agreement under lined any characteristics of agency nor contained any provision for agency commission---Even if issue of relationship between the companies was left to one side, section 80-C of the I.T.O., 1979 articulates that any amount received under which tax was deductible under Section 50(4) was deemed to be the total income tax liability of the assessee which was not disputed or resisted by the tax department in the present case, therefore, the amount received after deduction under section 50(4) was rightly deemed to be the total income tax liability and for all practical and legal purposes, the manufacturing company could not be deprived of the benefit of section 80-C of I.T.O., 1979---No irregularity or perversity was found in the impugned judgments passed by the High Court---Appeals were dismissed.

Bolan Beverages (Pvt.) Ltd. v. PepsiCo Inc. and 4 others PLD 2004 SC 860; Messrs Vijay Traders v. Messrs Bajaj Auto Ltd. 1995 SCC (6) 566; State of Mysore v. Mysore Spinning and Manufacturing Company Limited AIR 1958 SC 1002; Gordon Woodroffe & Co. v. Sheikh M. A. Majid & Co. AIR 1967 SC 181; Bhopal Sugar Industries Ltd. v. Sales Tax Officer, Bhopal 1977 SCR (3) 578; W.T. Lamb and Sons v. Goring Brick Company Limited (1932) K.B. 710; Hutton v. Lippert (1883) 8 A.C. 309 and Tirumala Venkateswara Timber and Bamboo Firm v. Commercial Tax Officer, Rajahmundry AIR 1968 SC 784 ref.

Dr. Shah Nawaz, Advocate Supreme Court (via video link from Karachi) for Appellants (in C.A. No. 1275 of 2009).

Zafar Iqbal Chaudhry, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record (via video link from Lahore) for Appellants (in C.As. Nos. 1292-1296 of 2009 and 227 of 2011).

Rashid Awan, Advocate Supreme Court (via video link from Karachi) for Respondents (in all cases).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 1 (in all cases).

2023 S C M R 1635

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

TASSADUQ HUSSAIN SHAH and others---Appellants

Versus

ALLAH DITTA SHAH and others---Respondents

Civil Appeals Nos. 8-L to 10-L of 2009, decided on 10th March, 2022.

(Against judgment dated 27.01.2003 of the Lahore High Court, Lahore passed in Civil Revisions Nos. 916-D to 918-D of 1993)

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

----Ss. 8 & 42---West Pakistan Border Area Regulation 1959 (MLR-9 of 1959), Para. 22---Suit for declaration and possession of immoveable property---'Adna Maliks'---Pursuant to the MLR of 1959, Adna Maliks were declared as owners of the land which they were occupying and tilling---Respondents/plaintiffs filed a suit for declaration and possession, claiming Adna Malkiat of the suit land with the contention that they were in possession of the suit land since their ancestors and were recorded as Adna Maliks in the last Jamabandi of 1943-1944---Respondents further claimed benefit of the MLR of 1959---Suit was contested by the appellants' defendant who stated that the respondents were not Adna Maliks, rather, they were tenants of the appellants and were paying the appellants a share from the produce generated from the suit land---Validity---Appellants had taken a contradictory stance; they have claimed that the respondents were in possession of the suit land as their tenants, and at the same time, before the High Court, the appellants had claimed to be self-cultivating the land---As such, they could not claim in the same breath that the respondents were their tenants in possession and, that the appellants are self-cultivating the land---Further, the appellants had not shown any document from the record which could establish that the respondents were the tenants of the appellants---Appellants had neither produced a tenancy agreement, nor produced any receipts of rent or any witnesses in the lower fora who may have deposed that there existed a landlord-tenant relationship between the parties---There exists documentary evidence on the record, showing cultivating possession of the respondents since before promulgation of the MLR of 1959 which abolished the status of Ala Malkiat and paragraph 22 of the MLR of 1959 read with the Notification of the West Pakistan Land Commission dated 3.3.1960 conferred rights on the respondents who were admittedly in cultivating possession since long and at the relevant time as well, that is, at the time of promulgation of MLR of 1959, which conferred rights on the respondents---Jamabandi of the year 1943-1944 clearly showed that the respondents were paying land revenue and, were recorded in the said Jamabandi as "Basharah Malik Bawajah Nowtor"---Jamabandi in question was an admitted document, and its authenticity had not been challenged on any legally sustainable ground---Jamabandi of 1943-44 predates MLR of 1959 by almost a decade, meaning thereby, that rights had accrued in favour of the respondents as Adna Malikaan even before MLR of 1959 was promulgated---Suit filed by respondents had been rightly decreed---Appeals were dismissed.

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

----Arts. 94 & 96---Oral and documentary evidence---Documentary evidence takes precedence over oral evidence.

M. Zubair Saeed, Advocate Supreme Court for Appellants.

Malik Noor Muhammad Awan, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondents.

Shaukat Rauf Siddiqui, Additional A.G., Punjab on Court's Notice.

2023 S C M R 1642

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Muhammad Ali Mazhar, J

GOVERNMENT OF KHYBER PAKHTUNKHWA though Chief Secretary Civil Secretariat, Peshawar and others---Petitioners

Versus

SHAH FAISAL WAHAB and others---Respondents

Civil Petition No. 614-P of 2022, decided on 3rd April, 2023.

(Against Order dated 20.04.2022 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in W.P. No.48-M of 2022)

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Scholarship Programme---Eligibility---Allegation of interpolation with regard to date of birth---Evidence presented by School Headmaster---No disputed questions of fact---High Court reached the conclusion that the date of birth of the respondent-candidate was the one being claimed by him and this was also authenticated and verified by the Headmaster on production of original record/extract from the schools admissions register---Merely directing one of the respondents to produce some documents for verification does not amount to an indulgence to resolve a factual controversy or a disputed question of fact---In order to resolve the issue of date of birth of a minor, the most appropriate authority was the Headmaster of the school who appeared and confirmed the correct date of birth as per the available record---In the present case, the question of ascertaining correct date of birth of the respondent did not require any external aid much less any oral evidence, but it was verified through documentary evidence produced by the Headmaster of the School, who was one of the respondents in the writ petition---Production of documents and verification by the Headmaster on notice of the High Court cannot be categorized within the realm and sphere of disputed question of facts---High Court is not powerless to undertake an enquiry on the basis of affidavits and admitted documents filed by the parties---High Court had rightly allowed the writ petition filed by the respondent---Petition for leave to appeal was dismissed and leave was refused.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Extraordinary jurisdiction under Article 199 of the Constitution is intended to provide an expeditious remedy in a case where the illegality of an impugned action can be established without any elaborate enquiry or recording of evidence---However if some complicated or disputed question of facts are involved, the adjudication of which is only possible to be resolved and decided by the Courts of plenary jurisdiction after recording evidence of the parties, then obviously the High Court should not embark on to decide convoluted issues of facts.

Sultan Mazhar Sher Khan, Additional A.G. Khyber Pakhtunkhwa for Petitioners.

Nemo for Respondents.

2023 S C M R 1645

[Supreme Court of Pakistan]

Present: Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

REHMAT NOOR---Appellant

Versus

ZULQARNAIN---Respondent

Civil Appeal No. 2121 of 2017, decided on 24th July, 2023.

(Against the judgment dated 19.10.2017 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision No. 77-D of 2011)

(a) Gift---

---Proof---Generally, the Courts follow a liberal approach towards evidence produced to prove the essential ingredients for a lawful gift, when it relates to one being gifted to a woman or minor child and that too by a close relative.

Ghulam Hassan v. Sarfraz Khan PLD 1956 SC 309; Alif Khan v. Mst. Mumtaz Begum and another 1998 SCMR 2124 and MZ Abbasi and SA Cheema, Family Laws in Pakistan (Oxford University Press 2018) ref.

(b) Gift---

----Proof---Alleged gift made by a brother in favour of his sister---Not proved---In the present case, apart from the admission of the objecting-son (respondent-plaintiff) regarding the possession of the disputed gifted property with the appellant-sister (donee), there was no reliable evidence to prove the actual transaction of an offer made by late donor and the same being accepted by his sister (alleged donee), so as to constitute a valid gift being made---In fact, the evidence so produced by the appellant-donee was essentially relating to the steps taken after the alleged oral gift was made, and in particular, the recording of the said gift in the revenue record---When the basic foundation of a fact was lacking, no legal superstructure could be built thereon---Though the effort was made to prove the entry of the gift being recorded in the revenue record, but proving the same could never substitute evidence to prove the essential ingredients of the original transaction of gift made by late donor to his sister (alleged donee)---Respondent failed to prove the instrument of gift mutation in line with the requirement of Article 79 of Qanun-e-Shahadat, 1984, as she examined only one witness of subject gift mutation, instead of two---Furthermore neither the concerned Revenue Officer or the Halqa Patwari were produced nor any effort was made for them to be produced through a court order---Original record of the mutation and Rapt Roznamcha was also not produced in the court to establish the genuineness of the mutation---Said deficiencies were enough to discredit the impugned mutation---In the instant case, there was no evidence produced by the appellant to substantiate her claim of receiving a valid gift of the disputed gift property from her deceased brother---Appeal was dismissed.

Hafiz Tassaduq Hussain v. Muhammad Din PLD 2011 SC 241; Mst. Rabia Gula v. Muhammad Junan 2022 SCMR 1009 and Ghulam Farid v. Sher Rehman 2016 SCMR 862 ref.

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

----S. 42---Mutation entries---Scope---Mutation is always sanctioned through summary proceedings and to keep the record updated and for collection of revenue such entries are made in the relevant Register under section 42 of the Land Revenue Act, 1967---Mutation has no presumption of correctness prior to its incorporation in the record of rights---Entries in mutation are admissible in evidence but the same are required to be proved independently by the persons relying upon it through affirmative evidence---Oral transaction reflected therein does not necessarily establish title in favour of the beneficiary---Mutation cannot by itself be considered a document of title---Proving a mutation can never vest title in a party over immovable property.

Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338 ref.

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

Raja Nadeem Haider, Advocate Supreme Court (through video-link, Lahore) for Respondent.

2023 S C M R 1652

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Muhammad Ali Mazhar, J

MUZAFAR IQBAL---Appellant

Versus

Mst. RIFFAT PARVEEN and others---Respondents

Civil Appeal No. 307 of 2017, decided on 29th March, 2023.

(Against the judgment dated 11.01.2017 passed by Lahore High Court, Rawalpindi in Regular Second Appeal No. 03 of 2014)

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

----S. 100 & O. XLI, R. 31---Second appeal---Scope of jurisdiction of High Court in Second Appeal under section 100, C.P.C. stated.

The jurisdiction of a High Court under section 100, C.P.C. is constricted to appeals encompassing a substantial question of law rather than causing interference on a pure question of fact and, while taking cognizance by means of second appeal under section 100, C.P.C., it is a foremost fragment of jurisdiction to formulate the question of law which is inherent in the spirit of such jurisdiction, hence, for all intents and purposes, the requirements of Order XLI, Rule 31, C.P.C. must be complied with, however, if it is conceivable from the judgment that substantial compliance has been made whereby the cause of justice has not suffered or depreciated, that would be sufficient for the safe administration of justice despite non-adherence to the said Rule stricto sensu. Instead the litmus test is to visualize from the perusal of the judgment whether the controversy between the parties has been decided with proper appraisement, weighing and balancing the evidence and law and, if it is manifested from the judgment, then obviously it would be valid even though it does not contain the points for determination.

Mir Abdullah v. Muhammad Ali and 2 others 1977 SCMR 280; Mst. Naziran Begum through Legal Heirs v. Mst. Khurshid Begum through Legal Heirs 1999 SCMR 1171; Abdul Majid and others v. Khalil Ahmad PLD 1955 Federal Court 38; Durga Chowdhrani v. Jawahir Singh Chowdhri ILR 18 Cal. 23; Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191; Pathana v. Mst. Wasai and another PLD 1965 SC 134; Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676; Shah Muhammad v. Sardar Habibullah Khan and others 1988 SCMR 72; Muhammad Tufail and 2 others v. Ghaus Muhammad through Legal Representatives PLD 2007 SC 26; Raruha Singh v. Achal Singh and others AIR 1961 SC 1097 and State Bank of India and others v. S.N. Goyal AIR 2008 SC 2594 ref.

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

----Ss. 96 & 100---Appeals under sections 96 & 100, C.P.C---Distinction stated.

There is a marked distinction between two appellate jurisdictions; one is conferred by section 96, C.P.C. in which the Appellate Court may embark upon the questions of fact, while in the second appeal provided under section 100, C.P.C., the High Court cannot interfere with the findings of fact recorded by the first Appellate Court, rather the jurisdiction is somewhat confined to the questions of law which is sine qua non for the exercise of the jurisdiction under section 100, C.P.C. The High Court cannot surrogate or substitute its own standpoint for that of the first Appellate Court, unless the conclusion drawn by lower fora is erroneous or defective or may lead to a miscarriage of justice, but the High Court cannot set into motion a roving enquiry into the facts by examining the evidence afresh in order to upset the findings of fact recorded by the first Appellate Court.

Mir Abdullah v. Muhammad Ali and 2 others 1977 SCMR 280; Mst. Naziran Begum through Legal Heirs v. Mst. Khurshid Begum through Legal Heirs 1999 SCMR 1171; Abdul Majid and others v. Khalil Ahmad PLD 1955 Federal Court 38; Durga Chowdhrani v. Jawahir Singh Chowdhri ILR 18 Cal. 23; Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191; Pathana v. Mst. Wasai and another PLD 1965 SC 134; Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676; Shah Muhammad v. Sardar Habibullah Khan and others 1988 SCMR 72; Muhammad Tufail and 2 others v. Ghaus Muhammad through Legal Representatives PLD 2007 SC 26; Raruha Singh v. Achal Singh and others AIR 1961 SC 1097 and State Bank of India and others v. S.N. Goyal AIR 2008 SC 2594 ref.

Junaid Iftikhar Mirza, Advocate Supreme Court for Appellant.

Azmatullah Chaudhry, Advocate Supreme Court for Respondents.

2023 S C M R 1660

[Supreme Court of Pakistan]

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

Qazi HUMAYUN---Petitioner

Versus

Mst. SABIHA QAYUM and others---Respondents

Civil Petition No. 4779 of 2019, decided on 26th October, 2021.

(On appeal from the judgment/order dated 04.09.2019 of the Peshawar High Court, Peshawar passed in FAB 28-P of 2010)

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

----O. XXI, R. 90---Execution of decree in favour of Bank---Auction proceedings---Objection petition regarding fraud in the passing of the decree and the sale carried out there-under---Judgment debtor in question was alive at the time of the compromise decree as well as the finalization of the sale of his share in the mortgaged property---Said judgment debtor did not challenge any of the actions taken in the proceedings leading to the decree and its realization in favour of the respondent decree holder Bank until his death on 08.10.2006---However, on 08.12.2007 his heirs i.e. respondents filed an application under Order XXI, Rule 90 of the C.P.C. alleging fraud in the passing of the decree and the sale carried out there-under---Held, that whereas the respondents disputed the compromise decree they brought no grievance against it before the Supreme Court---Moreover, the respondents' objections fail to disclose particulars of any fraud, illegality or irregularity alleged against the co-judgment-debtors one of whom was the petitioner before the Court---Present matter pertained to a decree passed in 1981 and satisfied in 2001 by sale of the shares of all nine co-owners of the mortgaged property accomplished through their compromise with the decree holder Bank---Predecessor of the respondents never challenged the decree nor the execution of the decree during his life time; he was aware of the proceedings because he was the Managing Director of the company that had committed default in repayment of loans to the respondent decree holder Bank---Decree was ultimately settled through contribution by all the judgment debtors, namely, the nine co-owners of the mortgaged property sold under the decree to settle the liability of the judgment debtor company---Respondents and their predecessor waited for six years to challenge in 2007 the sale of the mortgaged property effected in 2001---No explanation for the delay occasioned had been given by the respondents---Respondents belatedly approached the executing Court in 2007 to incompetently dispute the consent decree passed by the Supreme Court in the year 2000 before the wrong forum---In any event, the said objections failed to disclose any fraud committed by the other judgment debtors including the petitioner and decree holder Bank---Petition for leave to appeal was converted into appeal and allowed.

(b) Limitation---

----All objections regarding liability and its discharge come to a close after the lapse of the limitation period.

(c) Practice and procedure---

----Notice---Party residing outside Pakistan---Under the law service by publication is good service even in respect of parties living abroad.

Lilaram v. Ghulam Ali 1991 SCMR 932; Mir Wali Khan v. Manager, ADBP PLD 2003 SC 500 and Muhammad Attique v. Jami Limited PLD 2010 SC 993 ref.

Wasim Sajjad, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

M. Tariq Javed, Advocate Supreme Court for Respondents Nos. 1 - 3.

2023 S C M R 1665

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

Mst. MUSARAT PARVEEN---Petitioner

Versus

MUHAMMAD YOUSAF and others---Respondents

Civil Petition No. 174-Q of 2021, decided on 11th May, 2023.

(Against judgment dated 26.04.2021 passed by the High Court of Balochistan, Quetta in Civil Revision No. 380 of 2017)

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

----Ss. 5 & 14---Appeal, filing of---Limitation---Condonation of delay---Failure to explain delay in filing appeal---Petitioner (defendant) had failed to appear before the Trial Court willfully despite being provided with more than enough opportunities---Appeal of petitioner was also hopelessly barred by time and she failed to explain the delay so caused in filing of appeal reasonably---Contention of the petitioner that delay occurred because the petitioner filed an application under section 12(2), C.P.C. before the Trial Court due to which she could not file appeal within time was not sustainable as petitioner had knowledge and was party to the suit---Petition for leave to appeal was dismissed and leave was refused.

Dr. Syed Sibtain Raza Naqvi v. Hydrocarbon Development and others 2012 SCMR 377 ref.

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

----S. 5---Condonation of delay---Discretionary power of Court---Power to condone the delay and grant an extension of time under section 5 of the Limitation Act, 1908 is discretionary.

(c) Limitation---

----Law providing for limitation for various causes/reliefs is not a matter of mere technicality but foundation of the law itself.

Abdullah Khan Kakar, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2023 S C M R 1669

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

ZAIN ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 208 of 2022, decided on 24th July, 2023.

(On appeal against the judgment dated 28.01.2020 passed by the High Court of Sindh, Bench at Sukkur in Criminal Jail Appeal No. D-172 of 2019)

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

----S. 9(c)---Possession of narcotic---Reappraisal of evidence---To prove the recovery, the prosecution mainly relied upon the statements of official witnesses---Both these witnesses had 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 563 kilograms of contraband charas and 1500 grams of opium in no circumstances could be planted by the Investigating Officer of his own---Prosecution has successfully established its case by further proving that the contraband so recovered from the possession of the accused was weighed, packed and then sent for chemical examination, which on examination was found to be charas---Prosecution witnesses of recovery remained firm on each and every material particular of the prosecution story and their testimony could not be shaken---Safe chain of custody of the recovered narcotics was not compromised at all---Appeal against conviction was dismissed.

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

----S. 9---Possession of narcotic---Testimonies of the police personnel---Such testimonies are required to be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroboration from independent witnesses, their testimonies cannot be relied upon---Presumption that a person acts honestly applies, as much in favour of police personnel as of other persons and it is not proper judicial approach to distrust and suspect them without good grounds.

(c) Criminal trial---

----Minor contradictions and inconsistencies in prosecution evidence/ witness statements--- Inconsequential--- Minor contradictions, inconsistencies, embellishments or improvements on trivial matters, which do not affect the core of the prosecution case, should not be made a ground, on which the evidence can be rejected in its entirety---Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence---Mere marginal variations in the statement of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001 ('the Rules of 2001')---Possession of narcotic---Rules of 2001 are stricto sensu directory and not mandatory in any manner---It does not spell as to whether in case of any lapse, they would automatically become instrumental to discard the whole prosecution case.

(e) Criminal trial---

----When the prosecution is able to prove its case on its salient features then unnecessary technicalities should not be allowed to hamper the very purpose of the law on the subject.

Muhammad Shabbir Rajput, Advocate Supreme Court for Appellant.

Raja Inam, Special Prosecutor, ANF and Ehtisham ul Haq, Special Prosecutor, ANF for the State.

2023 S C M R 1676

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Ayesha A. Malik, JJ

The STATE---Petitioner

Versus

Chaudhry MUHAMMAD USMAN---Respondent

Criminal Petition No. 112 of 2020, decided on 15th June, 2023.

(Against the judgment of the Islamabad High Court, dated 15.01.2020 passed in Criminal Revision No.84 of 2019)

Criminal Procedure Code (V of 1898)---

----Ss. 94 & 265-C---Summons to produce documents---Powers of Trial Court under section 94, Cr.P.C.--- Scope--- Even before the commencement of the trial, an accused can apply to the Trial Court to exercise its power under section 94, Cr.P.C., and direct the prosecution or the complainant to produce a document, in its or his possession or power, which is not covered under section 265-C, Cr.P.C., if the production of that document is necessary or desirable for the purposes of the inquiry or trial---Even before entering on his defence, an accused can make an application for the production of a document under section 94, Cr.P.C. despite the provisions of section 265-F(7), Cr.P.C., which provides a similar opportunity to him at the stage of defence evidence.

A bare reading of section 94, Cr.P.C. shows that there is no limitation as to the stage of the inquiry or trial when a court can, in the exercise of its power under this Section, make an order for the production of any document. The only condition for the exercise of the power under section 94 is that the production of the document must be necessary or desirable for the purposes of the inquiry or trial before the court. The word 'whenever' in section 94 clearly indicates that a court can exercise the power of requiring the production of any document under this section at any stage of the inquiry or trial.

Further, section 94 does not restrict as to whose point of view, whether of the prosecution or the accused, the required document may be necessary or desirable for the purposes of the inquiry or trial. A court being a neutral arbiter does not act for either the prosecution or the accused but for the dispensation of justice. And for the dispensation of justice, the court is to ascertain the truth in respect of the matter under inquiry or trial before it. The production of a document that would facilitate the court in this regard is to be considered necessary or desirable for the purposes of the inquiry or trial. It is immaterial whether the production of such a document would support the prosecution case or the defence of the accused. Therefore, any party may at any stage of the inquiry or trial apply to the court, under section 94, for the production of a document and is entitled to its production if it satisfies the court that the production of that document is necessary or desirable for the purposes of such inquiry or trial.

Muhammad Rahim v. Emperor AIR 1935 Sindh 13 ref.

There may be cases in which owing to dishonesty, negligence or any other reason, the prosecution does not produce certain documents with the police report, which may establish that there is no probability of the accused being convicted of any offence or the charge against the accused is groundless, and the production thereof is thus necessary or desirable for the purposes of the inquiry or trial. But because such documents are not filed with the police report, the same will not be supplied to the accused under section 265-C, Cr.P.C. In such cases, it would not be just and fair to the accused to reject his application for the production of such documents and to let him undergo the ordeal of protracted trial proceedings and wait for the stage of defence evidence. Similarly, the documents which are not produced by the prosecution with the police report but are relevant to the matter under the inquiry or trial and to use them for his defence, the accused is legally required to confront the prosecution witnesses with those documents in their cross-examination. In such a circumstance also, it would be in the interest of justice that the application of the accused made under section 94 for their production is allowed. Otherwise, it would incur unnecessary delay, expense and inconvenience to recall the prosecution witnesses at the stage of defence evidence only for the purpose of confronting them with such documents.

The provision of subsection (7) of section 265-F, Cr.P.C., under which the accused, after entering on his defence, can apply to the trial court to issue any process for compelling the production of any document, does not in any way affect the power of the trial court under section 94(1), Cr.P.C. The provisions of section 94(1) have not been made subordinate by the legislature by the use of the expression, 'Subject to the other provisions of this Code', nor have the provisions of section 265-F(7) been given any overriding effect by using therein the expression, 'Notwithstanding anything contained in other provisions of this Code'. Section 265-F(7), therefore, neither controls nor limits the power of a court under section 94(1). In essence, the provisions of these two Sections differ from each other in their extent and scope. They are not opposed to each other. Section 94(1) affords both the parties to an inquiry or trial (not to the accused alone) the opportunity of causing the production of any document at any stage of such inquiry or trial, with the condition that the party applying for it must satisfy the court that the production of the required document is necessary or desirable for the purposes of the inquiry or trial. Section 265-F(7), on the other hand, only gives the accused another similar opportunity at the stage of his defence subject to a lesser condition, which is that his application should not be for the purpose of vexation or delay or defeating the ends of justice.

Tanveer Iqbal, Advocate Supreme Court, Raja Muhammad Shahfqat Abbasi, D.A.G., Hafiz Bilal Bin Akbar, Deputy Director, DRAP and Ms. Sidra Fatima Hashmi, Assistant Director, FIA for Petitioner.

Khawaja Muhammad Farooq Mehta, Senior Advocate Supreme Court for Respondent.

2023 S C M R 1683

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Muhammad Ali Mazhar, J

MARKET COMMITTEE, MULTAN through Chairman and another---Petitioners

Versus

ADDITIONAL COMMISSIONER (CONSOLIDATION), MULTAN and others---Respondents

Civil Petitions Nos. 6406 to 6434 of 2021, decided on 13th June, 2022.

(Against the judgment dated 15.11.2021 passed by the Lahore High Court Multan Bench in W.Ps. Nos. 805 to 808, 322 to 339 of 2020, 1906 to 1908 of 2019, 1139 of 2020 and 7731 to 7733 of 2019)

Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S. 21(i)---Market Committee---Allotment of shops/plots, cancellation of---Non-payment of outstanding dues---Remand of matter to the Chairman, Market Committee---High Court held that the act of cancellation by the Chairman Market Committee was not justified and, more particularly, despite cancellation, dues were received which act also nullified the resumption/cancellation---High Court set aside the impugned orders and the matter was remanded to the Chairman, Market Committee to pass appropriate orders after providing an opportunity of audience to the occupants in order to determine the outstanding amount---Propriety---Despite clear observations by the Supreme Court in earlier round of litigation on 18.3.2010, no prompt or swift action was taken by the Market Committee and cancellation notice was issued at belated stage on 22.01.2016 which exhibited the reckless conduct of the Market Committee which waited for such a long time and postponed setting the law into motion for initiating cancellation move at their own will and conscience---Market Committee received the amount without demur and also issued payment challans, therefore, in such a situation, the action of outrightly cancelling the shops/plots was unfair and inequitable, therefore, it would be befitting in the interest of justice and fair-mindedness that the Chairman, Market Committee should determine the gravity of the default, reconcile from the record the amount paid by the occupants including those who have already paid full amount and also determine the liability of the accrued surcharge and penalty, if any, unpaid which crucial subject matter could not be reconciled or adjudicated in the writ jurisdiction but could be decided by the Chairman Market Committee so that the matter may attain finality after such protracted litigation---If the matter is reconsidered within the realm of the directions issued by the High Court, no prejudice will be caused to anyone, rather it would be beneficial to all and easier for the Authority to reconcile from the record the quantum of payment made so far by the alleged defaulters, the defaulted amount, as well as the determination of the up-to-date surcharge and penalty as per the terms and conditions of the allotment and pass order in accordance with law for further proceedings---Petitions for leave to appeal were dismissed and leave was refused.

M. Ramzan Khalid Joiya, Advocate Supreme Court for Petitioners (in all cases).

Nemo for Respondents.

2023 S C M R 1691

[Supreme Court of Pakistan]

Present: Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD YASEEN---Petitioner

Versus

SECRETARY, MINISTRY OF INTERIOR AND NARCOTICS CONTROL, NARCOTICS CONTROL DIVISION, ISLAMABAD and another---Respondents

Civil Petition No. 873 of 2021, decided on 25th July, 2023.

(On appeal against the judgment dated 02.02.2021 passed by the Federal Service Tribunal, Lahore in Appeal No. 12(L) of 2017)

Constitution of Pakistan---

----Art. 25(1)---Police official---Assistant Sub-Inspector in Anti-Narcotics Force (ANF)---Allegation of illegally snatching money from a civilian at a picket---Discrimination in award of penalty---Dismissal from service converted into minor penalty---Petitioner along with three other ANF officials was charge-sheeted for illegally taking/snatching an amount of Rs.103,000/- from a person "K" and a joint inquiry in this regard was conducted by Deputy Director, ANF---After inquiring into the matter, the Inquiry Officer recommended imposition of minor penalties on the three co-accused, whereas petitioner was removed from service---Statement of person "K" showed that case of the petitioner was not distinguishable from the other three co-accused---Petitioner had 33 years of unblemished service on his part and during present proceedings, his retirement age had passed---After serving the department for such a long period, the pensionary benefits were the right of an employee, which enabled him to spend rest of his life peacefully---By dismissing the petitioner from service while awarding minor penalties to the other officials, the petitioner had been discriminated against and the Service Tribunal did not take into consideration this aspect of the matter---Petition for leave to appeal was converted into appeal and allowed, impugned judgment to the extent of the petitioner was set-aside and the department was directed to treat the petitioner similar to his co-accused by awarding him minor penalty, and that if the date of retirement of the petitioner had passed, all pensionary benefits for which he was entitled, shall be given to him within a period of two months from the date of receipt of certified copy of present order.

Manzar Abbas Khokhar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Ch. Ehtisham ul Haq, Special Prosecutor ANF and Muhammad Tariq, Joint Director Law, ANF for the State.

2023 S C M R 1694

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Muhammad Ali Mazhar and Ayesha A. Malik, JJ

COMMISSIONER OF INCOME TAX, COMPANIES ZONE, ISLAMABAD---Petitioner

Versus

Messrs FAUJI FOUNDATION LIMITED---Respondent

Civil Petitions Nos. 3121 to 3125 of 2021, decided on 10th June, 2022.

(Against the judgment dated 18.01.2021 of the Islamabad High Court, Islamabad, passed in Income Tax References Nos.06/2003, 53 to 56/2007)

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

----Ss. 22 & 30---Fauji Foundation---Income from interest on Bank deposits---Whether such income is to be considered and taxed as 'income from other sources' or as 'income from business'---Held, that respondent-taxpayer/Fauji Foundation is a welfare trust which derives income from business activities for undertaking welfare projects---Essentially it utilises income earned from its investments for the collective benefit of the beneficiaries of the Foundation---Hence, it is the business of the Foundation to invest in business to raise income, for the purposes of its welfare projects---Foundation can invest in industrial undertakings or otherwise, and any surplus income from these undertakings are to be utilized for the benefit of the Foundation's beneficiaries---In this context interest from bank deposits is also surplus income, used to carry out the objectives of the Foundation---Hence, it is business income and not income from other sources---Petitions for leave to appeal were dismissed and leave was refused.

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

----Ss. 22 & 30---'Income from other sources' or 'income from business'---Determination---In cases where the dispute relates to determining whether its business income or income from other sources, the facts have to be duly considered so as to determine the objects of the assessee company, its functions and its memorandum of association or foundation documents---Once the primary business and functions are verified, the business activities need to be assessed to see it in the perspective of the declared objects and functions---Hence, the actual work of the assessee, its tax returns and how it treats its income has to be considered, to determine whether its income is business income or income from other sources.

Ms. Shazia Bilal, Advocate Supreme Court, Kamranullah, Additional Commissioner and Naeem Hassan, Secretary Litigation (FBR) for Petitioner.

Syed Ali Zafar, Advocate Supreme Court and Zahid Nawaz Cheema, Advocate Supreme Court (through video link from Lahore) for Respondent.

2023 S C M R 1698

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi and Syed Hasan Azhar Rizvi, JJ

ATTA UL MUSTAFA---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 596-L of 2022, decided on 11th August, 2023.

(Against the judgment dated 24.02.2022 passed by the Lahore High Court, Lahore in Criminal Appeal No. 75142 of 2019)

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

----S. 376---Rape---Testimony of a victim in cases of sexual offences---Significance---Such testimony is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to solely rely on the testimony of the victim of a sexual assault to convict the accused---However, the strict condition for this is that the same shall reflect that it is independent, unbiased and straightforward to establish the accusation against the accused and if the court finds it difficult to accept victim's version, it may seek corroboration from some evidence which lends assurance to her version.

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

----S. 376---Rape---Reappraisal of evidence---Implausible incident---DNA report inconclusive---Past conduct of victim adversely reflecting on her credibility---In the present case the victim was 49 years of age while the petitioner/accused was a young lad of 20 years at the time of commission of the alleged offence---Although it was not impossible that a twenty years old boy cannot commit zina with such an older woman but the story told by the victim was not plausible---According to her, the petitioner's mother and his two sisters gave her some intoxicating drink, which made her unconscious and during this period, the petitioner and his friend committed rape with her---It is generally seen in our society that no matter how morally bad one is, he cannot do such kind of act in front of his mother and sisters---Story narrated by the victim did not appeal to reason to the mind of a prudent man---Victim was admittedly a married lady, therefore, medico legal report showing her hymen to be old ruptured was inconsequential---Victim had leveled a specific allegation of intoxicating material being administered to her but neither anything containing intoxicating material was recovered nor any intoxicating material was found in her blood in the medico legal report---Record reflected that the victim had lodged a similar kind of case against another person but the same ended in compromise later on---Such conduct of the victim adversely reflected on her credibility---DNA report was not conclusive and certain about the guilt of the petitioner---Victim had leveled allegation of rape against two persons but according to the report of Forensic Science Agency the co-accused of the petitioner was eliminated as being the contributor of male DNA---This meant that whatever the victim said was not entirely true---Petition for leave to appeal was converted into appeal and allowed, and accused was acquitted of the charge.

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

----S. 376---Rape---DNA report---Scope---DNA report cannot be treated as primary evidence and can only be relied upon for the purposes of corroboration.

(d) Criminal trial---

----Heinous offences---Mere heinousness of the offence if not proved to the hilt is not a ground to punish an accused.

(e) Criminal trial---

----Benefit of doubt---Scope---For the accused to be afforded right of benefit of doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused.

Mst. Asia Bibi v. The State PLD 2019 SC 64; Tariq Pervaiz v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Abdul Jabbar v. State 2019 SCMR 129 ref.

Muhammad Sohail Dar, Advocate Supreme Court (Via video link from Lahore) for Petitioner.

Mirza Abid Majeed, D.P.G. Punjab for the State.

2023 S C M R 1703

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

MUHAMMAD YASEEN and others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Education and Literacy Department, Government of Sindh at Karachi and others---Respondents

Civil Petitions Nos. 903, 904, 905, 906 and 907 of 2023, decided on 3rd August, 2023.

(Against the judgment dated 28.11.2022 passed by High Court of Sindh, Sukkur Bench in Constitutional Petitions Nos. D-1813, D-2159, D-3442 and D-3716 of 2013 and D-69 of 2014)

Constitution of Pakistan---

----Art. 10A---Civil service---Appointment---Right of civil servant to be heard before declaring his appointment as illegal---Scope---Purported appointment letters did not mention that the petitioners were employed on contract basis, which fact was also verified from the appointment letters attached with the petitions and the advertisement inviting applications---Admittedly the petitioners had joined service, but their appointment letters were not issued by the competent authority, therefore, their appointments were subsequently withdrawn---Petitioners were never associated in any inquiry for the purpose of verifying the appointment letters or the appointment process, rather an inquiry was conducted against the former District Education Officer (DEO) who was allegedly responsible for managing the illegal appointments; but even with regard to him, there was no mention if any punitive action was taken against him for being involved in making the fake appointments whereby he fleeced and defrauded the department and petitioners both---Before declaring the appointments illegal or taking any drastic action against the petitioners, a drastic action should have been taken against the responsible person who committed illegality, if any, at the departmental level---Beneficiaries of the appointments could not be blamed alone because primarily the authority who had issued appointment letters in the recruitment process was bound to be punished first rather than the petitioners who had commenced their duties in view of the appointment letters---Keeping in mind all the attending circumstances, the department was bound to issue notice to the petitioners to show cause as to why their services should not be terminated and, in response, the petitioners might have appeared with the defence that the appointments were not illegal but issued after due process---Petitioners should have been afforded an opportunity of hearing, which was a fundamental right enshrined under Article 10A of the Constitution---Provincial Law Officer as well as the Deputy Secretary (Law) proposed that an inquiry committee may be constituted to consider/examine the appointment process of the present petitioners and to verify their credentials/antecedents to determine whether they were rightly appointed or appointed on the basis of fake appointment letters---Counsel for the petitioners agreed to such proposal---Petitions for leave to appeal were converted into appeals and allowed with relevant directions to examine the entire appointment process of the petitioners.

Malik Mumtaz Hussain Jai, Advocate Supreme Court for Petitioner No. 14 (in C.P. No. 904 of 2023) and (Hamadullah Jatoi) in person.

Suresh Kumar, Additional A.G., Sindh, Jawed Ali Khawaja, Dy. Secy. (Law), School Education and Literacy Dept., Government of Sindh (via Video Link from Karachi) for Respondents.

2023 S C M R 1709

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

The STATE through Deputy Director Law, Regional Directorate Anti-Narcotics Force, Punjab---Petitioner

Versus

TASNIM JALAL GORAYA (DECEASED) through LRs.---Respondent

Criminal Review Petition No. 5 of 2020, decided on 24th March, 2022.

(Against the judgment of this Court dated 15.01.2020 passed in Criminal Appeal No. 01-L of 2015)

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

----S.37---Dangerous Drugs Act (II of 1930) [since repealed], S.35-C---Constitution of Pakistan, Arts. 12 & 188---Protection against retrospective punishment---Scope---Conviction and sentence recoded by a foreign court for possessing and distributing heroin---Forfeiture of property in Pakistan---By way of judgment under review, the Supreme Court declared the forfeiture of the properties of deceased-respondent (represented through his legal heirs) to be unlawful and hence set it aside---Plea on behalf of the Anti-Narcotics Force (ANF) was that the assets of the respondent could also have been forfeited under the provisions of Dangerous Drugs Act, 1930 ("1930 Act") [since repealed] and it did not matter that section 37 of the Control of Narcotic Substances Ordinance, 1995 ('the Ordinance') [since enacted as the Control of Narcotics Substances Act, 1997] was promulgated on 07.8.1995 after the conviction and sentence against the respondent in the USA in the year 1993---Validity---Said submission was absolutely misconceived---Section 35-C of the 1930 Act did not envisage foreign conviction, which was for the first time introduced in section 37 of the Ordinance in 1995, hence the offence committed in the USA in the year 1993 could not possibly attract section 37 of the Ordinance of 1995---Such aspect had been dealt with in the judgment under review in great detail and the petitioner (ANF) could not be allowed to re-argue the case in review jurisdiction---No ground was made out for the review of the impugned judgment.

(b) Supreme Court Rules, 1980---

----O. XVII, R. 12 & O. XXVIII, R. 3---Counsel misleading the Court---Misrepresentation---Costs, imposition of---Counsel for the review petitioner tried to mislead the Court not once but twice by claiming that present matter had earlier been decided by the Supreme Court in earlier round of litigation---Such claim was not only incorrect but amounted to misrepresentation before the court---Supreme Court dismissed the review petition, subject to costs in the sum of Rs.10,000/- imposed under Order XVII, Rule 12 and Order XXVIII, Rule 3 of the Supreme Court Rules, 1980---Supreme Court directed that the costs shall be deposited by the counsel for the petitioner with any approved, recognized and well-known Charitable Organization and receipt thereof be submitted with the Deputy Registrar (Judicial) of the Supreme Court within a fortnight from the release of the present order, and that in case of failure to deposit the said amount within the stipulated period, the file of the case shall be put up before the Bench, on the administrative side, for appropriate orders.

Zafar Iqbal Chohan, Advocate Supreme Court for Petitioner.

Waqar Hassan Mir, Advocate Supreme Court for Respondent.

2023 S C M R 1712

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi and Syed Hasan Azhar Rizvi, JJ

Ch. SAEED AHMED KHALIL---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 701 of 2023, decided on 11th August, 2023.

(On appeal against the order dated 29.05.2023 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 12514-B of 2023)

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

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Constitution of Pakistan, Art. 185(3)---Cheating, fraud and forgery--- Ad-interim pre-arrest bail, confirmation of---Further inquiry---Complainant nominated the present petitioner (accused) and his other family members in his supplementary statement recorded after lapse of more than three months and eight days of the occurrence---Entire fraudulent transaction took place in a span of more than two years and no specific dates for commission of fraud had been given---Only basis to involve the petitioner in the case was the detail of his bank account, as the complainant suspected that the principal accused, who was son of petitioner, would have deposited the amount in petitioner's account---Three co-accused of the petitioner had already been granted pre-arrest bail whereas the principal accused had been granted post-arrest bail by the court of competent jurisdiction---Possibility could not be ruled out that the petitioner had been involved in the case by throwing a wider net by the complainant---Mere fraud of huge amount was no ground to decline bail to an accused---Case of the petitioner 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 pre-arrest bail granted to the accused was confirmed.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---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.

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

----Ss. 497 & 498---Constitution of Pakistan, Art. 185(3)---Bail---Registration of other cases of similar nature---Inconsequential---Mere registration of other criminal case 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.

Malik Jawwad Khalid, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Petitioner along with Petitioner in person.

Mirza Abid Majeed, D.P.G., Ashgar Ali, SI/IO and Ahsanullah, SI, Incharge Investigation for the State.

Muhammad Javed Ch, Advocate Supreme Court for the Complainant.

2023 S C M R 1716

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, LAHORE and another---Petitioners

Versus

Messrs WASIM RADIO TRADERS, LAHORE and others---Respondents

Civil Petitions Nos. 323-L to 326-L of 2014, decided on 23rd February, 2022.

(Against the orders dated 3.12.2013, 10.12.2013, 12.12.2013 and 10.1.2014, passed by the Lahore High Court, Lahore, in Writ Petitions Nos. 31010, 31839 and 32085 of 2013 and 466 of 2014)

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

----S. 5---Constitution of Pakistan, Art. 185(3)---Multiple connected Civil Petitions for Leave to Appeal filed before the Supreme Court on the same question of law---One such Petition was barred by seven days---Supreme Court condoned such delay on the basis that it was a connected Petition, where the same question of law was involved.

FBR through Chairman, Islamabad and others v. Messrs Wazir Ali and Company and others 2020 SCMR 959 ref.

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

----Ss. 25A, 25D & 81---Customs Rules, 2001, R. 125---Imported consignments---Valuation Ruling ('the Ruling') issued by Customs department under section 25A of the Customs Act, 1969 ('the Act')---Importers challenged the Valuation Ruling under section 25D of the Act, but at the same time also applied to the High Court for release of the consignments--- High Court ordered release of imported consignments under section 81 of the Act read with Rule 125 of the Customs Rules, 2001---Legality---Basic issue in the present case was whether Section 81 of the Act is relevant and can be invoked where a Valuation Ruling has been issued under section 25A of the Act, for provisional release of the goods and secondly, whether section 81 of the Act can be invoked as of right before the High Court in such cases---Held, that purpose of section 81 of the Act is to make a provisional determination in a situation where an assessment cannot be made---In order to invoke section 81 of the Act, the Custom Officers must first satisfy themselves that it is not possible to assess the correctness of the value because it is necessary to first test the goods for further enquiry---Then and only then can the importer have the goods provisionally released under section 81 of the Act---Accordingly, section 81 cannot apply where a Valuation Ruling has been issued as the Valuation Ruling represents the declared value for the assessment of the goods or category of goods, which the importer is required to pay---As the Valuation Ruling is a formal decision providing the assessment value of the goods, the requirements of section 81 of the Act per se are not invoked---Consequently, where the goods are pre-assessed or capable of assessment, section 81 of the Act does not apply---Furthermore with respect to Rule 125 of the Customs Rules, 2001, the said Rule does not apply to cases where a Valuation Ruling has been issued, as it applies to cases where section 81 of the Act is applicable---Impugned orders of the High Court were, thus, against the mandate of the Customs Act, 1969, and were, therefore, set aside---Petitions for leave to appeal were converted into appeals and allowed.

Sarfraz Ahmed Cheema, Advocate Supreme Court for Petitioners (in all cases).

Shahid Tasawar Rao, Advocate Supreme Court for Respondent No. 1 (in C.Ps. Nos. 323-L to 325-L of 2014).

Ex-parte Respondent No. 1 (in C.P. 326-L of 2014).

2023 S C M R 1724

[Supreme Court of Pakistan]

Present: Munib Akhtar, Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

ALLAH DEWAYO SHAHANI---Petitioner

Versus

The STATE through Prosecutor General, Sindh---Respondent

Criminal Petition No. 52-K of 2023, decided on 17th August, 2023.

(Against Order dated 06.03.2023 passed by the Sindh High Court Bench at Sukkur in Criminal Bail Application No. S-399 of 2022)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 114, 147, 148 & 149---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, refusal of---In the ocular account a specific role had been ascribed to the accused-petitioner---Admittedly death of deceased was caused due to fire arm injuries---All the accused persons, including the petitioner, were armed with firearm weapons, the details of which were mentioned in the FIR---Offence was said to have been committed by the petitioner and other co-accused when the complainant party was cultivating their own land, therefore, the possibility of common object which stands for and connotes a prearrangement and common intention/objective of committing the murder of the deceased could not be ruled out---Delay of one day in lodging FIR had already considered by the High Court with ample reasoning which was not fatal to the prosecution case in the given circumstances---Co-accused assigned a similar role to that of petitioner was refused pre-arrest bail by the High Court and he subsequently withdrew his bail application from the Supreme Court, as a result of which he was still behind bars---So far as the plea of alibi was concerned, no proper details were provided to demonstrate that the petitioner was actually behind bars in some other case and on which date and time he was released by the Magistrate in the other case---Petition for leave to appeal was dismissed, and petitioner was refused bail.

Zaigham Ashraf v. The State 2016 SCMR 18 and Chaudhary Nadeem Sultan v. The State 2022 SCMR 663 distinguished.

Ubedullah Ghoto, Advocate Supreme Court and Muhammad Iqbal Chaudhry, Advocate-on-Record for Petitioner.

Hussain Bux Baloch, Additional A.G., M. Yasin, SHO and M. Aslam, SI for the State.

Complainant in person.

2023 S C M R 1729

[Supreme Court of Pakistan]

Present: Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUNAWAR BIBI---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 90-K of 2023, decided on 3rd August, 2023.

(On appeal against the order dated 28.04.2023 passed by the High Court of Sindh, Circuit Court Hyderabad in Criminal Bail Application No. S-362 of 2023)

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

----Ss. 497(2) & 498---Penal Code (XLV of 1860), S. 379---Constitution of Pakistan, Art. 185(3)--- Theft--- Ad-interim pre-arrest bail, confirmation of---Further inquiry---Female accused---FIR was lodged after an inordinate delay of more than three months for which the complainant did not utter a single word---Co-accused of the petitioner, who was ascribed a similar role, had been granted post-arrest bail by the court of competent jurisdiction---Petitioner was a lady of advanced age---Maximum punishment provided under the statute for the offence under section 379, P.P.C. was three years and the same did not fall within the prohibitory clause of section 497, Cr.P.C.---Case of the petitioner squarely fell within the ambit of section 497(2), Cr.P.C. entitling for further inquiry into her guilt---Petition for leave to appeal was converted into appeal and allowed, and ad-interim pre-arrest bail granted to the accused was confirmed.

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

----Ss. 497 & 498---Constitution of Pakistan, Art. 185(3)---Offences not falling within the prohibitory clause of section 497, Cr.P.C.---Grant of bail in offences not falling within the prohibitory clause is a rule and refusal is an exception.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---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.

Abdul Khursheed Khan, Advocate Supreme Court for Petitioner along with Petitioner in person (Via video link from Karachi).

Zafar Ahmed Khan, Additional P.G. Sindh (Via video link from Karachi) for the State.

2023 S C M R 1732\

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Qazi Faez Isa, Sardar Tariq Masood, Ijaz ul Ahsan, Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Ayesha A. Malik, JJ

CONSTITUTION PETITIONS NOS. 24 TO 26 OF 2023

(Trials of Civilian under the Army Act, 1952 is violative of Constitution)

AND

C.M. APPEAL NO. 80 OF 2023 IN CONST. PETITION NIL OF 2023

(Declaration of trial of civilians under the Army Act, 1952 as unconstitutional, void and of no legal effect]

JAWWAD S. KHAWAJA and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 24 to 26 of 2023 and C.M. Appeal No. 80 of 2023 in Constitutional Petition Nil of 2023.

Supreme Court (Practice and Procedure) Act (XVII of 2023)---

----Ss. 2, 3 & 5---Constitution of Pakistan, Art. 184(3)---Pakistan Army Act (XXXIX of 1952), S. 2(1)(d)---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209(8) of the Constitution), Art. IV---Trials of civilians under the Pakistan Army Act, 1952---Constitutionality---Judicial impartiality, principle of---Formation of Bench to hear present petitions---Chief Justice of the Supreme Court not consulting two senior most Judges of the Supreme Court before forming the Bench---Delay in deciding the petitions challenging the Supreme Court (Practice and Procedure) Act, 2023---Pattern in the Supreme Court of constituting Special Benches of some Judges (and not Full Court Bench) in cases of immense public importance---Recusal of a Judge from the Bench due to his relation with one of the petitioners---Observations, objections and notes recorded by certain Members of the Bench on different dates of hearing to the very constitution of the Bench hearing the present petitions provided.

Per Qazi Faez Isa, J

Per Sardar Tariq Masood, J

I was also not consulted by the Chief Justice before putting me on the present Bench. Surprisingly, present petitions in this Bench have been fixed when just a day earlier one of the petitioners himself along with his counsel met the Chief Justice in his Chamber and thereafter on the next day these petitions have been fixed without any consultation or ascertaining my availability. If this practice is allowed then question is whether every petitioners/appellants whose petitions/appeals are lying in the Supreme Court since years can be allowed to meet the Chief Justice in the Chamber for getting fixed their cases on the very next day.

I was awaiting the decision in the petitions through which the Supreme Court (Practice and Procedure) Act, 2023 ('the Act') has been challenged and expected that they would be decided soon as interim ex-parte stay order was issued which had suspended the operation of the then bill and the proposed Act. Section 3 of the Act stipulates that "any matter invoking exercise of original jurisdiction under clause (3) of Article 184 of the Constitution shall be first placed before the Committee constituted under section 2 for examination and if the Committee is of the view that a question of public importance with reference to enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution is involved, it shall constitute a Bench comprising not less than three Judges of the Supreme Court of Pakistan which may also include the members of the Committee, for adjudication of the matter". However, the present matter was not referred to the Committee, of which I am a member. Only by presuming that the Act will be struck down, the mechanism provided in section 3 of the Act has been disregarded.

Surprisingly present nine Members Bench was constituted on the assumption that the Act will be struck down because if it is not, than any party who is not satisfied with its decision, their right to appeal under section 5 of the Act would be made redundant because such an appeal is to be heard by a larger bench of the Supreme Court. Presently, the Supreme Court comprises of fifteen Judges and the Chief Justice, which makes a total of sixteen Judges. However, if the full court comprising of sixteen judges and the Chief Justice is available i.e. seventeen judges then an appeal would be heard by minimum of ten Judges which is not possible in the present situation, so the appeal if filed by either party would not be heard.

I have not recused from the Bench, hence there was no question to sign the purported order in which it has been mentioned that new Bench will be constituted whereas my point of view was that present petitions be heard after the decision of the petitions which have been filed against the Act.

Per Syed Mansoor Ali Shah, J

In the recent past there has been a consistent pattern and reluctance of not constituting the Full Court Bench (but instead Special Benches of some Judges) in cases of immense public importance that have far-reaching impact on the political, social and economic life of the people of Pakistan and their fundamental rights. The non-formation of the Full Court Bench has severely undermined the authority of the Court and the legitimacy of its judgments. The constitutional significance of the matter involved in the present case and its potential ramifications, call for the highest level of judicial scrutiny. Collective deliberations and diverse insights by all the judges in cases of public importance helps the Court arrive at a sound judgment and reinforces public confidence and trust in the Supreme Court.

Additionally until the Supreme Court decides the constitutionality of the Supreme Court (Practice and Procedure) Act, 2023, Section 3 of which prescribes the procedure for invoking the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution, all such matters under this jurisdiction must be heard by the Full Court Bench of the Supreme Court.

Per Yahya Afridi, J

The entire edifice of a credible justice system is based on public trust. What is most serious and cannot be disregarded is that there are objections in writing from within the members of the Bench, to the very constitution of the Bench hearing the present petitions. In this regard, the Senior Puisne Judge has recorded in writing his said objections, and the same are by now in the public domain. Thus, the matter of the present composition of the Bench warrants urgent attention and reconsideration by the Chief Justice, lest it may dampen public trust in the justice system.

As a first step, the appropriate measure, would be that a Full Court Bench of the Supreme Court should be constituted to hear the present petitions. Without taking such a measure, any judgment rendered in present petitions by the present Bench may lead to the diminishing of the deference the decision requires and deserves. It is, therefore, most earnestly urged that the Chief Justice may consider the reconstitution of the present Bench, and refer the present petitions to a Full Court Bench.

Per Syed Mansoor Ali Shah, J

Although in a constitutional court, it is only for the judge concerned to decide according to his own conscience whether to recuse himself from hearing a case or not, he must in so deciding consider that his decision should not undermine the public trust in the impartiality of the court. For the appearance of his partiality would not only demean his reputation but also that of the institution of which he is a part. The insistence on the appearance of impartiality in the dispensation of justice is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself. Judicial impartiality upholds public trust, engenders predictability in the law, ensures fair trial, upkeeps the rule of law, and safeguards democracy. The principle of judicial impartiality, therefore, is not merely a moral imperative but a practical necessity to ensure justice, uphold democratic values, protect citizens' rights, and maintain societal order.

Williams v. Pennsylvania 579 U.S. 1 (2016) per Justice Anthony Kennedy (Majority view) ref.

Judges should not readily accede to the request for their recusal from hearing a case and decide the matter of their recusal after properly weighing the ground agitated for making such request. Where it is apparent that the perception of impartiality is being created for some ulterior motive without any sound basis, the judge must not yield to such strategy and abdicate performance of his duty. But if such a request is based on some reasonable ground which may genuinely raise doubt in the mind of a common person about the impartiality of the judge, the safest course for the judge is to accept such request in the larger interest of upholding public trust in the integrity and impartiality of the Court. In the present case, as one of the petitioners is admittedly my relative, a common person may not understand the difference between a petition filed in the public interest and a petition filed for personal interest. I, therefore, in the present case, find it preferable to accept the request and recuse myself from hearing the case. In order to safeguard the public trust in the integrity and impartiality of the Court, I recuse myself from hearing these petitions.

Kh. Ahmad Hosain, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 24 of 2023).

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court for Petitioners (in Constitutional Petition No. 25 of 2023).

Faisal Siddiqi, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 26 of 2023).

Shoaib Shaheen, Advocate Supreme Court, Ajmal Ghaffar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.M. Appeal No. 80 of 2023).

Mansoor Usman Awan, Attorney General for Pakistan and Ch. Aamir Rehman, Additional A.G.P. for the Federation.

2023 S C M R 1773

[Supreme Court of Pakistan]

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

MUHAMMAD AZIZ alias MANA---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 62-L of 2023, decided on 23rd August, 2023.

(On appeal against the order dated 18.01.2023 passed by the Lahore High Court, Lahore in Criminal Misc. No. 70185-B of 2022)

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

----S. 498---Penal Code (XLV of 1860), Ss. 381 & 411---Constitution of Pakistan, Art. 185(3)---Theft by clerk or servant of property in possession of master, dishonestly receiving stolen property---Pre-arrest bail, grant of---Entire fraudulent transaction took place in a span of more than four years and no specific dates for commission of theft have been given---FIR was lodged with an inordinate delay of 13 days for which the complainant did not utter a single word---Only allegation against the petitioner (accused) is that he used to purchase the stolen articles from the co-accused---Admittedly, petitioner was not employee of the complainant, therefore, the question of applicability of section 381, P.P.C. would be resolved by the Trial Court---All the co-accused of the petitioner have been granted post-arrest bail by the court of competent jurisdiction---Maximum punishment provided under the statute for the offence under section 411, P.P.C. is three years and the same does not fall within the prohibitory clause of section 497, Cr.P.C.---Possibility cannot be ruled out that the petitioner has been involved in the case by throwing a wider net by the complainant---Mere allegation of causing huge loss is no ground to decline bail to an accused---Petition for leave to appeal was converted into appeal and allowed, and petitioner was admitted to pre-arrest bail.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Offences not falling within the prohibitory clause of section 497, Cr.P.C.---For such offences grant of bail is the rule and refusal thereof an exception.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---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 PLD 2022 SCMR 1424 and Muhammad Ijaz v. The State 2022 SCMR 1271 ref.

Muhammad Akhtar Rana, Advocate Supreme Court and Tasneem Amin, Advocate-on-Record along with Petitioner in person (Via video link from Lahore).

Mirza Abid Majeed, D.P.G., Nasir Abbas, DSP and Amir Ahmed, SI for the State.

2023 S C M R 1776

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

SINDH REVENUE BOARD through Secretary Government of Sindh, Karachi and others---Petitioners

Versus

Messrs QUICK FOOD INDUSTRIES (PVT.) LIMITED and others---Respondents

Civil Petition No. 414 of 2021, C.M.A. No. 1963 of 2021 in C.P. 414 of 2021, Civil Petitions Nos. 1188 to 1259, 475-K, 476-K, 1422 to 1430, 2819, 317-K to 389-K of 2021, 579 and 777 of 2022, decided on 12th October, 2022.

(Against the judgments and orders dated 17.11.2020, 01.02.2021, 19.01.2021, 09.02.2021, 23.12.2021 and 19.01.2022, passed by the High Court of Sindh in C.Ps. Nos.D-5283, D-5220, D-5252 to D-5224, D-5244, D-5281, 5282, D-5284, D-5285, D-5449 to D-5452, D-5477 to D-5479, D-5586 to D-5588, D-5603, D-5612 to D-5614, D-5645, D-5690 to D-5694, D-5723, D-5733 to D-5735, D-5856, D-5926, D-5927, D-5936, D-5937, D-6017, D-6220, D-6226, D-6268, D-6453, D-6611, D-6622, D-6866, D-6888, D-7453, D-7610, D-7683, D-7987 of 2017, D-505, D-5146, D-5151, D-6126, D-6238 of 2018, D-443, D-4472, D-4473, D-5265, D-6608, D-6612, D-6613, D-8126 of 2019, D-344, D-494, D-495, D-1014, D-1468, D-1373, D-1867 of 2020, D-5691 of 2017, D-6124 of 2020, D-555, D-556, D-1275, 2544, D-2871, D-3469, D-3724, 6124 of 2018, D-8288 of 2017, D-8014 of 2018, D-5220, D-5603, D-5479, D-6622, D-5937, D-5451, D-7987, D-5285, D-7610, D-5693, D-5936, D-5477, D-5284, D-5690, D-5613, D-5586, D-6220, D-5927, D-5733, D-5223, D-7453, D-5587, D-5283, D-5692, D-5723, D-6866, D-5244, D-6226, D-5450, D-5735, D-5222, D-5449, D-5614, D-5612, D-5694, D-6611, D-6453, D-6017, D-7683, D-5478, D-6268, D-5645, D-5856, D-5224, D-5282, D-5281, D-5691, D-5588, D-5452, D-5734, D-5926, D-5273, D-6888 of 2017, D-6238, D-6126, D-505, D-5146 of 2018, D-4472, D-4473, D-6612, D-6608, D-8126, D-6613, D-5265, D-443 of 2019, D-5151 of 2018, D-495, D-1468, D-494, D-1014, D-1373, D-1867, D-344 of 2020, D-2968 of 2018 and D-7464 of 2021, respectively)

(a) Sindh Sales Tax on Services Act (XII of 2011)---

----Ss. 2(55A), 2(78), 3(1), 4(1)(a), 4(3)(a), 5(1)(a) & 8(1)---Sindh Sales Tax on Services Rules, 2011, Rr. 42D & 42E---Sales tax on services---"Value of taxable service", interpretation of---'Labour and manpower supply services' and 'security agency services'---Whether the tax is to be levied on the gross amount charged inclusive of salaries and allowances (collectively, salaries) that are paid to the security personnel (guards, etc.) and labour and manpower (collectively, security and manpower) in supply of services---High Court concluded that the sales tax on services was charged on the consideration paid for the service provided by the service provider, and can not include salaries in its calculation since they are not part of the service itself---Validity---Value of taxable service is determined on the basis of the value of economic activity carried out in the provision of the service and salaries, being reimbursable expenses, are not part of the taxable service or its value; thus, they are not included in value of the service---Sales tax on services can only be levied on consideration paid for service provided or rendered, and salaries paid by the employer to the employees are not part of the service rendered for this purpose, and so are not taxable.

Section 5 of the Sindh Sales Tax on Service Act, 2011 ('the Act'), being the charging provision, is a substantive provision and has a direct nexus to the taxable event provided for under Section 4 which particularly excludes the services of the employees to the employer. In any event, the taxing event cannot go beyond the parameters drawn under Section 8 of the Act which restricts the scope of the tax to the value of taxable service. Put simply, the charging provision (Section 5) must align with the taxable event (Section 4) while staying within the scope of the tax (Section 8).

The amount of sales tax on services levied is based purely on the value charged by the service provider for the service it renders, which value is determined by the service provider itself, establishing a connection between the consideration paid and the service provided. Moreover, for a service to be taxable, it must be listed in the First Schedule to the Act and involve an economic activity conducted as a business, profession, or trade, whether or not for profit. The service is treated under the Act as an economic activity and will not include the activities of the employee to carry out the service. As per the procedure under the Sindh Sales Tax on Services Rules, 2011 ('the Rules'), the service provider is required to collect and deposit the tax in the government treasury, for which purpose, the service provider issues an invoice that includes the value of the service including the salaries paid, and other expenses associated with security and manpower.

Argument of petitioner (Sindh Revenue Board) that the gross amount charged includes all amounts, including reimbursable expenses such as salaries, lacks merit. This is because these amounts are actually paid by the service recipient, and neither do they form part of the economic activity conducted by the service provider, nor of the consideration paid for by the service recipients for the services rendered. Gross amount charged, for the purposes of sales tax on services, relates to the consideration in money paid for the value of the taxable service under section 5, the applicability of which is restricted by Section 8 defining the scope of the tax, which means that quantum is charged for the service alone, nothing more and nothing less. The value of taxable service is determined on the basis of the value of economic activity carried out in the provision of the service and salaries, being reimbursable expenses, are not part of the taxable service or its value; thus, they are not included in value of the service. The consideration paid is only for the services rendered and cannot include the cost borne by the service recipient in respect of the salaries paid to the security and manpower it procured. Therefore, the sales tax on services can only be levied on consideration paid for service provided or rendered, and salaries paid by the employer to the employees are not part of the service rendered for this purpose, and so are not taxable.

The scope of the tax as provided under the Act cannot be altered by the Rules. Hence, the scope or value of the tax could not be expanded than what the Act has proscribed through the Rules. So, irrespective of the amendments through which the provisos to Rules 42E(3) and 42E(5) of the Rules were omitted, salaries could not be included in the gross amount charged or taxed. Even if the amendments were brought about only to bring the salaries paid to the labour and manpower with the preview of the tax, the same still could not have been allowed being not only beyond the scope of the Act but also being inconsistent with it. Petitions for leave to appeal were dismissed and leave was refused.

Suo Motu Case No. 13 of 2009 PLD 2011 SC 619 and Suo Motu Case No. 11 of 2011 PLD 2014 SC 389 ref.

(b) Delegated legislation---

----Delegated legislation is intended to enforce the law and advance the purpose of the underlying legislature, without overriding it and while minutiae could be filled in, the parent statute could neither be added to nor subtracted from.

Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan 2015 SCMR 630 ref.

(c) Interpretation of statutes---

----Rules framed under a statute---Scope---If a rule goes beyond what the parent statute contemplates, it must yield to the statute.

Collector of Central Excise and Sales Tax v. Rupali Polyester Limited 2002 SCMR 738 ref.

Uzair Karamat Bhandari, Advocate Supreme Court and Anis M. Shahzad, Advocate-on-Record for Petitioners (in C.P. 414 and C.M.A. 1963 of 2021).

Azid Nafees, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Petitioners (in C.Ps.1188 to 1259, 1422 to 1430, 2819 of 2021, 579 and 777 of 2022).

Saifullah, Additional Advocate General, Sindh (via video link from Karachi) for Petitioners (in C.Ps.317-K to 389-K, 475-K and 476-K of 2021).

Makhdoom Ali Khan, Senior Advocate Supreme Court, Saad Hashmi, Advocate and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.Ps.320-K, 324-K, 330-K, 337-K, 340-K, 342-K, 345-K to 347-K, 351-K, 353-K, 356-K, 361-K, 366-K, 377-K, 378-K, 380-K and 385-K of 2021).

Abdul Sattar Pirzada, Advocate Supreme Court for Respondents (in C.Ps.1207, 1208, 1226, 1245 and 1251 of 2021).

Zaheer Minhas, Advocate Supreme Court for Respondents (in C.P.414 of 2021).

Faisal Siddiqui, Advocate Supreme Court for Respondents (in C.Ps.1222 of 2021 and 359-K of 2021).

Moiz Ahmed, Advocate Supreme Court for Respondents (in C.Ps.348-K and 384-K of 2021).

Khalid Mehmood Siddiqui, Advocate Supreme Court (via video link from Karachi) for Security Services (in C.Ps.2819 of 2021 and

475-K of 2021).

Nemo for other Respondents (in all cases).

2023 S C M R 1791

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

BARKHURDAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 733-L of 2018, decided on 9th June, 2023.

(On appeal against judgment dated 25.04.2018 passed by the Lahore High Court, Lahore in Criminal Appeal No. 65533 of 2017)

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

----Ss. 2(t) & 9(c)---Possession and transportation of 10 kilograms of poppy plants---Reappraisal of evidence---Poppy plant, characteristics of---Poppy seeds---There is nothing in evidence as to what actually was recovered from the possession of the petitioner/accused; was it only the doda/basket/pouch or it was the whole plant with stems and flowers---In common parlance, often stems and leaves of the poppy plants are used as animal food---Poppy straw is derived from the plant Papaver somniferum, which has medicinal impact as well, and is largely used as a tonic for wellness of nervous system---Purpose of its cultivation is actually the production of poppy seeds, and the latter is used as a food stuff and as a raw material for manufacturing poppy-seed oil, which is 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---It has also not been brought on record as to whether from the ten kilograms of the recovered poppy plant, how much quantity was sack/pouch/doda as it is only the sack/pouch/doda which contains narcotic substance---Therefore, in absence of such report, it is difficult to determine as to whether the case against the petitioner falls within the purview of section 9(a), 9(b) or 9(c) of the Control of Narcotic Substances Act, 1997---Peculiar facts and circumstances of the present case are sufficient to cast a shadow of doubt on the prosecution case, which entitles the petitioner to the right of benefit of the doubt---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 petitioner was acquitted of the charge.

(b) Criminal trial---

----Benefit of doubt---Scope---For the accused to be afforded the right of benefit of doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused.

Rai Zamir-ul-Hassan, Advocate Supreme Court (through video link from Lahore) for Petitioner.

Irfan Zia, D.P.G., Punjab for the State.

2023 S C M R 1797

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Athar Minallah, JJ

COMMISSIONER INLAND REVENUE ZONE-IV, LARGE TAXPAYER UNIT, KARACHI---Appellant

Versus

Messrs AL-ABID SILK MILLS LTD., A-39, MANGHOPIR ROAD, SITE, KARACHI---Respondent

Civil Appeal No. 1032 of 2018, decided on 23rd May, 2023.

(Against the judgment dated 27.03.2018 of the High Court of Sindh, Karachi passed in STRA No. 737 of 2015)

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

----Ss. 25 & 8(1)(c)(a)---Constitution of Pakistan, Art. 10A---Allegation of issuing fake/flying invoices and claiming input tax against such invoices---Liability raised against tax payer based on presumptions---No attempt made by the Department to verify the invoices---In the present case the show cause notice was issued in a mechanical manner---Allegations were vague and the facts had not been verified---Moreover, the taxpayer was asked to establish that its suppliers i.e. the eight distinct entities had not made supplies and that they had not deposited the output tax in the government treasury---It was on this basis that it was presumed that the invoices were fake/flying and thus the input tax adjusted against such invoices was alleged to be inadmissible---Taxpayer was further asked to produce documents which were not required to be maintained under the Sales Tax Act, 1990 ('Act of 1990') at the relevant time---Department had issued a vague show cause notice pursuant to a report, without first making an inquiry of its own to verify the facts relating to the eight entities i.e whether they had deposited the tax in relation to the supply made to the taxpayer.

Before the issuance of the show cause notice no meaningful effort was made by the sales tax officials to conduct an audit nor was a proper inquiry made by exercising powers conferred under the Sales Tax Act, 1990 ('Act of 1990') in order to verify the allegations made in the report. The show cause notice was based on vague allegations and an assumption that, since some of the supplies were made by the eight entities which were involved in the issuance of fake/flying invoices, therefore, the invoices relating to such supplies must also have been of the same status. It was not the case of the Department that the eight entities were never engaged in business nor had made supplies. The taxpayer was asked by the sales tax authorities to provide documents which, at the relevant time, were not required to be maintained by a registered person.

When the department alleges that a registered person is liable to make the payment of tax and the same has not been levied or charged, the former is burdened with a statutory duty to establish before the adjudicating forum, through persuasive and proper evidence, that the allegations are highly probable to be true, rather than being unreliable, false or doubtful. The duty to establish facts on the standard of balance of probabilities is on the department under the Act of 1990. In the present case the onus was on the Department to first establish that the eight suppliers had not made actual supplies and, thus, the invoices against which the input was claimed were fake/flying invoices. Moreover, it was the Department's responsibility to verify whether or not the eight entities had deposited the sales tax in the government treasury relating to the invoices against which the taxpayer had claimed input tax. It is evident from the record that the Department had made no attempt to verify whether the invoices relatable to the claim of input tax were fake/flying or otherwise. Appeal filed by Commissioner Inland Revenue was dismissed.

(b) Interpretation of statutes---

----Fiscal statute---While interpreting fiscal statutes, the court looks to what is clearly said and there is no room for any intendment nor is there any equity about a tax---There is no presumption as to tax and nothing was to be read in or implied and one could only look fairly at the language used.

Messrs Mirpurkhas Sugar Mills Ltd. v. Government of Sindh and others 1993 SCMR 920; Muhammad Younus v. Central Board of Revenue and others PLD 1964 SC 113; Commissioner of Income Tax v. Mst. Khatija Begum PLD 1965 SC 472; Government of West Pakistan and others v. Messrs Jabees Ltd. PLD 1991 SC 870 and Government of Pakistan and others v. Messrs Hashwani Hotels Ltd. PLD 1990 SC 68 ref.

(c) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Reverse onus on accused---Scope---Concept of reverse onus i.e. placing the burden on the person against whom an allegation has been made runs contrary to the established principle of presumption of innocence---It is therefore, for this reason that Courts lean in favour of interpreting or reading down such provision in an effort to safeguard the fundamental principles of fair trial.

Mrs. Asma Hamid, Advocate Supreme Court for Appellant.

Ghulam Rasool Mangi, Advocate Supreme Court/Advocate-on-Record (via video-link, Karachi) for Respondent.

2023 S C M R 1803

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, CJ, Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

Civil Appeals Nos. 94 to 106/2008

(On appeal against the judgment dated 12.10.2007 passed by the High Court of Sindh, Karachi in ITRAs Nos. 71/1997, 99/2006, 274/1997, 275 to 281/1998, 514 to 516/2006)

And

Civil Appeal No. 550/2011

(On appeal against the judgment dated 11.11.2010 passed by the High Court of Sindh, Karachi in I.T.R. No. 229/2005)

The COMMISSIONER OF INCOME TAX---Appellant

Versus

Messrs INTER QUEST INFORMATICS SERVICES---Respondent

Civil Appeals Nos. 94 to 106/2008 and Civil Appeal No. 550/2011, decided on 8th September, 2023.

Per Qazi Faez Isa, J.; Umar Ata Bandial, CJ. agreeing; Syed Mansoor Ali Shah, J. dissenting

Income Tax Ordinance (XLIX of 2001)---

----Ss. 107 & 133(1)---Income Tax Ordinance (XXXI of 1979) [since repealed], Ss. 163 & 136(1)---Convention Between the Kingdom of the Netherlands and the Islamic Republic of Pakistan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, 1982, Arts.7, 12, paras. (3)(a), (3)(b), 22, 23 & 24---Concept of "Royalties"--- Scope--- Business profits---Non-resident foreign company---Exemption from income tax---Income/royalties earned by the non-resident company in Pakistan for the lease of certain software---Whether such income was business profits and thus exempt from payment of income tax in Pakistan under Article 7 of the Convention Between the Kingdom of the Netherlands and the Islamic Republic of Pakistan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income ('the Convention'), or the same constituted "royalties" as defined in paragraph 3 of Article 12 of the Convention and was liable to tax.

Per Qazi Faez Isa, J. (Majority view)

The respondent, a company incorporated in the Netherlands and thus a non-resident for Pakistan income tax purposes, and another company ('SSI'), which had a place of business in Pakistan, entered into an 'Agreement for Lease of FLIC Tapes' dated 1 February 1986 and a 'Software Rental Agreement' dated 1 January 1995 (respectively 'the 1986 Agreement', 'the 1995 Agreement' and collectively 'the Agreements'). In the 1986 Agreement 'SSI' is described as the lessee and in the 1995 Agreement it is described as the customer. The tax returns filed by the respondent claimed that the said receipts were business profits and exempt from payment of income tax in Pakistan under Article 7 of the Convention Between the Kingdom of the Netherlands and the Islamic Republic of Pakistan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income ('the Convention'). However, the appellant's (tax department's) case was that the receipts were royalties under Article 12 of the Convention and the respondent was liable to pay income tax thereon at the rate of fifteen percent. The Income Tax Officer, Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal unanimously determined that the receipts of payments by the respondent constituted royalties in terms of paragraph 3 (a) and (b) of Article 12 of the Convention and were liable to income tax. The respondent then assailed the assessment orders, the appellate orders and the judgments of the Tribunal before the High Court by filing references. The High Court decided in favour of the respondent, and held that the amounts received by the respondent for leasing FLIC tapes (software programs) did not fall within the definition of income arising from royalties.

The respondent did not clearly set out its case and did not provide the following information, documents and facts or provided misleading information:

(1) The respondent did not explain what each Agreement dealt with, which was necessary in view of their technical nature and as the language used therein was not self-evident, particularly the terms mentioned in the schedules thereto;

(2) The respondent did not state that the 1986 Agreement, the duration of which was for four years, still subsisted, yet referred to FLIC tapes which were only mentioned therein (FLIC tapes were not mentioned in the 1995 Agreement);

(3) The respondent did not itemize the nature of the receipts and then on the basis thereof claim that they did not constitute royalties (under Article 12 of the Convention) and that the same constituted business profits (under Article 7 of the Convention);

(4) The respondent in its reply to the notices sent by the Income Tax Officer did not deny certain components of royalties (mentioned in paragraph 3 of Article 12 of the Convention);

(5) The respondent did not specifically state under which Agreement it had received payment, and for what; and

(6) The respondent had relied upon Article 12 of the 'Organization for Economic Co-operation and Development Model Convention' ('OECD MC'), its Commentary and textbook explanation/interpretation thereof, and did so despite the fact that the Convention's Article 12 had applied Article 12 of the 'United Nations Model Double Taxation Convention between Developed and Developing Countries' ('UN MC'), and not Article 12 of the OECD MC.

There were also the following drawbacks and legal shortcomings in the respondent's case:

(1) The respondent did not present its case to the competent authority of its country (the Netherlands) under Article 24 of the Convention, and thus its point of view did not come forth and could not be considered;

(2) If the respondent had presented its case (as stated above) and if the competent authority of the Netherlands had supported the respondent's contention there was the possibility of the two countries resolving the matter and/or making regulation/s with regard thereto in terms of the Convention;

(3) That by foregoing (1) and (2) (above) a very technical matter came before the High Court, which the High Court proceeded to determine without having the requisite technical expertise and without being provided it; and

(4) The respondent had invoked the jurisdiction of the High Court under section 136(1) of the Income Tax Ordinance, 1970 ('ITO 1979') and section 133(1) of the Income Tax Ordinance, 2001 ('ITO 2001') which was restricted to questions of law, however, factual determination of whether the receipts constituted royalties was considered despite three forums (below) concurrently deciding the same against the respondent.

The High Court erred with regard to the following:

(1) The High Court overlooked the fact that the High Court's jurisdiction under section 136(1) of the ITO 1979 and section 133(1) of the ITO 2001 was limited to considering and deciding questions of law, however, the instant cases were filed to overturn the factual determination made by three qualified forums (below) which had determined that the receipts were not royalties in terms of Article 12 of the Convention;

(2) The High Court did not appreciate, as probably it was not explained to by the respondent, that there was no mention of FLIC tapes in the 1995 Agreement, and presumed that the receipts were payment for temporary use of FLIC tapes, which were only mentioned in the 1986 Agreement;

(3) The High Court proceeded on an incorrect assumption that Article 12 of the Convention was based on Article 12 of the OECD MC, whereas in fact it was based on Article 12 of the UN MC, whereunder royalties earned in Pakistan were taxable;

(4) The High Court did not consider the matter and the Convention holistically, including comprehensively considering Articles 7 and 12 thereof, and overlooked its Articles 22, 23 and 24;

(5) The High Court without setting out the nature of the receipts, let alone doing so in detail, assumed that they did not constitute royalties in terms of Article 12 of the Convention, and did so without analogizing the receipts against the definition of royalties in paragraph 3 (a) and (b) of Article 12 of the Convention;

(6) The High Court failed to appreciate that the Convention was a complete document, each term whereof had to be considered, and instead proceeded to interpret it in the light of precedents and textbook explanations of general terms (which were not so used in the Convention), and also did so without appreciating that the Convention's Article 12 was based on Article 12 of the UN MC and not on Article 12 of the OECD MC;

(7) The High Court also (apparently) failed to appreciate that if the respondent was taxed in Pakistan under paragraph 2 of Article 12 of the Convention its tax liability to such extent would have been accordingly adjusted in the Netherlands, and the respondent would not have been double taxed;

(8) The High Court appears not to have considered that the receipts that were taxed were the respondent's earnings in Pakistan, and to have kept this under consideration when considering the applicability of Article 12 of the Convention; and

(9) The High Court did not abide by the recognized principle of interpretation that the State in which payment is made (under the Convention) is generally entitled to tax such payment.

A. P. Moller v Commissioner of Income Tax 2012 SCMR 557 ref.

Impugned Judgments of the High Court in all appeals are not sustainable nor are the reasons given by the High Court to set aside the assessment orders, the appellate orders and the Tribunal's judgments, which are accordingly restored. Consequently, present appeals are allowed by setting aside the impugned Judgments of the High Court.

Per Syed Mansoor Ali Shah, J. (Minority view)

The character of payments received in transactions involving the transfer of computer software depends on the nature of the rights that the transferee acquires under the particular arrangement regarding the use and exploitation of the program. For a payment to constitute royalty under the Convention, it must fall at least in one of the three categories provided in Article 12(3) of the Convention. One can start by narrowing down the possibilities envisaged in Article 12(3) of the Convention. The agreement for the use of FLIC tapes (software programs) concluded between the respondent and the lessee on 1 February 1986 ("Agreement") did not involve payments made for the use of or the right to use any patent, trademark or trade name, design or model, or cinematograph films and tapes for television and broadcasting. The next issue is whether the Agreement involved payments made for the use of or the right to use any industrial, commercial or scientific equipment. 'Equipment' consists of tangible movable objects and since the software itself is only comprised of instructions and is pure intangible information, it is not covered by the equipment clause. It follows that the Agreement also did not involve payments made for the use of or the right to use any industrial, commercial or scientific equipment.

Matthias Valta and Stella Langner, in Reimer and Rust (eds), Klaus Vogel on Double Taxation Conventions (5th edn 2021) vol 1, art. 12, paras 160-162, 173-174 ref.

As regards the remaining possibilities envisaged in Article 12(3) of the Convention, insofar as the present case is concerned, with the payments made for the use of or the right to use secret formula or process, information concerning industrial, commercial or scientific experience or a copyright of a literary, artistic or scientific work. A secret formula or process comprises all kinds of company secrets, also known as industrial or trade secrets. The key element here is secrecy. This information must be confidential, meaning it is not widely known or easily accessible to those who typically deal with such information. It should have commercial value because of its secrecy and should be actively protected by the person who rightfully controls it through reasonable efforts. In the Agreement under the definition clause, the term 'FLIC tapes' means the full set of the respondent's proprietary software programs developed for use in oilfield data processing and log interpretation, including the software programs set out in the schedule attached to the Agreement, together with the related FLIC/VAX Handbook. Notably, however, what is not included is "any other related documentation such as, but not limited to, source code listings, program specifications, system flow charts, logic diagrams, system manuals or other documentation underlying and supporting the FLIC tapes". The reason for this exclusion is the respondent's intention that users shall have no knowledge of how FLIC tapes operate. It shows that the Agreement did not envisage supplying of information about the ideas and principles underlying the program, such as logic, algorithms or programming languages or techniques. The transaction between the respondent and the lessee cannot, therefore, be said to be a transfer of secret formulas or process behind the software.

Concerning the question of information regarding industrial, commercial or scientific experience which is also known as know-how, it is seen that it is legally unprotected, not-secret-but-undisclosed knowledge that has been attained through experience. Such experience knowledge must go beyond the pure technical progress; it is related to persons having gained the knowledge by their activities. Such experience cannot be obtained simply by using the goods and services that are produced with the knowledge. Experience-based knowledge extends beyond mere technical progress and is tied to individuals who have acquired it through their activities. No such experience was shared between the parties under the Agreement. When know-how is shared, it cannot be taken back and its use cannot be prohibited. The transfer of the use cannot be distinguished from a transfer of full ownership. However, in this case, the lessee, on termination of the Agreement, and the lease granted under it, was bound to deliver up the FLIC tapes to the respondent together with all copies of any part of the FLIC tapes held or made by the lessee. Moreover, know-how beyond software can only be the specific programming design and structure such as algorithms and not the program itself. This means that the chance of the Agreement to involve payments for the use of or the right to use information concerning industrial, commercial or scientific experience is also eliminated.

Matthias Valta and Stella Langner, in Reimer and Rust (eds), Klaus Vogel on Double Taxation Conventions (5th edn 2021) vol 1, Art. 12, paras 163-168 and Matthias Valta and Stella Langner, in Reimer and Rust (eds), Klaus Vogel on Double Taxation Conventions (5th edn. 2021) vol 1, art 12, para 175 ref.

Finally it has to be determined if the case falls under the last possibility: whether the payments were made to the respondent in consideration for the use of or the right to use a copyright of a literary, artistic or scientific work. The Agreement between the respondent and the lessee did not contemplate any licence to reproduce and distribute to the public software incorporating the copyrighted program, or to modify and publicly display the program. Therefore, there wasn't any transfer of rights to use the program in a manner that would, without such licence, constitute an infringement of copyright. Nor was there any transfer of the full ownership of the rights in the FLIC tapes. The rights acquired by the lessee comprised of partial rights in the copy of the program. Income from the renting out of software is not covered by Article 12 but by Article 7 of the UN Model Convention ("UN MC") and OECD Model Convention ("OECD MC"). In view of this, what follows is that no copyrights were leased out to the lessee which merely acquired a program copy of FLIC tapes for its operations.

Matthias Valta and Stella Langner, in Reimer and Rust (eds), Klaus Vogel on Double Taxation Conventions (5th edn 2021) vol 1, art. 12, para 174; Geoquest Systems B.V. Gevers Deyootweg v. Director of Income Tax (2010) 327 and Engineering Analysis Centre of Excellence Private Limited v The Commissioner of Income Tax 2022 (3) SCC 321 ref.

The reliance placed by the High Court on the OECD MC and its Commentary, in order to decipher the true nature of payments received by the respondent and to understand the concept of royalties in the context of double taxation makes no material difference to the adjduciation of the case in hand. Notably, the UN MC Commentary on paragraph 3 of Article 12 includes the entire extract of the OECD MC Commentary on the question whether payments received as consideration for computer software are to be classified as royalties or not.

The majority judgment (of the present case) without definitively addressing whether the amounts received by the respondent constitute royalties, instead embarks upon a discussion which was not in contention between the parties. Thus the remark (in the majority judgment) that if the respondent was not taxed in Pakistan, it might still be subject to taxation in the Netherlands, is not a pertinent consideration for a court tasked with adjudicating a legal dispute. Once it is established that the income earned by the respondent non-resident Dutch company for leasing software in Pakistan does not qualify as royalty, delving into irrelevant factors serves no useful purpose. Furthermore, the majority asserts that the High Court's jurisdiction in this case was limited to addressing and deciding questions of law. It is worth noting that the sole point of contention between the parties revolved around whether the amounts received by the respondent constituted royalties or not, a matter which is a question of law squarely within the purview of the High Court.

The majority judgment suggests that the respondent had an alternative remedy under Article 24 of the Convention to present its case to the competent authority in its own country. It is said that if the competent authority in the respondent's country agreed, it could then take up the matter with the competent authority in Pakistan. However, this provision of the Convention neither precludes the respondent from pursuing a remedy available under the laws of Pakistan, nor does it prevent the Supreme Court from adjudicating a question coming before it in its lawful jurisdiction.

Respondent is correct in claiming that there is distinction between the use of copyright and the use of copyright product. No copyrights were leased out to the lessee which merely acquired a program copy of FLIC tapes (software programs) for its operations. Further, the transaction of lease of FLIC tapes software programs between the respondent and the lessee did not involve payments made for the use of or the right to use secret formula or process, or information concerning industrial, commercial or scientific experience. Income resulting from the lease of FLIC tapes amounts to business profits and cannot be treated as income arising from royalties. Therefore, Article 12 of the Convention is not applicable to this case. Judgment of the High Court did not warrant any interference.

A.P. Moller v. Commissioner of Income Tax 2012 SCMR 557 distinguished.

Ms. Misbah Gulnar Sharif, Advocate Supreme Court for Appellant (in C.As. Nos. 94 to 106 of 2008).

Ch. Akhtar Ali, Advocate-on-Record for Appellant (in C.A. No. 94 of 2008).

Sh. Mehmood Ahmed, Advocate-on-Record for Appellant (in C.As. Nos. 95 to 106 of 2008).

Hafiz Ahsan Ahmad Khokhar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant (in C.A. No. 550 of 2011).

Makhdoom Ali Khan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record assisted by Saad Hashmi and Khawaja Aizaz Ahsan, Advocates for Respondent (in all cases).

2023 S C M R 1843

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and

Muhammad Ali Mazhar, JJ

KHALID MEHMOOD---Appellant

Versus

CHAKLALA CANTONMENT BOARD through C.E.O. and others---Respondents

C.M. Appeal No. 47 of 2020 in C.M.A. No. Nil of 2020 in C.R.P. No. 664 of 2018 in C.P. No. 130 of 2016, decided on 21st September, 2021.

(Against the order of the Institution Officer dated 17.02.2020).

Per Umar Ata Bandial, J.; Syed Mansoor Ali Shah and Muhammad Ali Mazhar, JJ. agreeing with their own reasons.

(a) Supreme Court Rules, 1980---

----O. XXVI, R. 9 & O. X, R.2---Constitution of Pakistan, Art. 188---Second review petition/curative review---Not maintainable---Article 188 of the Constitution and the Supreme Court Rules, 1980 envisage only one review of any judgment pronounced or any order made by the Court---Second review petition, whatever name is given to it including the "curative review", is not maintainable under Article 188 of the Constitution read with the Supreme Court Rules, 1980.

Per Umar Ata Bandial, J.

Second review petition was not maintainable in the present case.

Per Syed Mansoor Ali Shah, J.

Entertaining a second review petition would amount to vesting the Court with a jurisdiction not conferred on it by the Constitution or by or under any law.

Ahmad v. Abdul Aziz 1991 SCMR 234; Abdul Hameed Dogar v. Federation of Pakistan 2010 SCMR 312; Shabbar Raza v. Federation of Pakistan 2018 SCMR 514; Akhter Lalayka v. Mushtaq Sukhaira 2018 SCMR 1218 and Moinuddin v. State PLD 2019 SC 749 ref.

It is true that the Supreme Court Rules, 1980 bar entertaining the second review petition but are silent on the point whether the Supreme Court can exercise suo motu review jurisdiction to entertain a second review petition under Article 188 of the Constitution. It cannot do so for the reason that the prohibition on entertaining a second review petition is meant to put an end to litigation and ensuring finality of the judgments and orders of the apex court of the land, in the public interest. If this is the substance and purpose of the Supreme Court Rules, the prohibition operates both on the parties in moving the second review petition and on the Court as well, in exercising suo motu review jurisdiction the second time. If we assume that there is no prohibition on the suo motu exercise of its review jurisdiction the second time by the Court regarding a judgment or order, there will be no end to litigation nor will there be any finality of the judgment or orders of the Court as this suo motu review jurisdiction can then be exercisable for unlimited times and not only for the second time. Article 188 of the Constitution, thus, envisages only one-time exercise of the review jurisdiction, whether made on a review petition or suo motu, by the Court in respect of any of its judgments or orders passed in its original or appellate jurisdiction.

The second review petition, whatever name is given to it including the "curative review", is not maintainable under Article 188 of the Constitution read with the Supreme Court Rules, 1980.

Per Muhammad Ali Mazhar, J.

So far as a second review petition is concerned, it is clearly provided under Rule 9 of Order XXVI of the Supreme Court Rules, 1980 that, after the final disposal of the first application for review, no subsequent application for review shall lie to the Court and consequently it shall not be entertained by the Registry. Second review petition is not maintainable under the Supreme Court Rules, 1980.

Per Syed Mansoor Ali Shah, J.

(b) Interpretation of Constitution---

----Foreign jurisdictions---Any transplant of a rule from a foreign jurisdiction in ours can only be made after considering closely and thoroughly the difference in the constitutional texts and contexts.

(c) Constitution of Pakistan---

----Arts. 187(1) & 175(2)---Power of the Supreme Court to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it---Scope---Bare reading of Article 187(1) of the Constitution shows that its provisions are subject to and controlled by Article 175(2) of the Constitution---Article 187(1) only confers power on the Court 'to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it', and does not confer jurisdiction to take cognizance of any case or matter---Phrase 'in any case or matter pending before it' used in Article 187(1) is the key to construe the provisions thereof---No independent proceedings can be initiated under Article 187(1)---Court can invoke its power under Article 187(1) only in a case or matter that is competently filed before it under any Article of the Constitution or provision of some other law conferring jurisdiction as stated in Article 175(2) and is also pending before it---Article 187(1) of the Constitution is not applicable where the case or matter stands finally concluded and is no more pending before the Court.

Zulfiqar Babu v. Government of Punjab PLD 1997 SC 11; Hitachi Limited v. Rupali Polyester 1998 SCMR 1618; Saeed Akhtar v. State 2000 SCMR 383 and Khyber Tractors v. Pakistan PLD 2005 SC 842 ref.

Barrister Umer Aslam Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Babar Ali, Advocate Supreme Court for Respondents.

2023 S C M R 1853

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, CJ, Ayesha A. Malik and Athar Minallah, JJ

GOVERNMENT OF PAKISTAN through Secretary Interior and others---Petitioners

Versus

ZIA ULLAH KHAN and others---Respondents

Civil Petitions Nos. 5633 and 5833 of 2021, decided on 1st December, 2022.

(Against the judgment dated 29.09.2021 of the Peshawar High Court, Mingora Bench (Dar ul Qaza) Swat passed in Writ Petition No.564 -M of 2021)

Rules of Business, 1973---

----Sched. II, Sr. No. 84---Constitution of Pakistan, Arts. 97 & 137---Proceedings initiated and actions taken by the Prime Minister's Performance, Delivery Unit ('Unit') and Pakistan Citizen's Portal ('Portal')---Constitutionality---High Court declared the working and functions of the Unit and the Portal to be unconstitutional and opined that the working of both the forums was transgression of the executive authority of the Province---Validity---Unit and the Portal merely receive complaints and they are automatically transmitted to the concerned authorities for consideration---Neither the Unit nor Portal exercises any power that would amount to prejudicing the rights of the citizens or treated as interference in the executive domain of the province---Transmission of information to the concerned authorities of a province, by no stretch of imagination, can be construed as interference or transgression in its domain---After receiving the information transmitted by the Unit or the Portal as the case may be, the concerned provincial authorities are expected to consider the same and thereafter proceed in accordance with the law; they are not bound to act in a particular manner nor can any direction or order be passed by the Unit or the Portal---High Court had not appreciated the working and functioning of both the forums---Moreover, the transmission of a complaint or information by the Federal Government to the concerned authorities of a province does not constitute interference or transgression in the executive domain of that province---Impugned judgment of the High Court, therefore, has not correctly appreciated and interpreted the status and functioning of the Unit and the Portal--- Petitions for leave to appeal were disposed of accordingly.

Rashdeen Nawaz Qasoori, Additional Attorney General along with Mujahid Khan, Dy. Director, NADRA for Petitioners (in C.P. No. 5633 of 2021).

Atif Ali Khan, Additional A.G. Khyber Pakhtunkhwa along with Ali Rahman, Inspector Shakirullah, S.O. for Petitioners (in C.P. No. 5833 of 2021).

Mubarak Ali, Respondent in person.

Amir Nawab, Respondent in person.

Zia Ullah, Respondent in person.

2023 S C M R 1856

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah, Athar Minallah

and Syed Hasan Azhar Rizvi, JJ

COMMISSIONER INLAND REVENUE---Petitioner

Versus

Messrs RYK MILLS---Respondent

Civil Petitions Nos. 1842-L and 1843-L of 2022, decided on 11th September, 2022.

(Against the order of Lahore High Court, Lahore dated 31.03.2022, passed in ETRs Nos. 32241 and 32246 of 2021)

(a) Constitution of Pakistan---

----Arts. 4 & 10A---Show cause notice---Significance and purpose of a show cause notice stated.

A show cause notice is a formal communication from an authority, informing the recipient of an alleged violation or non-compliance with a law, and providing them with an opportunity to respond to the said allegations. It embodies the principle of natural justice, which requires that parties to a dispute be given a fair hearing before any decision is made that may affect their rights or interests. The principles of due process and fairness mandate that the recipient of a show cause notice be given adequate time to respond and present their case, that they be given access to relevant evidence and information, and that they be given the opportunity to be heard before any action is taken against them. This ensures that the decision-maker is not biased, that the decision is based on the facts of the case and the relevant law, and that the recipient's rights and interests are protected. Thus, in addition to the fair hearing principle, there are other principles of natural justice that also apply for the purposes of issuance of show cause notices, including the principle of impartiality, which requires that the decision maker be impartial, and the principle of reasons, which requires that the decision-maker provide reasons for their decision. Therefore, a show cause notice is an important tool for enforcing the law, and to ensure that the recipient is given a fair and transparent opportunity to present their case before any adverse order affecting their rights and interests is passed.

Siemens Engineering v. Union of India AIR 1976 SC 1785 and S.N. Mukherjee v. Union of India AIR 1990 SC 1984 ref.

The Constitution provides for the right to be treated in accordance with the law and enshrines the principles of fair trial and due process under Articles 4 and 10A, respectively. Article 4 of the Constitution provides for the right of citizens to enjoy the protection of law and to be treated in accordance with law as an inalienable right of every citizen. It further provides that no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with the law and that no person shall be prevented from or be hindered in doing that which is not prohibited by law. Article 10A provides for the fundamental right to a fair trial and due process. The issuance of a show cause notice is an essential element in ensuring the provision of the said rights, as it provides individuals and organizations with the opportunity to explain their actions and to respond to allegations of violation or non-compliance with any law before any adverse action is taken against them. Hence, it follows that when a specific allegation is not put to the recipient, thereby failing to provide the recipient with the opportunity to respond to the same, any adjudication on the said allegation would be against the right of due process and fair trial and therefore, in contravention to Articles 4 and 10A of the Constitution.

A show cause notice can also be viewed as being akin to alternative dispute resolution ("ADR") as it provides a pre-litigation opportunity for the recipient to present their position and show cause. By doing so, the matter can potentially be resolved before it escalates and requires any adjudication. This not only saves time and resources but also encourages the efficient resolution of disputes, acting as an effective mode of resolving disputes outside of the traditional legal framework. Thus, while acting as a means to ensure due process and fair trial by allowing the recipient to explain their position and respond to the allegations before any legal action is taken, the issuance of a show cause notice also acts as a tool to resolve the issue in the pre-litigation stage, similar to the objective of ADR.

(b) Constitution of Pakistan---

----Arts. 4 & 10A---Fresh/supplementary show cause notice, issuance of---Circumstances in which issuance of a fresh/supplementary show cause notice becomes necessary highlighted.

In certain cases and to uphold the principles and rights enshrined in Articles 4 and 10A of the Constitution, after the issuance of the initial show cause notice, it may be necessary to issue a supplementary or a fresh show cause notice if there has been a significant change in circumstances or if new evidence has come to light. For example, if the recipient has provided a valid response to the initial show cause notice, but new information has surfaced suggesting that the alleged violation or non-compliance did occur, a fresh show cause notice may be required to enable the recipient to respond to the new allegations and provide further clarification. Similarly, where there has been a significant change in the circumstances or situation that led to the issuance of the initial show cause notice, a fresh or supplementary show cause notice may be required to address these changes; where the original notice was defective or incomplete, a fresh or supplementary notice would be required to be issued to provide a more detailed or accurate statement of the issues; and where the original notice does not fully address all of the issues or violations that need to be addressed, a fresh or supplementary notice should be issued to cover any outstanding matters. Ultimately, the decision to issue a fresh show cause notice should be predicated on a thorough and careful evaluation of the facts and circumstances of each case, guaranteeing that the principles of due process and fair trial are upheld.

(c) Tax---

----Show cause notice---Contents---Scope and purpose of a show cause notice stated.

A show cause notice issued to a taxpayer must contain all the necessary facts and must specify the alleged actions or inaction by the taxpayer that violated the law, allowing for a meaningful response from the taxpayer. It is imperative that the taxpayer is confronted with specific allegations, along with the grounds upon which such allegations are based, in order to properly respond to the same and to place relevant material on record that would be necessary for any defence put forth and for any adjudication by the assessing officer in relation thereto. This is also because once a show cause notice is issued, the original adjudication on the said show cause notice can only be based on the grounds and allegations levelled therein. Unless the taxpayer is confronted with the allegations through a show cause notice, no determination can be made by the assessing officer with regards to the said allegations as it is beyond the competence of the department to make out a case which the department had never canvassed and the taxpayer had never been afforded the opportunity to meet. Hence, unless the allegations, and the grounds on which the said allegations are based, are not specifically alleged in the show cause notice issued to the taxpayer, the whole exercise becomes redundant and unsustainable in law.

Commissioner Inland Revenue v. Pakistan Tobacco Company 2022 SCMR 1251; Al-Khair Gadoon v. The Appellate Tribunal 2019 SCMR 2018; Raj Bahadur v. Union of India (1997) 6 SCC 81; New Delhi Television v. Deputy Commissioner of Income Tax AIR 2020 SC 2177; Collector of Central Excise v. H.M.M. Limited 1995 Supp. (3) SCC 322; Collector Central Excise v. Rahm Din 1987 SCMR 1840; SACI Allied Products v. Commissioner of Central Excise (2005) 7 SCC 159; Commissioner of Central Excise v. Ballarpur Industries (2007) 8 SCC 89 and Precision Rubber v. Commissioner of C. Ex. 2016 (334) ELT 577 (SC) ref.

(d) Tax---

----Fresh/supplementary show cause notice, issuance of---Circumstances in which issuance of a fresh/supplementary show cause notice becomes necessary highlighted.

Where in response to a show cause notice, the taxpayer, in defence, raises substantial grounds or puts forth substantial factual aspects that are not covered in the initial show cause notice and, therefore, require further inquiry or verification by the department, then, after conducting such further inquiry or verification, a fresh or supplementary show cause notice should be issued to the taxpayer, if it is then so required. No determination can be made with regards to the same unless the taxpayer is afforded the opportunity to respond to any deficiencies or misrepresentations found in relation thereto by specifically alleging the same in a fresh or supplementary show cause notice. Hence, instead of proceeding under the same show cause notice, it is necessary that a fresh or supplementary show cause notice is issued to the taxpayer in light of the defence so taken. Failure to do so would not only denote that in light of the grounds or facts raised in the defence put forth by taxpayer in response to the show cause notice, which were not in the knowledge of the tax authorities and therefore, were not part of the show cause notice, no further action is required under the said show cause notice, any adjudication in relation to the same would also be against the law, rendering the whole exercise redundant. Therefore, as a policy, such practice must be adopted by the tax authorities in order to prevent wastage of time and effort, and to curb unnecessary litigation. Not only would this allow a taxpayer to meaningfully respond to the specific allegations asserted against the taxpayer upon which the subsequent original adjudication, if any, will be based, as required under the law, it would also allow many cases to be resolved at the initial stages without the need to proceed any further and needlessly burden the public exchequer.

Warner Hindustan v. Collector of Central Excise (1999) 6 SCC 762; Precision Rubber v. Commissioner of C. Ex. 2016 (334) ELT 577 (SC) and Godrej v. Commissioner of Customs 2002 (143) ELT 16 (SC) ref.

(e) Tax---

----Factual issues---Highest authority for factual determination in tax matters is the Tribunal.

Commissioner Inland Revenue v. Sargodha Spinning Mills 2022 SCMR 1082 and Commissioner Inland Revenue v. MCB Bank Limited 2021 PTD 1367 ref.

Saba Saeed, Advocate Supreme Court for Petitioners (through video-link, Lahore)

Shehbaz Butt, Advocate Supreme Court for Respondent (through video-link, Lahore)

Assisted by: Muhammad Hassan Ali, Law Clerk, Supreme Court of Pakistan.

2023 S C M R 1867

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Athar Minallah, JJ

CRIMINAL M.A. NOS. 1566 AND 2027 OF 2016

CRIMINAL M.A. NO.1566 OF 2016

(Compliance report of Secretary, Law and Justice Commission

of Pakistan in respect of order dated 23.11.2015 passed in Criminal Petition No. 449 of 2015)

CRIMINAL M.A. NO. 2027 OF 2016

(For permission to file and argue review filed against order dated 26.10.2016 of this Court passed in Criminal Petition No. 449 of 2016

Raja AZMAT ALI---Applicant/Petitioner

Versus

ABU MALIK NASEEM and another---Respondents

Criminal M.As. Nos. 1566 and 2027 of 2016, decided on 23rd May, 2023.

Constitution of Pakistan---

----Arts. 9, 10A, 14, 25 & 37(d)--- Incarcerated prisoners---Fundamental rights---Release of inmates from the prisons on the basis of 'probation'---Duty of care owed by the State and its functionaries towards incarcerated prisoners explained.

It is an undeniable fact that living conditions and the treatment of prisoners in overcrowded and inadequately equipped prisons profoundly affects the constitutionally guaranteed rights. Most of the victims of a non-functional criminal justice system are those who belong to economically and socially marginalized sections of the society. They do not have the means to access the courts nor has the State fulfilled its constitutional obligation to ensure inexpensive and expeditious justice contemplated under Article 37(d) of the Constitution.

The prisoner, whether convicted or non-convicted, has no choice but to place reliance for his right to life and other needs, such as medical attention, solely on the authorities holding him/her in custody. This reliance gives rise to a duty of care on the part of the State and its functionaries. The Constitution guarantees the right to life under Article 9. In the context of a prisoner, it is implicit in Article 9 that it is the duty of the State to ensure that every person incarcerated including those who are convicted for an offence and undergoing sentence, are treated in a manner that does not expose the latter to harm and that humane treatment is extended so long as the incarceration lasts. The prisoner is thus entirely dependent on the State and is at its mercy for the purposes of safeguarding the right to life. The State, therefore, owes a duty of care to every prisoner, regardless of the nature of offence for which the latter has been incarcerated. It is only liberty and the right of free movement that has been curtailed and definitely not the constitutional rights to life and to be treated with respect, having regard to the fundamental rights of inviolability of the dignity of man guaranteed under Article 14 of the Constitution. Moreover, it becomes a duty of the functionaries to ensure that no prisoner is unjustifiably deprived of the right to liberty even if it is on the basis of being released on probation.

It is a right of every eligible prisoner to be considered for the purposes of enjoying liberty on the basis of probation. The neglect of the executive authorities to perform their obligations and duties imposed by law and to give effect to the enforced laws, particularly relating to the inmates of prisons amounts to a breach of the duty of care that is owed to the incarcerated prisoner. This breach of a fiduciary duty could expose the concerned authorities and the State to be sued by the inmates of the overcrowded prisons for damages.

Neglect or refusal to effectively enforce the enacted laws relating to release of a prisoner on the basis of probation is violative of the fundamental rights guaranteed under the Constitution, inter alia, under Articles 9, 10-A, 14 and 25. The respective Chief Executives' of the Federal Government and the provinces are directed to ensure that the enacted laws relating to release of a prisoner on the basis of probation are effectively implemented and made functional. The Federal and Provincial Governments, as the case may be, shall ensure that the prisoners who are eligible under the enacted laws for availing the benefit of being released on probation are identified and their cases are processed expeditiously.

In Attendance:

Ch. Aamir Rehman, Additional A.G.P., Malik Waseem Mumtaz, Additional A.G. Punjab, Muhammad Farid Dogar, A.A.G., Balochistan, Sibtain Mahmood, Additional A.G. Sindh (via video Link, Karachi), Mualim Jan, Director Probation, Khyber Pakhtunkhwa, Shakir Ullah, SO, Home Dept. Khyber Pakhtunkhwa, Sajjad Ahmed Alvi, AD Probation, Rawalpindi and Hafiz Muhammad Sultan, AD Probation, Rawalpindi.

Nemo for Applicant/Petitioner.

Nemo for Respondents.

2023 S C M R 1871

[Supreme Court of Pakistan]

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

FEDERAL BOARD OF REVENUE---Appellant

Versus

DEWAN SALMAN FIBER LTD. and others---Respondents

Civil Appeals Nos. 1089 to 1090 of 2015, decided on 1st September, 2023.

(On appeal from the order dated 14.5.2015 passed by the Islamabad High Court, Islamabad in I.C.A. No.82 of 1997, W.Ps. 287 and 1105 of 1996 in of 20)(sic.)

Per Munib Akhtar, J; Umar Ata Bandial, J., agreeing; Yahya Afridi, J. partially dissenting.

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

----S. 13(1)---Protection of Economic Reforms Act (XII of 1992), Ss. 3 & 6---SRO 580(I)/91 dated 27.06.1991 ('SRO 580/91')---SRO 561(I)/94 dated 09.06.1994 ('SRO 561/94')---SRO 612(I)/94 dated 14.06.1994---Manufacturer of polyester staple fiber (PSF) in North-West Frontier Province (now Khyber Pakhtunkhwa)---Exemption from sales tax, removal of---Sales tax imposed on raw materials i.e. mono-ethylene glycol (MEG) and pure terephthalic acid (PTA)---Legality---Whether SRO 580/91 came within the ambit of section 6 of the Protection of Economic Reforms Act, 1992---[Per Munib Akhtar, J. (Majority view): If a notification came within the scope of section 6 of the Protection of Economic Reforms Act, 1992 ('the 1992 Act'), it could not then be "altered to the disadvantage of the investors"---SRO 580/91 came squarely within the scope of said section; it was intended to encourage industrialization in North-West Frontier Province (now Khyber Pakhtunkhwa)---SRO 580/91 thus provided a fiscal incentive for investment, which came within the scope and meaning of "economic reforms"; it specified the period within which the industry had to be set up: 01.07.1991 to 30.06.1996---SRO 561/94 on the other hand, while covering the same ground as SRO 580/91 and even (if the provisos were taken into account) ostensibly the same period, clearly altered the benefit and incentive provided under the earlier notification to the disadvantage of the investors---It could not prevail against the provisions of section 6 of the 1992 Act---In this context section 3 of the 1992 Act is also relevant, which provides that the Act is to have overriding effect over the various statutes mentioned therein and also "any other law for the time being in force"---Sales Tax Act, 1990 was a law that clearly came within the scope of the overriding clause---Therefore, notwithstanding the issuance of SRO 561/94 and the purported supersession of SRO 580/91 thereby, the latter notification continued to remain available for its term by virtue of section 6 of the 1992 Act---Benefit of the exemption from sales tax under SRO 580/91 was available for the respondent company's Unit II, and could not be defeated by SRO 561/94---Impugned judgment of High Court was affirmed]---[Per Yahya Afridi, J. (Minority view): Challenge of the respondent-company to SRO 561/94 is to be upheld not only on the basis of section 6 of the Act of 1992, as done by the Majority view, but also on the doctrines of vested rights and promissory estoppel]---Appeal were dismissed.

Collector of Central Excise v. Azizuddin Industries PLD 1970 SC 439 and Army Welfare Sugar Mills v. Federation of Pakistan 1992 SCMR 1652 ref.

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

----S. 13(1)---Protection of Economic Reforms Act (XII of 1992), S.6---SRO 462(I)/88 dated 26.06.1988 ('SRO 462/88')---SRO 482(I)/92 dated 14.05.1992 ('SRO 482/92')---SRO 529(I)/88 dated 26.06.1988 (SROs 529/88)---SRO 580(I)/91 dated 27.06.1991 (SRO 580/91)---Manufacturer of polyester staple fiber (PSF) in North-West Frontier Province (now Khyber Pakhtunkhwa)---Exemption from sales tax, removal of---Sales tax imposed on raw materials i.e. mono-ethylene glycol (MEG) and pure terephthalic acid (PTA)---Legality---Whether SRO 462/88 came within the ambit of section 6 of the Protection of Economic Reforms Act, 1992--- [Per Munib Akhtar, J. (Majority view): SRO 462/88 provided exemption from sales tax on the import/supply of MEG and PTA, the raw materials of PSF---SRO 462/88 superseded SRO 652(I)/81 dated 25.06.1981---Perusal of the latter notification shows that the exemption for MEG and PTA had also been given therein---SRO 462/88 was superseded by SRO 482/92, and the latter notification did away with the exemption for MEG and PTA---Protection of Economic Reforms Act, 1992 ('the 1992 Act') did not as such apply to SRO 462/88 in and of itself---This is so for two separate and distinct reasons---Firstly, SRO 462/88 was issued before 07.11.1990, the date specified in the definition of "economic reforms" for purposes of the 1992 Act---Secondly, it was not a time bound notification, i.e., the exemption granted in terms thereof did not operate over any specific period---High Court erred materially in coming to the conclusion that the company was entitled to the relief that it sought in respect of SRO 482/92---To such extent the impugned judgment of High Court was set-aside]---[Per Yahya Afridi, J. (Minority view): While examining the claim of the respondent-company in respect of SRO 482/92, the Majority view has not adverted to doctrines of vested rights and promissory estoppel and the well-established principle that what cannot be done directly is not permissible to be done indirectly, and has limited the judicial review of the act of the Government only to the extent of examining its legal power to issue the said SRO, within the scope of Act of 1992---Admittedly, SRO 482/92 withdrew the exemption of sales tax on raw material earlier granted vide SRO 462/88, and thus, the payment thereof became an additional cost for the respondent-company, as it could not be adjusted against the output tax, which had been exempted vide SRO 529(I)/88 dated 26.06.1988 (SROs 529/88) and SRO 580(I)/91 dated 27.06.1991 (SRO 580/91)---More importantly, the incentives offered for establishing an industrial unit in a less developed area had in effect been reduced to naught, and that too, after the respondent-company had done all that was required on its part, to acquire vested right to avail the benefit under the said SROs---Such impugned steps were in effect respondent-company specific, and not only adversely affected its vested rights, but blatantly benefited the commercial interests of the competitors---More so, the Government also defied the raison d'etre of the Act of 1992---By taking such unconscionable steps, like issuing SRO 482/92, the very object of inviting and protecting foreign investments in less developed areas of the country had been blatantly thwarted---SRO 482/92 cannot be made applicable to the respondent-company in taking away indirectly the exemption of sales tax granted to it by SROs 529/88 and SRO 580/91; and SRO 482/92 shall not apply to the respondent-company during the period of exemption from sales tax provided under SROs 529/88 and SRO 580/91]---Appeals were partly allowed.

Abdul Baqi v. Government of Pakistan PLD 1968 SC 313; Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Shahid Mehmood v. Afzal Mehmood 2011 SCMR 551; Al-Jehad Trust v. Federation of Pakistan PLD 2011 SC 811; Hanif Abbasi v. Imran Khan PLD 2018 SC 189 and Al-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917 ref.

(c) Central Excise Act (I of 1944)---

----S. 3---Protection of Economic Reforms Act (XII of 1992), S. 6---SRO 531(I)/88 dated 26.06.1988 ('SRO 531/88')---SRO 555(I)/79 dated 28.06.1979 ('SRO 555/79')---SRO 500(I)/93 dated 14.06.1993 ('SRO 500/93')---SRO Nos. 545(I)/94 and 546(I)/94, both dated 09.06.1994 ('SRO 545/94' and 'SRO 546/94' respectively)---SRO 477(I)/95 dated 14.06.1995 ('SRO 477/95')---Manufacturer of polyester staple fiber (PSF) in North-West Frontier Province (now Khyber Pakhtunkhwa)---Exemption from excise duty on raw materials mono-ethylene glycol (MEG) and pure terephthalic acid (PTA)---Removal of---Legality---Whether SRO 531/88 came within the ambit of section 6 of the Protection of Economic Reforms Act, 1992---[Per Munib Akhtar, J: SRO 531/88 amended a general exemption notification issued under the Central Excises Act, 1944 ('1944 Act'), SRO 555(I)/79 dated 28.06.1979 ("SRO 555/79")---Effect was to grant complete exemption from excise duty in respect of the manufacture of PSF---Now, before this notification (i.e., SRO 531/88) was issued, the position was that even under SRO 555/79 the manufacture of PSF was liable to the payment of excise duty, though at the exempted rate of Rs.2.50 per kg--- Thus, when the respondent-company was incorporated (1989) and its units came into operation thereafter the complete exemption from excise duty was a relatively recent phenomenon---Practice adopted under the 1944 Act was for general exemption notifications to be issued, encompassing a wide range and variety of manufactured goods---SRO 555/79 was replaced by another such general notification (SRO 500/93), which in turn gave way to two general notifications, both issued on 09.06.1994, being SRO 545/94 and SRO 546/94---For present purposes, the combined effect of all of this was that the (complete) exemption from excise duty on the manufacture of PSF provided by SRO 531/88 was continued---Then came SRO 477/95, which amended SRO 546/94 such that a 5% excise duty was imposed on the manufacture of PSF---Protection of Economic Reforms Act, 1992 ('the 1992 Act') did not as such apply to SRO 531/88 in and of itself---This is so for two separate and distinct reasons---Firstly, SRO 531/88 was issued before 07.11.1990, the date specified in the definition of "economic reforms" for purposes of the 1992 Act---Secondly, neither it nor the general exemption notification that it amended (SRO 555/79), nor the general exemption notifications that came thereafter were time-bound notifications, i.e., the exemptions granted in terms of the general notifications did not operate over any specific period---High Court erred materially in coming to the conclusion that the company was entitled to the relief that it sought in respect of SRO 477/95---To such extent the impugned judgment of High Court was set-aside]---[Per Yahya Afridi, J: As to SRO 477/95, the doctrines of vested rights and promissory estoppel do not affect the exercise of its legal power by the Government to withdraw the exemption of excise duty as the Government had not made the earlier exemption from excise duty conditional on establishing an industrial unit in the specified less developed areas, as it had done in regard to sales tax exemption]---Appeals were partly allowed.

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

----Ss. 3(1) & 3(2)---Protection of Economic Reforms Act (XII of 1992), S. 6---SRO 515(I)/95 dated 14.06.1995 ('SRO 515/95')---Manufacturer of polyester staple fiber (PSF) in North-West Frontier Province (now Khyber Pakhtunkhwa)---Exemption from sales tax, removal of---Sales tax imposed on raw materials i.e. mono-ethylene glycol (MEG) and pure terephthalic acid (PTA)---Legality---Whether SRO 515/95 came within the ambit of section 6 of the Protection of Economic Reforms Act, 1992---[Per Munib Akhtar, J: SRO 515/95 reduced the rate of sales tax on the supply of PSF to 10%---At that time (14.06.1995) the rate was 15%---This notification did not, as such, apply to the company itself since the latter in any case enjoyed a complete exemption from sales tax for the specified periods in relation to its units---Rather, it applied in relation to its competitors---Now, SRO 515/95 was issued under subsection (2) of section 3 of the Sales Tax Act, 1990 ('the 1990 Act'), as those provisions then stood---At that time, this subsection (in its clause (a)) allowed the Federal Government, by notification in the Official Gazette, to provide that the supplies of goods as specified therein were to be charged at such higher or lower rates as set out in the notification, i.e., the specified rates could be greater or less than the statutory rate given in section 3(1)---And that is what was done by SRO 515/95---It was not an "exemption" notification, providing only for a rate of sales tax less than 15%---For many of the goods specified therein, the rate was in fact enhanced beyond and above the statutory rate---SRO 515/95 was therefore of a character somewhat different from a simple exemption notification---For the supply of some goods (such as PSF) it provided a benefit but for others it acted in a negative manner---It is therefore not easy to "fit" this notification into the scheme of section 6 of the Protection of Economic Reforms Act, 1992 ('the 1992 Act')---However, even if one focuses only on the supply of PSF (and those goods where the rate was reduced below that provided in the statute) the notification did not come within the scope of section 6---This is so because it did not provide for any time-bound measure---High Court erred materially in coming to the conclusion that the company was entitled to the relief that it sought in respect of SRO 515/95---To such extent the impugned judgment of High Court was set-aside]---[Per Yahya Afridi, J: As to SRO 515/95, the doctrines of vested rights and promissory estoppel do not affect the exercise of its legal power by the Government to reduce the rate of sales tax on final product for the competitors, as the Government had not made any representation to the respondent-company that it would not reduce the rate of sales tax on final product for the competitors]---Appeals were partly allowed.

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

Abdul Hameed Anjum, Secy. Legal FBR (in C.As. 1089-1090 of 2015).

Sikandar Bashir Mohmand, Advocate Supreme Court for the Contesting Respondents (in C.As. 1089-1090 of 2015).

2023 S C M R 1898

[Supreme Court of Pakistan]

Present: Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

SAAD ZIA---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 150-L of 2023, decided on 20th June, 2023.

(On appeal against the order dated 20.01.2023 passed by the Lahore High Court, Lahore in Criminal Misc. No. 3872-B of 2023)

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

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Constitution of Pakistan, Art. 185(3)---Murderous assault---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Generalized allegation of causing indiscriminate firing has been alleged against the petitioner (accused), however, during the course of investigation, it transpired that the petitioner was empty handed at the time of occurrence and he has not been ascribed any overt act---Such opinion of the police has not been challenged, rather the petitioner was placed in column No. 2 of the report furnished under section 173, Cr.P.C.---Stance of the petitioner was that in-fact complainant party was the aggressor and two persons from the petitioner's side also sustained injuries during the occurrence, which were suppressed by the complainant side---Admittedly the petitioner himself surrendered before the law and joined investigation---In these circumstances, it is the Trial Court, who after recording of evidence would decide about the guilt or otherwise of the petitioner and till then the petitioner cannot be put behind bars for an indefinite period---Petitioner is a student having no criminal history and keeping him behind bars with hardened criminals would not be in the interest of justice---Case of the petitioner squarely falls 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 pre-arrest bail granted to the petitioner was confirmed.

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

----Ss. 497 & 498---Penal Code (XLV of 1860), S. 302---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Bail---Absconsion of accused---Absconsion cannot be viewed as a proof for the offence---Mere absconsion cannot be made a ground to discard the relief sought for as disappearance of a person after the occurrence is but natural if he is involved in a murder case rightly or wrongly.

Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 and Muhammad Tasaweer v. Hafiz Zulkarnain PLD 2009 SC 53 ref.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---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 PLD 2022 SCMR 1424 and Muhammad Ijaz v. The State 2022 SCMR 1271 ref.

Sahir Mehmood Bhatti, Advocate Supreme Court for Petitioner along with Petitioner.

Mirza Abid Majeed, D.P.G.and Saeed, SI for the State.

Complainant in person.

2023 S C M R 1901

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Athar Minallah, JJ

MOHAMMAD BOOTA (DECEASED) through L.Rs., and others---Appellants

Versus

Mst. FATIMA daughter of Gohar Ali and others---Respondents

Civil Appeal No. 419 of 2011, Civil Misc. Application No. 1839 of 2011 and Civil Appeal No. 1184 of 2019, decided on 22nd August, 2023.

(Against the judgment dated 7.4.2011 and 20.3.2014, passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur, in C.Rs. Nos.407 of 1993 and 25-D-2002/BWP)

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

----Ss. 19-A & 20---West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S. 2-A---Punjab Muslim Personal Law (Shariat) Application (Amendment) Act (XI of 1951), S. 2 [since repealed]---Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), S. 2 [since repealed]---Punjab Laws Act (IV of 1872), S. 5 [since repealed]---State of Bahawalpur---Tenancy rights, inheritance of---Female heirs---Succession in tenancy matters prior to the year 1951---Even prior to the year 1951, when section 19-A was inserted in the Colonization of Government Lands (Punjab) Act, 1912, sharia law was enforced in the State of Bahawalpur---Succession for the purposes of Muslims was governed by sharia law even before 1951 unless any custom was established as being consistently prevalent in the area and applicable to the parties---Even section 5 of the Punjab Laws Act, 1872 did not exclude sharia law from applying on personal law matters, provided a custom, not contrary to justice, equity and good conscience was established---Punjab Muslim Personal Law (Shariat) Application Act, 1948 clarified that muslim personal law was applicable for the purposes of succession notwithstanding any custom meaning that all decisions regarding succession were governed by sharia law---The 1948 Shariat Act was applicable to the State of Bahawalpur where the rule of decision for the purposes of succession was sharia law---Therefore, even prior to March 1951, sharia law was applicable in Bahawalpur to muslims on account of the 1948 Shariat Act which means that even in the presence of a custom or section 20 of the Colonization of Government Lands (Punjab) Act, 1912 sharia law will prevail.

Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501; Hakim Ali and others v. Barkat Bibi and others 1988 SCMR 293; Muhammad Yousaf v. Karam Khatoon 2003 SCMR 1535 and Government of Pakistan v. Brig, His Highness Nawab Muhammad Abbas Khan Abbasi and others PLD 1982 SC 367 ref.

(b) Islamic law---

----Inheritance---Limitation---Female heirs---No limitation runs against matters involving inheritance rights of a female where she has been defrauded of her right by her family---Where a person has been denied the right of inheritance that would give them cause of action---No limitation would run against a co-sharer.

Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Saadat Khan and others v. Shahid-ur-­Rehman and others PLD 2023 SC 362; Shabla and others v. Ms. Jahan Afroz Khilat and others 2020 SCMR 352 and Khan Muhammad through LRs. and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476 ref.

Sh. Zamir Hussain, Advocate Supreme Court for Appellants (in C.A. No. 419 of 2011).

Agha Muhammad Ali, Advocate Supreme Court for Appellants (in C.A. No. 1184 of 2019).

Respondents ex-parte.

Barrister Umer Aslam, Advocate Supreme Court as Amicus Curiae.

2023 S C M R 1914

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Athar Minallah, JJ

Col. (Retd.) SUBH SADIQ MALIK and another---Petitioners

Versus

The STATE through Chairman, NAB, Islamabad---Respondent

Criminal Petition No. 806 of 2022 and Criminal Petition No.689 of 2022, decided on 17th November, 2022.

(Against the order dated 28.4.2022 of the Islamabad High Court, Islamabad passed in Criminal Appeals Nos.50/2020, 51/2020, 30/2020 and Criminal Appeal No.31 of 2020)

National Accountability Ordinance (XVIII of 1999)---

----S. 31---Constitution of Pakistan, Art. 10A---National Accountability Bureau (NAB)---Investigating Officer---Strictures recorded by the High Court, expunction of---Petitioners (Director General and Assistant Director in NAB) were not arrayed as parties to the appeal before the High Court, nor were they put to notice before recording the (adverse) observations against them---High Court may have been justified in highlighting the flaws and shortcomings, or even grave neglect in the investigations carried out by NAB, but the strong observations against the petitioners ought to have been avoided because of the profound consequences relating to their right to a fair trial in case of initiation of departmental proceedings or under section 31 of the National Accountability Ordinance, 1999 ('Ordinance of 1999')---Strictures recorded by a High Court against an employed person who is subject to disciplinary proceedings are likely to prejudice the latter's right to a fair trial---Strictures recorded by the High Court in the case in hand are in the nature of condemning the petitioners unheard since they were not served with any notice nor did they have an opportunity to put up a defence---High Court had highlighted the shortcomings and grave flaws relating to the manner in which the investigations had been conducted---Judicial precaution and propriety required restraint to have been shown by the High Court in recording of observations regarding the conduct, behavior and integrity of the petitioners---Decision whether to proceed against the petitioners should have been left to the competent authority of the NAB because there was no reason to presume that the latter, after taking into consideration the observations made by the High Court regarding the investigations, would not have acted in accordance with law---Strictures recorded by the High Court against the petitioners, therefore, infringed their right to a fair trial and are thus not sustainable---Petitions for leave to appeal were converted into appeals and allowed to the extent of expunging the strictures recorded against the petitioners in the impugned judgment.

Ms. Nusrat Yasmin v. Registrar, Peshawar High Court and others PLD 2019 SC 719 ref.

Raja Inaam Ameen Minhas, Advocate Supreme Court for Petitioners (in Criminal Petition No. 689 of 2022).

Muhammad Amjad Iqbal Qureshi, Advocate Supreme Court for Petitioners (in Criminal Petition No. 806 of 2022).

Sattar Muhammad Awan, D.P.G., NAB for the State.

2023 S C M R 1919

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Muhammad Ali Mazhar and Musarrat Hilali, JJ

JAMEEL QADIR and another---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN, LOCAL GOVERNMENT, RURAL DEVELOPMENT AND AGROVILLES DEPARTMENT, QUETTA through Secretary and others---Respondents

Civil Petitions Nos.2270 and 2272 of 2023, decided on 27th July, 2023.

(On appeal from the judgment dated 31.05.2023 passed by the High Court of Balochistan, at Quetta in Constitution Petitions Nos.353 and 352 of 2023)

(a) Balochistan Local Government Act (V of 2010)---

----S. 37---Elections Act (XXXIII of 2017), S. 139---Balochistan Local Government (Election) Rules, 2013, R. 72---Constitution of Pakistan, Art. 199---Local bodies elections---Election dispute---Order of the Election Commission of Pakistan (ECP) directing aggrieved party to approach the Election Tribunal--- Aggrieved party invoking constitutional jurisdiction of the High Court under Article 199 of the Constitution---High Court setting-aside order of the ECP and declaring aggrieved party as the returned candidate---Legality---In the present case Election Tribunal had already been appointed, having powers to adjudicate upon the matter---Applications before the ECP were dismissed with the observation that if the aggrieved parties (respondents) so desired, they may approach the Election Tribunal---High Court, before adverting to the question of jurisdiction, not only entertained the (Constitutional) petitions filed by the respondents/ aggrieved parties but also declared the respondents as returned candidates with directions to the ECP to notify them---High Court neither determined the question of jurisdiction, nor rendered any findings as to why the aggrieved parties/respondents were not bound by law to avail the remedy provided before the Election Tribunal under section 37 of the Balochistan Local Government Act, 2010 ('the 2010 Act')---In the instant case, after notifying the returned candidates and appointment of Election Tribunals, the ECP being sanguine and mindful to the provisions contained under section 37 of the 2010 Act, directed the parties to approach the Election Tribunal where the election disputes could be resolved by the Election Tribunal after recording evidence as the ECP had otherwise become functus officio for entertaining and deciding any election dispute---If the learned High Court was of the view that the issue challenged before it was not an election dispute, then definite findings should have been recorded bearing in mind the bar contained under section 37 of the 2010 Act and enabling provisions, but no findings were recorded with regard to jurisdiction---Petitions for leave to appeal were converted into appeals and allowed, and the matter was remanded to the High Court for deciding in accordance with law the question of jurisdiction of the High Court in an election dispute after hearing the parties.

(b) Jurisdiction---

----Principles relating to jurisdiction of Courts and Tribunals stated.

The term 'jurisdiction' in legal parlance means the command conferred to the Courts by law and Constitution to adjudicate matters between the parties. The jurisdiction of every Court is delineated and established to adhere to and pass legal orders. Transgressing or overriding the boundary of its jurisdiction and authority annuls and invalidates the judgments and orders. In order to deal with the different species of litigation, some Courts and Tribunals are vested with exclusive jurisdiction for taking cognizance of matters which other Courts cannot take under the rigidity or stringency of exclusive jurisdiction to deal with and decide the lis. No Court has the right to decide any lawsuit which is beyond the purview of its jurisdiction and want of jurisdiction conveys an action beyond the domain earmarked to any particular Court or Tribunal which cannot be cured, even by consent or acquiescence of parties. It is the prime duty of the Court to decide the question of jurisdiction first in case of doubts raised regarding its jurisdiction, and in any such situation it is the responsibility of the Court to endeavor to resolve the issue of jurisdiction at an early stage of the proceedings.

Jurisdiction cannot be conferred by consent, nor can it be fettered unless there is a choice between more than one place in terms of jurisdiction. If the order or judgment is suffering from the vice of coram non judice it may be quashed and set aside by the Court when a special statute gives a right and also provides a forum for the adjudication of rights.

(c) Jurisdiction---

----Expression 'coram non judice'---Meaning and scope---Expression 'coram non judice' means an act done by a court which has no jurisdiction---When the suit is brought in a court without jurisdiction it is said to be coram non judice and any judgment is null and void---When a court of general jurisdiction undertakes to grant a judgment in an action where it has not acquired jurisdiction of parties by voluntary appearance or service of process, the judgment is void and may be disregarded and it is 'coram non judice'.

Secrest v. Galloway Co., 30 N.W. 2d 793, 797, 239 Iowa 168; Wharton's Law Lexicon, 1976 reprint, p 260; K. J. Aiyer's Judicial Dictionary, A Complete Law Lexicon, Thirteenth Edition and City of Monroe v. Niven, 20 S.E. 2d 311, 312, 221 N.C. 362, Words and Phrases, Permanent Edition, Volume 9A ref.

(d) Words and phrases---

----'Per incuraim'---Meaning---Decision of a Court becomes per incuriam when it is rendered in ignorance of a statute or a rule having the force of statute.

Rupert Cross & J.W. Harris, Precedent in English Law 149 (4th ed. 1991); Black's Law Dictionary (Ninth Edition); C.C.K. Allen in 'Law in the Making' (Page No. 246); Huddersfield Police Authority v. Watson ((1947) 2 All E.R. 193); Morelle Ltd. v. Wakeling ([1955] 2 QB 379) and Young v. Bristol Aeroplane Co. Ltd. (1944 KB 718 at 729 = (1944) 2 All E.R. 293 at 300)) ref.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Exhaustion of remedies, doctrine of---Writ jurisdiction of the High Court cannot be worn out as a solitary way out or remedy for aerating all sufferings and deprivations---Doctrine of exhaustion of remedies stops a litigant from pursuing a remedy in a new court or jurisdiction until the remedy already provided under the law is exhausted---Underlying principle accentuated in this doctrine is that the litigant should not be encouraged to circumvent or bypass the provisions assimilated in the relevant statute---Extraordinary jurisdiction of the High Court under Article 199 of the Constitution cannot be reduced to an ordinary jurisdiction of the High Court.

Sajeel Shehryar Swati, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No. 2270 of 2023).

Shah Khawar, Advocate Supreme Court for Petitioners (in C.P. No. 2272 of 2023).

Kamran Murtaza, Senior Advocate Supreme Court for Private Respondents (Respondent No.6 in both cases).

M. Arshad, DG (Law), Falak Sher, Consultant and Said Ghafoor, Deputy Director for ECP.

2023 S C M R 1928

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

NOOR DIN (DECEASED) through LRs---Appellant

Versus

PERVAIZ AKHTAR and others---Respondents

Civil Appeal No. 130 of 2016, decided on 1st August, 2023.

(On appeal against the Judgment dated 13.11.2015 passed by the Lahore High Court, Rawalpindi Bench, in Civil Revision No. 399-D of 2014)

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

----S. 42---Mutation entries---Scope---Mutation entry confers no right in property as revenue record is maintained only for fiscal purposes.

Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801 ref.

(b) Islamic law---

----Inheritance---Legal heirs as co-sharers---Legal heir in possession has to be considered to be in constructive possession of the property on behalf of all the heirs in spite of his exclusive possession.

Khair Din v. Salaman PLD 2002 SC 677 ref.

(c) Limitation---

---Inheritance---Inheritance mutation, challenging of---Whether law of limitation applies when challenging an inheritance mutation---In the present case, impugned inheritance mutation was attested on 5.4.1958 in favour of sons only to the exclusion of the daughter---Legal heirs of daughter challenged said mutation through a suit filed on 20.6.2005---Held, that law of limitation would be relevant when the conduct of the claimant (heir) demonstrates acquiescence and particularly when third party interest is created in the inherited property---In the instant case, there is nothing on the record to show that the daughter had either relinquished her interest in the disputed property or transferred it in favour of her brothers, therefore, the cause of action accrued when the appellants/defendants denied her right---As per averments of plaint, the plaintiffs (i.e. legal heirs of the daughter) came to know about the wrong entry for the first time on 22.12.2004 when they obtained copy of inheritance mutation of their maternal grandfather, therefore, the suit cannot be held as time barred---Appeal was disposed of.

Mst. Granan through legal heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 distinguished.

Mushtaq Ahmad Mohal, Advocate Supreme Court and Syed Riffqat Hussain Shah, Advocate-on-Record for Appellant.

Asad Hussain Ghalib, Advocate Supreme Court for Respondents Nos. 1 - 6.

2023 S C M R 1932

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi and Athar Minallah, JJ

MUHAMMAD SULEMAN---Petitioner

Versus

CHIEF SECRETARY, GOVERNMENT OF KHYBER PAKHTUNKHWA, CIVIL SECRETARIAT, PESHAWAR and others---Respondents

Civil Petition No. 4424 of 2021, decided on 17th August, 2023.

(Against the judgment dated 03.06.2021 of the Peshawar High Court, Peshawar passed in Writ Petition No.962-P of 2020)

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

----Ss. 2(b), 2(c), 2(d) & 3--- Employee not appointed by the Government or Government department--- Eligibility for regularization---Petitioner had not been appointed through a competitive transparent process---Moreover, the appointment was made by the Principal of the (Government) College against a fixed remuneration paid from the Agency Development Fund---Appointment had not been made by the "Government" nor a "Government Department" as defined under clauses 'c' and 'd' of section 2 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 ('Act of 2009')---Expression 'employee' has been defined in clause 'b' of the Act of 2009 as meaning an ad hoc or a contract employee appointed by the Government on ad hoc or contract basis or second shift/night shift but excluded the employees of project post or appointed on work charge basis or who were paid out of contingencies---Petitioner, therefore, did not fall within the definition of the expression 'employee' for the purposes of section 3 of the Act of 2009---Petitioner was not eligible to be regularized under the Act of 2009---Petition for leave to appeal was dismissed and leave was refused.

(b) Civil service---

----Appointment--- Transparency and competitive process---Appointments of any nature, whether initial or ad hoc, permanent or temporary, if made in violation of the principle of transparency and competitive process, inter alia, without inviting applications from the public is in violation of the Constitution and are, therefore, void.

(c) Civil service---

----Appointment--- Selection of candidates--- Principles--- Selecting a qualified, eligible and most deserving person is a sacred trust which is to be discharged honestly and fairly in a just and transparent manner and in the best interest of the public.

Government of NWFP and others v. Muhammad Tufail Khan PLD 2004 SC 313; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 and Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132 ref.

Muhammad Umair Baloch, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2023 S C M R 1935\

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah, Munib Akhtar, Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

ISLAMABAD HIGH COURT BAR ASSOCIATION ISLAMABAD through President Muhammad Shoaib Shaheen, Advocate Supreme Court, Islamabad and others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad and others---Respondents

Suo Motu Case No. 1 of 2023 and Constitutional Petitions Nos.1 and 2 of 2023, decided on 1st March, 2023.

(Suo Motu Regarding Holding of General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa)

Per Umar Ata Bandial, CJ, Munib Akhtar and Muhammad Ali Mazhar, JJ; Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ.dissenting (Majority view)

(a) Constitution of Pakistan---

----Arts. 105(3)(a), 107, 112(1), 112(2), 224(1), 224(2) & 184(3)---Elections Act (XXXIII of 2017), S. 57(1)---Constitutional petitions and suo motu proceedings regarding holding of General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa---Constitutional responsibility and authority for appointing the date for the holding of a general election to a Provincial Assembly, upon its dissolution in the various situations envisaged by and under the Constitution, and how and when such constitutional responsibility is to be discharged stated.

Per Umar Ata Bandial, CJ, Munib Akhtar and Muhammad Ali Mazhar, JJ. (Majority view)

The Constitution envisages three situations for the dissolution of a Provincial Assembly. In the context of the role of the Governor, the "first situation" is set out in clause (2) of Article 112. This envisages the dissolution of the Assembly by an order made by the Governor at his discretion, subject to the previous approval of the President and fulfillment of the conditions set out therein. In this situation, the Assembly cannot, and does not, dissolve without an order being made by the Governor, and dissolves immediately on the making of the order.

The "second situation" is set out in clause (1) of Article 112, when the Chief Minister advises dissolution. This situation can be divided into two sub-categories; the "sub-category (a) of second situation" is where the Governor acts on the advice tendered and makes an order dissolving the Assembly. Here, the Assembly dissolves immediately on the making of the order. The "sub-category (b) of second situation" is where the Governor does not make an order of dissolution on the advice tendered. Here, the Assembly stands dissolved on the expiry of forty-eight hours from the tendering of the advice by the Chief Minister (i.e., by the efflux of time), and that does not require an order of the Governor.

The "third situation" is set out in Article 107 of the Constitution. This provides that unless an Assembly is sooner dissolved (i.e., in terms of either of the two preceding situations), it stands dissolved after a term of five years. Here, the Governor has no role at all; the Assembly dissolves by the efflux of time.

In situations where the Assembly is dissolved by an order of the Governor, the constitutional responsibility of appointing a date for the general election that must follow is to be discharged by the Governor as provided in terms of Article 105(3)(a). These are the "first situation" and "sub-category (a) of second situation" described above.

In situations where the Assembly is not dissolved by an order of the Governor, the constitutional responsibility of appointing a date for the general election that must follow is to be discharged by the President as provided in terms of section 57(1) of the Elections Act, 2017 ('the 2017 Act'). These are the "sub-category (b) of second situation" and "third situation" described above.

Since the general election on a dissolution of a Provincial Assembly has to be held within a time period stipulated by the Constitution itself, which is a constitutional imperative, the President or, as the case may be, the Governor must discharge the constitutional responsibility of appointing a date for the said election swiftly and without any delay and within the shortest time possible. The Election Commission must proactively be available to the President or the Governor, and be prepared for such consultation as required for a date for the holding of general elections.

In the present case in relation to the dissolution of the Punjab Assembly, to which the "sub-category (b) of second situation" applied, the constitutional responsibility for appointing a date for the general election that must follow was to be discharged by the President. However, in relation to the dissolution of the Khyber Pakhtunkhwa Assembly, to which the "sub-category (a) of second situation" applied, the constitutional responsibility for appointing a date for the general election that must follow was to be discharged by the Governor.

In ordinary circumstances the general election to the Punjab Assembly ought to be held on 09.04.2023, the date announced by the President in terms of his order of 20.02.2023. However, on account of the delay in the emergence of the date for the holding of the general election, it may not be possible to meet the 90 day deadline stipulated by the Constitution. It is also the case that (possibly on account of a misunderstanding of the law) the Election Commission did not make itself available for consultation (with the President) as required under section 57(1) of the 2017 Act. Supreme Court directed that the Election Commission shall use its utmost efforts to immediately propose, keeping in mind sections 57 and 58 of the 2017 Act, a date to the President that is compliant with the 90 day deadline; thatif such a course is not available, then the Election Commission shall in like manner propose a date for the holding of the poll that deviates to the barest minimum from such deadline; that after consultation with the Election Commission, the President shall announce a date for the holding of the general election to the Punjab Assembly; that the Governor of the Khyber Pakhtunkhwa Province must after consultation with the Election Commission forthwith appoint a date for the holding of the general election to the Khyber Pakhtunkhwa Assembly and the directions issued in relation to elections to the Punjab Assembly shall, mutatis mutandis, apply in relation thereto.

Supreme Court further directed that the Federation, and in particular the Federal Government, is obligated, on an immediate and urgent basis, to forthwith provide the Election Commission with all such facilities, personnel and security as it may require for the holding of the general elections; that in like manner, it is the duty of the Provincial Governments, acting under the Caretaker Cabinets, to proactively provide all aid and assistance as may be required by the Election Commission, and that the duty cast upon the authorities as set out in section 50 of the 2017 Act must also be discharged forthwith and proactively. Constitution petitions and suo motu proceedings, being maintainable, were disposed of accordingly.

Per Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ. dissenting (Minority view)

(b) Constitution of Pakistan---

----Arts. 105(3)(a), 107, 112(1), 112(2), 224(1), 224(2) & 184(3)---Elections Act (XXXIII of 2017), S. 57(1)---Constitutional petitions and suo motu proceedings regarding holding of General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa---Maintainability---Detailed reasons for finding the Constitutional petitions and suo motu proceedings as not maintainable recorded.

Per Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ. (Minority view)

The present suo motu proceedings, in the facts and circumstances of the case, are wholly unjustified in the mode and manner they were taken up under Article 184(3) of the Constitution, besides being initiated with undue haste. The suo motu case and the Constitutional petitions under Article 184(3) of the Constitution, in the light of the principles settled in cases reported as Manzoor Elahi v. Federation of Pakistan (PLD 1975 Supreme Court 66) and Benazir Bhutto v. Federation of Pakistan (PLD 1988 Supreme Court 416), do not constitute a fit case to exercise the extraordinary original jurisdiction of the Supreme Court under Article 184(3) of the Constitution and are thus not maintainable as the same constitutional and legal issues seeking the same relief are pending and being deliberated upon by the respective Provincial High Courts in Lahore and Peshawar, without there being any inordinate delay in the conduct of the proceedings before them. There is no justification to invoke the extraordinary jurisdiction of the Supreme Court under Article 184(3) to initiate suo motu proceedings or entertain petitions under Article 184(3) of the Constitution, as a single Bench of the Lahore High Court has already decided the matter in favour of the petitioner before the said High Court and the said judgment is still in the field. The intra court appeals (ICAs) filed against the said judgment are pending before the Division Bench of the Lahore High Court (and none of the said petitioners has approached the Supreme Court under Article 185(3) of the Constitution).

Manzoor Ilahi's case PLD 1975 SC 66 and Benzair Bhutto's case PLD 1988 SC 416 ref.

Once a constitutional issue is pending before a Provincial High Court, keeping in view the Federal structure of the Constitution the autonomy and independence of the apex provincial constitutional court, should not be readily interfered with rather be supported to strengthen the provincial autonomy and avoid undermining the autonomy of the provincial constitutional courts.

There is no inordinate delay in the proceedings pending before the High Courts, infact the present proceedings have unnecessarily delayed the matter before the High Courts. However, considering the importance of the matter it is expected that the respective High Courts shall decide the matters pending before them within three working days from present order.

Even otherwise matters such as the present matter should best be resolved by the Parliament.

Constitutional petitions were dismissed and suo motu proceedings were dropped.

Abid S. Zuberi, Advocate Supreme Court, Shoaib Shaheen, Advocate Supreme Court assisted by Ayan Memon, Advocate, Ms. Amna Khalili, Advocate, Agha Ali Durrani, Advocate, Arif Ansari, Advocate for Petitioners (in Constitutional Petition No. 1 of 2023).

Syed Ali Zafar, Advocate Supreme Court, Sarfraz Ahmad Cheema, Advocate Supreme Court, Zahid Nawaz Cheema, Advocate Supreme Court, Ch. Faisal Fareed, Advocate Supreme Court, Safdar Shaheen Pirzada, Advocate Supreme Court, Ashfaq Ahmed Kharal, Advocate Supreme Court and Amir Saeed Rawn, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 2 of 2023).

On Court's Notice

Shehzad Ata Elahi, Attorney General for Pakistan, Ch. Aamir Rehman, Additional A.G.P., Malik Javaid Iqbal Wains, Additional A.G. assisted by Ms. Mehwish Batool, Advocate, Aitzaz ul Haque, Advocate and Maryam Rasheed, Advocate for Federation of Pakistan.

Salman Akram Raja, Advocate Supreme Court, Amir Malik, Advocate-on-Record assisted by Malik Ghulam Sabir, Advocate, M. Shakeel Mughal, Advocate, Maqbool Ahmed, Advocate and Sameen Qureshi, Advocate for President of Pakistan.

Khalid Ishaq, Advocate Supreme Court for Governor of Khyber Pakhtunkhwa.

Mustafa Ramday, Advocate Supreme Court, Jahanzeb Awan, Advocate Supreme Court, Rashid Hafeez, Advocate Supreme Court assisted by Ms. Zoe K. Khan, Advocate, Ahmed Junaid, Advocate, Akbar Khan, Advocate, Uzair Shafi, Advocate, Barrister Maria Haq, Advocate and Barrister Salman Ahmed, Advocate for Governor of Punjab.

Sajeel Shehryar Swati, Advocate Supreme Court assisted by Barrister Saman Mamoon, Advocate, Ms. Kiran Khadijah, Advocate, Zafar Iqbal, Special Secretary, Muhammad Arshad, DG Law, Khurram Shehzad, Additional D.G. Law, Ms. Saima Tariq Janjua, DD (Law), Ms. Bushra Rasheed, Law Officer and Zaighum Anees, Law Officer for Election Commission of Pakistan.

Muhammad Shan Gul, A.G., Malik Waseem Mumtaz, Additional A.G., Sana Ullah Zahid, Additional A.G. assisted by Khurram Chughtai, Advocate, Usman Ghani, Advocate, Raza Rehman, Advocate and Ahmed Raza Sarwar, Additional Chief Sec. Law (Punjab) for the Government of Punjab.

Aamir Javaid, A.G., Sardar Ali Raza, Additional A.G. and Mian Shafaqat Jan, Additional A.G. for the Government of Khyber Pakhtunkhwa.

Asif Reki, A.G. and M. Ayaz Swati, Additional A.G. for the Government of Balochistan.

Hassan Akbar, A.G., Saifullah, A.A.G. (through V.L. Karachi), Fauzi Zafar, Additional A.G. and Zeeshan Edhi, Additional A.G. for the Government of Sindh.

Jehangir Khan Jadoon, A.G. for ICT.

Haroon-ur-Rasheed, Advocate Supreme Court, Vice Chairman, PBC, Hassan Raza Pasha, Advocate Supreme Court and Chairman, Executive Council for the Pakistan Bar Council.

Abid S. Zuberi, Advocate Supreme Court, President SCBA, Muqtadir Akhtar Shabbir, Advocate Supreme Court/Secretary SCBA and Malik Shakeel-ur-Rehman, Advocate Supreme Court/Additional Secretary for Supreme Court Bar Association.

Syed Ali Zafar, Advocate Supreme Court, Ch. Faisal Fareed, Advocate Supreme Court, Safdar Shaheen Pirzada, Advocate Supreme Court and Ashfaq Kharal, Advocate Supreme Court for PTI.

Farooq H. Naek, Senior Advocate Supreme Court assisted by Barrister Sheraz Shaukat Rajpar for PPPP.

Mansoor Usman Awan, Advocate Supreme Court and Anees Shehzad, Advocate-on-Record for PML(N).

Kamran Murtaza, Senior Advocate Supreme Court for JUIP.

Ghulam Mohyuddin Malik, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Jamat-e-Islami.

Azhar Siddiqui, Advocate Supreme Court for PML (Awami).

2023 S C M R 1948

[Supreme Court of Pakistan]

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

ABDUL RASHEED---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 294-L of 2023, decided on 24th August, 2023.

(On appeal against the order dated 01.03.2023 passed by the Lahore High Court, Lahore in Criminal Misc. No. 80579-B of 2022)

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

----Ss. 497(2) & 498--- Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Pre-arrest bail, grant of---Further inquiry---Cheques given as surety---Petitioner (accused) has placed on record a copy of the suit for rendition of accounts filed by him against the complainant before the Civil Court---Perusal of the same shows that the parties were probably running a business and the cheques were given as a surety and the same were not meant for encashment---Cheques in question are of the year 2019 and according to the crime report the same were dishonoured in the year 2019---If that was so, it was not understandable as to why the complainant kept quiet for three years and did not lodge the FIR on time, which prima facie supports the stance taken by the petitioner---Even otherwise, even if the complainant wants to recover his money, 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---Question whether the cheques were issued towards repayment of loan or fulfillment of an obligation within the meaning of section 489-F, P.P.C. is a question, which would be resolved by the Trial Court after recording of evidence---Maximum punishment provided under the statute for the offence under section 489-F, P.P.C. is three years and the same does not fall within the prohibitory clause of section 497, Cr.P.C.---All the material is in documentary shape; the investigation is complete and the petitioner is no more required for further investigation---Petition for leave to appeal was converted into appeal and allowed, and ad interim pre-arrest bail granted to petitioner was confirmed.

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

----Ss. 497 & 498---Constitution of Pakistan, Art. 185(3)---Bail---Offences not falling within the prohibitory clause of section 497, Cr.P.C---For such offences grant of bail is a rule and refusal is an exception.

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

----Ss. 497 & 498---Constitution of Pakistan, Art. 185(3)---Bail---Absconsion---Absconsion cannot be viewed as a proof for the offence and the same alone cannot be made a ground to discard the relief sought for.

Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 and Muhammad Tasaweer v. Hafiz Zulkarnain PLD 2009 SC 53 ref.

Muhammad Zubair Khalid, Advocate Supreme Court for Petitioner along with Petitioner in person (Via video link from Lahore).

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Complainant.

Mirza Abid Majeed, D.P.G. and Murtaza Bilal, SI for the State.

2023 S C M R 1951

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Musarrat Hilai, JJ

CHIEF MINISTER through Secretary Government of Punjab, Irrigation Department, Lahore and others---Petitioners

Versus

MUHAMMAD AFZAL ANJUM THOR---Respondent

C.P. No. 2456-L of 2022, decided on 24th July, 2023.

(Against the order dated 22.02.2022 passed by Punjab Service Tribunal, Lahore in Appeal No. 5342 of 2021).

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

----S. 21, proviso--- Punjab Civil Services Pension Rules, R. 1.8(a)---Disciplinary proceedings initiated three years after retirement of employee (respondent)---Violation of proviso to section 21 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Major penalty of recovery of Rs. 5.5 million from the respondent's pension---Legality---Proviso to section 21 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA Act, 2006) imposes a mandatory obligation on the competent authority to finalize proceedings against a retired employee not later than two years from the date of his retirement---Proviso to section 21 contains a negative phrase that has an imperative effect, making it mandatory to conclude the proceedings against a retired employee within the prescribed timeframe---Additionally, section 20 of the PEEDA Act, 2006, explicitly provides that the provisions of the Act shall have an overriding effect contrary to any other law for the time being in force---This effectively nullifies any other law that may contradict or seek to supersede the provisions of the PEEDA Act 2006---This negates the argument of the petitioner department that the disciplinary proceedings against the respondent could be initiated under the Punjab Civil Services Pension Rules---In the instant case, the disciplinary proceedings against the respondent initiated under Rule 1.8(a) of the Punjab Civil Services Pension Rules were in violation of section 21 of the PEEDA Act 2006, which is a mandatory provision---Service Tribunal had rightly set aside the departmental order and directed the petitioner authority to grant all pensionary benefits accrued to the respondent---Petition for leave to appeal was dismissed and leave was refused.

Province of Punjab through Conservator of Forest, Faisalabad v. Javeed Iqbal 2021 SCMR 328 ref.

Baleegh-ur-Rehman, Additional A.G. Punjab, Malik Waseem Mumtaz, Additional A.G. Punjab and Ms. Sehr Chaudhary, Law Officer Irrigation Department Punjab for Petitioners.

Mudassar Khalid Abbasi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

2023 S C M R 1955

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Syed Hasan Azhar Rizvi and Shahid Waheed, JJ

SULTAN AHMED---Appellant

Versus

REGISTRAR, BALOCHISTAN HIGH COURT, QUETTA and others-- Respondents

Criminal Appeal No. 633 of 2019, decided on 7th June, 2023.

(Against the judgment of the High Court of Balochistan, Quetta, dated 06.11.2019 passed in C.P. No. 141 of 2016)

Per Syed Mansoor Ali Shah, J.; Syed Hasan Azhar Rizvi, J. agreeing; Shahid Waheed, J. also agreeing but with his separate note.

(a) Jurisdiction---

----Mentioning of a wrong or inapplicable provision of law or non-mentioning of the applicable provision of law while exercising the jurisdiction or power which is otherwise vested in a court, tribunal or authority, does not by itself have any fatal consequences.

Naseer Ahmed v. Returning Officer 2023 SCMR 179; Olas Khan v. NAB PLD 2018 SC 40; Saadat Khan v. State 2018 SCMR 387 and Commissioner of Income Tax v. Abdul Ghani PLD 2007 SC 308 ref.

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

----S. 3---Contempt of Court---Unqualified/unconditional apology---Effect---Unqualified apology tendered by the person accused of having committed the contempt of court necessarily means that he admits his guilt and submits the apology in the realization of the fact that he has done a wrong, for which he repents and seeks forgiveness---In cases where the accused tenders an unqualified apology, there remains no need of framing the charge and recording the evidence.

Abdul Hamid v. State PLD 1964 SC 186; Awal v. State PLD 1964 SC 562; Shahid Orakzai v. P.M.L.(N) 2000 SCMR 1969; Sarfraz Hussain v. State 2002 SCMR 1326 and Feroze Akbar v. Government of Pakistan 2002 SCMR 1623 ref.

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

----S. 3---Contempt of Court---Unqualified/unconditional apology---Discharge of accused---General rule---When the accused offers an unqualified apology at an early stage of the contempt proceeding as a sincere and profound remorse, the courts generally drop such proceeding and discharge the accused while warning him to be careful in the future---However, this is not an absolute rule to be followed invariably in all cases---Exceptional facts and circumstances of a case may justify departure from this general rule---Courts may, despite the submission of an unqualified apology, convict the accused in the peculiar facts and circumstances of the case and may treat his apology only as a mitigating circumstance to impose a lesser punishment.

Abdul Hamid v. State PLD 1964 SC 186; Awal v. State PLD 1964 SC 562; Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823; Feroze Akbar v. Government of Pakistan 2002 SCMR 1623; Contempt Proceedings against Islamabad Police Officials PLD 2007 SC 688; Contempt Proceedings against Nehal Hashmi 2018 SCMR 556 and Iftikhar Ahmed v. State 2018 SCMR 1385 ref.

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

----S. 3---Contempt of Court---Assistant Commissioner (appellant) raided official residence of a Qazi (judge) without registration of an FIR, assaulted and arrested him, then took the Qazi barefoot to the Levies Line, instead of the Police Station concerned, and kept him confined there for about 6 hours without registration of any criminal case---Subsequently unqualified/unconditional apology was tendered by the appellant---Held, that in the present case the act of assaulting and manhandling the Qazi, a judge, in the general public while arresting him was a flagrant attempt to undermine and lower the authority of district courts---Majority of the people have recourse to these courts for adjudication of their disputes---It is, therefore, in the public interest to protect the honour and authority of these courts---High Court has taken a lenient view in the matter of imposing punishment on the appellant because of his tendering an unqualified apology at the very early stage of the contempt proceeding and his young age---In the facts and circumstances of the case, the discretion exercised by the High Court in convicting the appellant for contempt and considering his unqualified apology only as a mitigating circumstance for imposing lesser punishment is proper and reasonable, which does not call for any interference---Appeal was dismissed.

(e) Constitution of Pakistan---

----Art. 203---Contempt of Court Ordinance (V of 2003), S. 4(2)---District judiciary---Duty of the High Courts to protect the judges of the district judiciary---Such duty is inherent in and concomitant with the power to supervise and control vested in them under Article 203 of the Constitution---It is imperative for the High Courts to protect the district judiciary from any executive onslaught or intrusion that may weaken its institutional independence or tends to lower its judicial fiat and brings it into disrespect---Observations recorded by the Supreme Court regarding importance of protecting the judicial independence and safeguarding the prestige and honour of the judges of the district judiciary.

District Judiciary is the backbone of our judicial system. It is imperative to protect and safeguard the district judiciary from any executive onslaught or intrusion that may weaken its institutional independence or tends to lower its judicial fiat and brings it into disrespect. The need to protect judicial independence and safeguard the prestige and honour of the judges is essential to protect the public confidence and public trust reposed in the judicary. Public confidence and trust in the courts rest on independence, impartiality, neutrality, openness and transparency of the judicial system; it lends the court its high moral authority and its decisions, unquestionable legitimacy. The courts being guardians of the rights of the people must be insulated and walled against any intrusion that weakens its fiat and prestige. This protection applies at all levels of the judiciary, from the constitutional courts to the frontline courts in the district. The Constitution protects the constitutional court judges through the power of contempt under Article 204 of the Constitution and through the Supreme Judicial Council established under Article 209 of the Constitution, while it is Article 203 of the Constitution that safeguards the judges of the district judiciary by placing them under the protective umbrella of the High Court of the respective Province.

Hasnain Raza v. Lahore High Court PLD 2022 SC 7 ref.

The primary duty to ensure the protection of district judiciary is of the High Courts under whose supervision and control it functions. This duty is inherent in and concomitant with the power to supervise and control vested in the High Courts under Article 203 of the Constitution. In line with this constitutional mandate, the Legislature has conferred upon the High Courts the power to punish a contempt committed in relation to any court of the district judiciary.

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

----S. 3--- Constitution of Pakistan, Art. 204---Contempt laws---Purpose---Real purpose of the law of contempt is the protection of the public interest and more importantly public confidence in the justice system.

State v. Khalid Masood PLD 1996 SC 42 ref.

(g) Constitution of Pakistan---

---Arts. 175(3) & 204---Contempt of Court Ordinance (V of 2003), S. 4(2)---District judiciary---Security---Marshalls of the Court---Importance of district judiciary to have its own security personnel independent from the district administration and police highlighted.

It is axiomatic that the independence of the judiciary rests on judicial, financial and administrative autonomy. However, the administrative autonomy has been somewhat wanting over the years in the area of security of judges. The security and protection of judges is not an internal function of the judiciary but is dependent on and in control of the executive. The district judiciary protects the common people at the grassroots level against the misuse or abuse of executive power by the district administration and police. This check has an inherent potential to create tension between the district judiciary and the district administration and police. It is perhaps time for the district judiciary to have its own security personnel, somewhat parallel to the internationally recognized 'judicial marshals' or 'marshalls of the court'. The separation of the judiciary from the executive is a constitutional command and must be actualized in all its facets at the earliest. The district judiciary should be independent in all respects and in particular in the matter of its security from the district administration and police, and the High Courts should take up this matter with the respective Provincial Governments and progressively proceed in establishing their own security agency, like their Process Serving Agency. However, until then the High Courts should take stern action against the district executive officers involved in illegal confrontational acts with the district judiciary under the Contempt of Court Ordinance, 2003.

Per Shahid Waheed, J.; agreeing with Syed Mansoor Ali Shah, J. with his separate note.

(h) Administration of justice---

----Criminal liability of a judge for non-judicial acts---Judicial title does not render its holder immune from responsibility even when the criminal act is committed behind the shield of judicial office---Immunity from criminal liability does not extend to non-judicial acts, and thus, a judge cannot in any way escape criminal liability and can be arrested.

Braatelien v. United States 147 F.2d 888 at 895 ref.

(i) Constitution of Pakistan---

----Art. 203---District judiciary---Precautionary measures to be observed by the executive while taking action under criminal law against the judges of District judiciary stated.

(i) If a judicial officer of the District Judiciary is to be arrested for some offence, it should be done under intimation to the nominee of the concerned High Court;

(ii) If facts and circumstances necessitate the immediate arrest of a judicial officer of the District Judiciary, a technical or formal arrest may be effected; and the facts of such arrest should be immediately communicated to the nominee of the concerned High Court;

(iii) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the nominee of the concerned High Court;

(iv) Immediate facilities shall be provided to the Judicial Officer of communication with his family members, legal advisers and the District and Sessions Judge of his District;

(v) No statement of a Judicial Officer who is under arrest be recorded, nor any medical tests be conducted except in the presence of the legal adviser of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available; and

(vi) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest to avert danger to life and limb, the person resisting arrest may be overpowered and handcuffed. In such case, immediate report shall be made to the District and Sessions Judge concerned and also to the nominee of the High Court. But the burden would be on the Police/ executive to establish the necessity for effecting the physical arrest and handcuffing of the Judicial Officer, and if it is found that the physical arrest and handcuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and damages as may be summarily determined by the High Court.

Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and others AIR 1991 SC 2176 ref.

The above guidelines oblige each High Court to issue a notification, exercising its powers under Article 203 of the Constitution, for the nomination of a person, not less than the rank/grade of a District and Sessions Judge, who will attend to such criminal proceedings in which a judge of the District Judiciary is found involved, so as to ensure transparency and fair trial.

Amanullah Kanrani, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Malik Javed Iqbal Wains, Additional A.G.P., M. Ayaz Khan Swati, Additional A.G., Balochistan and Kamran Murtaza, Advocate Supreme Court for Respondents.

2023 S C M R 1972

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Athar Minallah, JJ

COLLECTOR OF CUSTOMS, PESHAWAR---Petitioner

Versus

Messrs NEW SHINWARI LTD. and another---Respondents

Civil Petitions Nos. 5671 and 5672 of 2021, decided on 24th February, 2023.

(Against the judgment dated 10.06.2021 of the Peshawar High Court, Peshawar passed in Customs References Nos. 5-P and 6-P of 2012)

Customs Act (IV of 1969)---

----Ss. 32 & 129---Pak-Afghan Transit Trade Agreement, 2010 ('the agreement')---Consignments found in excess of the quantities declared at the port of entry---Confiscation of good---Legality---Respondent-company had availed the transit facility pursuant to the Agreement executed between two sovereign States (i.e. Pakistan and Afghanistan)---It is not the case of the department that the consignments were transported in violation of the rules nor that the seals had been tampered with---Only allegation against the respondent-company was that upon examination of the consignments, the consignments of polyester fabric were found in excess of the quantities declared at the port of entry i.e. Karachi---Transit facility was not breached since it is not the case of the department that the rules were violated or an attempt was made to tamper with the seals or pilferage of the goods in transit---Levy and charge of custom duty and taxes are attracted in the case of transit goods if they are unauthorizedly unloaded from the licensed bonded carriers or even if such an attempt is made, or the transit rules are materially breached---In the absence of such acts, the goods in transit are not subject to payment of duties and taxes---In the present case the show cause notice had alleged violations of sections 32 & 129 of the Customs Act, 1969 ('Act of 1969'), despite no attempt having been made to pilfer the goods in transit and the absence of any actus rea that could have been construed as an intent to use the goods for a purpose other than transit to Afghanistan---Offence under section 32 of the Act of 1969 is relatable to the duty, taxes or charge which has not been levied or has been short levied or has been erroneously refunded---In the case in hand, there is no allegation against the respondent-company of having evaded or of making an attempt to evade the duties, taxes or any charge---Offence under section 32 of the Act of 1969 was, therefore, not attracted in the facts and circumstances of the case---It is also not the stance of the petitioner department that the Federal Government, by notification, had prohibited bringing into Pakistan the polyester fabric found in excess of the declared value---Petition for leave to appeal was disposed of and leave was refused.

Abdul Rauf Rohaila, Senior Advocate Supreme Court for Petitioner.

Ayaz Shaukat, D.A.G. along with Afnan, Additional Collector for Federation.

Nemo for Respondents.

2023 S C M R 1977

[Supreme Court of Pakistan]

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

ZAFAR NAWAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 717 of 2023, decided on 22nd August, 2023.

(On appeal against the order dated 11.05.2023 passed by the Lahore High Court, Lahore in Criminal Misc. No. 27358-B of 2023)

(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---Admittedly, the petitioner (accused) was tenant of the complainant and prima facie any claim for recovery of rent falls within the domain of Rent Controller---In this view of the matter, the question whether the cheque was issued towards repayment of loan or fulfillment of an obligation within the meaning of section 489-F, P.P.C. is a question, which would be resolved by the Trial Court after recording of evidence---Petitioner is behind the bars for the last about six months---Maximum punishment provided under the statute for the offence under section 489-F, P.P.C. is three years and the same does not fall within the prohibitory clause of section 497, Cr.P.C.---All the material is in documentary shape; the investigation is complete and the petitioner is no more required for further investigation---Case of the petitioner squarely falls 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.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Offences not falling within the prohibitory clause of section 497, Cr.P.C.---Grant of bail in such offences was the rule and refusal thereof an exception.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Cases of similar nature registered against an accused---Mere registration of other criminal cases 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; Muhammad Rafiq v. State 1997 SCMR 412; Syeda Sumera Andaleeb v. The State 2021 SCMR 1227 and Nazir Ahmed alias Bhaga v. The State 2022 SCMR 1467 ref.

Syed Muhammad Saqlain Rizvi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Mirza Abid Majeed, D.P.G. and Muhammad Asif, SI for the State.

2023 S C M R 1980

[Supreme Court of Pakistan]

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

CIVIL APPEAL NO. 24-Q OF 2014

(On appeal from the judgment dated 20.09.2010 passed by the Balochistan High Court, Quetta in Constitutional Petition No.320 of 2010)

AND

CIVIL APPEAL NO. 26-Q OF 2018

(On appeal from the judgment dated 15.07.2013 passed by the Balochistan High Court, Quetta in Custom References Nos. 20 and 23 of 2018)

Haji TOOTI and another---Appellants

Versus

FEDERAL BOARD OF REVENUE, ISLAMABAD and others---Respondents

Civil Appeal No.24-Q of 2014 and Civil Appeal No. 26-Q of 2018, decided on 26th May, 2021.

Per Munib Akhtar, J; Umar Ata Bandial, CJ. agreeing; Syed Mansoor Ali Shah, J. also agreeing but with his own reasons.

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

----Ss. 181 & 223---SRO 574(I)/2005 dated 06.06.2005 ("SRO 574"), vires of---Option to pay fine in lieu of confiscated goods---Officers of customs to follow Board's orders, etc.---Whether SRO 574 issued by the Federal Board of Revenue in exercise of its powers under section 181 of the Customs Act 1969 ("Act") is ultra vires the proviso to section 223 of the Act---Legislative and administrative orders issued by the Federal Board of Revenue under sections 181 & 223 of the Customs Act 1969---Extent, scope and nature of such orders explained.

Per Munib Akhtar, J. (Majority view):

The case put forward by the appellants was that SRO 574(I)/2005 dated 06.06.2005 ("SRO 574") was ultra vires section 223 of the Customs Act, 1969 ('the Act'); that this was so because it unlawfully interfered with the discretion granted by the main part of section 181 of the Act to the concerned officer to "give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit"; that the second proviso made the notification issued by the FBR (i.e., SRO 574) binding thereby wholly depriving the officer of the discretion conferred on him. This, according to the appellants, could not be done by the FBR by reason of section 223 of the Act.

The order made by the concerned officer under section 181 is not in exercise of quasi-judicial functions. It is in exercise of a statutory power, and is in the nature of an administrative or executive order. Secondly, if the submissions made by the appellants are accepted that would in effect reduce the second proviso of section 181 to redundancy. This would be so because any exercise of the statutory power thereby conferred would "interfere" with the power conferred on the officer of customs under the main part. The result would be that the power under the second proviso could never be exercised, i.e., would be made redundant. Thirdly, appellants misunderstood section 223. This section is not exclusive to the Act; it is to be found in all fiscal statutes, cast in nearly identical terms. It confers a broad and general power, of an administrative and executive nature, on the FBR (in its capacity as the body at apex of the fiscal hierarchy) to supervise, control and guide the tax authorities in the discharge of their duties and functions under the tax laws. However, some of those powers and duties are of a quasi-judicial nature such as, e.g., those conferred on officers holding an appellate post (Collector (Appeals)) or exercising powers in revision. It would obviously be wrong in principle (and contrary to the well-established jurisprudence of the Supreme Court and the High Courts) for the FBR to be in a position to influence or affect the proceedings of such authorities. Hence, the proviso. It is not to be regarded as a standalone provision; it makes sense only when read along with the main part of section 223.

The power exercised by the FBR in terms of the provisos to section 181 is not an exercise of the general statutory power conferred by section 223. That is, a notification issued under section 181 is not some general administrative or executive order, instruction or direction given by the FBR. It is rather the exercise of a specific and separate statutory power conferred under a different provision for a distinct purpose.

Sections 181 and 223 are separate and distinct, one from the other. The effect of the submissions made by the appellants would however be to conflate and merge the two, one into the other. SRO 574 cannot therefore be regarded as ultra vires section 223 of the Act. Appeals were dismissed.

Per Syed Mansoor Ali Shah, J.

The power exercised by the customs officer under section 181 of the Customs Act, 1969 ('the Act') is quasi-judicial in nature. An order passed by the customs officer, in exercise of his discretion under section 181 of the Act, giving or not giving the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as he thinks fit, being ancillary to his power of confiscating the goods and involving the exercise of discretion, is quasi-judicial and not administrative or executive in nature.

M.A. Rahman v. Federation of Pakistan 1988 SCMR 691; Tariq Transport Company v. Sargodha-Bhera Bus Service PLD 1958 SC 437; Messrs Faridsons Ltd. v. Government of Pakistan PLD 1961 SC 537 and Dr. Zahid Javed v. Dr. Tahir Riaz PLD 2016 SC 637 ref.

The orders made by the Federal Board of Revenue ('the Board') under the provisos to section 181 and the orders, instructions or directions issued by it under section 223 of the Act are two different species: one passes for delegated legislative power while the other is merely recognition of administrative supervisory power of the Board. Section 223 provides that officers of customs and other persons employed in the execution of the Act are to observe and follow the orders, instructions and directions of the Board. Under the said provision, the Act is recognizing or acknowledging that the Board has the power to issue orders, instructions and directions to all the officers of customs and that any such orders, instructions and directions issued by the Board shall be binding on the officers of customs in execution of the Act. This statutory acknowledgement of the power of the Board to issue administrative orders, instructions and directions to all the customs officers has no bearing on the rights of the third parties. Section 181 of the Act, on the other hand, provides for giving an option to the owner of goods to pay fine in lieu of confiscation of goods, and its provisos authorize the Board to specify, by an order, any goods or class of goods where such option shall not be given and also to fix the amount of fine, which in lieu of confiscation shall be imposed on any goods or class of goods. The delegation of power under the provisos to the Board, thus, passes for delegated legislation and affects third party rights. The two species of power, therefore, do not conflate or converge.

The Legislature by enacting the first proviso to section 181 has delegated the power to the Board for creating exception to the application of the main provisions of the Section to certain goods or class of goods, and by the second proviso delegated such power for limiting the discretion of the adjudicating customs officer in fixing the amount of fine which he, in lieu of confiscation, can impose on certain goods or class of goods under the main provisions of the Section. An order made by the Board under the powers conferred on it by any one of the two provisos to section 181 is, thus, delegated legislation. Once the Board validly makes such order, it partakes the colour and authority of a statutory instrument. It is read as part of section 181 and has the force of law accordingly. Such order having the force of law is, therefore, binding on the adjudicating customs officer while performing his quasi-judicial function under section 181.

Collector of Customs v. Muhammad Tasleem 2002 MLD 296 and Collector Customs v. Salman Khan 2015 PTD 1733 affirmed.

Collector of Customs v. Wali Khan 2017 SCMR 585 and Maqbool Ahmed v. Customs Appellate Tribunal 2009 SCMR 226 ref.

The orders, instructions and directions issued by the Board under section 223 to the Customs Officers are, therefore, administrative/ executive in character as only the customs officers and other persons employed in the execution of the Act are bound to observe and follow them. Such orders, instructions and directions are not binding on the assessees or other persons whose matters are to be dealt with under the Act. As a corollary, they are also not binding on customs officers who exercise quasi-judicial functions as well as on the appellate authority/tribunal and the courts. They being not applicable to and enforceable against all concerned, thus, lack generality - an essential characteristic of a legislative instrument. They are also limited to the administrative matters dealt with by the customs officers in the execution of the Act, and can be issued by the Board only in respect of matters falling within the range of the administrative functions of the customs officers.

State Bank of Travancore v. Commissioner of Income Tax AIR 1986 SC 757; Messrs Central Insurance Co. v. CBR 1993 SCMR 1232 and Collector of Customs v. Askari Cement 2020 SCMR 649 ref.

The provisos to Section 181 and the SROs issued thereunder, thus, do not conflict in any manner with the proviso to section 223 of the Act as the latter relates to the administrative orders, instructions or directions of the Board, and not to the legislative order of the Board.

Per Munib Akhtar, J.

(b) Interpretation of statutes---

----Redundancy of a provision in a statute---Redundancy is not to be lightly imputed, and an interpretation that yields such a result is to be avoided if at all possible.

Naseebullah Khan, Advocate Supreme Court for Appellants (in both cases, Video-Link, Quetta).

Shakeel-ur-Rehman, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in C.A. 24-Q of 2014).

Iftikhar Raza Khan, Advocate Supreme Court for Respondents (in C.A. 26-Q/2018, Video-Link, Quetta).

2023 S C M R 1991

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, CJ, Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

COMPETITION COMMISSION OF PAKISTAN and others---Appellants

Versus

DALDA FOODS LIMITED, KARACHI---Respondent

Civil Appeal No. 1692 of 2021, decided on 29th March, 2022.

(Against the judgment dated 14.09.2021 of the Islamabad High Court, Islamabad, passed in Writ Petition No. 3454 of 2020)

Per Ayesha Malik, J; Umar Ata Bandial, CJ. agreeing; Syed Mansoor Ali Shah, J. also agreeing but with his separate note.

(a) Competition Act (XIX of 2010)---

----Ss. 28(1)(b), 33, 36 & 37---Powers of the Commission in relation to a proceeding or enquiry---Power to call for information relating to undertaking---Scope of the Powers of the Competition Commission under sections 33, 36 & 37 of the Competition Act, 2010 stated.

Proceeding under section 33 means and only refers to proceedings under section 30 of the Competition Act, 2010 ('the Act'), and the power to call for information under section 36 of the Act or conduct of a study provided for under section 28(1)(b) cannot be treated as a proceeding within the meaning used in section 33 nor can the powers provided under section 33 be made available to Competition Commission of Pakistan ('CCP') in their exercise of jurisdiction under section 36 or 28(1)(b).

The CCP is a regulator which aims to prevent and address anti-competitive practices across markets for which it studies the market to understand market trends and practices. For this reason, CCP under section 36 of the Act is empowered to call for information relating to an undertaking. Through a general or special order, it may call upon an undertaking to furnish periodically or as and when required any information concerning the activities of the undertaking, including information relating to its organization, accounts, business, trade practices, management and connection with any other undertaking, which information is necessary for the CCP for the purposes of the Act. This is a regulatory power available to CCP aimed to collect and gather information about the undertaking and does not fall under the ambit of a proceeding under section 30. Hence, merely calling for information does not constitute a proceeding nor does it trigger any penal consequences.

Section 37 of the Act provides for enquiry and studies and subsection (1) thereof provides that the CCP may, on its own, conduct enquiries and studies into any matter relevant to the purposes of this Act or as per subsection (2) of section 37 of the Act, the CCP may conduct an enquiry and studies of an undertaking when it receives a complaint in writing of such facts that appear to constitute a contravention of the provisions of Chapter II of the Act unless it is of the opinion that the application is frivolous or vexatious or based on insufficient facts, or is not substantiated by any evidence to conduct an enquiry. Although enquiries and studies are referred together in section 37 of the Act, they serve distinct functions. Enquiry is a process available to the CCP to assess contravention of the Act before it initiates any proceedings under section 30 of the Act. Whereas, studies, as provided under section 28(1)(b) of the Act, are conducted to promote competition in all sectors of economic activity and in terms of section 37(3) of the Act, they are a function which may be outsourced by hiring consultants on contracts. Both enquiry and studies are used as independent tools by the CCP to collect and assess information on market trends and do not constitute an adverse action against the undertaking. Therefore, in terms of sections 36 and 37 the power to call for information or conducting an enquiry or study do not constitute a proceeding against an undertaking under section 30 of the Act.

It is important to draw a distinction between section 30 and section 37. Section 30 empowers the CCP to issue orders under section 31 when it is satisfied that there is a contravention of any provision in Chapter II of the Act. Before proceeding with the matter, the CCP must provide notice of its intent and the reasons behind it, giving the undertaking an opportunity to be heard and defend itself. On the other hand, section 37 defines a different scope for the CCP. Under this section, the CCP has the authority to conduct enquiries, either suo motu or based on references from the Federal Government, into matters related to the objectives of the Act. As mentioned above an enquiry under section 37 can also be initiated based on a complaint, unless the application is deemed frivolous, vexatious, lacks sufficient evidence, or is not supported by prima facie evidence. If, upon conducting this enquiry, the CCP is of the opinion that the findings necessitate taking action in the public interest, it shall initiate proceedings under section 30. In other words, the enquiry under section 37 serves as a preliminary step to gather information and evidence, and if it reveals a potential contravention of Chapter II of the Act, the CCP can then proceed. However, such enquiry is not always necessary to proceed against an undertaking, and if the CCP is satisfied on the information that it has available that a contravention of Chapter II of the Act is committed, it may proceed without it.

The CCP being a regulator must always act in a transparent manner, keeping the undertaking informed of its decisions. However, section 37 does not in itself result in penal consequences and the procedure is not a proceeding within the meaning of section 33. However, the CCP is required to provide the gist of its reasons as recorded in its internal deliberations which led to the decision of initiating such enquiry. This is a minimum requirement for the purposes of transparency and good governance and also facilitates the regulatory process by keeping the undertaking informed.

When perusing an order under section 37 of the Act, the CCP is not required to give a detailed reasoned explanation to the undertaking as to the enquiry, but should have deliberated on the issue so as to come to the conclusion that an enquiry is necessary, the gist of which reasoning should be communicated to the undertaking in writing. The internal working documents of the CCP need not be communicated in their entirety to the undertaking whilst at the same time its intent, along with gist of the reasoning, to conduct an enquiry must be communicated.

(b) Competition Act (XIX of 2010)---

----S. 37---Powers of the Commission to call for information relating to undertaking---Scope---Competition Commission of Pakistan ('CCP'), as a regulator, is not only empowered to but also bears the responsibility to collect the market information in order to understand the market structure as well as to ensure effective enforcement of the Competition Act, 2010 ('the Act') being administered by it---In the absence of market information, that it may seek from different undertakings from time to time, CCP cannot carry out its functions as envisioned under the Act and the provision of this information by no stretch of the imagination amounts to an adverse action against an undertaking---Thus, it is an obligation upon the undertakings to fully comply with such orders of CCP for provision of information.

Per Syed Mansoor Ali Shah, J; agreeing with Ayesha Malik, J. with his separate note.

(c) Competition Act (XIX of 2010)---

----Ss. 28(1)(a), 28(1)(b), 28(1)(c), 30, 33, 36 & 37---Distinction between the object and scope of "proceedings," "studies" and "enquiries" conducted by the Commission under Chapter IV of the Competition Act, 2010, and the duty of the Commission to act justly, fairly and reasonably and in a structured manner while exercising its discretionary power under section 37(1) of the Act to initiate on its own an enquiry against an undertaking stated.

Power of the Competition Commission of Pakistan ('the Commission') under section 36 of the Competition Act, 2010 ('the Act') to call upon an undertaking to furnish certain information is not a "proceeding'' within the meaning of this term as used in section 33 of the Act. Section 36 of the Act gives the Commission only one power, that is, to "call upon an undertaking to furnish periodically or as and when required any information concerning the activities of the undertaking". By treating this "power to call information" as a "proceeding" within the meaning of section 33, one would be conferring upon the Commission a long list of powers provided in section 33, which include summoning and enforcing the attendance of any person and requiring the production of any books, accounts or other documents in the custody of an undertaking, etc. And by so doing one would be adding further powers of the Commission in section 36 of the Act to interfere in the exercise of the fundamental right of the citizens to conduct any lawful trade or business which the Legislature has nor provided therein.

Although the word "proceeding'' used in section 33 has not been defined in the Act, the examination of the overall scheme of Chapter IV (sections 28 to 37) that describes the functions and powers of the Commission clearly indicates what it means. It has been used in section 33 in special meaning, not in general meaning; it means and refers to a "proceeding" initiated under section 30 of the Act. Therefore, the power of the Commission to call for information under section 36 and to conduct a study under section 28(1)(b), cannot be treated as a "proceeding" within the meaning of that word used in section 33 of the Act, nor can the powers mentioned in section 33 in relation to a "proceeding" be made available to the Commission for the purposes of calling information under section 36.

There is a also clear difference between the scope of "enquires" and ''studies" to be conducted by the Commission under the Act. They cannot be used by the Commission as two alternate modes to ascertain any contravention of the Act before it initiates any specific action against an undertaking. Enquiries are a process available to the Commission to assess any contravention of the Act before it initiates any specific action against an undertaking. However, this is not the object of "studies". Their object is mentioned in section 28(1)(b): the "studies" are to be conducted 'for promoting competition in all sectors of commercial economic activity', not to initiate any specific action against an undertaking. Under the Act, no regulatory action is triggered simply on the basis of the "studies". Therefore, the Commission may under section 37(3) outsource "studies" by hiring consultants on contract. It cannot be said that by doing so, the Commission out sources its statutory regulatory function to some consultants hired on contracts. Enquiries" and "studies" thus have no regulatory symbiotic relationship under the Act.

So far as the power of the Commission to initiate an enquiry against an undertaking either on its own under section 37(1) or on a complaint under section 37(2) of the Act is concerned, section 37(2) specifically requires that before initiating an enquiry under upon a complaint of such facts as appear to constitute a contravention of the provisions of Chapter II, the Commission is to examine the veracity of the complaint to ensure that it is neither frivolous or vexatious nor is it based on insufficient facts or unsubstantiated by prima facie evidence.

The Commission should, rather must, do so in order to exercise its discretionary power of initiating an enquiry on its own under section 37(1) of the Act in a just, fair and reasonable manner. And for this purpose, the Commission can advantageously follow the criterion prescribed by the legislature itself for initiating an enquiry on complaints under section 37(2). Further, it is also essential for the Commission to convey to the undertaking concerned the gist of the reasons and facts that prevail with the Commission in making the decision to initiate on its own an enquiry against that undertaking for a potential violation of any provisions of Chapter II of the Act.

(d) Administration of justice---

----Public institutions---Verbal orders---Institutions, and more so, public institutions don't function on the basis of verbal orders---Every opinion formed by the institution must be recorded and reduced in writing.

Faisal Siddiqui, Advocate Supreme Court for Appellants.

Syed M. Feisal Hussain Naqvi, Advocate Supreme Court for Respondent.

Ch. Aamir Rehman, Additional A.G. for Federation.

2023 S C M R 2012

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

HAYAT MUHAMMAD through LRs.---Appellant

Versus

MUHAMMAD RIAZ---Respondent

Civil Appeal No. 1551 of 2017, decided on 7th August, 2023.

(Against the judgment dated 18.09.2017 of the Lahore High Court, Rawalpindi Bench passed in C.R. No. 44-D of 2011)

(a) Gift---

----Pre-requisites---Pre-requisites of a valid gift are: (i) offer by the donor; (ii) its acceptance by the donee; and (iii) the delivery of possession---Valid gift comes into existence as soon as the three ingredients are completed.

(b) Gift---

----Proof---Donor seeking cancellation of gift---Record suggested that upon the oral gift, the mutation in question was effected by the donor in the name of the donee/respondent---Subsequently in a suit for possession through right of pre-emption filed by the donor's niece against the respondent, the donor appeared before the court and made a statement under oath, acknowledging that he gifted the disputed property to the respondent and thereafter transferred it to the name of the respondent in the revenue record through the mutation in question---Trial Court held that the respondent was in possession of the property and had declared that it was a result of a valid gift---Said judgment had attained finality and had not been challenged by the donor or his successors till date---Donor's statement in the pre-emption suit before the competent court of law proved his bona fide intention, free will, and consent and thereby, confirmed the execution of a valid gift and acceptance of the mutation in question in the previous litigation---Revenue record reflected that the donor himself appeared before the revenue authorities and signed the mutation in question in presence of the revenue authorities and the witnesses---Declaration of gift by the donor gathered strength by the civil transaction between him and the respondent with regard to transfer of the property through the mutation in question---Under such circumstances, the donor could not resile from his deeds, hence, was estopped to challenge the validity of the gift on any ground---Statement of the donor before the Trial Court in the present proceedings revealed that he did not say anything with regard to fraud as alleged by him in the plaint, nor had he produced any evidence in this behalf, as such, the donor was unable to prove the allegation of fraud---In such circumstances successors of the donor were not entitled to seek cancellation/revocation of the valid gift---Appeal filed by successors of the donor was dismissed.

(c) Gift---

----Revocation---Precondition for revocation of a gift as provided by section 167 of the Muhammadan Law is that it can only be revoked before delivery of possession---It implies that despite declaration of gift by the donor and its acceptance by the donee, the donor may change its mind and may not complete the gift by not delivering the possession.

Muhammad Ilyas Sheikh, Advocate Supreme Court for Appellant.

Sh. Zamir Hussain, Advocate Supreme Court for Respondent.

2023 S C M R 2016

[Supreme Court of Pakistan]

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

MUHAMMAD HANIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 528 of 2019 in Jail Petition No. 327 of 2018, decided on 5th September, 2023.

(Against the judgment of the Lahore High Court, Lahore dated 14.01.2015 passed in Capital Sentence Reference No. 10 of 2011, Criminal Appeal No. 69-ATA of 2011 and Criminal Appeal No. 86-ATA of 2011)

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

----Ss. 302(b), 324, 186 & 353---Anti-Terrorism Act (XXVII of 1997), S. 7---Murder of police official while on official duty---Reappraisal of evidence---Occurrence had taken place in broad daylight whereas both the accused nominated in the crime report were previously known to the prosecution witnesses---Both of the witnesses of the ocular account were unanimous on the salient features of the prosecution version qua the time, mode and manner of the occurrence---Contents of FIR, statement of prosecution witnesses of ocular account were corroborated by the medical evidence---Accused was apprehended at the spot by the police officials soon after the occurrence leaving no ambiguity qua his involvement in the crime---Weapon of offence recovered from the accused was transmitted to the office of Forensic Science Laboratory without any delay in its dispatch---Report of Forensic Science Laboratory further confirmed that the empties recovered from the spot matched with the weapon recovered from the accused---Appeal against conviction was dismissed.

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

----Ss. 302(b), 324, 186 & 353---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 235---Murder of police official while on official duty---Reappraisal of evidence---Trial for more than one offence---Scope---Offence committed in two phases---Incident had taken place in two phases; first when the accused fired upon the deceased (police official) in court premises but missed, and the other when the police officials retaliated, as a consequence of which both the accused tried to make their escape but in different directions---Police officials chased the accused persons and finally when deceased was likely to apprehend the present accused, he turned and fired upon the deceased which pierced through the left side of his chest, and resultantly he expired in hospital---Although the accused had committed the crime at two different places commencing from the court premises and finally when he reached in front of a tea stall which was at distance of 1-1/2 kilometers, it would be presumed one and the same transaction as per the spirit of law---As the act of the accused was in continuation till its conclusion, such aspect was fully covered by provision of section 235, Cr.P.C.---Therefore, the contention of the accused that the occurrence had taken place away from the court premises had no force---Appeal was dismissed.

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

----S. 302(b)---Qatl-i-amd---Site plan---Scope and purpose---Statement of prosecution witnesses of the ocular account contradictory to the site plan qua the inter-se distance between the accused and the victim---Preference---Statements of prosecution witnesses would have precedence over the site plan in such circumstances---Even otherwise, site plan is not a substantive piece of evidence having no legal sanctity---Purpose behind the preparation of site plan is to explain or give a glimpse of the occurrence in black and white enabling the concerned to appreciate the facts of the case in a more rational way.

Taj Muhammad v. Muhammad Yusuf and 2 others PLD 1976 SC 234 and Sardar Khan and 3 others v. The State 1998 SCMR 1823 ref.

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

----S. 302(b)---Qatl-i-amd---Medical evidence---Contradiction between ocular account of witnesses and injuries observed by expert (doctor)---Preference---Primarily the ocular account is always considered as principle evidence---Litmus test to evaluate the veracity of the prosecution witnesses of ocular account depends on them being independent, reliable, trustworthy and confidence inspiring---Evidence of the expert is only confirmative in nature---If there is contradiction between the ocular account and medical evidence qua the number of injuries, the rule of thumb is that the preference would be given to the ocular account as the statement of prosecution witnesses of ocular account is always placed at a higher pedestal as compared to the medical evidence---Rationale behind such strict construction of the rule of thumb is that firstly, expert evidence is confirmatory in nature based upon opinion of an expert which can be influenced by many factors like, (i) lack of expertise (ii) lack of knowledge (iii) defective technique (iv) variation in observation (v) lack of coordination with subordinate staff and possibility of extending concession in favour of either of the parties due to extraneous considerations.

Amrood Khan v. The State 2002 SCMR 1568; Manzoor and others v. The State 1992 SCMR 2037; Muhammad Younas and another v. The State 1990 SCMR 1272; Shafqat Ali and others v. The State PLD 2005 SC 288; Yaqoob Shah v. The State PLD 1976 SC 53 and Muhammad Hanif v. The State PLD 1993 SC 895 ref.

Sardar Shahbaz Khosa, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

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

Date of hearing: 29th September, 2020.

Criminal appeal, by leave of the Court, is directed against the impugned judgment of learned Division Bench of Lahore High Court, Multan Bench, dated 14.01.2015 passed in Capital Sentence Reference No.10/2011, Criminal Appeal No. 69-ATA/2011 and Criminal Appeal No. 86-ATA/2011 whereby the conviction of the appellant under sections 302(b), 324, 186, 353, P.P.C. read with section 7, Anti-Terrorism Act, 1997 awarded by the Special Judge, Anti-Terrorism Court, Dera Ghazi Khan vide judgment dated 08.08.2011 was upheld but his sentence of death under section 302(b), P.P.C. and under section 7, Anti-Terrorism Act, 1997 was converted into imprisonment for life. All sentences were ordered to run concurrently. The compensation awarded by the learned trial court and sentence in default thereof was ordered to be maintained. The benefit of section 382-B, Cr.P.C. was also extended to the appellant.

1. As per prosecution story contained in the FIR No. 157/2009 dated 12.06.2009, offences under sections 302, 324, 353, 186, 34, P.P.C. read with section 7, Anti-Terrorism Act, 1997, registered with police station Civil Lines, D.G. Khan (Exh.PA) lodged at the instance of one Mushtaq Ahmad Shah (PW-5) is that on 12.06.2009 at about 9.30 p.m. the complainant came to visit his brother Iqbal Shah No. 916/HC at Sessions Court who was posted there, where he was assigned the duty of checking persons entering into the court premises. In the meantime, Rao Naveed along with Muhammad Hanif previously known to complainant came there on a motorcycle bearing registration 6938/DGK being driven by Rao Naveed Advocate while appellant was on back seat. Soon they tried to enter court premises without checking, Iqbal Shah 916/HC estopped them for personal search, in tne meantime Muhammad Hanif after de-boarding from the motorcycle, picked out .30 bore pistol from right folder of his shalwar, fired upon lqbal Shah (Head Constable) but it missed. The other police official Muhammad Mohsin 411/C who was sitting in a nearly rampart retaliated by fire shot towards the assailant which missed too. Rao Naveed decamped towards north whereas Muhammad Hanif (appellant) ran towards south while resorting to firing. Muhammad Akram SI, Muhammad Tariq HC, Zulqarnain Shah 840/C, Muhammad Mohsin 411/C and Iqbal Shah (HC) chased him. lqbal Shah being ahead of others, was likely to apprehend Muhammad Hanif who took a turn and made a fire shot at Iqbal Shah which landed on left side of his chest who fell down on the ground. Muhammad Hanif ran towards Arts Council followed by other police officials. Iqbal Shah was taken to hospital in injured condition through ambulance and was medically examined by Dr. Majeed Ullah Buzdar at 09:55 a.m. but he succumbed to injuries in the hospital.

2. After registration of the aforesaid case, the investigation was

conducted by Muhammad Zafar SI who after the conclusion of the investigation found them involved in the crime hence they were challaned while placing their names in column No.3 of the report under section 173, Cr.P.C. On receipt of challan, the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan formally charge sheeted the appellant and his co-accused vide order dated 06.01.2020 to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as 11 witnesses. The appellant was examined under section 342, Cr.P.C, however, he opted not to appear in his defence, as his own witness in terms of section 340(2), Cr.P.C. to disprove the allegations levelled against him, he even did not produce any defence evidence.

1. The learned trial court after conclusion of trial found that prosecution has succeeded to prove accusation against the appellant, hence convicted the appellant under section 302(1), P.P.C. and sentenced to death with payment of compensation of Rs.1,00,000/- to the legal heirs of Muhammad Iqbal Shah deceased under section 544-A, Cr.P.C. or in default whereof to further undergo S.I. for six months. The appellant was also convicted under section 324, P.P.C. and sentenced to 10 years' R.I. He was also convicted under section 186, P.P.C. and sentenced to three months. He was convicted under section 353, P.P.C. and sentenced to two years. The appellant was further convicted under section 7(a) of Anti-Terrorism Act, 1997 and sentenced to death with payment of compensation of Rs.2,00,000/- to the legal heirs of Muhammad Iqbal Shah under section 544-A, Cr.P.C. or in default whereof to further undergo S.I. for six months. Benefit of section 382-B, Cr.P.C. was extended to the appellant. The co-accused of the appellant was acquitted of the charge by extending him benefit of doubt.

2. The appellant being aggrieved by the judgment of the learned trial court dated 08.08.2011 filed Criminal Appeal No.69-ATA/2011 before the Lahore High Court, Muitan Bench whereas the learned trial court forwarded Capital Sentence Reference No.10/2011 for confirmation of the sentences of death inflicted upon the appellant whereas the complainant filed Criminal Appeal No.86-ATA/2011 against the acquittal of co-accused Rao Naveed. The learned Division Bench of High Court vide judgment dated 14.01.2015 dismissed the Criminal Appeal No. 69-ATA/2011 filed by the appellant and that of complainant, however, maintained convictions under sections 302(b), 324, 186, 353, P.P.C. read with section 7(a) of Anti-Terrorism Act, 1997 awarded by the learned trial court but converted the sentence of death to imprisonment for life under section 302(b), P.P.C. and section 7 of Anti-Terrorism Act. The compensation awarded by the learned trial court and sentence in default thereof was maintained. The benefit of section 382-B, Cr.P.C. was also given to the appellant. The sentences were also ordered to run concurrently.

3. Leave to appeal was granted by this Court vide order dated 28.10.2019 mainly on the ground that according to the record, the inter-se distance between the assailant and the deceased was 35 feet whereas the postmortem report clearly reflects that there was blackening around the injuries which do not commensurate with distance mentioned in site plan as per allegation levelled against the petitioner in the crime report. Further that there is contradiction qua the number of injuries sustained by the deceased.

4. At the very outset, learned counsel for the appellant states that both the courts below have riot taken into consideration the evidence available on the record and the same has not been appreciated according to the established principles of "appreciation of evidence" enunciated by the superior courts from time to time. He argued that the presence of the prosecution witnesses of ocular account at the spot at the relevant time is doubtful, the complainant himself is a police officer, his presence at the spot do not inspire confidence. Contends that there are glaring discrepancies found in the statements of prosecution witnesses of the ocular account. Further contends that the inter-se distance disclosed in the site plan clearly contradict the ocular account. Contends that blackening is found around the injuries which suggests that the assailant has fired from a close range. Contends that though the petitioner was taken into custody soon after the occurrence but the fact remains that he was taken into custody from Arts Council which is at fairly long distance from the place of occurrence. Contends that the provision of section 7 of Anti-Terrorism Act, 1997 are not attracted in this case as occurrence has taken place outside the premises of the court and as such the trial in court established under Anti-Terrorism Act, 1997 was beyond its jurisdiction, hence, the conviction and sentence inflicted under section 7 of the Anti-Terrorism Act, 1997 is not sustainable in the eye of law. The learned counsel further contends that co-accused of the appellant was acquitted of the charge and as such it has created a dent in the prosecution case, therefore, the petitioner is also entitled for the same relief while extending him benefit of doubt.

5. On the other hand, learned Law Officer appearing on behalf of the State vehemently opposed the contentions raised by the learned counsel for the appellant. It has been argued by learned Law Officer that in fact it is a case of highhandedness; the police official was done to death in a brutal manner while he was in uniform and performing his duties in official capacity. Further contends that conduct of the appellant is reckless; he has acted in a brutal manner twice; in the earlier phase he fired at police official which missed but when he was given hot pursuit by the police officials and he was likely to be arrested by the deceased, he fired at him on the most vital part resulting into instantaneous death. Further contends that the appellant was apprehended at the spot; the recovery of pistol from his possession further lend support to the prosecution version. Contends that the report of Forensic Science Agency is positive. All these facts clearly reflect that the petitioner was sole perpetrator of the occurrence; he has taken law into his own hands while committing the murder of a police official in uniform within the court premises. Finally argued that Anti-Terrorism Court being a special court was fully justified to entertain and take cognizance of such like offences being scheduled offence. Finally argued that prosecution has proved its case to hilt.

6. We have heard the learned counsel for the appellant, learned Additional Prosecutor General and perused the record with their able assistance.

A close scrutiny of the record made it abundantly clear that the instant occurrence has taken place in the broad daylight whereas both the accused nominated in the crime report were previously known to the prosecution witnesses. The inter-se distance between the place of occurrence and police station is hardly 1-1/2 miles. Undeniably, the incident has taken place in two phases, first in the court premises and the other when the police officials retaliated in the same coin, as a consequent both the accused tried to make their escape but in different directions. The police officials gave a chase to the accused persons and finally when Iqbal Shah 916/HC was likely to apprehend the appellant, he took a turn and fire upon him which pierced through the left side of his chest, resultantly he expired in hospital, however, the other police officials continued their chase and finally the appellant was taken into custody from the Arts Council where he had taken rescue. The pivotal questions which require determination by this Court are (i) jurisdiction assumed by court constituted under Anti-Terrorism Act (ii) the series of incident qua the occurrence relates to one and the same transaction (iii) contradiction in the inter-se distance between appellant and deceased and if any its legal consequences (iv) conviction and sentence under Anti-Terrorism Act.

1. For the determination of the aforesaid questions raised, it seems imperative to capsulate brief history of law emerged relating to terrorism. Our homeland is perhaps one of the country most affected by terrorism in the world. It began experiencing terrorism on a sustained basis in 1990 primarily in the form of sectarian killings. Thereafter the wave of terrorist activities further intensified upon a larger canvas. Now the target of terrorism was State functionaries, holding key positions, and every notable entity from every walk of life including law enforcing agencies. Use of explosive, sophisticated weapons, bomb blasting, target killing, abduction for ransom, extortion to generate funds for terrorist activities were very common features of crime oriented outlaws to disrupt the peace of society and create a sense of insecurity in public at large. Due to rise in terrorist activities, national economy had incurred huge loss estimated to be in billions of dollars. This situation forced the State functionaries to adopt extraordinary measure to preserve the authority of the State. The consensus has prevailed amongst the Government functionaries to deal with the law breakers with iron hands. Consequently, the Suppression of Terrorist Activities (Special Courts) Act of 1975 was promulgated with special emphasis qua:-

(i) No adjournment in the court proceedings.

(ii) Continuation of court proceedings even if the accused absconds, and

(iii) Salutary principle burdened to prove guilt upon prosecution was reversed and accused was to prove his innocence.

The courts established under the law of Suppression of Terrorist Activities remained in field for a considerable time but it could not deliver according to the expectations, as during proceedings before the courts of law many flaws surfaced before the superior courts, therefore, Suppression of Terrorist Activities (Special Courts) Act of 1975 was substituted by "Special Courts for Speedy Trial Ordinance 1987" The said legislation was introduced with different approach in which right of one appeal was withdrawn while the only appeal arising out of the judgment of trial court was to be heard by a Bench comprising of two Judges of respective High Courts whereas it was to presided over by a Judge of the Supreme Court. The courts established under the legislation could not continue for long hence, the framer of law introduced another act "Anti-Terrorism Act, 1997". The preamble of the said legislation was more exhaustive, cyclopaedic and potent while the other provisions of the Act, were framed to provide legal cover to all judicial norms relating to administration of criminal justice. The said legislation had already undergone judicial review since its inception by this Court in two cases reported as (PLD 1998 SC 1445) "Mehram Ali and others v. Federation of Pakistan and others" and (PLD 2001 SC 607) "Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others". In the aforesaid judgments all those provisions which were found inconsistent to any provision of the "constitution" and established principle of "due process" were struck down, hence, the said legislation is in field to deal with such like cases in more judicious form. The paramount object of said legislation is spelled out from bare reading of "preamble" of the Act which is reproduced as under:-.

Anti-Terrorism Act, 1997 (Act No. XXVII of 1997)

An Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences;

It was duly published in Gazette of Pakistan, Extraordinary Part I, August 20, 1997 in the following terms: -

No. F.9(39)/97-Legis.---The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on 16th August, 1997, is hereby published for general information: -

WHEREAS it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto;

The preamble of The Anti-Terrorism Act has broadly classified jurisdiction to entertain cases relating to (i) terrorism, (ii) sectarian violence and for speedy trial of (iii) heinous offences and for matters connected therewith and incidental thereto. Section 6 of the Anti-Terrorism Act, 1997 has defined and categorized cases falling within the definition of terrorism. For the purpose of the case in hand, the provision of sections 6(1)(2)(a)(m)(n)(3) are relevant to the facts and circumstance.

6. Terrorism.---(1) In this Act, "terrorism" means the use or threat of action where:-

(2) An "action" shall fall within the meaning of subsection (1), if it:--

(a) involves the doing of anything that causes death;

(m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties;

(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant;

(3) The use or threat of use of any action falling within subsection (2), which involves the use of firearms, explosive or any other weapon is terrorism, whether or not subsection 1(c) is satisfied.

The punishment of the aforesaid provisions is provided under section 7 of Anti-Terrorism Act. Similarly, the 3rd Schedule relating to cognizable offences under the Act are also notified, classifying the nature of offences attracting the provision of section 6 punishable under section 7 of the Anti-Terrorism Act, the same is mentioned below:

THE THIRD SCHEDULE (Scheduled Offences) [See section 2(t)]

1. Any act of terrorism within the meaning of this Act including those offences which may be added or amended in accordance with the provisions of section 34 of this Act.

2. ....................

3. ....................

[4. ....................

(i) ....................

(ii) ....................

(iii) firing or use of explosive by any device, including bomb blast in the court premises]

[(iv) ....................

(v) ....................

Provision of section 34 of the Act authorized to amend, modify, add or omit any part of the schedule notified by the Government, as a consequent the schedule was refrained vide Notification No.SO(Judl-­1)10(1-36(I)/2010 dated 5th September, 2012.

While scanning the aforesaid provisions of Anti-Terrorism Act and the schedule appended, the offence committed by the petitioner, it is abundantly clear that a court established under the Anti-Terrorism Act was fully competent to entertain and take cognizance of the offence, therefore, the court constituted under the Act was fully competent to proceed with the matter in view of the facts of the instant case narrated above.

1. There is no denial that the occurrence has taken place in two phases. During the course of investigation, it was found correct, hence, the same was incorporated in report under section 173, Cr.P.C. The learned trial court while framing the charge against the appellant has also proceeded in the same manner. Firstly, he charged under sections 324/ 353/186, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 while the second limb the charge relates to offence under sections 302/34, P.P.C. read with section 7 of Anti-Terrorism Act, 1997. The charge sheet framed by the learned trial court fully endorsed the investigation carried out by the investigating officer of the local police. Although the petitioner has committed the crime at two different places commencing from the court premises and finally when he reached in front of Rana Abdul Sittar Tea-stall which is at distance of 1-1/2 kilometers it would be presumed one and the same transaction as per the spirit of law. As the act of the petitioner was in continuation till its conclusion and this aspect is fully covered by provision of section 235, Cr.P.C. which is reproduced as under: -

"235. Trial for more than one offence.

(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

(2) Offence falling within two definitions. If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.

(3) Acts constituting one offence, but constituting when combined a different offence. If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by anyone, or more, of such acts.

(4) Nothing contained in this section shall affect the Pakistan Penal Code, section 71".

Therefore, the contention of the learned counsel that the occurrence has taken place away from the court premises has no force, the same is repelled.

1. Leave to appeal was granted by this Court vide order dated 28.10.2019 mainly on two grounds:-

(a) Inter-se distance between assailant and deceased.

(b) Variation in number of injuries sustained by the deceased.

Bare reading of the FIR reflects the entire situation qua the act of the appellant.

During the trial proceedings, the prosecution witnesses of the ocular account PW-2 Muhammad Akram SI and PW-5 Mushtaq Ahmad Shah (complainant) had reiterated the contents mentioned in the crime report. Both of the witnesses of the ocular account are unanimous on the salient features of the prosecution version qua the time, mode and manner of the occurrence. Both witnesses were found trustworthy, reliable, independent and straightforward by the two courts below. The evidence of prosecution witnesses of the ocular account if found reliable, the same is sufficient to record conviction without any other corroborative piece of evidence. The contention raised by learned counsel that the ocular account is contradicted by the site plan qua the inter-se distance between the appellant and the victim, the law established by the superior courts is unanimous on this point. It is established that the statement of prosecution witnesses of the ocular account if contradictory to site plan it would have precedent over the distance mentioned in the site plan. Even otherwise, site plan is not a substantive piece of evidence having no legal sanctity. The purpose behind the preparation of site plan is to explain or give a glimpse of the occurrence in black and white enabling the concerned to appreciate the facts of the case in a more rational way. During the course of proceedings before the learned trial court, Dr. Majeed Ullah Buzdar appeared as PW.3. He has concurred the statement of prosecution witnesses as he observed blackening over the injuries which can be caused only from close contact, hence, the contents of FIR, statement of prosecution witnesses of ocular account corroborated by the medical evidence leaves nothing, contrary to challenge the intrinsic value of the prosecution version, hence, it has established the prosecution case beyond reasonable doubt. Reliance is placed upon PLD 1976 SC 234 (Taj Muhammad v. Muhammad Yusuf and 2 others) and 1998 SCMR 1823 (Sardar Khan and 03 others v. The State). The observation made in 1998 SCMR 1823 is as under:-

"The site plans are, however, prepared only to explain or to appreciate the evidence on record in the case. Site plan by itself is not a substantive piece of evidence so that it could contradict the ocular account in the case."

2023 S C M R 2028

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ijaz ul Ahsan, Munib Akhtar, Syed Hasan Azhar Rizvi and Shahid Waheed, JJ

ABID SHAHID ZUBERI, ADVOCATE SUPREME COURT OF PAKISTAN and 3 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division, Islamabad and others---Respondents

C.M.A. No. 3932 of 2023 in Constitution Petition No. 14 of 2023 and Constitution Petitions Nos. 14 to 17 of 2023, decided on 8th September, 2023.

(Declaring Notification dated 19.05.2023 (Regarding constitution of an inquiry Commission to probe into the veracity of alleged Audio Leaks) as ultra vires to the Constitution of Pakistan, 1973).

(a) Code of Conduct for Judges of the Supreme Court and High Courts---

----Art. IV, Clause 1---Recusal of a Judge from a Bench---Conflict of interest---Bias in a Judge---Distinction---Conflict of interest and bias are two distinct grounds on which a party may seek the recusal of a Judge from hearing a case---Whilst conflict of interest is related to the Judge's interest in the subject matter of a particular case, bias is concerned with his state of mind and his feelings towards the parties appearing before him.

Corpus Juris Secundum (Volume 48A) and American Jurisprudence, 2nd Edn. ref.

(b) Code of Conduct for Judges of the Supreme Court and High Courts---

----Art. IV, Clause 1---Recusal of a Judge from a Bench---Conflict of interest---Pecuniary and non-pecuniary interests---Principles and scope---Conflict of interest is related to the subject matter of the litigation; this means that the Judge, whose recusal is being sought, must have a direct pecuniary, proprietary or personal interest in the litigation---Apart from pecuniary (financial) interest of a Judge, non-pecuniary interests are also included in personal interests e.g. 'promotion of a cause'.

Dimes v. Grand Junction Canal Proprietors 10 ER 301 (1852) (HL); Halsbury's Laws of England Volume 61A, 2018 and R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2) [2000] 1 AC 119 ref.

(c) Code of Conduct for Judges of the Supreme Court and High Courts---

----Art. IV, Cl. 1---Recusal of a Judge from a Bench---Grounds---Conflict of interest----Rule of necessity---Islamic perspective on recusal---Principles---Five Member Bench of the Supreme Court constituted for hearing Constitutional petitions challenging vires of a notification by which the Federal Government formed an Inquiry Commission to probe into the veracity of certain alleged audio leaks---One of the alleged audios contained conversation of the Chief Justice's mother-in-law ('relative')---Recusal application filed by the Federal Government seeking recusal of the Chief Justice from the Bench due to his alleged conflict of interest in the matter---Held, that the present recusal application filed by the Federal Government is devoid of merit and legal force; its object lacks good faith for aiming to harass a Member of the Bench without cause in order to avoid adjudication on the constitutional failings pointed out in the impugned notification by present Constitutional petitions---Recusal application suffers from the common defect of being motivated and hence constitutes an attack on the independence of the Judiciary---Detailed reasons for dismissing the recusal application stated.

It is not the case of the Federal Government that the Chief Justice ("CJ") or his mother-in-law(relative) have any direct pecuniary and/or proprietary interest in the present matter; instead it alleges that because the CJ's relative is involved in one of the audio recordings selected for probe by the Commission, therefore, he has a direct personal interest in the outcome of these Constitutional petitions.

The Attorney General (AG) did not specify, let alone elaborate, what cause, if any, the CJ may be interested in promoting by sitting on the Bench hearing the present Constitutional petitions. The failure of the AG to identify the specific cause and hence the interest of the CJ or of his relative that may be affected by the said petitions renders the allegation of the Federal Government against the CJ fanciful. Moreover, the relative of the CJ is neither a party in these petitions nor is she claimed to be involved in the controversy under adjudication before the Court. In these circumstances, Article IV of the Code of Conduct for Judges of the Supreme Court and High Courts('CoC') has no application to the present case. Therefore, it appears that an illusory claim of conflict of interest has been alleged against the CJ by the Federal Government to prima facie postpone a decision in the present Constitutional petitions. Such an object appears to be consonant with the Federal Government's strategy of blocking or delaying the Court's decisions on questions of law requiring the interpretation of Constitutional principles.

There is a possibility that the Court's decision on the questions of law raised in the Constitutional petitions may result in the impugned notification being struck down. That result would relieve the Judges implicated in the said notification from being scandalised in the public without the authenticity of the audios and the identity and credibility of their leaker being established or any allegation of wrongdoing being levelled against them. It becomes apparent then that in the present petitions the Court is acting solely to safeguard the public cause of upholding the cherished values of separation of powers, the independence of the Judiciary and the Fundamental Rights of privacy and dignity of persons. Accordingly, no personal interest of the CJ can inhere in the subject matter of these petitions that pertain only to the determination of Constitutional questions of public importance. In fact, to even assume a personal interest of the CJ in the Constitutional petitions a cause promoted by him or a benefit or liability accruing to him would need to be positively identified in the subject matter of the petitions. However, the AG has failed to do that. Therefore, the CJ cannot be expected to abandon his constitutional duty as a Judge hearing Constitutional petitions on the basis of an unknown and imaginary interest. The law is clear that for an interest to attract the disqualification of a Judge from a case, the same needs to be direct and certain.

American Jurisprudence, 2nd Edn. and Corpus Juris Secundum (Volume 48A) ref.

On account of his inability to disclose any direct and certain interest of the CJ or of his relative in Constitutional petitions the AG took the plea that the Federal Government's request for the CJ's recusal from the Bench would not offend the rule of necessity, and that the CJ's withdrawal will not prevent the formation of a new 5 Member Bench to hear and decide the present petitions. Even when a Judge suffers from a valid disqualification, the rule of necessity permits him to sit on the Bench if his jurisdiction is exclusive or if no substitute is provided by the law in his place. However, in the present case there is no direct and certain interest of the CJ in the Constitutional petitions. Therefore, in the absence of a valid ground for disqualification necessity has no application to the present matter. The AG's submission ignores another crucial aspect of the rule of necessity, namely, that it constitutes a defence for a disqualified Judge to remain a part of the Bench hearing a case rather than being a means for reinforcing a litigant's challenge to the presence of a Judge on the Bench. For these reasons, the AG's plea of necessity lacks force.

Federation of Pakistan v. Muhammad Akram Shaikh PLD 1989 SC 689; Parvez Musharraf v. Nadeem Ahmed (Advocate) PLD 2014 SC 585 and The President v. Mr. Justice Shaukat Ali PLD 1971 SC 585 ref.

Whilst the law of the land grants a Judge discretion to recuse from a case if his disqualification is sought, the Holy Quran provides the criteria for guiding the exercise of such discretion. The Holy Quran makes it explicit that believers are expected to uphold the scales of justice even if such a course of action goes against their own interest or that of their parents or relatives. This is because of the higher duty to be impartial and to remain uninfluenced by any interest whilst dispensing justice that is owed by a Muslim to the Almighty. Therefore, there is no rule of Islamic Law requiring a Judge to refrain from administering justice in matters in which his personal interest or that of his relatives is involved. The Judge is nevertheless under the onerous obligation that he must not be swayed by any extraneous considerations when deciding a matter. This duty is also reflected in the Oath of Office taken by a Superior Court Judge. It is thus evident that even if an interest of the CJ had existed in the subject matter of Constitutional petitions that would still not prohibit him from sitting on the Bench hearing the said petitions.

Surah An-Nisa, Verse 135 ref.

Pakistani jurisprudence also leaves it to the discretion of the Judge to decide whether he will be able to perform his legal duty of administering justice in a particular case where either conflict of interest or bias (or both) is alleged against him. Therefore, apart from failing on both the facts and the law, the Federal Government's objection to the CJ's presence on the Bench disregards the Quranic command to a Judge i.e., to dispense justice impartially; a rule that is also echoed in the Oath of Office administered to Judges under the Constitution.

Federation of Pakistan v. Muhammad Nawaz Sharif PLD 2009 SC 284; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 and Independent Media Corporation v. Federation of Pakistan PLD 2014 SC 650 ref.

The present recusal application filed by the Federal Government is declared to be devoid of merit and legal force. Its object lacks good faith for aiming to harass a Member of the Bench without cause in order to avoid adjudication on the constitutional failings pointed out in the impugned notification by instant Constitutional petitions. The recusal application suffers from the common defect of being motivated and hence constitutes an attack on the independence of the Judiciary. Recusal application is dismissed.

Supreme Court observed that there is a chain of events in which the Federal Government and/or Federal Ministers have sought to erode the authority of the (Supreme) Court and to blemish the stature of some of its Judges with the object of blocking, delaying or distorting the result of the judgments of the Court on the constitutional right of the people to be governed by an elected government; that the Federal Government has repeatedly sought recusals of certain Judges from Benches hearing constitutional cases, including of the CJ in the present matter, on unknown and unspecified grounds of conflict of interest and/or bias; that the resistance of the Federal Government and its coalition parties to the Supreme Court's proceedings and judgments has also expanded to hurling threats and making scathing attacks against certain Judges of the Court ever since the audio recordings were leaked, and that the Federal Government has by various machinations and stratagems managed to delay adjudication by the Court and also discredited its judgments.

M. Shoaib Shaheen, Advocate Supreme Court, Abid Shahid Zuberi, Advocate Supreme Court, M. Umer Lakhani, Advocate Supreme Court assisted by Agha Ali Durrani, Ms. Minahil Malik, Ms. Amna Khalili, Advocates for Petitioners (in Const. P. No. 14 of 2023).

Shakeel-ur-Rehman, Advocate Supreme Court and Muqtedir Akhtar Shabbir, Advocate Supreme Court for Petitioners (in Const. P. No. 15 of 2023).

Nemo for Petitioners (in Const. P. No. 16 of 2023).

Petitioner in person (in Const. P. No. 17 of 2023).

Mansoor Usman Awan, Attorney General for Pakistan, Ch. Aamir Rehman, Addl. A.G., Raja M. Shafat Abbasi, D.A.G. Assisted by: Barrister Maryam Ali Abbasi, Saad Javaid Satti, Ms. Maryam Rasheed, Ms. Mehwish Batool, Advocates and Rashdeen Nawaz Kasuri, Additional A.G. for Federation.

Amanullah Kanrani, Advocate Supreme Court for PEMRA.

Afzal Khan, Advocate Supreme Court for PTA.

2023 S C M R 2052

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Athar Minallah, JJ

COLLECTOR OF CUSTOMS PORT MUHAMMAD BIN QASIM, KARACHI---Appellant

Versus

Messrs MIA CORPORATION (PVT.) LTD. ISLAMABAD---Respondent

C.M.A. No. 819 of 2019 and Civil Appeal No. 1080 of 2011, decided on 2nd May, 2023.

(Against the judgment dated 28.04.2011 of the High Court of Sindh, Karachi passed in Special Custom Reference Application No.3 of 2010)

Customs Act (IV of 1969)---

----Ss. 80, 81 & 32---Imported goods---Provisional determination of liability---Scope---Initiation of proceedings under section 32 of the Customs Act, 1969 ('Act of 1969'), after the provisional assessment under section 81 of the Act of 1969 has attained finality---Finality of assessment, whether under section 80 or section 81, as the case may be, does not preclude invocation of the offence under section 32, nor proceedings for recovery of duty, taxes or charge that has not been levied, short levied or erroneously refunded within the prescribed time from the relevant date---Finality of assessment under section 80 or section 81, as the case may be, is distinct from the offence described under section 32 and does not bar the proceedings thereunder, provided they are within the limitation period explicitly specified in the case of each eventuality separately.

Raja M. Iqbal, Advocate Supreme Court for Appellant.

Farhat Nawaz Lodhi, Advocate Supreme Court for Respondent.

2023 S C M R 2056

[Supreme Court of Pakistan]

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

MUHAMMAD ASLAM---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 789 of 2023, decided on 23rd August, 2023.

(On appeal against the order dated 26.05.2023 passed by the Peshawar High Court, Peshawar in Criminal M.B.A. No. 1831-P of 2023)

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Constitution of Pakistan, Art. 185(3)---Possession and transportation of narcotics---Bail, refusal of---As per contents of the crime report, on receiving a spy information that a huge quantity of narcotics would be smuggled, the Police party set a blockade and intercepted a car, which was being driven by co-accused of the petitioner (accused) while the petitioner was sitting in front seat of the car---From the secret cavities of the car, charas weighing 104.400 kilograms, heroin weighing 05 kilograms and methamphetamine (ice) weighing 0.900 kilogram was recovered---Samples were taken and sent to Forensic Science Laboratory (FSL) in accordance with the prescribed criteria and the report of the FSL is positive---Nothing could be brought on record by the petitioner to suggest that the Police had any malice to falsely involve him in the present case---With respect to petitioner's conscious knowledge of the narcotics the High Court had rightly observed that the petitioner and the driver of the vehicle both belonged to a disciplined force i.e. Army and at the relevant time both were posted at the same place, therefore, the alleged offence being a joint venture cannot be overruled---Offence is heinous in nature as it contributes to the menace of drugs having grave repercussions on the society---Prima facie the material available on record connects the petitioner with the commission of the crime---Furthermore the offence falls within the prohibitory clause of section 497, Cr.P.C.---Petition for leave to appeal was dismissed and petitioner was refused bail.

Muhammad Tariq, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Raja Inaam Ameen Minhas, Special Prosecutor ANF, Ch. Ehtisham ul Haq, Special Prosecutor ANF and Hasan Feroz, Inspector for the State.

2023 S C M R 2058

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Syed Hasan Azhar Rizvi, JJ

Sheikh HUMAYUN NAZIR---Petitioner

Versus

The STATE and others---Respondents

Civil Petition No. 419 of 2021, decided on 14th April, 2023.

Per Jamal Khan Mandokhail, J.; Syed Hasan Azhar Rizvi, J. dissenting.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3(2)---Constitution of Pakistan, Arts. 199 & 175(2)---Intra Court Appeal---Constitutionality---Intra Court appeal filed before a Division Bench of the High Court against a decision made by a Single Judge in a Constitutional petition filed under Article 199 of the Constitution---Whether a remedy of appeal could be provided to an aggrieved person either through an Ordinance (i.e. Law Reforms Ordinance, 1972) or parliamentary legislation in respect of matters decided under the jurisdiction conferred upon a Court under Article 199 of the Constitution---[Per Jamal Khan Mandokhail, J: Present issue is a constitutional issue regarding the provision of statutory right of appeal through the Ordinance against the order of a High Court passed under Article 199 of the Constitution and is also a matter of public importance---His Lordship issued notices to the Attorney General for Pakistan, the Advocate General, Islamabad, the Prosecutor General, Islamabad and the Advocate General, Punjab as provided by Order XXVII-A of the C.P.C., and also to the State---As the issue involved in present petition is identical to the issue involved in certain other Constitutional petitions, therefore, let the matter be placed before the Chief Justice to pass an appropriate order as to whether this case be heard along with said petitions or otherwise]---[Syed Hasan Azhar Rizvi, J. dissenting: Clause (2) of Article 175 of the Constitution provides that "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law"---Supreme Court and the High Courts have been established by the Constitution; they have such jurisdiction as has been conferred upon them by the Constitution, and also such other jurisdiction as is or may be conferred upon them by or under any law---Expression 'law' here has been used to distinguish it from 'Constitution' and obviously means an ordinary or sub-Constitutional law made in the exercise of the powers granted by the Constitution---Law Reforms Ordinance, 1972 was promulgated on 14.04.1972---Later, it was validated through Article 269 of the Constitution---Despite lapse of more than fifty years from the promulgation of the Ordinance, no question qua the legality of the Ordinance has been raised by any party, lawyer, any High Court or the Supreme Court---This question has also not been raised in the present case but it has been taken up by the other Member of this Bench (i.e. Jamal Khan Mandokhail, J) on his own---Such question is not related to the issue involved in this case, and thus, it cannot be brought under debate, nor can any conclusion be drawn thereon---Further, the case in hand is required to be decided first instead of referring such a delicate constitutional question to the Chief Justice which has not been raised before us and which could be decided in any other appropriate proceedings].

Brother Steel Mills Ltd. v. Mian Ilyas Miraj PLD 1996

SC 543 ref.

Per Syed Hasan Azhar Rizvi, J.

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

----Ss. 155(2), 156(3) & 159---Non-cognizable cases---Investigation---Magistrate, powers of---Scope---Section 155(2) Cr.P.C. does not expressly confer power on a Magistrate to order an investigation in a non-cognizable offence as is given by section 156(3) & section 159, Cr.P.C.---Police may report for an order under section 155(2), Cr.P.C. and the Magistrate can order for the investigation---Magistrate, however, has to apply his mind to the facts and before passing the orders has to see whether there are reasonable grounds for believing that an offence has been committed---Fact whether there are reasonable grounds for believing that an offence has been committed, is a very material circumstance to be taken into account in deciding whether an investigation should be ordered---Magistrate must apply his judicial mind to satisfy himself that reasonable grounds exist for believing that an offence has been committed before he orders such type of investigation---If he does not do so, he would be acting arbitrarily in ordering an investigation---Order to investigate is an important matter and it must precede the investigation by the Police Officer---Magistrate has unfettered discretion to grant or refuse the order for any reason that he deems appropriate---In order to perform the function of granting or withholding permission to investigate, the Magistrate must have a thorough understanding of the facts of the case.

2023 S C M R 2070

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Athar Minallah, JJ

COMMISSIONER INLAND REVENUE, CHENAB ZONE, RTO, FAISALABAD---Petitioner

Versus

Messrs ROSE FOOD INDUSTRIES, FAISALABAD and another---Respondents

Civil Petition No. 1345-L of 2021, decided on 2nd February, 2023.

(Against the order dated 12.01.2021 of the Lahore High Court, Lahore passed in STR No. 142 of 2011)

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

----S. 25--- Constitution of Pakistan, Art. 10A--- Allegation of suppression of supplies---Show cause notice, issuance of---Scrutiny or re-examination of record---Adjudicating authority adjudicating upon matters without issuance of a fresh show cause notice---Legality---In the present case re-examination of the record was in the nature of conducting an audit under section 25 of the Sales Tax Act, 1990 ('Act of 1990')---Such exercise had led the sales tax officers to raise fresh observations which were distinct from the allegations mentioned in the already served show cause notice---Respondent company, therefore, was at a disadvantage because it did not have a fair and reasonable opportunity to meet the observations since they were beyond the show cause notice which was being adjudicated---High Court had correctly appreciated that the scrutiny or re-examination of the record amounted to an audit and, therefore, the statutory requirements prescribed under section 25 of the Act of 1990 had to be complied with before adjudicating the tax liability.

The show cause notice was issued pursuant to an audit conducted by the sales tax officers. It does not appear from the record that, before issuing the show cause notice, audit observations were issued as required under section 25 of the Sales Tax Act, 1990 ('Act of 1990'). The show cause notice alleged suppression of supplies on the basis of comparison of the declared supplies and the consumption of electricity. After the first order in original was set aside by the Federal Board of Revenue and the matter was remanded, the adjudication officer had ordered re-examination of the record maintained by the respondent company. The re-examination of the record was in fact in the nature of conducting an audit under section 25 of the Act of 1990. This exercise had led the sales tax officers to raise fresh observations which were distinct from the allegations mentioned in the already served show cause notice. The respondent company, therefore, was at a disadvantage because it did not have a fair and reasonable opportunity to meet the observations since they were beyond the show cause notice which was being adjudicated. Moreover, the exercise of re-examination of the record was in the nature of conducting an audit attracting the provisions of section 25 of the Act of 1990. This exercise, undertaken during the adjudication proceedings, had rendered the show cause notice as redundant.

In the case in hand, the re-examination of the record required to be maintained by the respondent company under the Act of 1990, was in the nature of conducting an audit during the quasi-judicial adjudication proceedings. It had resulted in raising of specific allegations which were not part of the show cause notice issued and adjudicated upon. The procedure prescribed under section 25 of the Act of 1990 was also not followed. The adjudicating authority had adjudicated upon matters without issuance of a fresh show cause notice. The invoices submitted by the respondent company could not have been declared as 'fake/ fabricated' nor the adjudication officer was justified in concluding that the respondent company had not made supplies to a distinct recipient company without issuing a fresh show cause notice within the prescribed limitation period. The recipient company was not privy to the adjudication proceedings nor was the respondent company put to notice regarding the observations of the sales tax officials who had subjected the records of the two distinct entities to scrutiny which was in the nature of conducting an audit. The High Court had correctly appreciated that the scrutiny or re-examination of the record amounted to an audit and, therefore, the statutory requirements prescribed under section 25 of the Act of 1990 had to be complied with before adjudicating the tax liability. Petition for leave to appeal was dismissed and leave was refused.

(b) Constitution of Pakistan---

----Art. 10A---Tax matters---Show cause notice, contents of---Scope---Issuance of a show cause notice is the most crucial in the context of a fair trial and due process---It enables a tax payer to precisely know what allegations are to be met, explained and answered to the satisfaction of the adjudication officer---It is the duty of the Department to ensure that a show cause notice is issued after a proper inquiry and investigation---It should be manifest from the contents of the show cause notice that it was issued after ascertaining the facts and the allegations are not vague or ambiguous---Charges or allegations should be specific, otherwise the taxpayer would be prejudiced and denied the right to a fair trial---As a corollary, the adjudication authority has to confine the proceedings to the specific charges and allegations clearly mentioned in a show cause notice and cannot adjudicate any charge or allegation beyond it---Adjudicating a charge or allegation not confronted in the show cause notice would not be sustainable in law.

Mrs. Kausar Parveen, Advocate Supreme Court, M. Ozair Chughtai, Advocate-on-Record and Syed Hassan Sardar, Additional Commissioner for Petitioner.

Nemo for Respondents.

2023 S C M R 2075

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan, Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

CANTONMENT BOARD PESHAWAR, PESHAWAR CANTT. through Executive Officer and another---Appellants

Versus

Messrs RACO ADVERTISERS and another---Respondents

Civil Appeal No. 1137 of 2014, decided on 13th June, 2023.

(Against Order dated 29.10.2013 passed by the Peshawar High Court, Peshawar in W.P. No.2834-P of 2011)

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

----Ss. 14 & 17---Cantonments Act (II of 1924), Ss. 260, 261, 262, 263, 264 & 265---Constitution of Pakistan, Art. 199---Agreement between Cantonment Board and respondent-advertiser for recovery of Hoarding fee charges---Dispute referred to arbitration under the Arbitration Act, 1940---Award delivered by sole arbitrator---Respondent challenging the award before the High Court in its writ jurisdiction---High Court referring the matter back to the Arbitrator for passing a fresh award---Legality---To conduct arbitration in terms of the Agreement, recourse was to be made through the Arbitration Act, 1940 which is the law of the land applicable for arbitration agreements---It is not the case of either party that the arbitration was conducted or agreed to be conducted under sections 260 to 265 of the Cantonments Act, 1924, which only applies in the event of any disagreement as to the liability of the Board to pay any compensation under the Cantonments Act, 1924, or as to the amount of any compensation so payable for which the person claiming such compensation may apply to the Board for referring the matter to a Committee of Arbitration and the Board shall forthwith proceed to convene a five-member Committee of Arbitration to determine the matter in dispute---In the present case, the parties opted for and agreed to the resolution of contractual dispute(s) through a single arbitrator, and not through a Committee of Arbitration, hence the respondent should have availed the proper remedy under the provisions of the Arbitration Act, 1940 for redress, rather than approaching the High Court under writ jurisdiction---High Court in the impugned judgment observed that it cannot assume the task of recording evidence regarding what amount was collected by the Cantonment Board during the period under dispute in its constitutional jurisdiction, but despite that the High Court remanded the case in writ jurisdiction for de novo arbitration---In the case in hand, the remedial provisions provided under the Arbitration Act 1940 could be invoked which set out an appropriate and alternate remedy as remedium juris, being more convenient, beneficial and effective and the writ petition to upset the award rendered by the arbitrator pursuant to the arbitration clause in the Agreement was not maintainable---Appeal was allowed and impugned judgment of the High Court was set aside.

(b) Administration of justice---

----Exhaustion of remedies, doctrine of---Said doctrine prevents a litigant from seeking a remedy in a new court or jurisdiction until all claims or remedies have been exhausted (i.e. pursued as fully as possible) in the original one.

Ihsan Ullah Khan, Advocate Supreme Court (via video link from Peshawar) for Appellants.

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

2023 S C M R 2081

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi and Syed Hasan Azhar Rizvi, JJ

ABDUL REHMAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 611-L of 2023, decided on 11th August, 2023.

(On appeal against the order dated 07.06.2023 passed by the Lahore High Court, Lahore in Criminal Misc. No. 35337-B of 2023)

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

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss. 447, 427, 511, 109, 148, 149, 435 & 506---Constitution of Pakistan, Art. 185(3)---Plowing, destroying and burning standing crop---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Stance of the petitioner (accused) was that the land in question is owned and possessed by him and civil litigation regarding the same is also pending before the court of competent jurisdiction---Seemingly the primary dispute between the parties is with regard to the ownership/possession of the land in question---In this view of the matter, the possibility of false implication just to pressurize the petitioner's side with ulterior motives cannot be ruled out---Crime report was lodged after a delay of 62 days for which the complainant did not utter a single word---In the crime report, only a general role has been ascribed to the petitioner and his six co-accused---Two co-accused of the petitioner, who were specifically nominated in the crime report, had been declared innocent during investigation---Even otherwise, all the seven accused have been ascribed the role of jointly causing a loss of about Rs.100,000/- to the complainant---Case of the petitioner 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 accused was confirmed.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---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.

Zulfiqar Ali Dhuddi, Advocate Supreme Court along with petitioner (Through video link from Lahore) for Petitioner.

Mirza Abid Majeed, D.P.G., Abdul Maalik, SI and Idrees Afzal, SHO for the State.

2023 S C M R 2084

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

Civil Review Petition No. 426 of 2022

(For review of the order dated 03.10.2022 passed by this Court)

In

Civil Appeal No. 51 of 2020

COMMISSIONER INLAND REVENUE, ZONE-I, RTO, PESHAWAR and another---Petitioners

Versus

AJMAL ALI SHIRAZ MESSRS SHIRAZ RESTAURANT, PESHAWAR---Respondent

Civil Review Petition No. 426 of 2022 in Civil Appeal No. 51 of 2020, decided on 27th September, 2023.

Income Tax Ordinance (XLIX of 2001)---

----S. 122---Constitution of Pakistan, Art. 188---Review petition---Power of the Commissioner to amend an assessment order---Delegation of authority by the Commissioner of such power to the Deputy Commissioner---Legality---Plea of Commissioner, Inland Revenue (review petitioner) is that the Deputy Commissioner was delegated powers to amend the assessment vide order No. 616, dated 5th December 2009, issued by the Commissioner Inland Revenue (Audit-I), Regional Tax Office, Peshawar ('the said order') mentioned at serial No. 1 of the Table contained in the said order---Held, that the said order does not refer to section 122 of the Income Tax Ordinance, 2001 ('the Ordinance') with regard to amendment of assessment nor is it so stated under column No. 4 of the Table pertaining to Jurisdiction---Furthermore the said order has neither been gazetted nor is it available on the website of the Federal Board of Revenue ('FBR')---Taxpayers should know who is exercising authority and whether such exercise of authority is permissible---Point raised in the present review petition had already been argued at the time of hearing the order under review and indulgence had also been shown to the petitioner (Commissioner Inland Revenue) to disclose the requisite authority bestowed on the Deputy Commissioner---Same officer, who is present before the Supreme Court today, namely, the Additional Commissioner, FBR was in attendance then too, but he did not refer to the said order---In any case the said order does not delegate the statutory power of the Commissioner to Deputy Commissioners, therefore, the purported amendment made to the assessment order was not sustainable---Said order also does not grant such specific authorization---Consequently, present review petition was dismissed with costs of ten thousand rupees; to be paid to a charity of the choice of the petitioner---Supreme Court observed that all notifications, orders etc. should be gazetted and also displayed on the website of the FBR to facilitate the officers of the FBR, tax practitioners and taxpayers.

Ms. Neelam Azra Khan, Advocate Supreme Court along with Sohail Ahmed, Additional Commissioner (Legal), FBR (through video-link from Peshawar) for Petitioners.

Nemo for Respondent.

2023 S C M R 2087

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Athar Minallah, JJ

FEDERAL PUBLIC SERVICE COMMISSION through Chairman, Islamabad and another---Petitioners

Versus

SHIRAZ MANZOOR and others---Respondents

Civil Petitions Nos. 2347 to 2360 of 2022, decided on 24th November, 2022.

(Against the judgment dated 17.3.2022 of the Federal Service Tribunal, Islamabad passed in Appeals Nos. 1111(R)CS/2017 to 1124(R)CS/2017)

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

----R. 7--- Civil Servants Act (LXXI of 1973), S. 5--- SRO No.338(I)/2009 dated 14.4.2009 ('SRO of 2009')---Post of 'Reader' in Federal Services Tribunal ('the Tribunal')---Appointment---Federal Service Tribunal ('Tribunal') directed that the rules whereby conditions were prescribed regarding the method, qualifications and manner for appointment against various posts, including the post of the 'Reader' [notified and published in the official gazette vide SRO No.338(I)/2009 dated 14.4.2009 ('SRO of 2009')] may be amended so that appointments made against the post of a Reader are exclusively through the mode of promotion from amongst those holding the post of Assistant---Legality---Appointment to the post of the Reader was not governed under any rules before framing and notifying the 'SRO of 2009' which had, for the first time, prescribed the criteria, conditions, qualifications and mode for filing the five sanctioned posts of Readers in the Tribunal---There was no vested right that had accrued in favour of the respondents, working against the post of Assistant, to be appointed to the post of the Reader through promotion nor to take away the prerogative of the competent authority to formulate a recruitment and selection process relating to the post of the Reader---Question of alteration of a right to their detriment or disadvantage did not arise---Tribunal had transgressed its jurisdiction by questioning the policy formulated by the competent authority and substituting it by its own---Rules notified vide the SRO of 2009 were competently framed, without prejudicing vested rights and, therefore, they could not have been ordered to be modified by the Tribunal---Impugned judgment of the Tribunal was set aside with the direction that the Commission shall be at liberty to fill the vacancies in accordance with the mode of appointment prescribed under the SRO of 2009---Petitions for leave to appeal were converted into appeals and allowed.

Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forest and others PLD 1988 SC 155 distinguished.

(b) Civil service---

----Promotion---No vested right---There is no vested right in promotion nor the rules which determines the eligibility criteria for promotion---Promotion is neither a vested right nor could it be claimed with retrospective effect---Employee may claim under the relevant law/rules to be considered for promotion when cases of other similarly placed employees are taken up but cannot compel the employer department to fill the promotion post nor to keep it vacant or under consideration---Question of promotion exclusively falls within the domain and jurisdiction of the competent authority and, ordinarily, a court or tribunal would not interfere, except when the designated competent authority has acted in violation of law, excess of jurisdiction or without jurisdiction---Competent authority is empowered to prescribe criteria and conditions relating to eligibility for promotion.

Muhammad Umar Malik and others v. Federal Service Tribunal and others PLD 1987 SC 172; Abid Hussain Sherazi v. Secretary Ministry of Industries and Production 2005 SCMR 1742 and Muhammad Iqbal and others v. Executive District Officer (R) and another 2007 SCMR 682 ref.

Malik Javaid Iqbal Wains, Additional A.G.P. and Muhammad Abdullah, A.D. (Legal) FPSC for Petitioners.

Muhammad Shoiab Shaheen, Advocate Supreme Court for Respondents.

2023 S C M R 2092

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

FEDERAL GOVERNMENT OF PAKISTAN through Ministry of Defence Rawalpindi and others---Petitioners

Versus

Mst. ZAKIA BEGUM and others---Respondents

C.R.P. 446/2022 in C.A. 2150/2019, C.R.P. 448/2022 in C.A. 2154/2019, C.R.P. 448/2022 in C.A. 2156/2019, C.R.P. 449/2022 in C.A. 2156/2019, C.R.P. 450/2022 in C.A. 2157/2019, C.R.P. 451/2022 in C.A. 2158/2019, C.R.P. 452/2022 in C.A. 2159/2019, C.R.P. 453/2022 in C.A. 2160/2019, C.R.P. 454/2022 in C.A. 2161/2019, C.R.P. 455/2022 in C.A. 2162/2019, C.R.P. 456/2022 in C.A. 2163/2019, C.R.P. 457/2022 in C.A. 2164/2019, C.R.P. 458/2022 in C.A. 2165/2019, C.R.P. 459/2022 in C.A 2166/2019, C.R.P. 460/2022 in C.A. 2167/2019, C.R.P. 461/2022 in C.A. 2168/2019, C.R.P. 462/2022 in C.A. 2169/2019, C.R.P. 463/2022 in C.A. 2170/2019, C.R.P. 464/2022 in C.A. 2171/2019, C.R.P. 465/2022, C.R.P. 466/2022, C.R.P. 467/2022 in C.A. 2174/2019, C.R.P. 468/2022 in C.A. 2175/2019, C.R.P. 469/2022 in C.A. 2176/2019, C.R.P. 470/2022, C.R.P. 471/2022 in C.A. 2178/2019, C.R.P. 472/2022 in C.A. 2179/2019, C.R.P. 473/2022 in C.A. 2180/2019, C.R.P. 474/2022 in C.A. 2181/2019, C.R.P. 475/2022 in C.A. 2182/2019, C.R.P. 476/2022 in C.A. 2183/2019, C.R.P. 477/2022 in C.A. 2184/2019, C.R.P. 478/2022 in C.A. 2185/2019, C.R.P. 479/2022 in C.A. 2186/2019, C.R.P. 480/2022 in C.A. 2187/2019, C.R.P. 481/2022 in C.A. 2188/2019, C.R.P. 482/2022 in C.A. 2189/2019, C.R.P. 483/2022 in C.A. 2190/2019, C.R.P. 484/2022 in C.A. 2191/2019, C.R.P. 485/2022 in C.A. 2192/2019, C.R.P. 486/2022 in C.A. 2193/2019, C.R.P. 487/2022 in C.A. 2194/2019, C.R.P. 488/2022 in C.A. 2195/2019, C.R.P. 489/2022 in C.A. 2196/2019, C.R.P. 490/2022 in C.A. 2197/2019, C.R.P. 491/2022 in C.A. 2198/2019, C.R.P. 492/2022 in C.A. 2199/2019, C.R.P. 493/2022 in C.A. 2200/2019, C.R.P. 494/2022 in C.A. 2201/2019, C.R.P. 495/2022 in C.A. 2202/2019, C.R.P. 496/2022 in C.A. 2203/2019, C.R.P. 497/2022 in C.A. 2204/2019, C.R.P. 498/2022 in C.A. 2205/2019, C.R.P. 499/2022 in C.A. 2206, C.R.P. 500/2022 in C.A. 2207/2019, C.R.P. 501/2022 in C.A. 2208/2019, C.R.P. 502/2022 in C.A. 2209/2019, C.R.P. 503/2022 in C.A. 2210/2019, C.R.P. 504/2022 in C.A. 2211/2019, C.R.P. 505/2022 in C.A. 2212/2019, C.R.P. 506/2022 in C.A. 2213/2019, C.R.P. 507/2022 in C.A. 2214/2019, C.R.P. 508/2022 in C.A. 2215/2019, C.R.P. 509/2022 in C.A. 2216/2019, C.R.P. 510/2022 in C.A. 2217/2019, C.R.P. 511/2022 in C.A. 2218/2019, C.R.P. 512/2022 in C.A. 2219/2019, C.R.P. 513/2022 in C.A. 2220/2019, C.R.P. 514/2022 in C.A. 2221/2019, C.R.P. 515/2022 in C.A. 2222/2019, C.R.P. 516/2022 in C.A. 2223/2019, C.R.P. 517/2022 in C.A. 2224/2019, C.R.P. 518/2022 in C.A. 2225/2019, C.R.P. 519/2022 in C.A. 2226/2019, C.R.P. 520/2022 in C.A. 2227/2019, C.R.P. 521/2022 in C.A. 2228/2019, C.R.P. 522/2022 in C.A. 2229/2019, C.R.P. 523/2022 in C.A. 2230/2019, C.R.P. 524/2022 in C.A. 2231/2019, C.R.P. 525/2022 in C.A. 2232/2019, C.R.P. 526/2022 in C.A. 2233/2019, C.R.P. 527/2022 in C.A. 2234/2019, C.R.P. 528/2022 in C.A. 2235/2019, C.R.P. 529/2022 in C.A. 2236/2019, C.R.P. 530/2022 in C.A. 2237/2019, C.R.P. 531/2022 in C.A. 2238/2019, C.R.P. 532/2022, C.R.P. 533/2022 in C.A. 2240/2019, C.R.P. 534/2022 in C.A. 2241/2019, C.R.P. 535/2022 in C.A. 2242/2019, C.R.P. 536/2022 in C.A. 2243/2019, C.R.P. 537/2022 in C.A. 2244/2019, C.R.P. 538/2022 in C.A. 2245/2019, C.R.P. 539/2022 in C.A. 2246/2019, C.R.P. 540/2022 in C.A. 2247/2019, C.R.P. 541/2022 in C.A. 2248/2019, C.R.P. 542/2022 in C.A. 2249/2019, C.R.P. 543/2022 in C.A. 2250/2019, C.R.P. 544/2022 in C.A. 2251/2019, C.R.P. 545/2022 in C.A. 2252/2019, C.R.P. 546/2022 in C.A. 2253/2019, C.R.P. 547/2022 in C.A. 2254/2019, C.R.P. 548/2022 in C.A. 2255/2019, C.R.P. 549/2022 in C.A. 2256/2019, C.R.P. 550/2022 in C.A. 2257/2019, C.R.P. 551/2022 in C.A. 2258/2019, C.R.P. 552/2022 in C.A. 2259/2019, C.R.P. 553/2022 in C.A. 2260/2019, C.R.P. 554/2022 in C.A. 2261/2019, C.R.P. 555/2022 in C.A. 2262/2019, C.R.P. 556/2022 in C.A. 2263/2019, decided on 18th July, 2023.

(Against the judgment dated 24.03.2022 passed by this Court in C.As. Nos. 2150-2263 of 2019 and C.M.As. Nos. 5284-5300 of 2020)

Land Acquisition Act (I of 1894)---

----Ss. 23 & 24---Punjab Land Acquisition Rules, 1983, R. 10(1)(iii)---Land acquisition---Compensation----Potential value of land---Agricultural/revenue classification---In the present case considering that the land was acquired for a single project, the Supreme Court in the judgment under review affirmed the value assigned by the High Court to the acquired land for the reason that the original value as determined by the Collector and the Referee Court was based on revenue classifications which have no relevance for the purposes of calculating compensation---Furthermore, when land is acquired in small parcels, awarding compensation based on revenue classifications to small parcels of land is to the disadvantage of the landowners, because it undermines the potential value of the large parcels of land acquired for a single project---Consequently, the uniform valuation for the entire land acquired for the project possessed justification---Calculation of potential value of acquired land by a Court of law starting from the referee Court up to the Supreme Court cannot be left to their discretionary assessment---There must be guidelines framed by the competent legislative or regulatory bodies for determining the potential value of the land acquired for various types of public purpose projects---No ground was found to interfere with the judgment under review---Review petitions were dismissed.

Federal Government of Pakistan v. Mst. Zakia Begum PLD 2023 SC 277 ref.

Rashdeen Nawaz Qasoori, Additional A.G.P. assisted by Muhammad Ibrahim, Advocate High Court and Rameez Sarfraz, MEO Abbottabad for Petitioners.

Nemo for Respondents.

2023 S C M R 2096

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Syed Hasan Azhar Rizvi, JJ

ABDUL NAFEY---Petitioner

Versus

MUHAMMAD RAFIQUE and others---Respondents

Civil Petition No. 173-Q of 2023, decided on 9th August, 2023.

(On appeal against the judgment dated 12.05.2023 passed by the High Court of Balochistan, Quetta in C.P. No. 1916 of 2022)

(a) Balochistan Local Government Act (V of 2010)---

----S. 24(b)---Balochistan Local Government (Election) Rules, 2013, R. 13---Local bodies elections for Ward Member---Qualifications for candidates and elected members---Minimum age of 21 years---Date of birth, determination of---Date of birth on Computerized National Identity Card (CNIC) to be given preference over school record---On the last date of filing of the nomination papers, the age of the petitioner (returned candidate) according to his CNIC was about 20 years---In this view of the matter, the High Court has rightly declined to provide relief to the petitioner by placing reliance on section 24(1)(b) of the Balochistan Local Government Act, 2010---So far as the argument of the petitioner that according to the date of birth on his school record he was above 21 years of age is concerned, the same is of no help to the petitioner because nowhere in the Balochistan Local Government (Election) Rules, 2013, it is mentioned that the date of birth of a candidate will be considered as per his school record --- On the contrary, a bare reading of Rule 13 of the said Rules shows that any person whether he is a candidate, a proposer or a seconder must have Computerized National Identity Card (CNIC) to meet the requirements mentioned in the Act and Rules, which means that the credentials of a person on the CNIC would be given preference---Other plea of petitioner that correction in his CNIC had already been made while the matter was pending before the High Court is concerned, the petitioner admitted that he sought correction in the NADRA record after the election schedule had been announced---In such eventuality, a right had accrued in favour of the contesting candidates, which cannot be taken away without any cogent reason---When on the date of filing of nomination papers the petitioner was not qualified, how could such defect be cured later on---Even otherwise, while seeking such an alteration/correction in the date of birth, a declaration is sine qua non which can only be issued by the Civil Court of competent jurisdiction on the basis of evidence produced during the proceedings regarding the authenticity of the subject matter---Petition for leave to appeal dismissed and leave was refused.

Muhammad Khalid Mandokhail v. Government of Balochistan 2021 SCMR 595 and Shahid Ahmed v. OGDCL 2015 PLC (C.S.) 267 ref.

(b) Interpretation of statutes---

----Intention of Legislature conveyed through language of statute---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 KPK v. Abdul Manan 2021 SCMR 1871 and JS Bank Limited v. Province of Punjab through Secretary Food, Lahore 2021 SCMR 1617 ref.

Kamran Murtaza, Senior Advocate Supreme Court for Petitioner.

Muhammad Rafique, in person (via video link from Quetta).

Ayaz Khan Swati, Additional A.G. Balochistan for Respondent No. 2.

Muhammad Arshad, D.G. (Law), ECP and Falak Sher, Legal Consultant, ECP for Respondents Nos. 3 - 5.

2023 S C M R 2100

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. Ayesha A. Malik and Athar Minallah, JJ

DIRECTOR GENERAL CENTRAL DIRECTORATE OF SAVINGS and others---Appellants

Versus

ABID HUSSAIN and others---Respondents

Civil Appeals Nos. 23 and 24 of 2017, decided on 8th December, 2022.

(Against the judgment dated 02.05.2016 of the Islamabad High Court, Islamabad passed in Intra Court Appeal No. 13 of 2014)

Income Tax Ordinance (XLIX of 2001)---

----S. 151(1)(a)---National Savings Center located in erstwhile Federally Administered Tribal Area (FATA)---Saving and investment schemes---Deduction of withholding tax---Clause (a) of subsection (1) of section 151 of the Income Tax Ordinance, 2001 ('Ordinance of 2001'), inter alia, provides that where a person pays yield on an account, deposit or a certificate under the National Savings Scheme or Post Office Savings Account, then it becomes a mandatory statutory obligation of the payers of the profit to deduct tax at the rate specified in Part III of the First Schedule from the gross amount of the yield or the profit paid to the recipient---It is a statutory duty of the Central Directorate of National Savings, ("Directorate") to comply with the express requirement provided under section 151(1)(a) of the Ordinance of 2001---National Savings Center, therefore, acts only to facilitate the public in the erstwhile Tribal Areas to avail the benefits of the various national saving schemes offered by the Directorate---Income of the Directorate does not arise nor accrues in the Tribal Areas---Single Judge of High Court had rightly held the deduction of withholding tax relating to the certificates obtained from the Center as legal and constitutional---Appeals were allowed.

Rashdeen Nawaz Qasuri, Additional Attorney General for Appellants (in C.A. No. 23 of 2017).

Ghulam Shoaib Jolly, Advocate Supreme Court for Appellant (in C.A. No. 24 of 2017).

Muhammad Raza Khan, Advocate Supreme Court for Respondents Nos. 1 - 5.

Ex party for Respondents Nos. 6 - 7.

2023 S C M R 2103

[Supreme Court of Pakistan]

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

SHAH FAKHR-E-ALAM and others---Appellants

Versus

Mst. SHAUKAT ARA and others---Respondents

C.A. No. 998 of 2020, decided on 24th May, 2023.

(Against the judgment dated 12.10.2020 passed by the Peshawar High Court, Peshawar in Civil Revision No. 1007 of 2009)

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

----S. 115---Revisional jurisdiction of the High Court---Scope---When a Trial Court and the first appellate court, which are responsible for considering both factual and legal aspects, have already taken a specific viewpoint, the High Court under the jurisdiction granted by section 115 of the C.P.C. should generally refrain from offering an alternative interpretation of the evidence, unless the lower courts' interpretation is clearly unreasonable or contradicts well established legal principles.

(b) Administration of justice---

----Setting aside findings of lower court/s---Proper reasons and logical justification---When a higher court is unsatisfied with the findings of the lower courts, the higher court must carefully examine and discuss the lower courts' findings---Subsequently the higher court should provide reasons for disagreeing with the lower courts and replacing their findings with its own---Any findings being set aside must be done so with proper reasons and logical justification, while the findings made by the higher court must also be supported by valid reasons based on the available evidence and the law.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Limitation Act (IX of 1908), S. 3---Incorrect entry in revenue record--- Limitation period for challenging such entry---Scope---Law states that if a wrong entry is made and, in accordance with the prevailing Land Revenue Act, the ownership entry is recorded in the Register Haqdaran Zameen/Jamabandi/periodical record, each new entry in the latest record, typically updated every four years, creates a new cause of action---However, for a plaintiff to successfully argue that the wrong entry was unknown to him and lacked legal basis, he must demonstrate that the last wrong entry came to his knowledge---In such cases, the Court has declared the suit to be within time---However, it is important to note that the Supreme Court, as well as the principles of law of limitation, have never provided a blanket exemption from the law of limitation for individuals challenging an admitted wrong entry.

Zia ur Rehman Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Abdus Sattar Khan, Advocate Supreme Court for Respondents Nos. 1, 2 and 4.

2023 S C M R 2109

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

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

Versus

SAADAT KHAN and another---Respondents

Criminal Petition No.54-P of 2012, decided on 26th September, 2023.

(Against the judgment dated 21.03.2012 of the Peshawar High Court, Mingora Bench (Dar-u1-Qaza), Swat)

Penal Code (XLV of 1860)---

----S. 295-B---Defiling of Holy Quran---Reappraisal of evidence---Petition for leave to appeal challenging acquittal of accused, dismissal of---Person of unsound mind---Possibility of false implication---Record shows that there are material contradictions in the statements of the complainant as well as the prosecution witnesses---Apparently, the accused/respondent is uncle of the complainant and a witness is a friend of the complainant, and there was a land dispute between the parties---Two independent witnesses have been abandoned, thus an adverse inference has to be drawn against the prosecution---Torn pieces and damaged book (Holy Quran) which were taken by the complainant from the scene of occurrence to the mosque, as narrated in the FIR, were neither produced during the investigation nor 'moulvi' who took the torn pieces of Holy Quran, appeared as a witness---Accused/ respondent was found to be an abnormal person by the Investigating Officer at the time of his arrest and was referred for medical examination but the same had not been taken into its logical conclusion---However, the accused/respondent produced a certificate regarding the fact that he was an abnormal person at the time of incident which fact was not objected to by the prosecution---Prosecution has failed to prove its case against the accused/respondent through sound, cogent and confidence inspiring evidence---Petition challenging acquittal of accused was dismissed and leave was declined.

Altaf Khan, Additional Advocate General, Khyber Pakhtunkhwa for Petitioner.

Nemo for Respondents.

2023 S C M R 2111

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Athar Minallah, JJ

MANZAR ABBAS and another---Petitioners

Versus

DISTRICT POLICE OFFICER, SARGODHA and others---Respondents

Civil Petitions Nos. 3041 and 3105 of 2020, decided on 15th June, 2023.

(Against the judgment dated 30.09.2020 of the Punjab Service Tribunal, Lahore passed in Appeals Nos. 2340 and 2341 of 2020)

Per Yahya Afridi, J; Athar Minallah, J agreeing; Sayyed Mazahar Ali Akbar Naqvi, J. dissenting.

(a) Civil service---

----Concurrent departmental and criminal proceedings---Acquittal in criminal proceedings---Effect---Acquittal in a criminal trial does not serve as an embargo against disciplinary proceedings---Departmental and criminal proceedings may proceed concurrently, and the result of one does not impinge upon the other---Nonetheless, an acquittal in a criminal case may be considered during disciplinary proceedings but cannot be the sole determining factor in deciding the fate of the disciplinary proceedings.

Muhammad Iqbal v. District Police Officer, Sahiwal and another 2011 SCMR 534 ref.

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

----R. 4(1)(b)(iv)---Police officials---Dismissal from service---Allegation of travelling in a private car without appropriate permission; abusing official position for the purpose of extortion; tarnishing the reputation of the police department, and fabricating information to conceal misconduct---[Per Yahya Afridi, J. (Majority view): Convincing material was available on record to show that the petitioners (whilst in police uniform) were travelling on a motorway in a private car without either informing or seeking permission from the appropriate authority---Petitioners were arrested pursuant to a call of the complainant to the Motorway Police, indicating a premeditated and deliberate violation of procedure on their part---Overall conduct of the petitioners, including unauthorized travel in police uniform and the subsequent abuse of their official position, painted a clear picture of gross misconduct---Such actions were not only in violation of the trust placed in them by virtue of their positions but also signaled a disregard for the laws and procedures they were entrusted to uphold---Such conduct necessitated a thorough examination and underscored the importance of maintaining integrity within the police force---Gravity of the petitioners' actions stood independently of the outcome of the criminal proceedings and was sufficient to justify disciplinary action---Robust response in the form of disciplinary action against the petitioners was not only justified but essential to deter similar conduct in the future]---[Per Sayyed Mazahar Ali Akbar Naqvi, J. (Minority view): Neither the Inquiry Officer made an attempt to probe into the allegations leveled by the petitioners against the complainant nor the complainant and his witness were associated with the inquiry proceedings---When the petitioners had taken a specific stance that the complainant and his witness were narcotics smugglers, the Inquiry Officer ought to have collected evidence either to accept or rebut the defence evidence of the petitioners---Petitioners had unblemished service record whereas it was a fact that they booked drug peddlers in narcotics cases, who were eventually convicted by the courts---Surprisingly no prosecution evidence was presented to the petitioners nor they were afforded any opportunity of cross-examination---Petitioners claimed that on the day of their arrest, they were visiting different areas of the city/tehsil for checking attendance of police personnel posted there and duly informed the operator of the concerned District Police Officer (DPO)---Inquiry Officer did not bother to collect evidence in this regard and he just denied the petitioners' stance by saying that they could not give a satisfactory answer---Even if this allegation is believed to be true even then the award of major penalty of dismissal from service was not warranted]---Petitions for leave to appeal were dismissed and leave was refused.

Habib Bank Limited v. Mehboob Rabbani 2023 SCMR 1189; Zahoor Ahmed v. WAPDA 2001 SCMR 1566; D.G. Emergency Rescue Service 1122 KPK v. Nizakat Ullah 2019 SCMR 640 and Attaullah Sheikh v. WAPDA 2001 PLC (C.S.) 316 ref.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioners (in both cases).

Barrister Muhammad Mumtaz Ali, Additional A.G. Punjab with Rauf Ahmad, DSP for Respondents (in both cases).

2023 S C M R 2119

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Athar Minallah, JJ

Dr. MUHAMMAD SALEEM---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN and others---Respondents

Civil Petition No. 1532 of 2022, decided on 20th January, 2023.

(Against the judgment dated 27.04.2022 of the Balochistan Service Tribunal, Quetta passed in Service Appeal No. 62 of 2022)

Civil service---

----Transfer and posting---Interference in transfer and postings by Tribunals or Courts---Encroachment upon domain of Executive---Transfer of a government official from one place or post to another to meet the exigencies of service was within the exclusive domain and competence of the competent authorities of the executive organ of the State and, ordinarily, it is not amenable to interference except in extraordinary circumstances---Said principle is subject to the condition that the terms and conditions of service are not adversely affected---Moreover, an official has no vested right to claim to be posted/transferred to any particular place of his choice, nor is there a vested right to continue to hold a particular post at a particular place---Transfer and posting of a government servant is limited to the given tenure, if any, or at the pleasure of the competent authority---Question of whether the posting and transfer made by the competent authority was in the public interest is not open to judicial review by a tribunal or court and utmost caution and restraint ought to be exercised in interfering with or encroaching upon the exclusive domain of the executive authorities---Decisions in connection with posting and transfer of government servants must not be subjected to judicial scrutiny unless a law has been clearly violated or mala fide and malice is established without the need for making an inquiry---Interference of the Tribunal or courts in matters relating to postings and transfers is, therefore, an encroachment upon the executive domain and in breach of the seminal principle of separation of powers embedded in the Constitution.

Fida Husain Shah and others v. Government of Sindh and others 2017 SCMR 798 ref.

Kamran Murtaza, Senior Advocate Supreme Court for Petitioner.

M. Ayaz Swati, Additional A.G. Balochistan for Respondent No. 1.

Ms. Gulzar Butt, Advocate Supreme Court for

Respondent No. 3.

2023 S C M R 2122

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi and Syed Hasan Azhar Rizvi, JJ

NOMAN KHALIQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 714 of 2023, decided on 11th August, 2023.

(On appeal against the order dated 04.05.2023 passed by the Islamabad High Court, Islamabad in Criminal Misc. No. 531-B of 2023)

(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---Admittedly, the petitioner (accused) and the complainant were in business relations---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.---In this view of the matter, the question whether the cheques were issued towards repayment of loan or fulfillment of an obligation within the meaning of section 489-F, P.P.C. is a question, which would be resolved by the learned Trial Court after recording of evidence---Petitioner is behind the bars for the last about five months---Maximum punishment provided under the statute for the offence under section 489-F, P.P.C. is three years and the same does not fall within the prohibitory clause of section 497, Cr.P.C.---All the material is in documentary shape; the investigation is complete and the petitioner is no more required for further investigation---Case of the petitioner squarely falls 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.

Abdul Saboor v. The State 2022 SCMR 592 ref.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Offences not falling within the prohibitory clause of section 497, Cr.P.C.---Grant of bail in such offences is a rule and refusal is an exception.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Abconsion of accused---Absconsion cannot be viewed as a proof for the offence and the same alone cannot be made a ground to discard the relief sought for.

Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 and Muhammad Tasaweer v. Hafiz Zulkarnain PLD 2009 SC 53 ref.

Asad Mehmood Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Complainant in person.

Rifaqat Ali Khokhar, Advocate Supreme Court as State counsel ICT and Muhammad Ishaq, Inspector for the State.

2023 S C M R 2126

[Supreme Court of Pakistan]

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

PARINA HARESH and 19 others---Petitioners

Versus

The GOVERNMENT OF BALOCHISTAN and 16 others---Respondents

Civil Petition No. 178-Q of 2023, decided on 26th July, 2023.

(On appeal from the judgment of the High Court of Balochistan Quetta dated 05.06.2023 passed in C.P. No. 1860 of 2022)

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

----Rr. 5(1) & 9(1)(b)---Balochistan Public Service Commission (Functions) Rules, 1982, R. 3(1)(b)---Appointment of persons in the Service of the Government of Balochistan (BPS 1 to BPS 15)---Selection criteria for Members of the Departmental Selection Committee, and the mechanism for conducting tests and interviews of candidates stated.

The Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 (the "AP&T Rules") do not provide any mechanism nor criteria to adjudge the competence, experience, calibre, independence, integrity, and undisputed impartiality of the Members and Chairperson of the Departmental Selection Committee ('the Committee") responsible for the initial recruitment in BPS 1 to 15. The majority of the posts in BPS-4 and/or above are meant to regulate the affairs of the department, therefore, the performance of the department depends on the person appointed against each post. One of the most vital decisions the Government of Balochistan ("GoB") makes is who it names as Members of the Committee(s). Thus, to focus on finding the right people for the role, it is necessary that the Chairperson and Members must be of eminence, experience, knowledgeable, competent, able, most significantly of good character, integrity, and sound enough to ensure their independence. Additionally, caution must be adhered to in order to avoid any conflict of interest of the Members, including any prior knowledge of and in relation to any candidate to make the best decision possible. To achieve such goal, the unlimited power of the competent authority in selecting the Committee members needs to be structured.

As per Rule 12 of the AP&T Rules, a candidate for initial appointment must possess educational qualifications and experience, but at present there were no rules, specifying job description, the necessary educational qualifications, and experience, if any required, for each post. However, if any job description, qualification, and experience was indeed prescribed in any rules, regulations, or instructions, it is required to be adopted and followed strictly and with due diligence to ensure transparency of the process. The AP&T Rules do not specify any objective selection procedure, criteria, mechanism, or guidelines for a particular post, nor do they provide the procedure and/or method to be adopted for the purpose of assessing the competence, ability, technical skills, behaviour, and strength of the candidates through the tests and interviews, if so conducted, in order to put the right person in the right job which is of utmost importance. In the absence of such determination, it is impossible to adjudge suitability, maintain merit, fairness, and ensure open competition amongst the candidates. It will also result in choosing the wrong person for the job which can produce a considerably negative outcome. For determination of such characteristics of the candidates, a fool proof mechanism and guidelines are required to be evolved and implemented.

At present, since there is no mechanism provided for tests and interviews to be conducted by the Committee to know the skills of a person for their initial recruitment in BPS 1 to 15, therefore, rushing for appointment without any mechanism can be a disaster. However, if any vacant post(s), is/are urgently required to be filled, the GoB may requisition the posts to the Balochistan Public Service Commission (the "Commission") as provided by Rule 3(1)(b) of the Balochistan Public Service Commission (Functions) Rules, 1982 (the "BPSC Functions Rules") or may engage the services of a reputable institution having a faculty and expertise in human resources, preferably a statutory institution such as the Institution of Business Administration, Karachi ("IBA") for the purpose of conducting tests and interviews. While doing so, the GoB must evolve a yardstick approach for selection of such an institution. Furthermore there is no set procedure for the purpose of making papers, checking of answer papers by person(s) competent to do so, and conducting tests and interviews, therefore, the Committee may continue to perform its functions only with regard to inviting applications through publication, the scrutiny process, and shortlisting of the eligible candidates for their appearance in the tests and interviews by following the applicable rules. Besides, the process of requisitioning the posts, if any, to the Commission or any other reputable institution, be routed through the already notified Committee. The Committee must strictly observe the quota reserved under the law, rules, and policy for regions/districts/union councils, wards, minorities, women, persons with disabilities, etc., notwithstanding anything contained in Rules 15 and 16 of the AP&T Rules. After completion of the entire selection process and compiling of the result received from the testing authority/institution, it is the responsibility of the Committee(s) to recommend candidates for their appointments to the competent authorities.

The appointing authority must not misuse its powers, neither should it be influenced by any other factors while giving effect to the recommendations for selection of the candidates. It is, therefore, the constitutional and legal obligation of the authorities concerned to follow the law, rules, policy and procedure in their letter and spirit while appointing candidates to their respective posts. The GoB is required to address all the stated issues by suitably amending the AP&T Rules so as to promote and guarantee selection of candidates on merits, in order to appoint persons who are best qualified.

Abdul Rahim Mengal, Advocate-on-Record for Petitioners.

Muhammad Asif Reki, Advocate General, Muhammad Ali Rakhshani, Additional A.G. and Irfan Bakhtiari, DG Agriculture for Respondents.

2023 S C M R 2133

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Syed Hasan Azhar Rizvi, JJ

SAIF-UR-REHMAN---Appellant

Versus

IJAZ and another---Respondents

Civil Appeal No. 1573 of 2017, decided on 20th September, 2023.

(Against the Order dated 14.10.2016 of the Peshawar High Court, Peshawar passed in C.R. No.191-P of 2016)

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

----Ss. 2(2), 2(3) & O. XXI, R. 10---Decree-holder---Scope---Parties that may seek execution of a decree---Scope---Whether the defendant in a suit that is ultimately dismissed possesses the legal status to be recognized as a decree holder to initiate execution proceedings---Held, that a decree may determine the rights of the plaintiff(s) or the defendant(s)---When the decree determines certain rights to which the defendant(s) is/are held entitled, then in such a case the defendant(s) would also be included in the definition of "decree holder"---Words "decree holder" cannot, therefore, be restrained to the persons who have stood on the pane of plaintiffs during proceedings of the case---Such a narrow interpretation would compel repetition of adjudication in Courts of law and parties would be litigating for declaration of such rights which are already settled and declared by the Courts---When the Courts once declare some right after a due process and find it enforceable and such a decision gets finality then all the people entitled under such a decree would fall in the definition of "decree-holder" to file an application for execution under Order XXI, Rule 10; C.P.C. regardless of the fact whether they stood on the pane of the plaintiffs or the panel of the defendants---Thus, the "decree-holder" would mean a person who is entitled to enforcement of a right under a decree---Not only defendants but even strangers upon whom certain rights have been conferred through the decree can seek the enforcement/execution of the decree.

Vythilinga Pandarasannadhi v. The Board of Control AIR 1932 Madras 193; Bai Karimabibi v. Abderehman Sayad Banu AIR 1923 Bombay 26; Mathura Das-Prabhu Dayal v. Brij Rani AIR 1929 Lahore 492; Ajudhia Prasad v. The U.P. Government AIR 1947 Allahbad 390 and Mst. Rehmat Sahiba v. Said Akbar Shah PLD 1961 (W.P.) Peshawar 6 ref.

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

----O. XXI, R. 10---Execution proceedings---General rule---Executing Court cannot go behind a decree but must execute it as it stands---Exceptions to said rule stated.

Settled rule is that an executing Court cannot look beyond the decree or look into the judgment.

Ch. Ahmed Nawaz v. Province of Punjab 2015 SCMR 823; Irshad Masih v. Emmanuel Masih 2014 SCMR 1481; Humayun Hassan v. Arslan Humayun PLD 2013 SC 557; Dr. Asma Ali v. Masood Sajjad PLD 2011 SC 221; Sheikh Attiq-ur-Rehman Sarwar v. Sajjad Hussain 2009 SCMR 684; Muhammad Tariq Khan v. Khawaja Muhammad Jawad 2007 SCMR 818; Province of Punjab v. Burewala Textile Mills 2001 SCMR 396; Mst. Naseem Akhtar v. Shalimar General Insurance Company 1994 SCMR 22 and Muhammad Ali and others v. Ghulam Sarwar 1989 SCMR 640 ref.

However, there are some exceptions to the above settled rule, which are as follows:

(i) The executing Court can look into the question of whether the decree or part thereof is executable or in-executable and if for any reason the decree has become in-executable, the executing Court is empowered to declare so and if a part of the decree is in-executable and that part is severable from other part(s) of the decree then the executing Court is empowered to refuse the execution of the in-executable part of the decree and may proceed with the execution of the rest of the decree.

Tauqeer Ahmad Qureshi v. Additional District Judge PLD 2009 SC 760 ref.

(ii) The executing Court can look into the judgment in order to find the exact property when the decree is silent regarding what property was the subject matter of execution; and

Allah Ditta v. Ahmed Ali Shah 2003 SCMR 1202 ref.

(iii) The executability of a decree can be questioned by the executing court if it is satisfied that, (a) the decree is a nullity in the eyes of the law, (b) it has been passed by a Court having no jurisdiction, (c) the execution of the decree will not infringe the legal rights of the decree-holder, if refused to be executed, or (d) the decree has been passed in violation of any provision of law.

Fakir Abdullah v. Government of Sindh PLD 2001 SC 131 ref.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Revisional jurisdiction of High Court is meant to rectify; to obviate, forefend and stave off the exercise of jurisdictional errors/defects and the illegalities and/or material irregularity committed by the subordinate Courts.

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

Liaqat Khan Swati, Advocate Supreme Court for Respondent No. 1.

2023 S C M R 2142

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J. and Sayyed Mazahar Ali Akbar Naqvi, J

CHAIRMAN, SARHAD DEVELOPMENT AUTHORITY PIA, PESHAWAR and another---Petitioners

Versus

TAFOOR-UR-REHMAN and others---Respondents

Civil Petitions Nos. 2594, 2816, 2817 and 2987 of 2020, decided on 6th July, 2023.

(Against the judgment dated 14.09.2020 of the Peshawar High Court, Peshawar passed in F.A.Os. Nos. 132-P, 131-P, 133-P and 134-P of 2019)

Land Acquisition Act (I of 1894)---

----S. 23(2)---Acquisition of land for public purpose---Compulsory acquisition charges---Whether the award of a sum of 15% of market value of the property compulsorily acquired by the State to the owners thereof falls within the meaning of the expression compensation or not---Held, that section 23(2) of the Land Acquisition Act, 1894 awards an amount of 15% of the market value of the land as compensation for the property being acquired compulsorily---In this respect the factors for determination of market value under section 23(1) of the Act have no application; their only relevance is the ascertainment of market value upon which a 15% amount thereof is added to compensate the owner of the property for the forcible loss of his private property.

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

Nemo for Respondents (in all cases).

2023 S C M R 2145

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Ijaz Ul Ahsan, JJ

MUHAMMAD ZUBAIR CHOUDHARY and others---Petitioners

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL and others---Respondents

Civil Petitions Nos. 2916, 3219, 2757-L and 3063-L of 2019, decided on 25th October, 2019.

(Against Judgments dated 24.06.2019 and 25.09.2019 of the Lahore High Court, Lahore passed in I.C.As. Nos. 36401, 36402 and 39849 of 2019)

Pakistan Medical and Dental Council Act, 2022 (IV of 2023)---

----S. 9---Pakistan Medical Commission Act (XXXIII of 2020), S. 8---Pakistan Medical and Dental Council Ordinance (XXXII of 1962), Preamble---MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018, Reglns. 2(d), 9(23) & 22---Private Medical and Dental Colleges---Admission process---Adjustment on vacant seats not filled---Implementation of admission deadlines---Duration of academic year---Medical and Dental College Admission Test (MDCAT), conducting of---Admission capacity granted to public or private medical and dental colleges---Fulfilment of minimum standards by all medical and dental colleges---Publication of statistics and rankings with respect to passing rates of students from individual institutions in different examinations---Recognition and registration of substandard colleges---Conflict of interest of members appointed to Pakistan Medical and Dental Council (PM&DC) and Pakistan Medical Commission (PMC) or any of its constituent bodies---Recognition and enforcement of the rules and regulations made by PM&DC and PMC---Regulatory loopholes in the existing regulations and the enforcement of these rules---Observations, guidelines and directions given by the Supreme Court in respect of the said issues stated.

Hashmat Medical and Dental College v. Pakistan Medical and Dental Council 2018 SCMR 1310; Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956 and Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 ref.

Sardar Muhammad Aslam, Senior Advocate Supreme Court for Petitioners (in C.P. No. 2916 of 2019).

Ch. Mushtaq Ahmed Khan, Advocate Supreme Court for Petitioners (in C.P. No. 3219 of 2019).

Petitioner in person (in C.P. No. 2757-L of 2019).

Mian M. Rauf, Advocate Supreme Court for Petitioners (in C.P. No. 3063-L of 2019).

Ch. M. Umar, Advocate Supreme Court for Respondent No. 1.

Ch. M. Atiq, Advocate Supreme Court for Respondent No. 2.

2023 S C M R 2158

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Athar Minallah, JJ

Sheikh MUHAMMAD IFTIKHAR AHMAD and others---Appellants

Versus

FAIZ AHMAD and others---Respondents

Civil Appeals Nos. 545-L to 547-L of 2009, decided on 14th November, 2022.

(Against the order dated 05.05.2004, passed by the Lahore High Court, Lahore, in C.Ms. Nos. 1216-C to 1218-C of 2003)

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

----S. 12(2)---Plea of fraud and misrepresentation---Part of disputed property sold during pendency of appeal before the High Court---No fraud or misrepresentation played on the Court---In the present case essentially, no case under section 12(2) of the C.P.C. is made out by the appellants (purported bona fide purchasers) because no fraud was played on the Court---If there is any fraud, at best, it is inter se the parties which does not attract the provisions of section 12(2) of the C.P.C.---Section 12(2) of the C.P.C. requires that fraud or mis-representation be played on the court and that consequently the order obtained is through fraud or mis-representation---In this context, the applications under section 12(2) of the C.P.C. were filed against judgment of the Appellate Court in favour of plaintiff, who had filed a suit against the seller, and no case of fraud or mis-representation is made out in that case against the seller---Seller deliberately did not inform the Court that he actually sold the land during the pendency of the appeal to the appellants---However, this does not fall within the mandate of section 12(2) of the C.P.C. and, at best, is a fraud inter se the parties---Furthermore, the rule of lis pendens is attracted in the present case as the transfer of the disputed property in favour of seller and appellants (purported bona fide purchasers) took place during the pendency of the appeal, which means that the sale, at best, in favour of the appellants is subject to the final outcome of the litigation and they cannot claim any independent right to the property---Appeals were dismissed.

Muhammad Ashraf Butt v. Muhammad Asif Batti and others PLD 2011 SC 905 ref.

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

----S. 52---Transfer of property pending suit relating thereto---Doctrine of lis pendens---Scope---Principle of lis pendens shall be applicable when one purchases from a party pending a suit where the same property is the subject matter and consequently, the parties are bound by the final decision notwithstanding any intermediate alienation of the property.

Muhammad Ashraf Butt v. Muhammad Asif Batti and others PLD 2011 SC 905 ref.

Muhammad Shahzad Shoukat, Advocate Supreme Court for Appellants (in all cases).

Mehmood Ahmad Bhatti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 1 (in all cases).

Barrister Haris Azmat, Advocate Supreme Court for Respondent No. 2 (in all cases).

2023 S C M R 2162

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, C.J., Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

JAMSHED ALI SHAH---Petitioner

Versus

IRSHAD HUSSAIN SHAH and others---Respondents

Civil Petition No. 1751-L of 2021, decided on 19th July, 2023.

(Against the order dated 22.09.2021, passed by the Lahore High Court, Lahore in Civil Revision No. 4220 of 2020)

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

----S. 54---Agreement to sell immoveable property---Proof---Attesting witnesses of the agreement to sell and stamp vendor proved the sale transaction, execution of sale agreement, payment of sale consideration and delivery of possession---During cross-examination of said witnesses, no material could be extracted to shatter the veracity of their evidence---All other legal heirs of the deceased-vendor (except the petitioner) admitted the sale transaction in favour of respondent-vendee---Neither the petitioner nor any other legal heir of deceased-vendor has ever challenged the agreement to sell before any forum---Onus to prove that no agreement was executed by deceased-vendor and he had not received any amount of consideration from respondent-vendee with regard to the suit property was upon the petitioner which he has failed to discharge---Respondent-vendee has proved the agreement to sell by plausible and cogent evidence before the Trial Court---Petition for leave to appeal was dismissed and leave was declined.

Shahid Qayyum, Advocate Supreme Court for Petitioner.

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

2023 S C M R 2165

[Supreme Court of Pakistan]

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

MOHAMMAD SIBTAIN KHAN and others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad and others---Respondents

Constitution Petition No.5 of 2023, decided on 4th April, 2023.

(Re: Setting aside order dated 22.03.2023 passed by the Election Commission of Pakistan being ultra vires the Constitution.)

(a) Constitution of Pakistan----

----Arts. 184(3), 199 & 218(3)---Acts, decisions and orders passed by the Election Commission ('the Commission')---Judicial review---Scope---Anything done, whether an act, decision or omission, by the Commission, and whether it sounds on the constitutional or statutory plane, is not beyond the purview of judicial review---Of course, the decisions and acts of the Commission are not to be taken lightly and are to be given due respect and consideration---But, in the end, it is for the Court itself to decide on the correctness and legality thereof.

Marbury v. Madison 5 US (1 Cranch) 137 (1803) ref.

(b) Constitution of Pakistan----

----Art. 218(3)---Election Commission, duty of---Article 218(3) of the Constitution, interpretation of---Article 218(3) imposes a constitutional duty on the Election Commission; it is not a power---Of course, in order to be able to discharge this duty, the Constitution and the law (i.e., Elections 2017 Act) confer powers on the Commission----Commission owes the constitutional duty imposed by Article 218(3 to the nation at large, to the electorate, and to the political parties---Constitutional duty to hold elections as required (honestly, justly, fairly) does not, and cannot, convert the duty into a power vis-à-vis other constitutional provisions---That would, constitutionally speaking, make the Commission master of all matters electoral, which cannot be the case---On the constitutional plane, the Commission is not the master but rather the forum or organ that the Constitution has chosen to perform the task that lies at the heart of constitutional democracy---Holding of elections cannot be placed at the will, i.e., power (howsoever bonafidely expressed or exercised) of any particular agency or forum, and howsoever exalted its creation or position may be---Because democracy demands elections the Constitution commands elections---Democracy is meaningless without such an exercise, repeated periodically as required by the Constitution---To concede to the Commission the power, especially on the constitutional plane, to interfere with the electoral process in so fundamental a manner could be tantamount to derailing democracy itself, with incalculable consequences.

(c) Constitution of Pakistan----

----Arts. 58(1), 112(1), 218(3), 220, 224 & 184(3)---Elections Act (XXXIII of 2017), Ss. 8(c), 57 & 58---Election Commission, powers of---Scope----Constitutional petition challenging order passed by Election Commission delaying elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa---Time period(s) imposed by Article 224 for the holding of general elections cannot be extended by the Election Commission ('the Commission') by reason of any overriding constitutional power claimed to be conferred upon it by Article 218(3) or in terms of the Elections Act, 2017 ('the 2017 Act')---In its relationship and interaction with other constitutional provisions, Article 218(3) cannot and does not operate as any sort of constitutional power enabling the Commission to render them nugatory or to override them or deny them their due application---Neither the Constitution nor the law empowers the Election Commission ('the Commission') to extend the date of elections beyond the 90 days period as provided in Article 224(2) of the Constitution---Impugned order made by the Commission was declared to be unconstitutional, without lawful authority or jurisdiction, void ab-initio, of no legal effect and was resultantly quashed---Election Programme notified by the Commission under section 57(2) of the Elections Act, 2017 on 08.03.2023 (vide Notification No. F.2(3)/2023-Cord.) for the general election to the Punjab Assembly was revived and restored immediately with certain modifications and directions issued to the relevant State functionaries to ensure timely elections.

After the President announced the date of the general election to the Punjab Assembly the Election Commission ('the Commission'), in compliance of its constitutional and statutory obligations and powers (the latter being under the Elections Act, 2017 ("2017 Act")), announced the election program on 08.03.2023 by a notification. The process for the holding of the general election, as per the Election Schedule, was well underway and the first four events in terms thereof i.e. 'Notification of Election Programme', 'Issuance of Public Notice by the Returning Officer', "Dates for filing of nomination papers with the Returning Officer by the candidates' and 'Publication of names of the nominated candidates' were already complete when the Commission, on the last day of the deadline for Scrutiny of nomination papers by the Returning Officer, suddenly released an order, said to be in exercise of its powers under Article 218(3) of the Constitution read with sections 58 and 8(c) of the 2017 Act and "all other" enabling powers, and for which the Commission claimed also to derive wisdom from a judgment of the Supreme Court reported as Workers Party and others v. Federation of Pakistan and others PLD 2012 SC 681. By the said order, impugned herein, the Commission purported to withdraw the notification of the election program and the Election Schedule and ordered that "fresh schedule will be issued in due course of time with poll date on 8th October, 2023". Since the general election to the Punjab Assembly was thus suddenly shifted forward by several months, and no date at all had yet been given for the election to the KPK Assembly, the Speakers of both Assemblies and certain other petitioners filed the instant petition under Article 184(3) of the Constitution.

The Commission, in putative exercise of a claimed constitutional power, cannot push elections beyond the applicable period set out in Article 224 of the Constitution, and thereby defeat and deny the constitutional command enshrined therein. Both clauses of Article 224 are couched in mandatory terms: each uses the word "shall" twice, first in relation to the period in which the elections are to be held and then the period in which the results are to be declared. These clauses are mandatory and binding. They tell us when, at the latest, the elections are to be held, and when, at the latest, the result is to be declared. By fixing the time period(s) in Article 224, the Constitution binds everyone, including the Commission itself.

The Constitution expressly confers on the Prime Minister in relation to the National Assembly, and the Chief Ministers in relation to the Provincial Assemblies, the power to advice dissolution before the stated term (Articles 58(1) and 112(1) respectively). These are distinct constitutional powers, of a political nature. The effect of an early dissolution is reflected in Article 224 itself, and of course in the present case the then Chief Ministers of Punjab and Khyber Pakhtunkhwa (KPK) Provinces exercised their respective powers. Now, if the central submission of the Commission is considered, it is to the effect that in order for it to meaningfully fulfill its constitutional duty under Article 218(3) it had the power to require that all elections be held on the same day (or very close together). If so, that would mean that the Commission has a constitutional veto power over the expressly stated power to advice dissolution. One would have the unseemly spectacle of the Prime Minister or a Chief Minister, as the case may be, coming (as it were) cap in hand to the Commission, seeking its permission or pre-clearance before advising dissolution. This would be a negation of the constitutional powers conferred upon them. This cannot be what is contemplated by the constitutional scheme. Article 218(3) is certainly not designed or intended to allow the Commission to steamroller over all other constitutional provisions relating to elections, including those that impose duties on the Commission itself.

Workers Party and others v. Federation of Pakistan and others PLD 2012 SC 681; Government of the Punjab and another v. Chief Election Commissioner and others PLD 2010 Lah. 1 and Muhammad Azhar Siddique and another v. Government of Punjab and others PLD 2010 Lah. 138 distinguished.

With respect to the submission on behalf of the Commission that subsection (1) of section 58 of the 2017 Act enabled the Commission to alter the Election Schedule in such manner as it deemed appropriate and that the impugned order was an application of the statutory power, such submission is not correct. The power to alter the election program is circumscribed and not open-ended. It can only be exercised if "necessary for the purposes of the 2017Act and not otherwise. There is nothing in sections 57 and 58 of the 2017 Act as allows the Commission to go beyond the period(s) stipulated constitutionally in Article 224. Whatever it is that is permissible can only happen within the parameters, and in particular the outer limit, fixed by the Constitution itself. What the Constitution commands cannot be altered, denied, diluted or circumvented by legislative fiat or any interpretation or application thereof. Secondly, even within those limits once the election program is put into operation, i.e., the various stages thereof start being acted upon, it is doubtful whether the Commission can abandon it altogether and go to the second limb of section 58(1), i.e., notify a wholly new election program. All that it can, at most, do is to perhaps alter the various stages of the already notified program, to the extent made permissible by the first limb of section 58(1). In the present case in making the impugned order, the Commission has not in any event acted upon either limb. On any view of the matter therefore, sections 57 and 58 neither did (nor could) empower the Commission to extend the date of the general election beyond the 90 day period nor did the impugned order in any case even facially comply with the terms of those provisions. Finally, section 8(c) of the 2017 Act which was also relied upon in the impugned order has no relevance as it clearly contemplates an election already or about to be under way and applies accordingly. In no manner can this provision be read as allowing for the election to be abandoned altogether and the poll date shifted forward in the manner sought to be done by the impugned order.

Accordingly, the time period(s) imposed by Article 224 for the holding of general elections cannot be extended by the Commission by reason of any overriding constitutional power claimed to be conferred upon it by Article 218(3) or in terms of the 2017 Act, and certainly not in the manner and for the duration as has been done through the impugned order. In its relationship and interaction with other constitutional provisions, Article 218(3) cannot and does not operate as any sort of constitutional power enabling the Commission to render them nugatory or to override them or deny them their due application. No reading, holistic or otherwise, can end in a result that diminishes other constitutional provisions to the point that relegates them to being mere handmaidens to Article 218(3).

Several recitals of the impugned order give the reasons why financial resources and security personnel were not available (for conducting the elections), and were in effect denied by the Federal and Provincial authorities. The Commission showed the relevant record to show the correspondence and meetings between the Commission and representatives of various Federal and Provincial ministries, departments and authorities, to justify the conclusion arrived at by the Commission that in the circumstances it concluded that it could not fulfill and discharge its constitutional duty in terms of Article 218(3), hence necessitating the issuance of the impugned order. Such contention of the Commission could not be agreed with. This is so for two reasons. Firstly, during the course of submissions, counsel for the Commission was asked a specific question: if the necessary funds and security arrangement/personnel were made available would the Commission be able to hold the general election consistently with its constitutional duty, and in the manner as contemplated by Article 218(3)? To this a categorical and unqualified answer in the affirmative was given. This question was in fact posed more than once. Each time, the same answer obtained. Thus, notwithstanding the claims and submissions regarding the precariousness of the financial position and the security situation it was in the end simply a matter of not just will but also willingness to abide by the Constitution and obey the constitutional directive of holding the general election within the stipulated period. Once this became clear because of the answer given to the Court's query all objections and obstacles raised necessarily fell by the wayside. What was stated in the recitals then lost relevance or any meaningful significance. Secondly, Article 220 imposes a constitutional duty on the Federal and Provincial executive authorities to act in assistance of the Commission and thus confers a corresponding constitutional power on the latter to demand and require the same for the discharge of its functions. It is a matter of regret that the Commission failed to appreciate Article 220 in its true perspective, and did not fully understand its constitutional meaning and import. The constitutional relationship between the Commission and the executive authorities in the context of Article 220 unambiguously and unequivocally gives the upper hand to the former and not the latter. Regrettably, when the record is examined it appears that the Commission acted as though the constitutional position was the reverse. The impression created is not that of a constitutional organ robustly and muscularly exercising a constitutional power in relation to those on whom the Constitution has imposed an express duty in this regard. The impression, rather, is almost that of a supplicant timorously approaching a superior. If in the Commission's opinion the executive authorities failed or refused to fulfill their constitutional duties under Article 220, then it was not for the Commission to (metaphorically) wring its hands and then, bow under the weight of its own professed inability to persuade or cajole the executive authorities to obey the constitutional command of Article 220, and pass an unconstitutional order pushing forward the election by several months. The legal path was clear. It was for the Commission to speedily approach the Supreme Court for relief in the shape of a writ of mandamus. Rather than being diverted into making an unlawful order in purported exercise of a power that did not exist on the constitutional plane, the Commission ought to have pursued the legal remedy readily available.

Impugned order made by the Commission was declared to be unconstitutional, without lawful authority or jurisdiction, void ab-initio, of no legal effect and was resultantly quashed. Election Programme notified by the Commission under section 57(2) of the Elections Act, 2017 on 08.03.2023 (vide notification No. F. 2(3)/2023-Cord.) for the general election to the Punjab Assembly was revived and restored immediately with certain modifications and directions issued to the relevant State functionaries to ensure timely elections. Counsel for the Governor, KPK withdrew from representation and the Advocate General KPK submitted that since even the date of the election had not been given by the former no further assistance could be provided by the latter to the Court. In such circumstances, the matter relating to general election to the KPK Assembly was not adjudicated upon, with permission granted to the petitioners to file such petition and/or seek such relief before such forum as was deemed appropriate.

Syed Ali Zafar, Advocate Supreme Court and Gohar Ali Khan, Advocate Supreme Court assisted by Syed Haider Ali Zafar, Advocate for Petitioners.

Mansoor Usman Awan, Attorney General for Pakistan assisted by Ms. Mehwish Batool Sardar, Advocate for Federation.

Ch. Aamir Rehman, Additional A.G.P., Malik Javed Iqbal Wains, Additional A.G., Hamood Uz Zaman Khan, Secretary Defence and Aamir Mehmood, Additional Secretary Finance.

Sajeel Shehryar Swati, Advocate Supreme Court, Irfan Qadir, Advocate Supreme Court, Omer Hamid Khan, Secretary ECP, Zafar Iqbal Hussain, Special Secretary ECP, M. Arshad, D.G. (Law) ECP, Khurram Shehzad, ADG(L) ECP, Ms. Saima Tariq Janjua, Dy. Dir. ECP and Falak Sher, Legal Consultant for ECP.

Aamir Javed, A.G., Khyber Pakhtunkhwa and Mian Shafaqat Jan, Additional A.G., Khyber Pakhtunkhwa for Government of Khyber Pakhtunkhwa.

Shangul, A.G., Punjab, (via Video-Link, Lahore), Wasim Mumtaz Malik, Additional A.G., Punjab, Sanaullah Zahid, Additional A.G. and Barrister M. Mumtaz Ali, Additional A.G. for Government of Punjab.

2023 S C M R 1524

[Supreme Court of Canada]\

Present: Wagner C.J. Karakatsanis, Côté, Brown\, Rowe, Martin, Kasirer, Jamal and O'Bonsawin, JJ

His Majesty The KING---Appellant

Versus

CODY RAE HAEVISCHER AND MATTHEW JAMES JOHNSTON---Respondents

And

DIRECTOR OF PUBLIC PROSECUTIONS, ATTORNEY GENERAL OF ONTARIO, CRIMINAL LAWYERS' ASSOCIATION OF ONTARIO, INDEPENDENT CRIMINAL DEFENCE ADVOCACY SOCIETY, CRIMINAL TRIAL LAWYERS' ASSOCIATION, TRIAL LAWYERS ASSOCIATION OF BRITISH COLUMBIA AND CANADIAN CIVIL LIBERTIES ASSOCIATION---Interveners

Decided on 28th April, 2023.

(On Appeal from the Court of Appeal for British Columbia)

Criminal law---

----Practice and procedure---Application filed by accused for stay of proceedings for abuse of process---Summary dismissal of application---'Trial fairness' and 'trial efficiency', concepts of---Scope---Threshold applicable to summary dismissal of application in criminal law context explained.

Defendants 'H' and 'J' were tried and found guilty of six counts of murder and one count of conspiracy to commit murder. Before convictions were entered, H and J applied for stays of proceedings for abuse of process on the basis that systemic police misconduct and the inhumane conditions of confinement they experienced while on remand caused prejudice to their rights to a fair trial and undermined the integrity of the justice system. Before the stay applications proceeded to a voir dire, the prosecution brought a motion for summary dismissal of the applications on the basis that neither application disclosed a sufficient foundation to establish that a voir dire was necessary or would assist the court in determining the merits of the applications. No opportunity to adduce viva voce evidence or to cross-examine key witnesses in either the open or the in camera portion of the hearing was provided to 'H' and 'J'. The trial judge concluded that, even if the applications were taken at their highest, the grounds advanced could not support a stay of proceedings, and, as such, an evidentiary hearing (i.e., a voir dire) on the merits would not assist the court. Trial judge summarily dismissed the applications and ordered the convictions entered. On appeal by H and J, the Court of Appeal quashed the convictions and remitted the stay applications to the trial court for a voir dire. It held that the trial judge imposed too high a standard to permit the applications to proceed to an evidentiary hearing and that the applications should have been fully addressed and decided at a voir dire on their merits.

An application in a criminal proceeding, including for a stay of proceedings for abuse of process, should only be summarily dismissed if the application is manifestly frivolous. This threshold best preserves fair trials, protects the accused's right to full answer and defence, and ensures efficient court proceedings. It is a rigorous standard that allows trial judges to weed out the sort of applications that the summary dismissal power is designed to exclude, but permits most applications to be decided on their merits in proportionate proceedings. In the present case, the stay applications were not manifestly frivolous and should not have been summarily dismissed.

R. v. Kutynec (1992), 70 C.C.C. (3d) 289 (C.A.) ref.

Trial judges have the power to summarily dismiss applications made in the criminal law context in certain circumstances. The standard selected for summary dismissal must be based on the two sets of underlying values at play in such proceedings: trial efficiency and trial fairness. These values coexist and both must be pursued in order for each to be realised. In the criminal context, the need for efficient trials to reduce undue delay is manifest. Dismissing unmeritorious applications helps ensure that trials occur within a reasonable time, which is an essential part of the criminal justice system's commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. As for trial fairness, it is more than a policy goal: it is a constitutional imperative. A criminal trial involves allegations made by the state against an accused whose liberty is often at stake. The summary dismissal of criminal applications can curtail the accused's right to full answer and defence and the right to a fair trial by stopping the accused from fully making arguments and eliciting evidence on their application.

R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 27; R. v. Glegg, 2021 ONCA 100, 400 C.C.C. (3d) 276, at para. 36; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505 and R. v. Rose, [1998] 3 S.C.R. 262) ref.

The underlying values of trial fairness and trial efficiency mandate the conclusion that a rigorous threshold should be applied to summary dismissal motions in criminal trials. A summary procedure is intended to be summary: preliminary, brief, and more in the nature of an overview than a deep dive. Summary dismissal is built upon allegations and supported by the artifice of assuming that the facts asserted are true. By contrast, a hearing on the merits involves a final determination of the facts, and of whether, after a full review, the proven facts support the allegations and ground the requested remedy. A rigorous threshold is also supported by the particular characteristics of criminal trials, including how the trial judge's broad case management powers can help ensure the efficient, effective and proportionate use of court resources as well as the accused's fair trial rights. Judges perform a gate keeping function, and the goal is that only those applications that should be caught by the summary dismissal power are in fact summarily dismissed. Trial judges should err on the side of caution when asked to summarily dismiss an application made in the criminal law context.

R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 28 ref.

The correct threshold for the summary dismissal of applications made in the criminal law context is whether the underlying application is manifestly frivolous. This threshold promotes both trial efficiency and trial fairness. The frivolous part of the standard weeds out those applications that will necessarily fail, and manifestly captures the idea that the frivolous nature of the application should be obvious. If the frivolous nature of the application is not manifest or obvious on the face of the record, then the application should not be summarily dismissed and should instead be addressed on its merits. This rigorous standard will allow judges to weed out those applications that would never succeed and which would, by definition, waste court time. It also protects fair trial rights by ensuring that those applications which might succeed, including novel claims, are decided on their merits. This standard does not apply to summary dismissal motions that are otherwise subject to a legislated or judicial threshold.

Ouellet v. R., 2021 QCCA 386, 70 C.R. (7th) 279, at para. 12, fn. 3 ref.

The party applying, on a motion for summary dismissal, bears the burden of convincing the judge that the underlying application is manifestly frivolous. When applying the "manifestly frivolous" standard, the judge should not engage in even a limited weighing of the evidence to ascertain if it is reasonably capable of supporting an inference, nor should the judge decide which among competing inferences they prefer. Any such weighing should be left to the voir dire. The judge must assume the facts alleged by the applicant to be true and must take the applicant's arguments at their highest. The applicant's underlying application should explain its factual foundation and point towards anticipated evidence that could establish their alleged facts. Where the applicant cannot point towards any anticipated evidence that could establish a necessary fact, the judge can reject the factual allegation as manifestly frivolous. The judge ought to generally assume the inferences suggested by the applicant are true, even if competing inferences are proffered. The judge should only reject an inference if it is manifestly frivolous, meaning that there is no reasoning path to the proposed inference. A similar approach is taken to the overall application. Because the truth of the facts alleged is assumed, an application will only be manifestly frivolous where fundamental flaws are apparent on the face of the record. Finally, the trial judge's power to summarily dismiss an application is ongoing. Even if the judge permits the application to proceed to a voir dire, the judge retains the ability to summarily dismiss the application during the voir dire if and when it becomes apparent that the application is manifestly frivolous.

In exercising their discretion concerning whether to hear the summary dismissal motion, judges must consider the context and consequences associated with the underlying application, including whether it is amenable to summary disposition and how the applicant's fair trial rights will be affected by a summary dismissal hearing. Additionally, judges must consider whether holding a summary dismissal hearing will be an effective use of court time or if it will actually create delay. Where, for example, the summary hearing would take almost as long as a voir dire on the underlying application, consideration needs to be given to whether fairness, efficiency and respect for the administration of justice more strongly support using the time to deal with the merits of the underlying application rather than devoting resources to matters preliminary to it. In terms of pure efficiency, judges could not be faulted for proceeding directly to a voir dire when it would take the same time to hear the application on its merits as to conduct a summary dismissal hearing.

The record on a summary dismissal motion should normally be minimal and of a summary nature because extensive evidence often demands the type of time, effort and delay which works to defeat the very purpose of the motion. While both parties are expected to put their best foot forward, there is no need to set firm rules about what type of record ought to be filed. The party who has brought the underlying application bears the minimal burden of providing the judge with the following specifics, through oral or written submissions: (i) what legal principles, Canadian Charter of Rights and Freedoms provisions, or statutory provisions are being relied on and how those principles or provisions have been infringed; (ii) the anticipated evidence to be relied on and how it may be adduced; (iii) the proposed argument; and (iv) the remedy requested. Deciding whether something more is required and how the summary dismissal motion is to proceed is then within the judge's case management powers.

In the present caser, the Trial judge erred by failing to take the alleged facts and inferences as true, applying a more merits-based threshold for summary dismissal which was not sufficiently rigorous, and by focussing on the merits and on the ultimate outcome rather than on whether the applications were manifestly frivolous. The stay applications were not manifestly frivolous and should not have been summarily dismissed. Appeal was dismissed.

Mark K. Levitz, K.C., Geoff Baragar, K.C., and Mark Wolf for the Appellant.

Dagmar Dlab, Simon R. A. Buck and Roger P. Thirkell for the Respondent Cody Rae Haevischer.

Brock Martland, K.C., Daniel J. Song, K.C., Jonathan Desbarats and Elliot Holzman for the Respondent Matthew James Johnston.

Anil K. Kapoor and Dana C. Achtemichuk, as amici curiae.

Elaine Reid and David Schermbrucker for the Intervener the Director of Public Prosecutions.

Katie Doherty for the Intervener the Attorney General of Ontario.

Scott C. Hutchison and Sarah Strban for the Intervener the Criminal Lawyers' Association of Ontario.

Matthew A. Nathanson and Mika Chow for the Intervener the Independent Criminal Defence Advocacy Society.

Graham Johnson and Stacey M. Purser for the Intervener the Criminal Trial Lawyers' Association.

Tony C. Paisana and Mark Iyengar for the Intervener the Trial Lawyers Association of British Columbia.

Andrew Matheson and Natalie V. Kolos for the Intervener the Canadian Civil Liberties Association.

2023 S C M R 426

[Supreme Court of New Zealand]\

Present: Winkelmann CJ, Glazebrook, O'Regan, Ellen France and Kós, JJ

MAKE IT 16 INCORPORATED---Appellant

Versus

ATTORNEY-GENERAL---Respondent

Case No. [2022] NZSC 134, decided on 21st November, 2022.

Per Ellen France, J; Winkelmann, CJ, Glazebrook and O'Regan, JJ agreeing; Kós, J partly dissenting. (Majority view)

Fundamental Rights---

----Discrimination, freedom from---Voting rights---Minimum age for voting---Plea to lower minimum voting age from 18 years to 16 years---Provisions of the Electoral Act, 1993 and of the Local Electoral Act 2001 which provide for a minimum voting age of 18 years are inconsistent with the right in section 19 of the New Zealand Bill of Rights Act, 1990 to be free from discrimination on the basis of age; these inconsistencies have not been justified in terms of section 5 of the New Zealand Bill of Rights Act.

Appellant was a lobby group advocating that the minimum voting age belowered from 18 years to 16 years. Appellant sought declarations that provisions setting minimum voting age at 18 years in Electoral Act, 1993 and Local Electoral Act, 2001 are inconsistent with right to freedom from discrimination on basis of age, protected by section 19 New Zealand Bill of Rights Act, 1990 (Bill of Rights).

The first question that emerges in the present case is regarding the interaction between sections 12 and 19 of the Bill of Rights. Section 12 of the Bill of Rights protects voting rights as are currently prescribed at age 18. Section 19 ensures freedom from discrimination per the Human Rights Act (HRA) 1993. The HRA includes age as a prohibited ground of discrimination. In terms of section 21(1)(i) of the HRA, discrimination on the basis of age commences at age 16. It was contended that because section 12 explicitly refers to age 18 in voting rights, this prevails over section 19. Section 12 guarantees the right to vote to those aged 18 and over, but it does not constitute a breach of that right to extend the qualification of voters and lower the voting age. Section 12 is not a barrier to the relief sought; it does not limit the interpretation of section 19, with each provision able to coexist.

The second question in the present case concerns whether or not the Electoral Act provisions limiting the minimum voting age to 18 years are a justified limit per Section 5 of the Bill of Rights. This requires that rights and freedoms protected in Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The limit of 18 years is not justified based on the material before the Court. Because of the explicit reference to age 16 through section 19, the present case was not comparable with similar cases arising in other jurisdictions such as in Canada, the UK or Australia. In addition, evidence presented to the Court, including expert evidence and Report of Children's Commissioner, showed that 16 and 17 years old were suitably mature and competent to be able to vote. However the possibility was open that the limit (of 18 years) may be later justified in the presence of further evidence or argument.

The final question in the present case is whether the Court of Appeal was right to not make a declaration of inconsistency. Such a declaration would not be premature and the Supreme Court was not hampered in fulfilling its usual function by any particular complexity in the question at hand. Other factors supporting a declaration (of inconsistency) included the protection of fundamental rights of a minority group, the nature of a minority group meaning other avenues were likely to be less effective, provisions of the United Nations Convention on the Rights of the Child, and the HRA specifying age 16 in relation to age discrimination.

Provisions of the Electoral Act 1993 and of the Local Electoral Act, 2001 which provide for a minimum voting age of 18 years are inconsistent with the right in section 19 of the New Zealand Bill of Rights Act, 1990 to be free from discrimination on the basis of age; these inconsistencies have not been justified in terms of section 5 of the New Zealand Bill of Rights Act, 1990. Appeal was allowed accordingly.

Per Kós J; partly dissenting (Minority view)

There is agreement with the majority view that the Local Electoral Act 2001 provisions dictating 18 as the voting age were inconsistent with section 19 of the Bill of Rights and that a declaration should be made in respect of that legislation. This was because section 12 of the Bill of Rights does not apply to that legislation. However, the provisions of the Electoral Act, 1993, setting a minimum voting age of 18 years in parliamentary elections, are not inconsistent with the New Zealand Bill of Rights Act, 1990 (Bill of Rights). Rather, the explicit right to vote in parliamentary elections at 18 years, affirmed by section 12 of the Bill of Rights (and prescribed in the Electoral Act), prevails over the generalised right to freedom from discrimination affirmed by section 19, meaning that a declaration could not be made in respect of the Electoral Act, 1993. Where tensions arose between rights within the Bill of Rights they should not be resolved through section 6, which requires Courts to interpret legislation as rights-consistent where possible. Instead, these sorts of tensions should be resolved through normal statutory interpretation, requiring interpretation of the text in light of its purpose. The internal inconsistency in the Bill of Rights between (1) the broad reach of section 19 in providing for a generic right to be free from discrimination on grounds of age (from age 16), limited only by what is demonstrably justified in a free and democratic society, and (2) the explicit reach of section 12 (consistent with the entrenched Electoral Act provisions) in making express provision for a right to vote from age 18, falls to be resolved by statutory interpretation of the Bill of Rights itself, discerning its meaning from the text in light of its purpose.

The difficulty in the present case is the conflict within the Bill of Rights, because if section 19 extends to voting, the prohibited discrimination is triggered from the age of 16. Yet section 12, explicitly affirms that right with effect from the age of 18 years in the case of parliamentary elections. And relatedly, 18 years is also the constitutionally-reserved minimum age for persons otherwise qualified to be registered as electors or to vote under the Electoral Act, 1993. Had Parliament intended to alter the temporal aspect of the right to vote, collectively affirmed by section 12 since 1990 and protected through entrenchment by the Electoral Act since 1956, it would have amended section 12 in 1993. It did not do so. Therefore, the better way of reading the two provisions together is that the explicit right to vote in parliamentary elections at 18 years, grounded in the constitutionally-entrenched provisions of the Electoral Act and affirmed by section 12 of the Bill of Rights, prevails over the generalised right to freedom from discrimination affirmed by section 19. Section 12 constitutes a limited and specific exception to the general right expressed in section 19.

J S McHerron, G K Edgeler, E B Moran and C M McCracken for Appellant.

A M Powell and A P Lawson for Respondent.

Solicitors:

DLA Piper, Wellington for Appellant.

Crown Law Office, Wellington for Respondent.

2023 S C M R 1457

[Supreme Court of UK]\

Present: Lord Reed, President Lord Hodge, Deputy President Lord Sales, Lord Hamblen and Lord Leggatt

BARCLAYS BANK UK PLC---Appellant

Versus

PHILIPP---Respondent

Decided on 12th July, 2023.

(On appeal from: [2022] EWCA Civ 318)

(a) Contract---

----Bank fraud---Duty of care owed by bank---Scope---Bank customer, rights of---Certain fraudster induced claimant/customer to instruct bank to make authorised transfer from her account---Question as to whether bank was under a duty not to execute instruction if on inquiry that could result in misappropriation of customer's funds; whether such duty only arose where instruction was given by customer's agent; and whether bank was in breach of duty owed to customer---Scope of duty of care owed by the bank to its customers in cases of "authorised push payment" (APP) fraud stated.

The claimant/respondent was deceived and persuaded by fraudsters to instruct the defendant bank, with which she had a current account, to make two authorised push payments totalling £700,000 to accounts in the United Arab Emirates. On each occasion, the payments were made after she visited a branch in person and gave instructions to transfer the money and after the defendant had telephoned her and obtained confirmation that she had made the transfer request and wished to proceed with it. By the time the fraud had been discovered the sums could not be recovered. The claimant brought proceedings against the bank, contending that there were various circumstances which should have caused it to question the transactions and to stop or delay them, or alternatively that it was in breach of duty after the fraud had been discovered in not taking adequate steps to recover the money. The trial judge granted the bank's application for summary judgment, holding that although a bank was under a duty not to execute a payment instruction where it was on notice that its customer's agent was attempting to misappropriate funds, such a duty did not arise where the instruction had been given by the customer herself. The Court of Appeal allowed the claimant's appeal and set aside the order for summary judgment, holding that it was at least possible in principle that a relevant duty of care could arise in the case of a customer instructing her bank to make a payment when that customer was the victim of "authorised push payment" (APP) fraud.

It is a basic duty of a bank under its contract with a customer who has a current account in credit to make payments from the account in compliance with the customer's instructions. This duty is strict. Where the customer has authorised and instructed the bank to make a payment, the bank must carry out the instruction promptly. It is not for the bank to concern itself with the wisdom or risks of its customer's payment decisions.

Gray v Johnston (1868) LR 3 HL 1 and Westpac New Zealand Ltd v MAP and Associates Ltd [2011] NZSC 89, [2011] 3 NZLR 751 ref.

It would be possible for a bank to agree as an express term of the contract that it will not comply with a payment instruction given by the customer if the bank believes, or if the bank has reasonable grounds for believing, that the customer has been tricked by a third party into authorising the payment. But it is not suggested that in the present case the contract between the claimant and the bank contained any such express term. In the absence of an express term, no obligation of this kind can be implied or said to be inherent in the relationship between a bank and its customer. To the contrary, such an obligation would be inconsistent with the normal contractual basis on which banking transactions are conducted.

The Court of Appeal derived the alleged duty by extrapolating from the reasoning in the case of Barclays Bank plc v Quincecare Ltd [1992] 4 All ER 363. In this and other similar cases, courts have held that a bank has a duty not to execute a payment instruction given by an agent of its customer without making inquiries if the bank has reasonable grounds for believing that the agent is attempting to defraud the customer. However, the reason why the bank owes a duty to its customer to make inquiries in such cases is to ensure that it does not make a payment which the customer has not authorised. This reasoning does not apply to cases of the present kind where the customer has unequivocally authorised and instructed the bank to make a payment.

Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 1 WLR 1555; Karak Rubber Co Ltd v Burden (No 2) [1972] 1 WLR 602; Lipkin Gorman (a firm) v Karpnale Ltd [1987] 1 WLR 987; Singularis Holdings Ltd v Daiwa Capital Markets Europe Ltd [2017] EWHC 257 (Ch), [2017] Bus LR 1386; Nigeria v JP Morgan Chase Bank, NA [2019] EWCA Civ 1641, [2019] 2 CLC 559; JP SPC 4 v Royal Bank of Scotland International Ltd [2022] UKPC 18, [2023] AC 461 and Stanford International Bank Ltd v HSBC Bank plc [2022] UKSC 34, [2023] 2 WLR 79 ref.

The duty of a bank which has come to be referred to as the "Quince care duty" is not some special or idiosyncratic rule of law. Properly understood, it is simply an application of the general duty of care owed by a bank to interpret, ascertain and act in accordance with its customer's instructions. Where a bank is "put on inquiry" in the sense of having reasonable grounds for believing that a payment instruction given by an agent purportedly on behalf of the customer is an attempt to defraud the customer, this duty requires the bank to refrain from executing the instruction without first making inquiries to verify that the instruction has actually been authorised by the customer. If the bank executes the instruction without making such inquiries and the instruction proves to have been given without the customer's authority, the bank will be in breach of duty. It will also in making the payment be acting outside the scope of its own authority from the customer and will therefore not be entitled to debit the payment to the customer's account. These principles are not limited to corporate customers. They apply wherever one person is given authority to sign cheques or give other payment instructions to a bank on behalf of another. They apply, for example, where under the mandate for a joint account either account holder has power to bind the other. Similar reasoning would also apply where a bank is on notice, in the sense of having reasonable grounds for believing, that the customer lacks mental capacity to operate a bank account or manage her financial affairs. Bank's duty of care may require the bank not to execute its customer's instructions in such circumstances until further inquiries can be made. On the other hand, these principles have no application to a situation where, as in the present case, the customer is a victim of "authorised push payment" (APP) fraud. In this situation the validity of the instruction is not in doubt. Provided the instruction is clear and is given by the customer personally or by an agent acting with apparent authority, no inquiries are needed to clarify or verify what the bank must do. The bank's duty is to execute the instruction and any refusal or failure to do so will prima facie be a breach of duty by the bank.

Hsu Ann Mei v Oversea-Chinese Banking Corp Ltd [2011] SGCA 3 (Singapore Court of Appeal) ref.

The fact that a customer's intention or desire resulted from a mistaken belief, including where it had been induced by another person's deceit, did not make it any less real or genuinely held, and the fact that the customer's payment instruction was induced by fraud did not invalidate the instruction or give rise to any claim against the bank.

Shogun Finance Ltd v Hudson [2004] 1 AC 919, para 6 and Whittaker v Campbell [1984] QB 318, 326-328 (Robert Goff LJ) ref.

There is another fundamental reason why questions about the appropriate policy response to "authorised push payment" (APP) fraud are outside the scope of present proceedings. This is that the claimant's case is based on a duty allegedly owed to her by the bank under the contract between them governing the operation of her current account. The extent of the bank's responsibilities under this contract does not depend on an evaluation of whether it would be a good or a bad thing if banks were required, either generally or in some circumstances, to reimburse customers who are victims of APP fraud. It depends on an analysis of what the parties to the contract have agreed. This requires the court to consider any relevant terms expressly agreed between the bank and the customer. A bank will invariably have standard terms on which it agrees to provide its services. As with other types of commonly recurring contractual relationship, however, the contract between a bank and a customer who holds a current account is one for which there is an established legal template consisting of certain basic terms and duties which have come to be recognised by the common law (and sometimes statute) as ordinary incidents of contracts of this type. These implied terms and duties apply automatically by default unless modified or excluded by express agreement. In the case of contracts between a bank and an account holder, they are the subject of a well developed body of case law.

The starting point in understanding the contract between a bank and a customer who holds a current account with the bank is the decision of the House of Lords in Foley v Hill (1848) 2 HL Cas 28. It established conclusively that under ordinary circumstances a bank is not a trustee or fiduciary of money deposited by a customer, but simply a debtor. Money deposited with a bank becomes the bank's money, to lend or otherwise deal with (so far as the customer is concerned) as it thinks fit. The principal obligation owed by the bank is to discharge its debt to the customer when called upon to do so. Thus, the bank is obliged to repay to the customer on demand an equivalent sum to that deposited (plus any agreed interest and less any agreed charges) and also, so long as the account is in credit, to make payments in accordance with the customer's instructions in reduction of its debt to the customer. Another basic principle that has long been established is that, in making such payments, the bank acts as the customer's agent [Westminster Bank Ltd v Hilton (1926) 43 TLR 124, 126 (Lord Atkinson)].

As in the case of every contractual agency, a bank is bound to act in accordance with the authority conferred upon it by its principal and to perform what it has agreed to do. The terms on which a bank is authorised and undertakes to carry out its customer's instructions to make payments are generally referred to as the bank's mandate from the customer. Unless otherwise agreed, the bank's duty to comply with its mandate is strict. Where the bank acts outside the mandate by making a payment which the customer has not authorised, it cannot debit the customer's account. Conversely, where the bank receives an instruction to make a payment given in accordance with the mandate, the ordinary duty of the bank is simply to carry out the instruction and to do so promptly.

Bowstead and Reynolds on Agency, 22nd ed (2021), article 36; Bodenham v Hoskins (1852) 21 LJ Ch 864, 869 and Lipkin Gorman v Karpnale Ltd [1989] 1 WLR 1340, 1356 ref.

In the present case circumstances which the claimant contends should have put the bank on inquiry that a fraud was being perpetrated on her include: the large and unprecedented sum of money received in her current account; the size of the payments which she instructed the bank to make; the fact that the payments were to bank accounts in the UAE; and the fact that the payees were companies with which she had no previous history of dealing. All these circumstances, however, were facts of which the claimant was to the bank's knowledge aware, as she gave the instructions and confirmed the payment details to members of the bank's staff in person. The bank therefore had no reason to doubt whether, if its customer was aware of these circumstances, she would desire the bank to make the payments. Incontrovertibly, she knew the circumstances known to the bank and was adamant that she wished the bank to make the payments. There is no basis on the undisputed facts of this case for asserting that the bank had material information relating to the transactions which its customer did not have.

Since it was beyond dispute that the claimant had unequivocally authorised and instructed the bank to make the payments, the order of the judge giving summary judgment in favour of the bank, in so far as it related to the claim that the bank owed the claimant a duty not to execute her payments, should be restored. However, summary judgment should be refused in relation to the claimant's alternative case in relation to the steps taken to recover the money once the fraud had been discovered.

Supreme Court observed that the type of fraud which occurred in the present case is a growing social problem and can undoubtedly cause great hardship to its victims. Whether victims of such frauds should be left to bear the loss themselves or whether losses should be redistributed by requiring banks which have made or received the payments on behalf of customers to reimburse victims of such crimes is a question of social policy for regulators, government and ultimately for Parliament to consider. But it is not a question for the courts. It is not the role of the courts to formulate such policy, still less to impose on the parties to a contract an obligation to which they have not consented and cannot reasonably be presumed to have consented since it is inconsistent with the normal and established allocation of risk and responsibility under contracts of the relevant type. Appeal filed by the bank was allowed.

(b) Principal-agent---

----Agent's authority---Scope---Scope of an agent's authority is a matter of agreement between the agent and the principal---Where that agreement is recorded in writing, the question is one of interpretation of the document---No doubt it would be possible in theory for a principal in appointing an agent to agree that the agent may bind the principal even if and when the agent is acting dishonestly with the aim of defrauding the principal---But it seems inconceivable that any sane person would ever agree, or could reasonably be presumed to have agreed, to confer such authority on an agent---As is generally the case in commerce, parties to an agency relationship naturally deal with each other on an unspoken common assumption that each will act honestly in relation to the other---Authority conferred on an agent does not encompass acting dishonestly to further the agent's own interests in opposition to the interests of the principal.

Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 421 (High Court of Australia) ref.

Patrick Goodall KC, David Murray and Ian Bergson (instructed by TLT LLP) for Appellant.

Hugh Sims KC, Christopher Hare, Lucy Walker and Jay Jagasia (instructed by Squire Biggs Law) for Respondent.

David McIlroy and Tristan Jones (Instructed by Penningtons Manches Cooper LLP) for Intervener - Consumers' Association.

Sonia Tolaney KC and James Ruddell (Instructed by White and Case LLP (London)) for Intervener - UK Finance Ltd.

2023 S C M R 1573

[Supreme Court of UK]\

Present: Lord Reed, President Lord Briggs, Lord Kitchin, Lord Sales and Lord Burrows

JALLA and another---Appellants

Versus

SHELL INTERNATIONAL TRADING AND SHIPPING CO. LTD. and another---Respondents

Decided on 10th May, 2023.

(On appeal from: [2021] EWCA Civ 63)

(a) Tort---

----Private nuisance---Limitation period for bringing action---Continuing nuisance---Scope---Oil from an oil spill at sea reached claimants' land and it was never removed or cleaned up---Claimants brought action for private nuisance---Question as to whether there was continuing nuisance---Held, that one-off oil spill did not represent a continuing nuisance regardless of the continued presence of the oil on the claimants' land---No continuing nuisance existed in the present case because, outside the claimants' land, there was no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible that was causing continuing undue interference with the use and enjoyment of the claimants' land---Oil leak was a one-off event or an isolated escape, and the oil pipe was no longer leaking after (first) six hours---Cause of action accrued and was complete once the claimants' land had been affected by the oil: there was no continuing cause of action for as long as the oil remained on the land.

On 20 December 2011, during a transfer of oil into a tanker at the Bonga oil field, approximately 40,000 barrels of crude oil were leaked off the coast of Nigeria (the Bonga Spill). While the leak was stopped within six hours, it was alleged that the spill impacted the Nigerian shoreline, causing extensive harm to the local community. Just under six years after the Bonga Spill, two Nigerian citizens (on behalf of thousands of other individuals and communities said to have been affected) commenced English proceedings in the tort of nuisance. The initial defendants included Shell International Ltd and Shell Nigeria Exploration and Production Co Ltd but four months later, the claimants applied to change Shell International Ltd to another Shell entity - Shell International Trading and Shipping Co Ltd. The defendants objected to the amendments on the basis that they were made more than six years after the oil spill occurred, and were therefore outside the statutory six year limitation period. However, the claimants argued that, because the oil spill had not been cleaned up properly, the damage to their land was ongoing and amounted to a continuing nuisance. As a result, they said the cause of action was not limited to the events on 20 December 2011, but started afresh each day on a rolling basis, and therefore the amendments were well within the limitation period. Those arguments were unsuccessful before the High Court and the Court of Appeal, both of which held that the claimants were out of time to amend. That meant that not only could the claimants not bring a claim against Shell International Trading and Shipping Co Ltd, but because there was no longer an English domiciled defendant to anchor the claim to the jurisdiction, the English court lacked jurisdiction over the Nigerian domiciled Shell Nigeria Exploration and Production Co Ltd.

Part of the difficulty in articulating what is meant by a continuing nuisance for the purposes of the tort of private nuisance is that, as a matter of ordinary language, one can naturally describe the effect of the interference or damage still being present, and not having been cleaned up or otherwise dealt with, as being a continuing nuisance in the sense of being a continuing problem. In this case, therefore, one can naturally describe the oil still being on the claimants' land as a continuing nuisance. But that is wholly misleading when one is trying to clarify the meaning of a continuing nuisance in the legal sense.

In principle, and in general terms, a continuing nuisance is one where, outside the claimant's land and usually on the defendant's land, there is repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible which causes continuing undue interference with the use and enjoyment of the claimant's land. For a continuing nuisance, the interference may be similar on each occasion but the important point is that it is continuing day after day or on another regular basis. So, for example, smoke, noise, smells, vibrations and overlooking are continuing nuisances where those interferences are continuing on a regular basis. The cause of action therefore accrues afresh on a continuing basis.

Hole v Chard Union [1894] 1 Ch 293 ref.

It is precisely because, in the normal case, the tort of private nuisance is continuing that an injunction, prohibiting the continuation of activity or a state of affairs, is a standard remedy for the tort of private nuisance. The concept of a continuing nuisance also has the consequence that, at common law, damages are given for the causes of action that have so far accrued and cannot be given for future causes of action which have not yet accrued. Where the nuisance continues, the claimant must therefore periodically come back to court to seek damages at common law. In contrast, damages for future causes of action can be given as equitable damages in substitution for (in lieu of) an injunction.

Midland Bank plc v Bardgrove Property Services Ltd (1992) 65 P & CR 153; Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851; Hooper v Rogers [1975] Ch 43 and Jaggard v Sawyer [1995] 1 WLR 269 ref.

It follows logically from the concept of a continuing cause of action that, if the limitation period is one of six years from the accrual of the cause of action, damages at common law for a continuing nuisance cannot be recovered for causes of action (i.e., for past occurrences of the continuing nuisance) that accrued more than six years before the claim was commenced.

The essence of the claimants' submission is that there is a continuing nuisance in this case because, on the facts that are to be assumed for the purposes of this appeal, the oil is still present on the claimants' land and has not been removed or cleaned up. If this submission were correct, it would mean that if the other ingredients of the tort of nuisance were made out, and a claimant's land were to be flooded by an isolated escape on day 1, there would be a continuing nuisance and a fresh cause of action accruing day by day so long as the land remained flooded on day 1000. It can therefore be seen that the effect of accepting the submission would be to extend the running of the limitation period indefinitely until the land is restored. It would also impliedly mean that the tort of private nuisance would be converted into a failure by the defendant to restore the claimant's land. It might also produce difficulties for the assessment of damages, which are, in general, to be assessed once and for all. Where land is flooded on day 1, all the losses, past and prospective, for that accrued cause of action can be assessed on day 1 (including the cost of restoration). It is unclear how there can be a different assessment of damages, for a different cause of action, on day 2.

There was no continuing nuisance in this case because, outside the claimants' land, there was no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible that was causing continuing undue interference with the use and enjoyment of the claimants' land. The leak was a one-off event or an isolated escape. The oil pipe was no longer leaking after six hours and it is being assumed for the purposes of this appeal that the oil reached the Nigerian Atlantic shoreline (and hence the claimants' land) within weeks rather than months of 20 December 2011. In this case the cause of action accrued and was complete once the claimants' land had been affected by the oil: there was no continuing cause of action for as long as the oil remained on the land.

Sedleigh-Denfield v. O'Callaghan [1940] AC 880 ref.

Delaware Mansions Ltd v. Westminster City Council [2001] UKHL 55, [2002] 1 AC 321 distinguished.

To accept claimants' submission would be to undermine the law on limitation of actions - which is based on a number of important polices principally to protect defendants but also in the interests of the state and claimants - because it would mean that there would be a continual re-starting of the limitation period until the oil was removed or cleaned up. Appeal filed by the claimants was dismissed.

Darley Main Colliery Co v. Mitchell ("Darley") (1886) 11 App Cas 127 distinguished.

(b) Tort---

----Private nuisance---Scope---In general terms, the tort of private nuisance is committed where the defendant's activity, or a state of affairs for which the defendant is responsible, unduly interferes with (or, as it has commonly been expressed, causes a substantial and unreasonable interference with) the use and enjoyment of the claimant's land---Nearly always the undue interference with the use and enjoyment of the claimant's land will be caused by an activity or state of affairs on the defendant's land so that the tort is often described as one dealing with the respective rights of neighbouring landowners or occupiers---But the creator of the nuisance can be sued whether or not that person still has (or perhaps ever had) any interest in the land from which the nuisance emanates---Tort of private nuisance is actionable only on proof of damage and is not actionable per se---Such requirement is satisfied for private nuisance by establishing the undue interference with the use and enjoyment of the land---That includes physical damage to the land itself and damage to buildings or vegetation growing on the land---But commonly there will be an undue interference with the use and enjoyment of land - as by the impact of noise or smell or smoke or vibrations or being overlooked - even though there is no physical damage to the land or buildings or vegetation.

Lawrence v Fen Tigers Ltd ("Lawrence") [2014] UKSC 13, [2014] AC 822, para 3; Fearn v Board of Trustees of the Tate Gallery ("Fearn") [2023] UKSC 4, [2023] 2 WLR 339, paras 18 - 20 (per Lord Leggatt); Christian Witting, Street on Torts (16th edn, 2021) p 424; Clerk & Lindsell on Torts (23rd edn, 2020) para 19-01; Sedleigh-Denfield v O'Callaghan ("Sedleigh-Denfield") [1940] AC 880, 903 and Clerk & Lindsell on Torts para 19-02 ref.

(c) Tort---

----Private nuisance---Scope---Continuing control of defendant---While continuing control will almost always be present in a case of continuing nuisance, this is not a necessary requirement; this is because the person who has created a nuisance can be sued in the tort of private nuisance even though that person may no longer have control over the state of affairs that is causing the continuing nuisance.

Thompson v Gibson (1841) 7 M & W 456; Rosewell v Prior (1701) 2 Salk 460; Christian Witting, Street on Torts (19th ed, 2021) p 430 and Clerk & Lindsell on Torts (23rd ed, 2020) para 19-70 ref.

Jonathan Seitler KC, Alice Hawker and Stuart Cribb (Instructed by RBL Law Ltd) for Appellants.

Lord Goldsmith KC, Dr Conway Blake and Tom Cornell (Instructed by Debevoise & Plimpton LLP (London)) for Respondents.

2023 S C M R 1609

[Supreme Court of UK]\

Present: Lord Reed, President Lord Hodge, Deputy President, Lord Kitchin, Lord Hamblen and Lord Burrows

McCULLOCH and others---Appellants

Versus

FORTH VALLEY HEALTH BOARD---Respondent

Decided on 12th July, 2023.

(On appeal from: [2021] CSIH 21)

(a) Negligence---

----Medical practitioner---Legal test for establishing negligence by a doctor---Scope---Test for establishing negligence by a doctor in diagnosis or treatment is whether the doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion ("professional practice test")---Qualification of this test is that, a court may, in a rare case, reject the professional opinion if it is incapable of withstanding logical analysis.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; Hunter v Hanley 1955 SC 200 and Bolitho v City and Hackney Health Authority [1998] AC 232 ref.

(b) Negligence---

----Medical practitioner---'Professional practice test'---Scope---Duty of doctor to advise and inform patient of reasonable alternative treatments---Whether alternative treatment reasonable---Correct legal test to be applied in assessing whether alternative treatment reasonable and requires to be discussed with the patient explained.

On 23 March 2012, Mr 'M', aged 39, was admitted to the Forth Valley Royal Hospital complaining of chest pains, nausea and vomiting. Dr 'L', a consultant cardiologist at the hospital, was asked to review an echocardiogram that had been performed on Mr 'M'. Her review of Mr 'M' indicated that his presentation did not fit with a standard diagnosis of pericarditis (an inflammation close to the heart). During the next few days, Mr 'M's' condition improved. On 30 March, he was discharged home on antibiotics. A couple of days later Mr 'M' was readmitted to hospital complaining of the reoccurrence of chest pain. He was given intravenous fluids and antibiotics under the care of the medical team. On 2 April, a nursing entry stated 'Nil further chest pain'. The next day, Dr 'L' visited Mr 'M' in the Acute Admissions Unit, having reviewed a further echocardiogram. He looked much better than when she had previously seen him and, in answer to her questions, he denied having any chest pain. That being the case, she saw no reason to prescribe any additional medical treatment. In her professional judgement, she did not regard it as appropriate to prescribe non-steroidal anti-inflammatory drugs ("NSAIDs"), such as ibuprofen, because Mr 'M' was not in pain at the time she saw him and there was no clear diagnosis of pericarditis. On 6 April, Mr 'M' was discharged home and remained on antibiotics. On 7 April he suffered a cardiac arrest at home from which he died. His widow and other family members brought an action against Forth Valley Health Board alleging that they were vicariously liable for Mr 'M's' death, which they claimed was caused by negligent treatment by Dr 'L'. They alleged that Dr 'L' was in breach of her duty of care by failing to inform Mr 'M' that NSAIDs were a possible treatment option for him. It is alleged that had he been so advised he would have taken a NSAID and would not have died.The expert evidence indicated that, while some doctors would have prescribed NSAIDs to Mr 'M', there was also a responsible body of medical opinion that supported Dr 'L's' approach given that Mr 'M' was not in pain and there was no clear diagnosis of pericarditis. The Lord Ordinary and the Inner House held that Dr 'L' was not negligent in failing to inform Mr 'M' about the possible treatment by NSAIDs. The widow and family members of Mr 'M' appealed to the Supreme Court.

The correct test to decide what is a reasonable alternative treatment is what can be referred to as the 'professional practice test' which is set out in the cases reported as Bolam v Friern Hospital Management Committee [1957] 1 WLR 582("Bolam") at p 587 and Hunter v Hanley 1955 SC 200 ("Hunter v Hanley") at p 206. A doctor who has taken the view that a treatment is not a reasonable alternative treatment for a particular patient will not be negligent in failing to inform the patient of that alternative treatment if the doctor's view is supported by a responsible of body of medical opinion.

Taking a hypothetical example to help explain, in more detail, how the court regards the law as working: a doctor will first seek to provide a diagnosis (which may initially be a provisional diagnosis) having, for example, examined the patient, conducted tests, and having had discussions with the patient. Say that, in respect of that diagnosis, there are ten possible treatment options; the doctor, exercising his or her clinical judgment, decides that only four of them are reasonable and that decision to rule out six is supported by a responsible body of medical opinion. The doctor is not negligent by failing to inform the patient about the other six even though they are possible alternative treatments. The narrowing down from possible alternative treatments to reasonable alternative treatments is an exercise of clinical judgment to which the professional practice test should be applied. The duty of reasonable care would then require the doctor to inform the patient not only of the treatment option that the doctor is recommending but also of the other three reasonable alternative treatment options (plus no treatment if that is a reasonable alternative option) indicating their respective advantages and disadvantages and the material risks involved in each treatment option. However the doctor cannot simply inform the patient about the treatment option or options that the doctor himself or herself prefers. Rather the doctor's duty of care is to inform the patient of all reasonable treatment options applying the professional practice test.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; Hunter v Hanley 1955 SC 200; Bolitho v City and Hackney Health Authority [1998] AC 232 and Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430 ref.

The professional practice test is the correct legal test in respect of reasonable alternative treatments. This is so for a number of reasons. Firstly, in line with the distinction drawn in Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430 ('Montgomery') at para 83, between the exercise of professional skill and judgment and the court-imposed duty of care to inform, the determination of what are reasonable alternative treatments clearly falls within the former and ought not to be undermined by a legal test that overrides professional judgment. In other words, deciding what are the reasonable alternative treatments is an exercise of professional skill and judgment. That is why, it is appropriate to refer synonymously to reasonable alternative treatments or to "clinically appropriate" or "clinically suitable" alternative treatments. Secondly, the professional practice test is consistent with the two stage test set out in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 ("Duce"). The two-stage test identified in Duce is based on the distinction drawn in Montgomery between when the doctor's role is, and is not, a matter of professional skill and judgment. All matters of professional skill and judgment, to which the professional practice test should be applied, fall within the first stage of the Duce test. The identification of which treatments are reasonable alternatives (i.e. clinically appropriate) is as much a matter falling within medical expertise and professional judgment, and hence governed by the professional practice test, as the identification of risks associated with any treatment. Indeed, they are closely linked. The risk of any given treatment will be a significant part of any analysis of alternative treatment options. The identification of reasonable alternative treatments (ie clinically appropriate treatments) should therefore be treated in the same way as the identification of risk in Duce. It is only once the reasonable alternative treatment options have been identified that the second stage advisory role arises. That is, the doctor is required at the second stage to inform the patient of the reasonable alternative treatments and of the material risks of such alternative treatments. Thirdly, the professional practice test is consistent with medical professional expertise and guidance.

The determination of reasonable treatment options is a matter of medical expertise and professional skill and judgment. Fourthly, the said test avoids an unfortunate conflict in the doctor's role. If one were to reject the professional practice test in determining reasonable alternative treatments, one consequence would be an unfortunate conflict in the exercise of a doctor's role. This is because the law would be requiring a doctor to inform a patient about an alternative medical treatment which the doctor exercising professional skill and judgment, and supported by a responsible body of medical opinion, would not consider to be a reasonable medical option. Fifthly, the said test avoids bombarding the patient with information. And lastly, the professional practice test avoids making the law uncertain for doctors who have to apply it.

Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430 and AH v Greater Glasgow Health Board [2018] CSOH 57, 2018 SLT 535 ref.

Applying the professional practice test to the facts of the present case, Dr 'L' was not negligent because her view, that prescribing NSAIDs for Mr 'M' was not a reasonable treatment option for him because he was not in pain and there was no clear diagnosis of pericarditis, was supported by a responsible body of medical opinion. She was therefore not in breach of her duty of care by not informing him of that possible option. Given the conclusion that Dr "L" was not in breach of a duty of care in not informing the patient about the possible alternative treatment by NSAIDs, the questions on causation do not arise.

Robert Weir KC and Lauren Sutherland KC (instructed by Drummond Miller LLP (Edinburgh)) for Appellants.

Una Doherty KC, David Myhill and Ewen Campbell (instructed by NHS Central Legal Office (Edinburgh)) for Respondent.

Roddy Dunlop KC (instructed by GMC Legal (Manchester)) for General Medical Council (1st Intervener).

Ben Collins KC and Sophie Beesley (instructed by Capital Law (Cardiff)) for British Medical Association (2nd Intervener) (written submissions only).