SCMR 2024 Judgments

2024 S C M R 1

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

CIVIL REVIEW PETITION NO.266 OF 2019 IN SUO MOTU CASE NO.7 OF 2017, CIVIL MISCELLANEOUS APPLICATIONS NOS.8270 AND 8288 OF 2023 IN/AND CIVIL REVIEW PETITION NO.267 OF 2019 AND CIVIL REVIEW PETITION NO.268 OF 2019 IN SUO MOTU CASE NO.7 OF 2017, CIVIL MISCELLANEOUS APPLICATIONS NOS.3575, 3577, 3579, 3582 AND 3610 OF 2019 IN CIVIL REVIEW PETITIONS NIL OF 2019 IN SUO MOTU CASE NO.7 OF 2017, CIVIL MISCELLANEOUS APPLICATION NO.8526 OF 2023 IN CIVIL MISCELLANEOUS APPLICATION NO. 3579 OF 2019 IN SUO MOTU CASE NO.7 OF 2017

Decided on 1st November, 2023.

Constitution of Pakistan---

----Arts. 16, 17(2), 19 & 188---Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002), S. 8(5)---Elections Act (XXXIII of 2017), S. 211---Election Rules, 2017, R. 161---Judgment passed by the Supreme Court in respect of Islamabad-Rawalpindi sit-in protest/ dharna by members of a religious political party ('the Judgment')---Review petitions challenging said Judgment---Formation of a Commission to implement the Judgment---Discrepancies and abnormalities in financial affairs of the protesting religious political party---Different applications filed by the review petitioners to either withdraw their review petitions or to challenge certain observations made in the Judgment---Supreme Court observed that regretfully most of the review petitioners had no explanation as to why it was first decided by them to become a party and seek review of the Judgment and then elect to withdraw the application---Detailed observations and directions recorded by the Supreme Court in respect of the different review petitioners before the Court stated.

Mansoor Usman Awan, AGP, Ch. Aamir Rehman, Additional AGP with Brig.(R) Falak Naz, Legal Advisor Ministry of Defence and Lt.Col. Kafeel Khan, Director Legal Ministry of Defence for Petitioners (in C.R.Ps. Nos. 266 and 267 of 2019).

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Muhammad Saleem, Chairman PEMRA, Tahir Farooq Tarar, (Legal Head PEMRA) and Muhammad Tahir, D.G (Operations) PEMRA for Petitioners (in C.R.P. No. 268 of 2019).

Syed Ali Zafar, Advocate Supreme Court for Applicant (in C.M.A. No. 3579 of 2019).

Mehr Khan Malik, Advocate-on-Record for Applicant (in C.M.A. No. 3577 of 2019).

M.A. Ghaffar-ul-Haq, Advocate Supreme Court for Applicant (in C.M.A. No. 3582 of 2019).

Malik Qamar Afzal, Advocate Supreme Court with Omar Hamid Khan, Secretary ECP, M. Arshad, D.G. (Law) and Masood Akhtar Sherwani, D.G. (P/F) for Applicant (in C.M.A. No. 3610 of 2019).

2024 S C M R 8

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

CIVIL MISCELLANEOUS APPLICATIONS NO. 3577 OF 2019 AND 9219 OF 2023 IN CIVIL REVIEW PETITION NIL OF 2019 AND CIVIL REVIEW PETITION NO.266 OF 2019 IN SUO MOTU CASE NO.7 OF 2017 REVIEW PETITION BY SHEIKH RASHEED AHMED, CHAIRMAN, AWAMI MUSLIM LEAGUE (CIVIL MISCELLANEOUS APPLICATION NO. 3577 OF 2019), REVIEW PETITION BY THE GOVERNMENT OF PAKISTAN THROUGH SECRETARY MINISTRY OF DEFENCE (CIVIL MISCELLANEOUS APPLICATION NO. 9219 OF 2023)---Applicants

Decided on 15th November, 2023.

(a) Constitution of Pakistan---

----Arts. 16, 17(2), 19 & 188---Pakistan Commissions of Inquiry Act (IX of 2017), S. 3---Judgment passed by the Supreme Court in respect of Islamabad-Rawalpindi sit-in protest/dharna by members of a religious political party ('the Judgment')---Review petitions challenging said Judgment---Application filed by leader of political party to withdraw his review petition---Counsel for the applicant stated that the applicant did not intend to press the present application as the same was filed under a misapprehension---Supreme Court observed that it was surprising that the leader of a political party, a longstanding parliamentarian and one who had held the high office of a Federal Minister filed the application on the basis of a misapprehension, therefore, the Court enquired from him whether he had filed the application on someone's behest, but it was reiterated that it had been filed under a misapprehension---Supreme Court directed that a Commission had been constituted by the Federal Government to implement the Judgment under review with a time frame of two months to complete its task and its terms of reference were proposed to be expanded to include this aspect (of misapprehension of applicant) too---Application was dismissed as not pressed.

(b) Constitution of Pakistan---

----Arts. 16, 17(2), 19 & 188---Judgment passed by the Supreme Court in respect of Islamabad-Rawalpindi sit-in protest/dharna by members of a religious political party ('the Judgment')---Review petitions challenging said Judgment not fixed for hearing for almost five years---Manipulation in the Supreme Court---In the present case, review petitions and applications were filed in early 2019 but were not fixed for several years---In the interim the other signatory to the Judgment retired---Concerned officers of the Supreme Court submitted a report in this regard---Perusal of said report showed the manipulation resorted to in the Supreme Court by not fixing the review petitions and applications---To set an example for others to follow, the Supreme Court acknowledged the manipulation resorted to in the Supreme Court by not fixing the said petitions and applications---Supreme Court observed that it endeavoured to regain the confidence of the people by acknowledging this, and would be demonstrating that the mistakes of the past will not be repeated; that lack of trust in public institutions engendered autocracy and threatened democracy, and that if individuals began to overshadow the institutions they worked in, they caused irreparable harm, diminished their institution, and rendered them as their alter ego.

Abdul Raziq, Advocate Supreme Court with Sheikh Rasheed Ahmed in person and Mehr Khan Malik, Advocate-on-Record for Applicant.

Mansoor Usman Awan, Attorney General for Pakistan for Applicant (in C.M.A. 9219 of 2023).

2024 S C M R 12

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Jamal Khan Mandokhail and Shahid Waheed, JJ

NATIONAL BANK OF PAKISTAN through President, Karachi---Petitioner

Versus

SAJJAD ALI KAKAKHEL and another---Respondents

Civil Petition No. 370 of 2021, decided on 11th September, 2023.

(Against judgment dated 15.12.2020 of the Peshawar High Court, Peshawar passed in W.P. No. 1312-P of 2013)

Constitution of Pakistan---

----Art. 199---Employee of National Bank of Pakistan---Proforma promotion---Disallowed---Interference by the High Court in its constitutional jurisdiction---Not warranted---Respondent-employee had been superseded in 2010 which supersession was not challenged within a reasonable time---Constitutional petition filed by the respondent before the High Court suffered from laches---Further, there was no provision in the relevant service rules of the petitioner-Bank for the right to be granted proforma promotion---This was coupled with fact that the respondent had already retired from service and received all his benefits due to him under the law---As such, interference by the High Court in the matter at the stage that it interfered was not supported either by the relevant law or by any of the service rules which governed the terms and conditions of employees of the Bank---Petition for leave to appeal was converted into appeal and allowed, and impugned judgment of the High Court was set-aside.

Faisal Mahmood Ghani, Advocate Supreme Court for Petitioner.

Zartaj Anwar, Advocate Supreme Court for Respondent No. 1.

2024 S C M R 14

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

SALMAN MUSHTAQ and others---Petitioners

Versus

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

Criminal Petitions Nos. 1121 and 1128 of 2023, decided on 8th November, 2023.

(On appeal from the Orders dated 18.09.2023 passed by the Lahore High Court, Lahore in Criminal Misc. No. 45685-B and Criminal Misc. No. 52486-B of 2023)

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

----Ss. 497(2) & 498---Penal Code (XLV of 1860), S. 365-B---Constitution of Pakistan, Art. 185(3)---Kidnapping, abducting or inducing woman to compel for marriage etc.---Pre-arrest and post arrest bail, grant of---Further inquiry---According to the prosecution case, the alleged victim was abducted---However, according to the petitioners (accused persons), alleged abductee, being sui juris, contracted a marriage with one of the accused of her own free will and volition, and the marriage was duly registered---One of the petitioners, who was now seeking post-arrest bail, was the real brother of the abductee---It was also a matter of record that one of the accused, who claimed to have married the alleged abductee, filed a suit for restitution of conjugal rights before the Family Court which was decreed in his favour, whereas the alleged abductee had also filed a suit for jactitation of marriage---In the suit for jactitation of marriage, the alleged abductee admitted that the marriage was solemnized, but under fear and threat---It was a matter of further inquiry to ascertain whether the alleged abductee's real brother was in actuality involved in the abduction and whether he aided or facilitated the commission of the heinous crime of rape against his real sister --- Question was if the brother of the alleged abductee was involved in the abduction then why was he not nominated in the FIR, and why was he only implicated subsequently on the basis of the statement of the alleged abductee recorded under section 164, Cr.P.C.---No medical examination of the alleged victim was conducted for recovering DNA (Deoxyribonucleic acid) despite the serious allegation of rape---Considering that the offence of rape was suspected and reported to the police, the medical examination should have been conducted immediately and without any delay in order to draw DNA samples---Possibility of mala fide intention in lodging the FIR could not be ruled out, and, at present stage, there were no reasonable grounds for believing that the accused persons were involved; rather, there were sufficient grounds for further inquiry to prove the guilt of the accused persons---Petitions for leave to appeal were converted into appeals and allowed, ad-interim pre-arrest bail granted to two of the accused was confirmed, while the third accused (brother of alleged abductee) was granted post-arrest bail.

Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others 2013 SCMR 203 ref.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail, grant of---Grounds---Paramount factors which require consideration while granting pre-arrest bail are whether the arrest will cause humiliation and/or unwarranted persecution or harassment to the applicant for some ulterior motives; or that the prosecution is motivated by malice to perpetrate irreparable injury to the reputation and liberty of the accused.

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

----Ss. 497 & 498---Constitution of Pakistan, Art. 185(3)---Pre-arrest and post-arrest bail---Gravity of the offence---While considering the grounds agitated for enlargement on bail, whether pre-arrest or post-arrest, the atrociousness, viciousness and/or gravity of the offence are not, by themselves, sufficient for the rejection of bail where the nature of the evidence produced in support of the indictment creates some doubt as to the veracity of the prosecution case.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Expression "reasonable grounds" as contained under section 497, Cr.P.C.---Scope---Said expression obligates the prosecution to unveil sufficient material or evidence to divulge that the accused has committed an offence falling within the prohibitory clause of section 497, Cr.P.C.---However, for seeking the concession of bail, the accused person has to show that the evidence collected against him during the investigation gives rise to clear-headed suspicions regarding his involvement---While deciding bail applications, it is the elementary duty of the courts to apply a judicious mind tentatively to reach a just and proper conclusion on whether reasonable grounds are made out to enlarge the accused on bail---Axiom 'reasonable grounds' connotes and associates those grounds that are legally acceptable and based on reasons that attract the judicial mind, as opposed to being imaginative, fallacious and/or presumptuous.

Mushtaq Ahmad Mohal, Advocate Supreme Court, Salman Mushtaq (in person) and Naheed Akhtar (in person) for Petitioners.

Irfan Zia, D.P.G., Punjab and Fiaz, SI for the State.

Complainant in person.

2024 S C M R 20

[Supreme Court of Pakistan]

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

FAHAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 495 of 2023, decided on 13th September, 2023.

(Against the judgment dated 17.04.2023, passed by the Peshawar High Court, Abbottabad Bench, Abbottabad in Criminal Misc. (B.A.) No. 227-A of 2023)

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 164---Penal Code (XLV of 1860), Ss. 302, 311, 201, 202 & 34---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, intentional omission to give information of offence by person bound to inform, common intention---Bail, grant of---Further inquiry---Complainant alleged that her daughter was done to death by her husband's brother and his son (the petitioner); that there was a statement of person "A" recorded under section 164, Cr.P.C. to connect the petitioner with the offence; and that another important circumstantial evidence in the shape of confessional statement of her husband's brother under section 164, Cr.P.C, was available in which he had admitted his guilt of committing the murder and also got recovered the dead body of deceased after making disclosure---Validity---In both statements recorded under section 164, Cr.P.C., the name of the petitioner was not mentioned in any context---There was no other circumstantial evidence available on the record against the petitioner except an application, which was filed by the deceased a few days earlier prior to the occurrence---In that eventuality, the case of the petitioner called for further enquiry falling under subsection (2) of section 497, Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed, and petitioner was admitted to bail.

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

Liaquat Ali Tareen, Advocate Supreme Court for the Complainant.

Altaf Khan, Additional Advocate General, Khyber Pakhtunkhwa and Sardar Shah, ASI for the State.

2024 S C M R 22

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

PROVINCE OF PUNJAB through the Deputy Commissioner, Collector District Gujranwala and others---Petitioners

Versus

ZULFIQAR ALI and another---Respondents

Civil Petition No.386-L of 2021, decided on 13th November, 2023.

(Against the judgment dated 26.10.2020 of the Lahore High Court, Lahore passed in passed in C.R. No.2852 of 2009)

Land Acquisition Act (I of 1894)---

----Ss. 4 & 5---Constitution of Pakistan, Arts. 23 & 24---Road constructed on private land by the Provincial Government without compensating the owners---Constitutionality---Frivolous litigation by Government departments---No compensation was paid for the land on which the road was constructed nor was it acquired pursuant to the Land Acquisition Act, 1894 ('the Act')---Land was taken without compensating the respondents (owners)---Respondents filed a suit and though the suit was dismissed the appeal against the same was allowed and the judgment of the appellate court was upheld through the impugned judgment of the High Court---Held, that the respondents who were deprived of their land must have spent money and time with regard to a case which should have never seen a court of law, provided the petitioners (Provincial Government and its concerned departments) had abided by the Constitution and the law---Present case is a classic example of frivolous litigation, and that too by those whose salaries are paid by the taxpayers of the country---It appears that the ability to take a decision, whether to assail or not a decision does not exist in senior officers---They deemed it fit to challenge a matter of little financial significance and do so contrary to the provisions of the Constitution which guarantees as a fundamental right the right to acquire, hold and dispose of property (Articles 23 & 24), and being oblivious to the fact that a person can only be compulsorily deprived of property provided compensation therefor is paid---Present matter has been brought before the fourth Court before which the Provincial Government is a party, and it pleads by disregarding the Constitution and the law---Not only have public resources been wasted, but also Court time, both of which are a trust held on behalf of the people---Provincial Government and every employee of it, including those in the office of the Advocate-General run on public funds, therefore, one expects a much higher standard from them---Petition for leave to appeal was dismissed, leave was refused, and Provincial Government was directed to pay to the owners of the land, requisite compensation, within a period of thirty days and in addition also pay to them one million rupees as costs.

Baleeg-uz-Zaman, Additional A.G. Punjab for Petitioners.

Nemo for Respondents.

2024 S C M R 24

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

Mst. TAHIRA SAMINA and others---Petitioners

Versus

JAVED SAEED TARIQ and others---Respondents

Civil Petitions Nos. 723 and 724 of 2021, decided on 19th October, 2023.

(Against the judgment dated 26.01.2021 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revisions Nos. 466 and 467 of 2017)

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

----Ss. 39, 42, 54 & 55---Gift---Pre-requisites not established---Suit for declaration, cancellation and permanent and mandatory injunction challenging the gift deed---Plaintiff filed a suit for declaration, cancellation and permanent and mandatory injunction pleading that the defendant being his younger brother, was resident of United Kingdom and asked him to execute registered gift deed of the subject as he was required to show some financial as well as monetary strength, therefore, gift deed of house was got registered---Subsequently, after 20 years of gift deed when defendant tried to get the property transferred in his name in the Cantonment record on the basis of gift deed, he filed the suit---Defendant thereafter after more than one year of filing of the plaintiff's suit filed his own suit for possession of the house---First Appellate Court decreed the suit for possession filed by the defendant, which decree was maintained by the High Court---Validity---Admittedly, plaintiff and thereafter his legal heirs were in possession of the suit property till date---Gift deed was unilateral whereas mother of the donor (plaintiff) and alleged donee (defendant) was a witness to the said document---Defendant was admittedly not available in Pakistan at the time of preparation and registration of the said gift deed, therefore, no question of acceptance and offer of gift as well as delivery of possession in favour of donee/defendant arose---Mother was not produced by either of the parties---Defendant pleaded that the suit property was purchased from the funds provided by him sent from United Kingdom in the account of the mother of the parties, however there was no documentary proof available on record to such effect---Though the gift deed was a registered one but the ingredients of a valid gift mentioned in section 149 of Mahomedan Law by D.F Mulla were not fulfilled, therefore, the plaintiff who challenged the gift deed and prayed for cancellation thereof was entitled to a decree---Petitions for leave to appeal were converted into appeals and allowed, suit filed by plaintiff was decreed; the gift deed stood cancelled, therefore, the decree granted to the defendant by the first appellate court and maintained by the High Court was not sustainable under the law.

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

----Ss. 39, 42, 54 & 55---Limitation Act (IX of 1908), S. 3---Gift deed---Suit for declaration, cancellation and permanent and mandatory injunction challenging the gift deed---Limitation---Cause of action, accrual of---Plaintiff filed his suit to challenge the gift deed 20 years after its registration---Admittedly just before filing of the suit the defendant got entered the mutation of gift in his name, on the basis of said impugned gift in the Cantonment record which gave cause of action to the plaintiff---Stance of the plaintiff in this situation is correct and covered the point of limitation when gift deed was first time used against him which gave him the cause of action---Petitions for leave to appeal were converted into appeals and allowed and suit filed by the plaintiff was decreed.

Sardar Muhammad Ghazi, Advocate Supreme Court for Petitioner.

Muhammad Ilyas Sheikh, Advocate Supreme Court assisted by Barrister Talha Ilyas Sheikh, Advocate for Respondent No. 1.

Babar Ali, Advocate Supreme Court for Respondent No. 2.

Respondent No. 4(c) in person.

2024 S C M R 28

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Athar Minallah, JJ

MUHAMMAD USMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1233 of 2023, decided on 30th November, 2023.

(Against the judgment dated 03.10.2023 of the Lahore High Court, Lahore passed in Criminal Misc. No. 53730-B of 2023)

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail application dismissed as withdrawn---Subsequent/second bail application, filing of---Maintainability---Fresh grounds---Scope---Second bail petition repeating the same grounds that were earlier taken is not competent---Moreover, the grounds raised by an accused in a subsequent bail application which were available at the time of filing of the earlier petition could also not be treated as fresh grounds nor urged for the purposes of seeking the same relief---If the ground on which bail has been sought subsists when a bail petition is withdrawn then such a ground can also not be taken again---However, the exception to this rule is in the case of entitlement of bail on statutory grounds (of delay in conclusion if trial).

Shahbaz Akmal v. The State and another 2023 SCMR 421 and Nazir Ahmed and another v. The State and another PLD 2014 SC 241 ref.

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

----S. 497(1), third proviso---Constitution of Pakistan, Art. 185(3)---Bail---Statutory ground of delay in conclusion of trial---Principles---Right (to bail) recognized under the third proviso of section 497(1) cannot be denied to an accused on the basis of discretionary powers of the court to grant bail---Said right has not been left to the discretion of the court, rather, its accrual is subject to the fulfillment of the conditions mentioned under the third proviso of section 497(1) of the Cr.P.C.---If any act or omission of the accused has hindered the conclusion of trial within the period specified in the third proviso of section 497(1) of the Code of Criminal Procedure, 1898 ('Cr.P.C.') then a right, as contemplated thereunder, will not accrue in the latter's favour and, therefore, he or she, as the case may be, would not become entitled to be released on bail on the statutory ground of delay in conclusion of the trial---Nonetheless, if after the rejection of the plea of bail on statutory grounds, the accused has subsequently corrected himself/herself and has abstained from doing any act or omission in the following period specified under the third proviso, then a fresh ground would accrue to the accused to invoke the jurisdiction of the court for grant of bail---Third proviso to section 497(1) of Cr.P.C. would thus become operative as and when the period specified therein has expired but the trial has not concluded without any fault on part of the accused---In the case in hand, the ground of statutory delay was not available to the petitioner (accused) when he had sought the concession of bail through the two attempts made by him---It was during subsistence of the second bail petition that the period specified under the third proviso had ripened and, therefore, a fresh ground became available to seek bail---Petition before the High Court was dismissed for non-prosecution and such dismissal did not prejudice his right to file a fresh petition before the High Court, which he did---Petition was competent because a fresh ground of delay in conclusion of trial had become available to him---Petition was converted into appeal and allowed, and accused was admitted to bail.

Syed Ayesha Subhani v. The State and others PLD 2023

SC 648 ref.

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

----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 109---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, abetment---Bail, grant of---Statutory ground of delay in conclusion of trial---In the present case the two year period specified in the third proviso of section 497(1) of the Cr.P.C. has passed---Despite more than two years of continuous incarceration of the petitioner (accused), the trial had not concluded---Delay in conclusion of trial was not attributable to the petitioner nor his counsel, rather, it had been on account of the abscondance of the co-accused and their surrender or arrest at different times---Each time the charge had to be reframed---Petitioner was not at fault and yet he had to suffer the hardship of incarceration of more than two years---Co-accused were stated to be close relatives of the petitioners and, therefore, the prosecution had argued that his complicity could not be ruled out---Legislature had expressly confined the delay under the third proviso to an act or omission of the 'accused' or 'any person acting on his behalf'---Accused cannot be made liable for the acts or omissions of a co-accused regardless of the relationship, except when the prosecution can clearly show, based on undisputed facts that the accused seeking bail was complicit---Latter's acts and omissions, or those of a person acting on his behalf, were crucial and could be considered for the court to determine the right to be released on bail on the ground described under the third proviso---Delay caused by the co-accused was not attributable to the petitioner because no act or omission on the latter's part nor a person acting on his behalf could be shown---Petition was converted into appeal and allowed, and accused was admitted to bail.

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

----S. 497(1), third proviso---Constitution of Pakistan, Art. 185(3)---Bail---Statutory ground of delay in conclusion of trial---Quantum of delay attributable to the accused, calculation of---While calculating the quantum of delay attributable to an accused, the court is required to consider whether or not the progress and conclusion of the trial was in any manner delayed by the act and omission on the part of the accused---While ascertaining the delay, the cumulative effect in disposal of the case has to be considered and its assessment cannot be determined on the basis of mathematical calculations by excluding those dates for which adjournments had been sought by the accused or the latter's counsel---Main factor for consideration is the attendance of the witnesses and whether, despite the matter having become ripe for the recording of evidence, whether the delay was caused by the defence---Recording of the statement of a last witness would also not defeat the right recognized under the third proviso and it would be unreasonable to conclude that the trial has been completed.

Nazir Hussain v. Zia-ul-Haq and others 1983 SCMR 72; Sher Ali alias Sheri v. The State 1998 SCMR 190; Akhtar Abbas v. State PLD 1982 SC 424; Moundar and others v. The State PLD 1990 SC 934; Abdul Rashid v. The State 1998 SCMR 897; Zahid Hussain Shah v. The State PLD 1995 SC 49 and Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358 ref.

Qaiser Imam, Advocate Supreme Court for Petitioner.

Ali Ahmed Gillani, Additional Prosecutor General, Punjab along with Mushtaq, Inspector for the State.

2024 S C M R 34

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

RAFAQAT ALI---Petitioner

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and others---Respondents

Civil Petition No. 460 of 2022, decided on 21st November, 2023.

(On appeal from the Order dated 05.01.2022 passed by the Punjab Service Tribunal, Lahore in Appeal No. 2547 of 2020)

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

----S. 19(2)---Punjab Technical Education and Vocational Training Authority Act (X of 2010), S. 20---Appeal before the Service Tribunal---Limitation---Petitioner (employee) filed a Departmental Appeal before the Chairman, TEVTA on 26.02.2020 which remained pending---During the intervening period, the petitioner also filed a representation before the Chief Secretary, Government of Punjab which remained undecided and according to him, in the same period of time, there was also a lockdown due to COVID-19 pandemic---Though the petitioner approached the learned Tribunal on 16.06.2020, record showed that during the pendency of appeal before the Tribunal, the Chairman TEVTA decided the pending departmental appeal of the petitioner vide order dated 30.11.2020---Tribunal dismissed the service appeal of the petitioner predominantly on the ground of limitation and observed in the impugned order that, according to section 19(2) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ("PEEDA Act") the petitioner was required to approach the Tribunal between 26.04.2020 and 26.05.2020, but he filed the appeal in the Tribunal on 16.06.2020 with a delay of 20 days, hence appeal filed by the petitioner was dismissed being barred by time---Validity---Before non-suiting the petitioner on the ground of limitation, the fundamental question with regard to the competent authority should have been determined by the Tribunal vis-à-vis the claim and assertion of the petitioner whether being a civil servant, he rightly approached the Chief Secretary and, if he was not competent, then which was the competent authority for deciding his departmental appeal under the Punjab Technical Education and Vocational Training Authority Act, 2010 (TEVTA Act)---Tribunal should have also determined another crucial aspect of lockdown due to COVID-19 pandemic which had direct nexus with the plea of limitation in view of the notification, if any, issued from time to time by the Service Tribunal, relaxing the period of limitation during the lockdown period or following any other notification issued by the Federal Government or Government of Punjab and/or the Lahore High Court during the COVID-19 pandemic and then the appeal should have been decided where obviously the question of limitation could also be adverted to by the Service Tribunal whether any relaxation for freezing or immobilizing the period of limitation for filing appeal was available to the petitioner during interacted period attributable to lockdown as a result of COVID-19 or not?---Petition for leave to appeal was converted into an appeal and allowed, the impugned order of the Tribunal was set aside and the matter was remanded to decide the appeal afresh, preferably within a period of 60 days.

Petitioner in person.

Barrister Muhammad Mumtaz Ali, Additional Advocate General, Punjab for Respondents.

2024 S C M R 40

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

HUMAN RIGHT CASE NO. 8157-P OF 2023: In the matter of

Human Right Case No. 8157-P of 2023, decided on 8th November, 2023.

(Application in respect of Property Dispute)

Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of the Supreme Court under Article 184(3) of the Constitution--- Scope--- Private complaint/ grievance---Alternate remedy, availability of---Application under Article 184(3) of the Constitution filed by the applicant before the Supreme Court leveling serious allegations against the personnel of Inter Services Intelligence ('ISI') and Pakistan Rangers (Punjab) of misusing their office, and committing crimes against the applicant and his family---Maintainability---Nature of a case filed under Article 184(3) of the Constitution is different from other cases, for a number of reasons---Firstly, the Supreme Court under Article 184(3) of the Constitution exercises original power, and whenever original power is exercised it must be done cautiously---Secondly, where there exists other forum(s) to attend to the same it is best that they first do so---Thirdly, against the decision of a High Court appeals may come before the Supreme Court under Article 185 of the Constitution---Fourthly, direct intervention by the Supreme Court under Article 184(3) of the Constitution may adversely affect the rights of others---Application filed by the applicant was held to be not maintainable with the observations that as far as the applicant's apprehension that his complaint/grievance would not be entertained by the Ministry of Defence, because the respondents had held senior positions in the Armed Forces, the Additional Attorney General assured the Court that the complaint/grievance will be given due consideration; that there was no reason to doubt this statement made on behalf of the Government of Pakistan, therefore, the apprehension of the applicant is misplaced, and that, if the applicant submits a complaint/grievance to the Ministry of Defence of the Government of Pakistan, it shall be dealt with in accordance with law.

In Attendance:

Hafeez-ur-Rehman Ch., Advocate Supreme Court and Shaheryar Tariq, Advocate Supreme Court for Applicant along with Moeez Ahmed Khan, Applicant

Ch. Aamir Rehman, Additional Attorney-General for Pakistan on Court's call.

2024 S C M R 43

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, Yahya Afridi and Ayesha A. Malik, JJ

FAHEEM ULLAH---Petitioner

Versus

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

Criminal Petitions Nos. 1174 and 1202 of 2023, decided on 20th November, 2023.

(On appeal against the judgment dated 25.09.2023 passed by the Peshawar High Court, Peshawar in Criminal Misc. (B.A.) Nos. 2879-P and 2933-P of 2023)

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 452, 427, 354, 34, 506, 148 & 149---Constitution of Pakistan, Art. 185(3)---House-trespass after preparation for hurt, assault or wrongful restraint, mischief causing damage to the amount of fifty rupees, assault or criminal force to woman with intent to outrage her modesty, common intention, criminal intimidation, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Offences not falling within prohibitory clause of section 497, Cr.P.C---Previous enmity between the parties---Accused was nominated in two FIRs---All the offences mentioned in the two FIRs fell out of the prohibition contained in section 497 of the Criminal Procedure Code (Cr.P.C.)---Record showed that there was some previous enmity between the parties over the lodging of an FIR---Accused was behind bars for a period of more than five months and his trial in both FIRs had not concluded---Petitions for leave to appeal were converted into appeals and allowed and accused was granted bail in both FIRs.

Iltaf Samad, Advocate Supreme Court for Petitioner (in both cases).

Altaf Khan, Additional A.G. Khyber Pakhtunkhwa and Javed, Inspector for the State.

Mst. Nusrat, Maazullah (Husband) in person for the Complainant.

2024 S C M R 46

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

SUNDAS and others---Petitioners

Versus

KHYBER MEDICAL UNIVERSITY through V.C. Peshawar and others---Respondents

Civil Petitions Nos. 1354, 355 and 1447 of 2020, decided on 12th October, 2023.

(Against the judgment dated 12.02.2020 of the High Court of Peshawar respectively passed in Writ Petitions Nos.219-A of 2018, 258-A of 2019 and 1312-P of 2018)

(a) Educational institution---

----Medical college---Examination Regulations---Judicial review---Scope---Standards prescribed and set out in the regulations relating to academic bodies, determination of eligibility to pursue studies and other related policies are generally not open to judicial review unless they can be clearly shown to contravene the law or to be shockingly unreasonable or perverse.

Courts are required to exercise utmost restraint in matters relating to policies, discipline and other academic affairs of educational institutions. Refusing to interfere is a rule and deviation therefrom is an exception which can only be justified on the basis of clear and undisputed violation of the law. The reluctance of the courts to interfere with academic affairs is based on the foundational principle that the academicians and educational institutions are the best judges because formulating policies and eligibility criteria falls within their exclusive domain. The standards prescribed and set out in the regulations relating to academic bodies, determination of eligibility to pursue studies and other related policies are generally not open to judicial review unless they can be clearly shown to contravene the law or to be shockingly unreasonable or perverse. The courts are not equipped nor have the capacity to deal with academic matters, let alone substituting opinions formed by experts or professionals.

Muhammad Hamid Shah v. Pakistan Medical and Dental Council and others 1996 SCMR 1101; Ms. Asma Ghafoor v. Principal, King Edward Medical College and others 2011 SCMR 1311; Munaza Habib and others v. The Vice Chancellor and others 1996 SCMR 1790 and VC University of Punjab v. Mst. Maria Hidayat Khan and others 2007 SCMR 1231 ref.

Every citizen is unquestionably entitled and enjoys a right to choose the pursuit of a profession or trade but such a right is not absolute. The regulating authority may set minimum standards in the context of exercising the right in order to safeguard the interests and welfare of the public. Pakistan Medical and Dental Council Ordinance, 1962 and the regulations made pursuant to powers conferred thereunder regulate the medical profession, including the affairs of the medical education and institutions, to promote the interest and wellbeing of the ultimate stakeholders i.e the public who would repose and rely on the knowledge and skill of medical practitioners. They will be placing their lives in the hands of those students who would be graduating from the medical institutions. In the present case the standards set by the experts under the MBBS/BDS Courses and Conditions for House Job/ Internship/ Foundation Year Regulations, 2013 regarding the determination of eligibility, including the necessary skills and knowledge required to pursue the medical profession are, therefore, not open to judicial review, nor can the court substitute them with its own.

(b) Administration of justice---

----Relief---Scope---Compassion and hardship---It is the duty of every court to implement the enforced laws and to decide the disputes in accordance therewith, rather than on the basis of compassion---Courts cannot grant any relief in breach of the law nor create a right in favour of a litigant which the latter does not possess by or under the law---Compassion and hardship cannot be relevant considerations when there is no scope for it in the relevant laws.

Director General, National Savings v. Balqees Begum and others PLD 2013 SC 174 and Aina Haya v. Principal, Peshawar Model Girls High Court and others 2023 SCMR 198 ref.

Ms. Shirin Imran, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1354 and 1355 of 2020).

Amjad Ali, Advocate Supreme Court for Petitioners (in C.P. No. 1447 of 2020).

Abdul Munim Khan, Advocate Supreme Court for Respondents (in all cases).

2024 S C M R 51

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Muhammad Ali Mazhar and

Syed Hasan Azhar Rizvi, JJ

MUHAMMAD RIAZ---Petitioner

Versus

KHURRAM SHEHZAD and another---Respondents

Criminal Petition No. 290-L of 2015, decided on 27th October, 2023.

(On appeal from the judgment dated 02.03.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No.89 of 2011)

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Reappraisal of evidence---Appeal against acquittal---Presence of witnesses at place of incident doubtful---Defective investigation---Conflict between ocular and medical evidence---Ocular testimony in the case was led by the complainant, and two other persons who were residents of a village situated around 30 to 35 kilometers from the place of occurrence---Incident occurred in the night at 8:55 p.m. in the month of October and the testimony of the eye-witnesses remained unsuccessful in establishing any source of light at the scene of the crime---It was only after a lapse of two and a half months of the incident that the respondent (acquitted accused) was implicated in the case---No identification parade was conducted for determining the involvement of the accused persons and the evidentiary value of identification at a belated stage had little value in the eyes of the law, more particularly when the lineaments and physiognomy of the accused were not mentioned anywhere by the complainant or the eye-witnesses---Investigating Officer (I.O.) did not show the place of incident in the site plan through the prosecution claimed that the incident occurred near a hotel; I.O. also admitted that he had not demarcated the place from where the accused had fired at the victim in the rough site plan, nor had the prosecution witnesses shown him the specific place of death of the deceased at the site of the occurrence; I.O. further admitted that he had called upon the inhabitants of the place of occurrence i.e. owners of the nearby haveli and service station, but they could not provide any detail of the occurrence or any description of the assailants---As per the prosecution case, the deceased sustained two firearm injuries, however the postmortem report revealed that only one firearm injury was found on the deceased's body---High Court rightly held that the prosecution failed to substantiate the case against the respondent---Petition for leave to appeal was dismissed and leave was refused.

(b) Criminal trial---

----Presence of eye-witnesses on the spot doubtful---In such a situation, the ocular testimony (of the alleged eye-witness) should be excluded from consideration.

(c) Criminal trial---

----Benefit of doubt---Principle---It is not obligatory or compulsory that there should be several circumstances creating doubts in order to justify the extension of benefit of doubt to the accused; on the contrary, even a simple circumstance creating reasonable doubt vis-a-vis, the guilt of the accused is sufficient to entitle him to such benefit.

(d) Criminal trial---

----Evidence---Multiple conclusions---Preference---If two sensible and judicious conclusions can be drawn keeping in mind the substance of the evidence, then the view which espouses and provides backing towards acquittal must be subscribed and assented to.

(e) Appeal against acquittal---

----Double presumption of innocence---Scope---In an appeal against acquittal, the Court would not ordinarily interfere and would instead give due weight and consideration to the findings of the Court acquitting the accused which carries a double presumption of innocence, i.e. the initial presumption that an accused is innocent until found guilty, which is then fortified by a second presumption once the Court below confirms the assumption of innocence, which cannot be displaced lightly.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and The State and others v. Abdul Khaliq and others PLD 2011 SC 554 ref.

(f) Appeal against acquittal---

----Interference in an acquittal judgment by the Appellate Court---Grounds---Courts are slow in interfering with an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, or suffers from errors of grave misreading or non-reading of the evidence---Such judgments should not be lightly interfered with and a heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal---Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result, into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn---Acquittal judgment should not be interjected until the findings are perverse, arbitrary, artificial, speculative, and ridiculous---Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, and the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities.

(g) Constitution of Pakistan---

----Art. 10-A---Phrase "the accused is the favourite child of law"---Connotation---Said phrase does not imply that the Court should grant any unwarranted favour, indulgence or preferential treatment to the accused, rather it was coined to maintain a fair-minded and unbiased sense of justice in all circumstances, as a safety gauge or safety contrivance to ensure an evenhanded right of defence with a fair trial for compliance with the due process of law, which is an integral limb of the safe administration of criminal justice and is crucial in order to avoid erroneous verdicts, and to advocate for the reinforcement of the renowned doctrine "innocent until proven guilty".

Mukhtar Ahmad Gondal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Mirza Abid Majeed, D.P.G. Punjab for the State.

2024 S C M R 60

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Syed Mansoor Ali Shah, Amin-ud-Din Khan

and Athar Minallah, JJ

General (Retd.) PERVEZ MUSHARRAF---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

Criminal Misc. Appeal No. 6/2020 in Criminal Appeal No. Nil/2020, decided on 10th November, 2023.

(Against the order of the Registrar dated 17.01.2020)

Criminal Law Amendment (Special Court) Act (XVII of 1976)---

----S. 12(3)---Supreme Court Rules, 1980, O. XXIII, R. 8, proviso---Appeal against judgment of Special Court filed before the Supreme Court---Office objection---Appeal against---Inordinate delay in fixing appeal against the office objection---Appellant was convicted by a Special Court and the criminal appeal against such judgment was filed within time before the Supreme Court---However, the criminal appeal was not numbered as the Institution Officer of the office of the Supreme Court objected to its filing as the appellant had not surrendered himself---Against the said office objection, Criminal Miscellaneous Appeal ("C. M. Appeal") was filed which was put up for hearing in Chamber before a Judge of the Supreme Court, who after noting the contentions of the counsel, observed vide his order that it would be appropriate that the points were considered by a Bench of the Supreme Court, therefore the 'C. M. Appeal' be fixed before the Court for hearing---However, said appeal was not fixed in Court till today, and the appellant passed away in the meantime---Held, that it was unfortunate that despite the order of the Judge in Chamber, directing that the 'C. M. Appeal' be fixed in Court this was not done till today, that is, the same was not fixed for a period of over three years and eight months for no discernable reason---For this inordinate delay neither the appellant nor his counsel could be faulted---No one should be made to suffer on account of an act of Court, or as in this matter, on account of inaction---Even otherwise an appeal is the right of every convict---Accordingly, the 'C. M. Appeal', assailing the office objection, was allowed with the directions that the unnumbered criminal appeal filed by the appellant against his conviction be numbered, and the record of the Special Court be summoned and be put up along with the said appeal for hearing in Court.

Salman Safdar, Advocate Supreme Court for Appellant

Nemo for Respondents.

2024 S C M R 63

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Syed Mansoor Ali Shah, Amin-ud-Din Khan

and Athar Minallah, JJ

1. Civil Misc. Application No. 677/20 in C.P. NIL/20

[Under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980 read with Order I, Rule 10, C.P.C. for permission to file and argue the titled CPLA]

1. Civil Misc. Application No. 1875/20 in C.P. NIL/20

[Under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980 read with Order I, Rule 10, C.P.C. for permission to file and argue the titled CPLA]

1. Civil Misc. Application No. 1580/20 in C.P. NIL/20

[Under Article 187 of the Constitution, 1973 read with Order XXXIII, Rule 6 of the Supreme Court Rules, 1980 for permission to file CPLA]

1. Civil Misc. Application No. 656-L/20 in C.P. NIL-L/20

[Under Order V(2)(ii) of the Supreme Court Rules, 1980 for permitting the present applicant to file the titled CPLA]

TAUFIQ ASIF and others---Applicants

Versus

General (Retd.) PERVEZ MUSHARRAF and others---Respondents

Civil Misc. Application No. 677/20 in C.P. NIL/20, Civil Misc. Application No. 1875/20 in C.P. NIL/20, Civil Misc. Application No. 1580/20 in C.P. NIL/20 and Civil Misc. Application No. 656-L/20 in C.P. NIL-L/20, decided on 10th November, 2023.

Criminal Law Amendment (Special Court) Act (XVII of 1976)---

----Ss. 6(1)(f) & 12(3)---Constitution of Pakistan, Art. 199---Trial of accused before the Special Court---Supreme Court taking cognizance of the trial and passing certain directions therein---High Court entertaining a writ petition filed by the accused despite Supreme Court having taken cognizance of the trial---Constitutionality and legality---Special Court comprising of three Judges of the High Court conducted the trial of respondent No. 1 at Islamabad and convicted him---During an interim stage of the trial the matter had come up before the Supreme Court, which took cognizance of the trial before the Special Court at Islamabad and gave certain directions to the Special Court (to proceed with the trial in the absence of accused)---However, in complete disregard of the fact that the Supreme Court had taken cognizance of the Special Court's trial at Islamabad and had sustained it the Lahore High Court entertained a writ petition filed by respondent No. 1, and then allowed it (declaring the formation of the special court as violative of law, and devoid of legal sanctity)---Counsel for the applicants submitted that the Lahore High Court had no territorial jurisdiction; that the jurisdiction of special courts is attended to in section 12 of the Criminal Law Amendment (Special Court) Act, 1976 and the purported judgment by the Lahore High Court was in derogation thereof; that the Lahore High Court did not have constitutional jurisdiction under any of the provisions of Article 199 of the Constitution; that the purported judgment of the Lahore High Court was ab initio void, illegal, unconstitutional and coram non judice; that the writ petition was not maintainable before the Lahore High Court; that the Lahore High Court assumed jurisdiction which exclusively vested in the Supreme Court, under section 12(3) of the Criminal Law Amendment (Special Court) Act, 1976; and that the Lahore High Court had acted in complete derogation of the Constitution and of the law and that it is the duty of bar associations, bar councils and lawyers to ensure that the Constitution and the law is not violated and, if such illegalities are committed, to bring the same to the notice of the Supreme Court to rectify them---Validity---Supreme Court observed that the said submissions were substantial and legal points which required consideration---Supreme Court directed that the office shall number the present petitions and issue notices to the respondents, except respondent No. 1 who had since passed away, however, the legal heirs of respondent No. 1 may come forward to join these cases; that the record of the writ petition before the Lahore High Court, including the office file directing fixing of the case and constitution of special bench be requisitioned from the Lahore High Court and be put up along with present petitions on the date they are fixed before the Supreme Court for hearing--- Applications were allowed accordingly.

Lahore High Court Bar Association v. General (Retd.) Pervez Musharraf, 2019 SCMR 1029 and Pervez Musharraf v. Federation of Pakistan PLD 2020 Lah. 285 ref.

Hamid Khan, Senior Advocate Supreme Court (through video-link from Lahore) along with applicant in person for Applicant (in C.M.A. 677 of 2020).

Haroon-ur-Rasheed, Advocate Supreme Court for Applicant (in C.M.A. 1875 of 2020).

Rasheed A. Rizvi, Senior Advocate Supreme Court (through video-link from Karachi) for Applicant (in C.M.A. 1580 of 2020).

Applicant in person (in C.M.A. 656-L of 2020).

Ch. Aamir Rehman, Additional Attorney-General for Pakistan.

Nemo for Respondents.

2024 S C M R 67

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

SOHAIL AKHTAR and another---Petitioners

Versus

The STATE and another---Respondents

Jail Petition No. 345 of 2017 and Criminal Petition No. 465 of 2017, decided on 25th September, 2023.

(Against the judgment dated 01.11.2016 of the Lahore High Court, Multan Bench passed in Cr. A. No.716/2012 and M.R. No.53 of 2011)

(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---From the evidence of the prosecution witnesses it is well established that the petitioner/convict had committed the murder of deceased and caused injuries to his son---Ocular account of the occurrence is in line with the medical evidence brought on the record---Prosecution witnesses have not been shattered during cross examination and their evidence is confidence inspiring---In the circumstances, the prosecution has successfully brought home guilt against the petitioner beyond any shadow of doubt---Conviction of petitioner was maintained---Jail petition was 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---Reappraisal of evidence---Petition seeking enhancement of sentence, dismissal of---Inconsequential recovery---High Court through the impugned judgment has rightly termed the recovery as inconsequential keeping in view the fact that crime empties secured from the place of occurrence were dispatched to the Forensic Science Laboratory after arrest of the petitioner/convict---Judgment passed by the High Court, whereby it reduced the death sentence awarded to petitioner/convict into imprisonment for life, is well reasoned and based on proper appreciation of evidence available on the record---Petition filed by the complainant for enhancement of sentence was dismissed and leave was refused.

Mian Liaquat Ali, Advocate Supreme Court for Petitioner (in J.P. No.345 of 2017).

Syed Iqbal Hussain Shah Gillani, Advocate Supreme Court for Petitioner (in Cr. P. No.465 of 2017).

Mirza Abid Majeed, D.P.G. for the State.

2024 S C M R 71

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

AMAN ULLAH---Petitioner

Versus

UNITED BANK LIMITED through President and others---Respondents

Civil Petition No. 6117 of 2021, decided on 2nd October, 2023.

(Against the Order dated 23.09.2021 passed by the Peshawar High Court, Peshawar in W.P. No.503-P of 2021)

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

----Ss. 2(xxxiii) & 33---Workman---Scope---Manager of a private Bank---Whether a workman for purposes of Industrial Relations Act, 2012---Held, that record reflected that the petitioner was posted as Manager of a private bank's branch and also had the power of attorney of the Bank and two other persons, namely the Operation Manager, and the Chief Teller, both were performing their duties under the petitioner's supervision---Petitioner admitted that his functions included managing, coaching and monitoring of staff; it was also his job to physically verify and check vouchers and cash at the time of closing of the Branch every day---During further cross-examination, the petitioner admitted that in light of the powers granted to him in the power of attorney, he used to supervise, cancel and pass instruments during the course of his daily work---Wide ranging and comprehensive powers conferred upon the petitioner were of such nature and responsibility that could only be granted to a person having the status of manager, officer or the person having the category of supervisory duties---All courts below after proper appreciation of facts rightly held that the petitioner was not 'workman', hence he could not maintain a grievance petition in the NIRC---Petition for leave to appeal was dismissed and leave was refused.

21st Century Dictionary (page 833); Words and Phrases, (Permanent Edition 26 at Pages 366 and 369); Hodges v. Bankers Surety Co., 152 Ill.App. 372; Gillis v. Great Atlantic and Pacific Tea Co., 27 S.E.2d 283, 285, 223 N.C. 470, 150 A.L.R. 1330; Manning v. Lamb, D.C.Mun.App., 89 A.2d 882, 884 and Black's Law Dictionary, (Tenth Edition), Page 1104 ref.

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

----S. 2(xxxiii)---Workman---Scope---Mere nomenclature of an assigned post is not relevant in determining the status of an employee and assessing whether he is performing the duties of a worker or workman, or a manager, officer or supervisor---Rather the paramount and predominant consideration is the nature of the job, and if any employee claims that he was performing the duties of a worker/workman, the burden lies on him to discharge if he claims contrary to the job description assigned to him separately or by means of appointment letter or subsequently made any change in the job description through up-gradation or promotion which detached or estranged the status of employee from workman to managerial or supervisory post---Litmus test is the nature of job actually being performed rather than the nomenclature of the job simpliciter.

Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 PLC 424; National Bank of Pakistan v. Punjab Labour Court No. 5, Faisalabad and 2 others 1993 SCMR 672; National Bank of Pakistan and another v. Anwar Shah and others 2015 SCMR 434; Habib Bank Limited (HBL) v. Gulzar Khan 2019 SCMR 946 and Muslim Commercial Bank Limited (MCB) and others v. Muhammad Shahid Mumtaz and another 2011 SCMR 1475 ref.

Qazi Jawad Ehsan Ullah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2024 S C M R 80

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Shahid Waheed, JJ

SANAULLAH SANI---Petitioner

Versus

SECRETARY EDUCATION SCHOOLS and others---Respondents

Civil Petition No. 1276 of 2020, decided on 17th August, 2023.

(Against the order dated 11.10.2019 passed by the Punjab Service Tribunal in Appeal No. 4309 of 2012)

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

----Ss. 5(1) & 7(1)--- Charges of inefficiency, misconduct and corruption---Show cause notice---Purpose of a show cause notice and essential elements to which a show cause notice must conform stated.

A show cause notice is not an accusation made or information given in abstract but an accusation made against an employee in respect of an act committed or omitted, cognizable thereunder. As such, the law intends that a show cause notice must conform to at least seven essential elements, and these include:

(i) it should be in writing and should be worded appropriately;

(ii) it should clearly state the nature of the charge(s), date, and place of the commission or omission of acts, along with apportionment of responsibility;

(iii) it should clearly quote the clause of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ('PEEDA') under which the delinquent is liable to be punished;

(iv) it should also indicate the proposed penalty in case the charge is proved;

(v) it should specify the time and date within which the employee should submit his explanation in writing. It is also preferable to add in the show cause notice that if no written explanation is received from the accused within the prescribed date, the enquiry will be conducted ex-parte;

(vi) it should be issued under the signature of the competent authority; and

(vii) it should contain the time, date and place of the inquiry and the name of the inquiry officer.

Strict compliance of the above conditions is vital so that the principle of natural justice is not violated. The charges made in the show cause notice should not be vague. All the acts of commission or omission constituting the charge, and also forming the ground for proceeding against the employee, should be clearly specified because otherwise, it will be difficult for an employee, even by projecting his imagination, to discover all the facts and circumstances that may be in the contemplation of the competent authority to be established against him, and thus, it will not only frustrate the requirement of giving him a reasonable opportunity to put up a defence but also amount to a violation of his fundamental right to a fair trial.

State of Andhra Prdesh and others v. Sree Rama Rao AIR 1963 SC 1723; Surath Chandra Chakravrty v. The State of West Bengal AIR 1971 SC 752; Sawai Singh v. State of Rajasthan (1986) 3 SCC 454 and Anil Gilurker v. Bilaspur Raipur Kshetria Gramin Bank and others (2011) 14 SCC 379 ref.

In the present case the first charge levelled against the petitioner (retired employee) was corruption, but the alleged acts of omission and commission stated in the notice/order lacked material particular to that charge. It did not mention that the petitioner had accepted a huge bribe from anyone. Therefore, the Inquiry Officer could not have read this charge in the show cause notice/order, and it appears that this is why the Inquiry Officer did not mention this charge in his report. The Inquiry Officer, in his report has not referred to any statement of witness which says the taking of bribe by the petitioner. This charge, therefore, fails on two counts: one, assuming the alleged acts of omission and commission are correct, no case of corruption is made out from there, and two, no evidence has been brought on record to prove the same. So, this charge could not have led to any punishment.

Mian Abdul Qadeer v. Government of Pakistan and others 2005 SCMR 1560 and Muhammad Alamzeb Khan v. Registrar, Peshawar High Court, Peshawar and another 2008 SCMR 1406 ref.

The petitioner was also charged with misconduct and inefficiency on the basis that he allowed three absentee teachers to join duty without checking the office records and genuineness of their appointment orders and thus, caused a heavy loss to the government exchequer. A perusal of the inquiry report indicates that the Inquiry Officer, instead of proving the charges of misconduct and inefficiency, had put in his energy to establish that the appointment orders of the teachers were not genuine. This fact alone is sufficient to conclude that when the petitioner allowed the teachers to join duty, no complaint or adverse material against them was available. In such a situation, the petitioner was not expected to have checked the genuineness of the appointment orders of the teachers while allowing them to resume duty. So, again, the charges were vague, which vitiates the inquiry proceedings and the resultant punishment.

Lal Muhammad and another v. Government of Sindh 1980 SCMR 850 ref.

The charges levelled against the petitioner were laconic, and the Inquiry Officer has taken into consideration non-existing material, and findings of all facts recorded by him cannot be sustained in the eye of law. And so, the punishment awarded also loses the backing of the law.

Allah Bakhsh, Foodgrain Supervisor (Retd.) v. Director Food, Punjab, Lahore and others 2006 SCMR 403 ref.

Petition for leave to appeal wass converted into an appeal and allowed, the judgment of the Service Tribunal was set aside, the punishment order was quashed, and the department/respondents were directed to restore the full pension of the petitioner, and refund the amount of Rs.963,467/- along with the amount so far recovered from the pension of the petitioner.

(b) Public functionaries---

----Acts performed and orders made by public authorities---Such acts and orders deserve due regard by Courts, and every possible explanation for their validity should be explored, and the whole field of powers in pursuance of which the public authorities act or perform their functions should be examined, and only then if it is found that the act done, order made or proceedings undertaken is without lawful authority should the Courts declare them to be of no legal effect.

(1) The Chairman, East Pakistan Railway Board, Chitta Gong; and (2) District Traffic Superintendent, Pakistan Eastern Railway, Pahartali, Chitta Gong v. Abdul Majid Sardar, Ticket Collector, Pakistan Eastern Railway, Laksam PLD 1966 SC 725 and Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others and University of the Punjab, Lahore v. Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811 ref.

(c) Administration of justice---

----Judicial order---Proper adjudication---Judicial order must be a speaking order manifesting by itself that the Court or Tribunal has made an effort to resolve the questions involved for their proper adjudication---If the final order does not bear an imprint of such effort and, on the contrary, discloses arbitrariness of thought and action, the inescapable result would be that justice had neither been done nor seemed to have been done.

Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 ref.

Ch. Afrasiab Khan, Advocate Supreme Court and M. Mehmood Chaudhry, Advocate Supreme Court along with Petitioner (in person) for Petitioner.

Sanaullah Zahid, Additional A.G., Punjab and Muhammad Imran, Law Officer, School Education Department, Government of Punjab for Respondents.

2024 S C M R 89

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

JAVED HAMEED and others---Petitioners

Versus

AMAN ULLAH and others---Respondents

Civil Petition No.1990-L of 2017, decided on 10th November, 2023.

(Against the judgment dated 3 May 2017 passed by Lahore High Court Multan Bench, Multan in Civil Revision No.133-D of 2017)

(a) Constitution of Pakistan---

----Art. 23---Protracted litigation---Plaintiff dragging out litigation to continue illegal possession over defendant's property---Costs, imposition of---Suit was filed by plaintiffs-petitioners on 16 September 2009 and was dismissed on 30 April 2016, that is, after a period of about 7 years---Perusal of order sheets of the trial court showed that despite repeated opportunities the petitioners-plaintiffs did not come forward to give evidence---Despite having lost thrice (in the for a below) the petitioners deemed it fit to file a frivolous petition for leave to appeal against the judgment of the High Court---Petitioners were in possession of the suit property and the apparent reason for dragging out the litigation was that the petitioners-plaintiffs were in illegal possession of land and their possession continued till date---By such tactics the respondents-defendants were deprived of their properties; their fundamental right, enshrined in Article 23 of the Constitution, to hold and dispose of property, violated, and the process of the court abused to procrastinate matters indefinitely by the petitioners who were in possession and had no intention to relinquish possession of the respondents' land---Courts must be vigilant that the process of the court is not abused, and ensure that legitimate owners are not deprived of their properties---From the date of filing of the suit till date 14 years had elapsed, and petitioners who were not entitled to the said land continue in possession of it, probably thinking there would no consequences for their actions---Such an impression must be corrected---Petition for leave to appeal was dismissed with costs of one million rupees with the direction that such amount shall constitute a charge on the property of the petitioners till such time the said amount was paid, and the petitioners shall handover the peaceful possession of the said land to the respondents.

(b) Administration of justice---

----Costs, imposition of---Courts must impose costs whenever it is required, stem frivolous litigation and stop the abuse of the process of the court in perpetuating wrongdoing.

Syed Muhammad Ali Gillani, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2024 S C M R 92

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Sayyed Mazahar Ali Akbar Naqvi and Irfan Saadat Khan, JJ

Mst. SHAHIDA SIDDIQA and others---Appellants

Versus

ALLIED BANK LIMITED through President and others---Respondents

Civil Appeals Nos. 836-L and 837-L of 2013, decided on 14th November, 2023.

(Against the judgment dated 16.1.2013 passed by Lahore High Court, Lahore in W.Ps. Nos. 25273 and 23756 of 2011)

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

----S. 47(3)---Employee of a private bank---Allegation of negligence and carelessness in performing duties---Demotion to a lower grade with entitlement to all back benefits---Respondent Bank imposed a major penalty on the appellant (employee) and dismissed her from service---Labour Court reinstated her in the Bank's service albeit with a lower Grade, and declined to award her any back benefits---Appellate Tribunal, upheld the order of the Labour Court---However, the High Court modified the penalty to compulsory retirement---Validity---Main allegation against the appellant was that she had been negligent in performing her duties by disclosing a secret code to her former Bank Manager, who defrauded the Bank and misappropriated hefty amounts---Impugned Judgment of the High Court appeared to be self-contradictory as the High Court had first observed that the appellant had an unblemished past career, spanning over 28 years, and that her dismissal from service would be a harsh punishment; and yet, the High Court found it appropriate to then observe that the appellant be compulsory retired from service---Such observations of the High Court in fact defeat the ends of justice rather than fostering the same, as awarding compulsory retirement would be equivalent to meting out harsh treatment to her---Given the fact that the Labour Court and the Appellate Tribunal found the appellant negligent of not properly keeping the secret code but did not see any merit in the allegations of embezzlement, the imposition of a major penalty of compulsory retirement from service would definitely be harsh---Appeal was partly allowed, impugned judgment of the High Court was set-aside, and judgments of the Labour Court and Appellate Tribunal were upheld to the extent of the demotion to a lower grade; with the modification that the appellant will be entitled to all back benefits as available to a Grade-III Officer, from the date of her dismissal to the date of her retirement, and she will also be entitled to all the pensionary benefits as available to the said Grade Officer.

Saifullah v. Divisional Superintendent, Postal Services 2016 SCMR 1430 and Auditor-General of Pakistan v. Muhammad Ali 2006 SCMR 63 ref.

(b) Master-servant---

----Penalty imposed on employee---Proportionality---Penalty should be proportionate to the guilt---Modern notion of proportionality requires that the punishment ought to reflect the degree of moral culpability associated with the offence for which it is imposed.

Divisional Superintendent, Postal Services v. Nadeem Raza 2023 SCMR 803 ref.

Appellants in Person (in C.A. No. 836-L of 2013).

Farooq Zaman Qureshi, Advocate Supreme Court (through video link from Lahore) for Appellants (in C.A. No. 837-L of 2013).

Farooq Zaman Qureshi, Advocate Supreme Court (through video link from Lahore) for Respondents (in C.A. No. 836-L of 2013).

Respondents in person (in C.A. No. 837-L of 2013).

2024 S C M R 97

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

PAKISTAN RAILWAYS through Chief Executive Officer/ Senior General Manager, Lahore and another---Petitioners

Versus

MUHAMMAD ASLAM---Respondent

Civil Petition No. 3501 of 2021, decided on 12th July, 2023.

(Against the Judgment dated 16.04.2021 passed by the Federal Service Tribunal, Islamabad, in Appeal No.2137(R)CS/2018 with MPs Nos.2262 of 2018 and 215 of 2019)

(a) Civil service---

----Absorption---Valuable right in favour of employee, accrual of---Locus poenitentiae, doctrine of---Respondent was absorbed as Guard Grade-I in Pakistan Railways vide notice dated 06.08.2012, but, after a lapse of six years, he was denied the absorption vide another notice dated 02.08.2018 when certain valuable rights had already accrued in his favour which could not be denied keeping in mind the principle of locus poenitentiae---Record reflects that the department before the Service Tribunal failed to justify the action of rescinding the earlier order issued in favour of respondent, therefore, the Tribunal reached the correct conclusion that the respondent was discriminated against and the action taken against him was illegal and as a consequence thereof, the service appeal was allowed---Petition for leave to appeal was dismissed and leave was refused.

(b) Locus poenitentiae, doctrine of---

----Power of rescission---Scope---Such power remains with the relevant authorities to undo the action till a decisive step is taken or as long as certain rights are not created or the action is found to be patently illegal.

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

----O. XXII, R. 1---No abatement by party's death, if right to sue survives---Scope---Deceased person cannot be a party to any legal proceeding and, on his death, legal proceedings are suspended until and unless his legal representatives are impleaded and swapped as party provided that the cause of action survives which is indeed a prime consideration to declare any legal proceedings abated before the final adjudication---By and large, the right to sue survives except the right to sue which is closely associated with the individual or is a personal right of action.

Umer Sharif, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

2024 S C M R 101

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

AYAZ and others---Petitioners

Versus

MUSTAFA SAEED and others---Respondents

Civil Petitions Nos. 231 and 183-K of 2022 and 827 of 2023, decided on 27th November, 2023.

(a) Civil service---

----Notification, memorandum, order, etc issued by a Department---Every government servant must mention his name and designation in every notification, memorandum, order, etc.

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

----Rr. 12(1) & 12(2)---Notification No.SO-II(SGA&CD)5-64/2011 dated 27 July 2020 ('the Notification')---Posts advertised by the Provincial Forests and Wildlife Department---Eligibility criteria for candidates---Notification granting 15 years age relaxation---Legality---Rule 12(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 ('the Rules') stipulates that the education, qualification, experience and age limit for the post be provided---Rule 12(2) of the Rules states that the stipulated age may be relaxed to the extent mentioned in the Table by the authorities mentioned therein, which provides that upto one year age can be relaxed by the Head of the Department in all grades, for grade 16 and above the power to relax age of one year vests in the Head of the Department, for a period of three years the Secretary of the Department can relax it, upto five years the Chief Secretary can do so and upto 10 years the Minister Incharge or the Chief Secretary (if there is no Minister) can relax age---In the instant case, age has been relaxed by fifteen years, which means that candidates who are about forty-five years may also apply---In such circumstances the following questions arise; (i) If a rule provides a maximum age for a post why should it be relaxed? (ii) If at all age is to be relaxed should it not be in respect of an individual seeking it, provided he could justify it? (iii) Does blanket age relaxation not defeat the intent of the law, and defeat Rule 12(1) of the Rules? (iv) Whether the Notification, granting 15 years age relaxation conforms with the law? (v) Whether the interest of the people of the province is served when age is relaxed, who may only then have the benefit of the selected candidate's service for less than 15 years, since the retiring age is 60 years? (vi) Whether age should be relaxed when there is high unemployment and qualified candidates are available? (vii) What is a stipendiary candidate? (viii) The advertisement issued by the Commission stipulated selection of Assistant Conservator of Forests possessing certain educational qualification, and did not mention stipendiary candidates, therefore, why are stipendiary candidates to be selected? (ix) Why, after the publication of advertisement arbitrarily changes were made, and if so why fresh publication was not made?---Case was adjourned with directions to concerned officials and departments to file their concise statements with regard to the questions raised above.

M. Aqil Awan, Senior Advocate Supreme Court (through Video Link, Karachi) for Petitioners (in C.P. No. 231 of 2022).

Ghulam Sarwar Baloch, Advocate Supreme Court (through Video Link, Karachi) for Respondents Nos. 1 to 5 (in C.P. No. 231 of 2022).

Miran Muhammad Shah, Additional A.G. (through Video Link, Karachi) for Respondent No. 6 (in C.P. No. 231 of 2022).

Syed Qamar Hussain Sabzwari, Advocate Supreme Court for Respondent No. 16 (in C.P. No. 231 of 2022).

Miran Muhammad Shah, Additional A.G. and Dr. Abdul Jabbar Kazi, Additional Secretary, Forest and Wildlife (through Video Link, Karachi) for Petitioners (in C.P. 83-K of 2022).

Respondent No. 7 in person (through Video Link, Karachi) (in C.P. 83-K of 2022).

Syed Qamar Hussain Sabzwari, Advocate Supreme Court for Respondent No. 13 (in C.P. 83-K of 2022).

Syed Qamar Hussain Sabzwari, Advocate Supreme Court for Petitioner (in C.P. 827 of 2023).

Nemo for Respondents (in C.P. 827 of 2023).

2024 S C M R 105

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

AMIR WAHEED SHAH and others---Appellants

Versus

AJMAL KHAN and others---Respondents

C.A. No. 271 of 2015, decided on 20th November, 2023.

(Against the judgment dated 11.09.2014 passed by the Peshawar High Court, Bannu Bench in W.P. No. 326-B of 2013)

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

----Ss. 2(d) & 13---Suit for possession through pre-emption---Sale---Scope---Transaction in the nature of a gift not a sale---Right of pre-emption arises when the sale of land occurs---Sale, as per the definition provided in section 2(d) of the Khyber Pakhtunkhwa Pre-emption Act, 1987, does not include a gift---In the present case, the land was first sold to "M", and before this sale could be pre-empted by the respondent (pre-emptor), it was further transferred to "M's" sons (present appellants) by way of gift mutation---Person is entitled to evade law of pre-emption by all lawful and legitimate devices, like gift, exchange etc.---So, in the given circumstances of the case, respondent (pre-emptor) could not ignore the gift mutation while making his demand---Appropriate course for him was to say, firstly, that the second transaction was a sale (dubbed as a gift), meant to defeat his right of pre-emption; and secondly, that he had made all the requirements of Talbs regarding the second transaction---On the contrary, a perusal of the contents of the plaint showed that neither any Talb was made to pre-empt the second transaction nor any notice of Talb-i-ishhad was sent to the present appellants, which was fatal for his case---Appeal was allowed, and order of Revisional Court, whereby it rejected the plaint of the respondent, was restored.

Shah Nawaz Khan, Advocate Supreme Court for Appellants.

Syed Mastan Ali Shah Zaidi, Advocate Supreme Court and Sh. Mahmood Ahmad, Advocate-on-Record for Respondent No. 1.

Ex parte Respondents Nos. 2 - 3.

2024 S C M R 107

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

FAQIR MUHAMMAD---Petitioner

Versus

KHURSHEED BIBI and others---Respondents

Civil Petitions Nos. 1877-L and 1878-L of 2016, decided on 26th September, 2023.

(Against the Judgments dated 09.02.2016 passed by the Lahore High Court, Lahore in R.F.A. No. 459 and R.F.A. No. 460 of 2011)

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

----O. XLI, Rr. 1, 3 & 9---Appeal from original decree---Examination of memo of appeal and supporting documents---Jurisdiction, question of---Duty of Court and its staff---Scope---Order XLI, Rules 1, 3 & 9 of C.P.C. emphasize the onerous duty of the Court, including the Officer of the Appellate Court or any staff member of the Court (clerk of court/ chief ministerial officer) who has been authorized and assigned the task to accept the presentation of the memo of appeal before admission to diligently examine the memo of appeal, and judgment and decree, including all supporting documents, to ensure that everything is in order, and, if there is any doubt in the mind of the concerned Court clerk/official with regard to jurisdiction, they should raise the objection(s) and bring it to the attention of the Court to resolve it; and if the Court concludes at the time of admission that the appeal has been filed at the wrong forum, whether due to lack of territorial or pecuniary jurisdiction, or some other ancillary or incidental reasons, the memo of appeal should be promptly returned to the appellant to elect the right remedy and forum to avoid rendering the decision of the Court coram non judice at the end of the day.

(b) Jurisdiction---

----Principle---Parties cannot, by mutual consent, take away the jurisdiction vested in any Court of law, nor can they confer jurisdiction to any Court not vested in it by law.

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

----O. XLI, Rr. 1, 3 & 9---Limitation Act (IX of 1908), Ss. 3 & 5---Choosing or opting the wrong forum to present an appeal---Duty of Court and its staff---Scope---Without a doubt, it is the responsibility of the appellant and, more importantly, of their counsel, being a legal expert, to oversee and ensure after due diligence that the appeal is being preferred before the right forum without any deficiency or oversight of jurisdiction and advise the client accordingly, but at the same time, it is also the bilateral and collaborative responsibility of the concerned Court staff not to sit as a silent spectator, but to also examine the memo of appeal diligently and conscientiously at the time of its first -presentation in the Court i.e. before the stage of admission and raise objections immediately in writing, if any, with regard to jurisdiction and then invite the attention of the Court so that if the Court, after a preliminary hearing of the advocate or appellant, deems it fit to return the memo of appeal for presentation before the competent Court, the exercise should be done immediately rather than devastating or wrecking the residual period of limitation to approach the right forum---In the present case as far as the defect of choosing or opting the wrong forum to present the appeals was concerned, the circumstances reveal that the petitioner was not solely responsible, rather it was due to the inadvertence of the Appellate Court's staff that the question of pecuniary jurisdiction was not highlighted at the very initial stage in order to cure the defect within the period of limitation allowed for filing the appeals---Appellate Court at the final stage of the case when the appeals had, in all respects, ripened for hearing and its logical finale, returned the memos of appeal on its own motion, after a considerable period, for presentation in the High Court and consigned the files to the record room---High Court was required to consider the fault committed by the Appellate Court on account of which the petitioner had been made to suffer and whether the benefit of the principle "actus curiae neminem gravabit" should be extended or not, and whether the petitioner had made out the case for condonation with sufficient cause or failed to make out a case in terms of section 5 of the Limitation Act, 1908---Petitioner had been pursuing the matter diligently and his application for condonation of delay was dismissed without any convincing justification---Petitions for leave to appeal were converted into appeals and allowed, impugned judgment was set-aside and the matter was remanded back to the High Court.

Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872 ref.

(d) Administration of justice---

----No injury or prejudice should be caused to anyone by any fault, act or omission of the Court.

Mrs. Kausar Iqbal Bhatti, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Mian Shahid Iqbal, Advocate Supreme Court for Respondents.

2024 S C M R 117

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

Messrs SPRINT OIL AND GAS SERVICES PAKISTAN FZC, ISLAMABAD---Petitioner

Versus

OIL AND GAS DEVELOPMENT COMPANY LIMITED (OGDCL), ISLAMABAD---Respondent

Civil Petition No.740 of 2021, decided on 20th October, 2023.

(Against the judgment dated 21.01.2021 of the Islamabad High Court, Islamabad passed in I.C.A. No.115 of 2019)

(a) Constitution of Pakistan---

----Art. 199---Provincial laws on sales tax on services---Constitutional jurisdiction of (Islamabad) High Court---Scope---Constitutional petition filed before the Islamabad High Court---Maintainability---Petitioner-company had carried out cementation works for Oil and Gas Development Company Limited ('OGDCL') under certain contracts and the subject dispute pertains to the sales tax paid by it on the said works--- When the contracts were entered into the requisite notifications, which commenced the imposition of sales tax on services, had not been issued under the four applicable provincial laws, i.e. Sindh Sales Tax on Services Act, 2011, Punjab Sales Tax on Services Act, 2011, Khyber Pakhtunkhwa Finance Act, 2013, and Balochistan Sales Tax on Services Act, 2015---OGDCL refused to reimburse the sales tax paid by the petitioner, therefore, the petitioner invoked the constitutional jurisdiction of the Islamabad High Court, because according to the petitioner its registered office is at Islamabad andthe contracts were also executed at Islamabad---In its petition the petitioner claimed that under the four applicable provincial lawsOGDCL was liable to reimburse the sales tax paid by the petitioner on behalf of OGDCL---Validity---Admittedly, the petitioner-company did not carry out any of the cementation works in the Islamabad Capital Territory, nor was the applicability and/or interpretation of a Federal law required, which may have required consideration by the Islamabad High Court---Islamabad High Court, therefore, lacked jurisdiction, and should not have entertained the writ petition filed by the petitioner on this ground alone---Furthermore Islamabad High Court's constitutional jurisdiction under Article 199 of the Constitution could only be invoked when 'no other adequate remedy is provided by law'---In the instant case the petitioner had other adequate remedy, either by invoking the arbitration clause in the contracts or by filing a suit---Islamabad High Court did not have the jurisdiction to entertain the writ petition filed by the petitioner, and therefore the same was not maintainable---Petition for leave to appeal was disposed of accordingly.

Federal Government Employees Housing Foundation v. Muhammad Akram Alizai PLD 2002 SC 1079; Petrosin Corporation (Pvt.) Ltd. v. Oil and Gas Company Ltd. 2007 Corporate Law Decisions 578 and Nasiruddin Ghori v. Federation of Pakistan 2010 Pakistan Labour Cases 323 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Technical and complex contracts---High Court's jurisdiction under Article 199 of the Constitution may not be invoked when contracts have to be interpreted, and all the more so when they are technical and/or complex, nor when evidence is required to be recorded---In the exercise of its writ jurisdiction, under Article 199 of the Constitution, a High Court also does not enter into the realm of disputed facts.

(c) Jurisdiction---

----Parties cannot confer jurisdiction on a court when otherwise the court has no jurisdiction.

Eden Builders Pvt. Ltd. Lahore v. Muhammad Aslam 2022 SCMR 2044 ref.

Muhammad Ahmad Qayyum, Advocate Supreme Court for Petitioner.

Khurram Mumtaz Hashmi, Advocate Supreme Court for Respondent.

2024 S C M R 122

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

SUI NORTHERN GAS PIPELINES LIMITED, through General Manager, Rawalpindi---Petitioner

Versus

MUHAMMAD ARSHAD---Respondent

Civil Petition No. 3598 of 2020, decided on 20th September, 2023.

(Against the Order dated 16.11.2020 passed by Islamabad Lahore High Court, Rawalpindi Bench in F.A.O. No.162 of 2019)

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

----Ss. 16 & 17---Allegation of theft of natural gas by tampering of gas meter---Procedure for dealing with theft of gas---Oil and Gas Regulatory Authority (OGRA) approved the "Procedure for Dealing with theft of Gas" in 2005 ('the Procedure') and conveyed the same to its licensees, including the petitioner (gas supply company), for dealing with cases of gas theft---For purposes of present case, Clause (F) of the said Procedure, which is germane to the "Assessment of Value of Gas Stolen and Recovery: Meter Tampering Cases", is quite relevant and provides that when any consumer is established to be involved in gas theft either by way of tampering with the meter or instruments installed/mounted on or along the meter (i.e. volume corrector, or pressure-temperature recorder), or any act mentioned in clauses "A", "C" or "G", the volume of gas stolen by consumer shall be assessed while taking into consideration certain factors---In the Procedure, one of the paramount factors required to be examined was the connected load based on appliances actually installed and required taking the load of each in comparison to the predetermined load of each appliance which was to be assessed by a three member committee comprising one representative each from Engineering, Sales and Billing Sections---However, in the present case no inventory of the appliances was produced/prepared by the Raiding Team---Neither it was established in evidence by the petitioner's department that the Procedure was followed in letter in spirit before fixing the liability of dues, nor it was pleaded that the liability was assessed vis-a-vis the actual load after physical examination and verification of all appliances and equipment installed or in use at the respondent's premises---Merely submitting the calculation sheet of the dues on account of alleged pilferage was not sufficient---Question as to whether the liability was assessed according to the sanctioned load or not was to be proved in the Trial Court and a calculation sheet could not be considered as the gospel truth unless the raiding team ascertained the actual load and consumption according to the appliances and equipment being used by the subscriber and confronted the subscriber or their representative at the time of raid in the case of theft of gas or tampered meter---Gas consumption bill challenged by the respondent in his suit was rightly set-aside---Petition for leave to appeal was dismissed and leave was refused.

Raja Zubair Hussain Jarral, Advocate Supreme Court for Petitioner.

Malik M. Taimur Naseem, Advocate Supreme Court for Respondent.

2024 S C M R 128

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

MUHAMMAD YASIN and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petition No.476-L of 2018 and Jail Petition No.337 of 2018, decided on 1st November, 2023.

(Against the judgment dated 30.03.2018 passed by Lahore High Court, Lahore, in Criminal A. No.1274/2015 and M.R. No.270 of 2015)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---There was no deliberate delay in reporting the matter to the police---Passage of time between the occurrence was sufficiently explained as the victim was injured and taken to the hospital where he succumbed to his injuries---Ocular account of three eyewitnesses remained consistent throughout and confidence inspiring on each and every material point---There was no prior enmity between the parties and the medical evidence fully corroborated the ocular account---There was sufficient and adequate incriminating evidence on the record against the accused and the conviction was rightly upheld by the High Court---Jail petition was dismissed and leave was refused.

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

----S. 302(b)---International Covenant on Civil and Political Rights (ICCPR), Art. 6---Qatl-i-amd---Reappraisal of evidence---Sentence, reduction in---Motive not proved---Recovery of crime weapon inconsequential---Quantum of sentence may be reduced from death penalty to imprisonment for life if the prosecution fails to establish motive---This principle is in conformity with Article 6 of the International Covenant on Civil and Political Rights (ICCPR)---In the absence of premeditation to commit murder where motive is not proved by the prosecution, the same may be considered as a mitigating factor in order to reduce the quantum of sentence in cases involving capital punishment---In the present case the High Court had correctly concluded that the motive was not proved by the prosecution and the recovery of the crime weapon was inconsequential---As such the respondent (convict) was entitled to the benefit of reduction of sentence and the High Court rightly altered his death sentence to imprisonment for life---Petition for leave to appeal was dismissed and leave was refused.

2011 SCMR 593; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; 2012 SCMR 267; 2014 SCMR 1464; 2014 SCMR 1658; 2017 SCMR 148; 2017 SCMR 2041; 2017 SCMR 2048; 2018 SCMR 21; 2018 SCMR 149; 2018 SCMR 911; 2022 SCMR 1608 and Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602 ref.

Khawar Mahmood Khatana, Advocate Supreme Court (also for the Complainant in J.P. No. 337 of 2018) (via video link from Lahore) for Petitioner (in Criminal Petition No. 476-L of 2018).

Ch. Nazir Ahmad Kamboh, Advocate Supreme Court for Petitioner (in J.P. No. 337 of 2018).

M. Irfan Zia, D.P.G., Punjab for the State.

2024 S C M R 136

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

AMINULLAH and others---Petitioners

Versus

Syed Haji MUHAMMAD AYUB and others---Respondents

Civil Petition No. 116 of 2020, decided on 7th December, 2023.

(Against the judgment dated 19.11.2019 of the High Court of Baluchistan, Quetta passed in Constitution Petition No.317 of 2019)

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

----S. 145---Dispute concerning land likely to cause breach of peace---Proceedings under section 145, Cr.P.C--- Nature--- Nature of proceedings under section 145 of the Cr.P.C. are more in the nature of an executive function because the right of ownership nor that of possession is adjudicated---Exercise of the powers are subject to fulfilment of the jurisdictional pre-conditions, particularly the satisfaction of the Magistrate that the dispute is likely to cause a breach of the peace.

Muhammad Ishaque Chowdhury and another v. Nur Mahal Begum and others PLD 1961 SC 426; Muhammad Boota and 12 others v. Ch. Faiz Muhammad and 8 others 1970 SCMR 592; Haji Muhammad Akram and others v. Mir Baz and others 1973 SCMR 236; Shera and others v. Mst. Fatima and another 1971 SCMR 449; Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470; Mirza Abdul Razzaq v. Barkat Ali and others 1985 SCMR 1235; Yar Muhammad and others v. Gul Muhammad 1985 SCMR 1609; Malik Manzoor Elahi v. Lala Bishambar Dass PLD 1964 SC 137; Mehr Muhammad Sarwar and others v. The State and 2 others PLD 1985 SC 240; Muhammad Shafique and others v. Abdul Hayee and others 1987 SCMR 1371; Ganga Bux Singh v. Sukhdin AIR 1959 ALL. 141 and Mukhtar Ahmad and others v. Haji Muhammad Saleem and another 2013 SCMR 357 ref.

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

----Ss. 145 & 107---Dispute concerning land likely to cause breach of peace---Proceedings under section 145, Cr.P.C---Object and purpose of such proceedings stated.

The main object and purpose of the powers vested under section 145 of the Cr.P.C. is to prevent a likely breach of the peace and to maintain the status quo. The parties are provided an opportunity to resolve the dispute regarding the title or right of possession before a competent forum. The most crucial factor for undertaking the proceedings is the likelihood of breach of the peace because of the dispute. The dispute must be in respect of land or water or boundaries thereof and the subject matter must be situated within the limits of the territorial jurisdiction of the Magistrate who has to exercise the powers. The existence of these factors is a prerequisite for making a preliminary order under subsection (1) of section 145 of the Cr.P.C. and the grounds required to be stated in the order must justify the satisfaction of the Magistrate. The mere existence of a dispute is not sufficient to put the powers in motion. There must be sufficient material giving rise to an imminent danger or a breach of the peace. In the absence of such an apprehension of a breach of the peace the exercise of the power would not be lawful. Moreover, the exercise of powers under section 145 will not be justified if the factor of breach of the peace can be prevented by resorting to powers vested under section 107 of the Cr.P.C. While conducting an inquiry under section 145 of the Cr.P.C. the Magistrate does not have the power or jurisdiction to decide either the question of title of property or the lawfulness of the possession. It merely empowers the Magistrate to regulate the possession of the property in dispute temporality in order to avert an apprehension of breach of the peace. The attachment of the property under the second proviso of section 145(4) is subject to the satisfaction of the Magistrate that a case of emergency has been made out. The Magistrate, while exercising powers under section 145 of the Cr.P.C, is merely required to declare which one of the parties is entitled to remain in possession because the proceedings do not empower undertaking an inquiry relating to ownership or the right to possess.

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

----S. 145 [as amended by section 44 of the Code of Criminal Procedure (Balochistan Amendment) Act (XV of 2010)]---Dispute concerning land likely to cause breach of peace---Proceedings under section 145, Cr.P.C---Judicial Magistrate, jurisdiction of---Section 145 of the Cr.P.C was amended through the Code of Criminal Procedure (Balochistan Amendment) Act, 2010 with effect from 10.12.2010 and the expression "District Magistrate or Sub-Divisional Magistrate or an Executive Magistrate specially empowered by the Provincial Government in this behalf" was inserted by substituting the omitted expression---Judicial Magistrate in the present case was, therefore, bereft of jurisdiction to entertain the complaint and to exercise the powers under section 145 of the Cr.P.C.---Notwithstanding the lack of jurisdiction, the Judicial Magistrate also did not appreciate that the jurisdictional requirements were not in existence---Respondent, according to his own stance, was not in possession, rather it was handed over to the last tenant---Dispute was not likely to cause a breach of the peace and the respondent, in his complaint, had vaguely made a reference to it without disclosing any justification relating thereto---Protracted proceedings also established that the vague assertion of breach of the peace was merely an attempt to meet the requirement expressly provided under section 145 of the Cr.P.C.---Judicial Magistrate, despite having no jurisdiction to exercise the powers, had virtually adjudicated the title of the property and the right relating to possession in favour of the respondent---Powers exercised in the facts and circumstances of the case in hand were without lawful authority and jurisdiction---Petition was converted into an appeal and allowed and the impugned judgment of the High Court was set-aside.

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

Abdul Hadi Tareen, Advocate Supreme Court for Respondent No. 1.

2024 S C M R 142

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

KHALID PERVAIZ---Petitioner

Versus

SAMINA and others---Respondents

Civil Petition No. 2734-L of 2023, decided on 20th November, 2023.

(Against the judgment dated 24 May 2023 passed by Lahore High Court, Lahore in Writ Petition No.5278 of 2021)

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 10---Muslim Personal Law (Shariat) Application Act (V of 1962), S. 2---Family Courts Act (XXXV of 1964), S. 5 & Sched.---Dower (Mehr), recovery of---Failure of husband to pay dower (mehr)---Compensatory costs imposed on husband---Trial Court directed the husband/petitioner to pay to the wife/respondent the mehr (of Rs. 500,000/- mentioned in the Nikahnama) and maintenance with annual increase of ten percent---Validity---Mehr has to be paid whenever demanded by the wife---Mehr can be demanded during the subsistence of the marriage, and the husband is under an obligation to pay it---In the present case the husband/petitioner had two wives, but he did not fulfil his obligations towards one of them(i.e. respondent) when he failed to pay the mehr demanded by her---Wife had to file a suit for recovery of the mehr and maintenance, and the husband unnecessarily involved the wife in litigation, which reached the Supreme Court after six and half years---Such kind of frivolous litigation was paralysing the judicial system of the country---Husband took up an untenable defence, and perpetuated it probably because costs were not imposed upon him and the courts did not insist that the decision of the Family Court should first be complied with before entertaining a challenge to it---Imposing sufficient costs may have had the salutary effect to make the husband act reasonably---Courts should not hesitate in imposing costs, and compensatory costs too when required---Counsel for the husband stated that the mehr (dower) would be paid to the wife through bankers cheque/pay order/demand draft or will be deposited in the Family Court within one month---Supreme Court directed that in addition to imposing costs throughout it was imposing compensatory costs to the extent of one hundred thousand rupees on the husband considering the decrease in the value of money, and that if the mehr and the said costs were not paid the Family Court shall execute present order, which may include attachment of the properties of the husband---Leave to appeal was declined and the petition was dismissed.

Holy Quran, (An-Nisa (4) verse 4; Al-Baqrah (2) verses 236-7 and Syed Muhammad v. Mst. Zeenat PLD 2001 SC 128 ref.

(b) Administration of justice---

----If a decision is challenged (before a higher forum) it does not mean that it becomes ineffective, and need not be complied with.

Ch. Zulfiqar Ali Hagran, Advocate Supreme Court (through video link from Lahore) for Petitioner.

Nemo for Respondents.

2024 S C M R 145

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, CIVIL SECRETARIAT, QUETTA and others---Appellants

Versus

ADEEL-UR-REHMAN and others---Respondents

Civil Appeal No.441 of 2020, decided on 1st December, 2023.

(On appeal against the judgment dated 30.09.2019 passed by the High Court of Balochistan, Quetta, in C.P. No.1120 of 2017)

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

----R. 9(1)(a)---Balochistan Public Service Commission (Functions) Rules, 1982, Rr. 3(i)(a) & 3(i)(b)---Contract employees for a project---BPS-16 and above posts---Regularization in service---Case of the Provincial Government/competent authority was that a summary of 43 contract employees into regular service was approved while for BPS-17 and above, the competent authority was not competent to appoint or regularize any contract employee as the same came within the domain of the Balochistan Public Service Commission, however, the High Court incorrectly allowed the writ petition of the respondents (contract employees seeking regularization) purely on the ground of discrimination---Validity---Posts in BPS-16 and above were to be filled through the Public Service Commission---Rule 9(1)(a) of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 (the AP&T Rules) clearly provides that the appointment to posts in BPS-16 and above or equivalent, if falls within the purview of the Commission, shall be made on the basis of a test and interview to be conducted by the Balochistan Public Service Commission (the Commission)---Similarly, Rule 3(i)(a) of the Balochistan Public Service Commission (Functions) Rules, 1982 (the BPSC Functions Rules), provides that the Commission shall conduct tests and examinations for initial recruitments to civil posts in BPS 16 to 22 connected with the affairs of the province, except those specified in the Schedule appended to the Rules---Sub clause (b) of Rule 3 (i) of the BPSC Functions Rules further empowers the Commission to conduct a test and interview for initial recruitment to any other post which may be referred to it by the Government, which may otherwise not fall within the purview of the Commission---Present respondents fell within the purview of Rule 9(1)(a) of the AP&T Rules and Rules 3(i)(a) and 3(i)(b) of the BPSC Functions Rules---Decision given by the High Court was without any basis and was not sustainable in the eye of law, therefore, the same was set-aside with the directions that the Provincial Government shall refer the posts in question to the Commission for recruitment in accordance with the law through fresh publication on open merit basis; that the respondents shall participate in the fresh recruitment process to be undertaken by the Commission and the Commission shall entertain their applications, and that in the peculiar circumstances of the case, the question, if any, of any age limit shall not be a hurdle in the way of the respondents---Appeal was disposed of accordingly.

Province of Sindh and others v. Muhammad Taqi Shah 2018 SCMR 1607 ref.

(b) Constitution of Pakistan---

----Art. 25---Equality of citizens---Negative equality---Scope---Article 25 of the Constitution does not envisage negative equality---Such right can only be claimed when decision is taken in accordance with law---Wrong concession in favour of one person does not entitle any other person to claim benefit of a wrong decision.

(c) Civil service---

----Contract employees appointed against project posts---Regularization in service---Scope---As far as the regularization of contract employees subsequent to creation of posts on regular side is concerned, the mere creation of posts on regular side does not confer, in the absence of any statutory support, an automatic right of regularization in favour of the contract employees working against project posts.

Government of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock and Cooperative Department Peshawar and others v. Saeed-Ul-Hassan and others 2021 SCMR 1376 ref.

Muhammad Ayaz Swati, Additional Advocate General, Balochistan for Appellants.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Muhammad Ali Kanrani, Advocate Supreme Court for Respondents.

2024 S C M R 150

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

NOORULLAH and others---Petitioners

Versus

GHULAM MURTAZA and others---Respondents

Civil Appeal No.17-Q, Civil Petition No.257-Q of 2023 and C.M.A. No.230-Q of 2023, decided on 10th November, 2023.

(Against the judgment dated 20.06.2023 of the High Court of Balochistan, Sibi Bench passed in Civil Revisions Nos.85 and 86 of 2021)

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

----S. 54---Contract Act (IX of 1872), S. 11---Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a) & 79---Sale transactions---Proof---Contract with a minor void---Appellants/petitioners claimed that the land in question was purchased by them from the respondents on 02.09.1986 against a sale consideration of Rs.2,45,000/- and since the respondents were reluctant to transfer the same, thus a contract of sale was executed vide the impugned mutation---Validity---Respondent while recording his statement before the trial Court had mentioned his age as 45 years, which indicated that at the time of purchase of land in the year 1986, he was fourteen years of age---Similarly, the other respondent was also a minor in 1986, therefore alleged sale of the land in question in such behalf was void in terms of section 11 of the Contract Act, 1872---Furthermore in 1986, the actual owner of the suit land was predecessor-in-interest of the respondents, but neither any documentary proof of such sale was adduced in evidence nor any witness of the sale transaction was produced during the case proceedings, thus question was as to how could the appellants/petitioners purchase the suit land from the respondents in the year 1986---Appellants/petitioners also failed to prove execution of the impugned mutation by summoning two attesting witnesses i.e. Assistant Collector and the Patwari as per Qanun-e-Shahadat, 1984---High Court had rightly declared that the respondents were the owners of the suit land, and that the impugned mutation and contract of sale were void---Appeal and petition were dismissed accordingly.

Abdul Rasheed through L.Rs. and others v. Manzoor Ahmed and others PLD 2007 SC 287 and Muhammad Muneer v. Mst. Feezan PLD 2021 SC 538 ref.

Jahan Zeb Khan Jadoon, Advocate Supreme Court for Appellant/Petitioners (in both cases).

Abdul Sattar Kakar, Advocate Supreme Court for Respondents Nos. 1 - 5 (in both cases).

Muhammad Zareef, Naib Tehsildar and Shaukat Ali, Patwari for Department.

2024 S C M R 154

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

Syed GHAZANFAR ALI SHAH---Petitioner

Versus

HASSAN BOKHARI and others---Respondents

Civil Petition No. 946 of 2022, decided on 13th November, 2023.

(Against the order dated 21.12.2021 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No.1325 of 2016)

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

----S. 135---Partitioning of land---Non-compliance of orders of the Board of Revenue and High Court by revenue officials---Rule of law, undermining of---Respondents had submitted an application under section 135 of the Punjab Land Revenue Act, 1967 seeking partitioning of certain lands---Application was objected to by the petitioners, however the matter was disposed of by the Member, Board of Revenue with consent of the parties---Subsequently, the petitioners assailed the consent order by filing a writ petition before the High Court, which reproduced the earlier consent and dismissed the writ petition and held that, 'the petition at the face of it is not only frivolous but vexatious and is dismissed in limine with costs of Rs.50,000/-, which shall be deposited with the Deputy Registrar (Judicial) of this Court within thirty days, failing which the same shall be recovered from the petitioners as arrears of land revenue in accordance with law---Held, that to date said costs were neither paid nor recovered---Petitioners had challenged a consent order, which was upheld by the High Court---Respondents had submitted a simple application for partition, which they were entitled under the law, but which for no discernable reason has been resisted by the petitioners---This has resulted in unnecessary litigation and wastage of time---Petitioners, it seems, want to procrastinate matters and by acting most unreasonably have managed to stretch out a simple matter for almost 14 years---Fact that revenue authorities have still not attended to the respondents' application and have disregarded the order of the Member, Board of Revenue, indicates the influence the petitioners wield, including over the revenue officers of the area, who have also paid no heed to the order of the Judge of the High Court; they also did not bother to recover the amount of fifty thousand rupees that they had been directed to do in the impugned judgment---Such disobedience and disdain by the revenue officers who are paid out of the public exchequer undermines the rule of law---Petition for leave to appeal was dismissed with costs in the sum of one million rupees with the directions that such costs are in addition to the costs imposed by the Judge of the High Court; that the costs shall be deposited with the concerned revenue officer and shall be equally distributed/paid to the respondents, and if not deposited within 30 days, shall be recovered as areas of land revenue from the petitioners, and the concerned revenue officers shall implement the order of the Member, Board of Revenue in accordance with the law.

Amjad Raza Bhatti, Advocate Supreme Court with Syed Zeeshan Haider, son of the Petitioner No. 1 for Petitioners.

Nemo for Respondents.

2024 S C M R 156

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

MAQSOOD ALAM and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 1710-L and 1329 of 2017, decided on 12th October, 2023.

(Against the judgment dated 14.11.2017 passed by the Lahore High Court, Lahore in Murder Reference No. 414/2014 and Criminal Appeal No. 2278 of 2014)

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt---Ocular account doubtful---Co-accused with similar role acquitted on the same set of evidence---Recovery of weapon inconsequential---Motive not established---Parties were known to each other, therefore, not mentioning the name of the co-accused in the crime report shifted the burden on the shoulder of the prosecution to assign justiciable reasons for non-identification of the co-accused at the time of occurrence, especially when it is an admitted fact that the accused and co-accused did not commit the crime with covered faces---Although the complainant challenged the acquittal of co-accused before the High Court by filing a petition against acquittal but later on withdrew the same, which means that the findings of the Trial Court regarding the acquittal attained finality and the prosecution case to the extent of murder of one of the deceased had been disbelieved---In these circumstances, more caution was needed to decide the case of the accused---During the course of proceedings before the Trial Court, an attested copy of attendance register was placed on record, which showed that on the day of occurrence the complainant was present in his office, which was at a distance of 100 kilometers from the place of occurrence---According to the witnesses, the accused fired at the deceased from a distance of 3/4 karams but the medical record shows that there was blackening and charring around the wounds, which suggested that the injuries were caused from a close range, which further negated the ocular account---There were only two eye-witnesses of the occurrence, who admittedly, had been disbelieved to the extent of the acquitted co-accused, who was alleged to have played a similar role in the occurrence, then the same evidence could not be relied upon to convict the accused on capital punishment unless there was an independent corroboration and some strong incriminating evidence to the extent of his involvement in commission of the offence but the same was lacking in the instant case---Recovery of weapon from the accused was inconsequential because admittedly no crime empty was collected from the place of occurrence---Motive had also rightly been disbelieved by the High Court by holding that it was a vaguely formulated motive and no evidence in support of the same has been placed on record---Petition for leave to appeal was converted into appeal and allowed, and accused was acquitted of the charge by extending him the benefit of doubt.

Niaz v. The State PLD 1960 SC 387 and Nazir v. The State PLD 1962 SC 269 ref.

(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.

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.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court for Petitioners (in Cr. P. 1710-L of 2017).

Aftab Ahmed Bajwa, Advocate Supreme Court and Sh. Mahmood Ahmad, Advocate-on-Record for Petitioners (in Cr. P. 1329 of 2017).

Mirza Abid Majeed, D.P.G. for the State.

2024 S C M R 164

[Supreme Court of Pakistan]

Present: Yahya Afridi and Muhammad Ali Mazhar, JJ

UNITED BANK LIMITED (UBL) through its President and others---Petitioners

Versus

JAMIL AHMED and others---Respondents

Civil Petition No.2997 of 2021, decided on 6th October, 2023.

(Against the Judgment dated 24.03.2021 passed by the Islamabad High Court, Islamabad in W.P. No.3312 of 2020)

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

----S. 2(xxxiii)--- 'Worker' and 'workman'---Proof and burden of proof---In order to adjudicate whether a person is performing his duties as a 'workman' or 'worker', or Manager, Officer and/or duties of supervisory nature, the pith and substance of the adjudication predominantly depends on the nature of duties and not on the basis of the nomenclature of the post---In order to thrash out this controversy, the appropriate appraisal for assistance can be made by dint of oral and documentary evidence produced by the parties in the court of first instance---In case the employee asserts that he was performing duties as workman and such contentions are opposed by the management, then in such eventuality the burden of proof lies upon the employee to substantiate that he was in fact performing the duties of a 'workman' and the mere nomenclature of the post does not affect his status of employment as worker or workman.

(b) Administration of justice---

----Appeal, right of---Scope---Right of appeal is a right of entering into a superior court and invoking its aid and interposition to redress the error of the forum below---It is essentially a continuation of the original proceedings as a vested right of the litigant to avail the remedy of an appeal provided for appraisal and testing the soundness of the decisions and proceedings of the courts below---Right of appeal is not a mere matter of procedure but is a substantive right.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Concurrent findings of fact by fora below---If the concurrent findings recorded by the lower fora are found to be in violation of law or based on flagrant and obvious defect floating on the surface of record, then it cannot be treated as being so sacrosanct or sanctified that it cannot be reversed by the High Court in the Constitutional jurisdiction vested in it by Article 199 of the Constitution---As a corrective measure in order to satisfy and reassure whether the impugned decision is within the law or not and if it suffers from jurisdictional defect, the High Court without being impressed or influenced by the fact that the matter reached it under Constitutional jurisdiction in pursuit of the concurrent findings recorded below, can cure and rectify the defect.

Umer Abdullah, Advocate Supreme Court for Petitioners.

Faridullah, Advocate Supreme Court for Respondents.

2024 S C M R 168

[Supreme Court of Pakistan]

Present: Yahya Afridi, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

MASOOD AHMAD BHATTI and another---Petitioners

Versus

KHAN BADSHAH and another---Respondents

Civil Petition No. 5632 of 2021, decided on 16th November, 2023.

(Against judgment dated 22.09.2021, passed by the Islamabad High Court, Islamabad in Regular First Appeal No.324 of 2020)

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

----S. 54---Specific Relief Act (I of 1877), S. 12---Agreement to sell immoveable property---Balance sale consideration---Vendor refusing to receive pay orders of balance sale consideration on the basis that the same were not issued through the personal account of the vendee---Validity---Agreement to sell between the parties did not contain any condition requiring the remaining sale consideration to be paid from personal bank account of vendee (plaintiff)---Vendor and his attorney (defendants) never raised any objection when they received pay orders for earnest money and additional earnest money issued through bank accounts which were not in the name of the vendee---In order to avoid the specific performance of the agreements, the defendants had taken an afterthought plea that had not been impliedly or expressly mentioned in the initial agreement to sell and/or extended agreement---Vendee had already paid/deposited the balance sale consideration in the trial Court---Another aspect of the matter was that the defendants had failed to obtain NOC for the transfer of the subject property by the cut off date mentioned in the initial and the extended agreements and had utilized the earnest money paid to them by the vendee and got interest on that amount from the bank, hence caused huge loss to the vendee and correspondingly got profit/mark up on the advance money from the bank---Defendants failed to produce in evidence any document, which could establish that vendee purchased the subject property for investment or re-sale purposes, or that any fraud or misrepresentation was played by the vendee---Suit for specific performance of agreement to sell and the extended agreement was rightly decreed by the trial Court---Petition was dismissed and leave to appeal was declined.

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

----S. 12---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance of agreement to sell immoveable property---Bona fides of vendee---Balance sale consideration deposited in Court---Where the vendor refuses to accept the sale consideration amount, the vendee seeking a specific performance of the agreement to sell is essentially required to deposit the amount in the Court---Vendee has to demonstrate that he has been at all relevant times ready and willing to pay the amount and to show the availability of the amount with him---Vendee cannot seek enforcement of reciprocal obligation of the vendor unless he is able to demonstrate not only his willingness but also his capability to fulfil his obligations under the contract.

Hassan Raza Pasha, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2024 S C M R 178

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

MEHMOOD KHAN and others---Petitioners

Versus

SARA AKHTAR---Respondent

Civil Petition No. 3030 of 2021, decided on 26th October, 2023.

(Against the judgment dated 10.03.2021 of the Lahore High Court, Multan Bench passed in Civil Revision No. 288-D of 2020)

Specific Relief Act (I of 1877)---

----Ss. 42 & 39---Qanun-e-Shahadat (10 of 1984), Arts. 115 & 129(g)---Suit for declaration and cancellation of sale mutations---Fraud---Sale of land---Proof and burden of proof---Petitioners claimed that the respondent-lady had allegedly sold the suit land to them---Respondent denied selling her land pursuant to the sale mutations or otherwise, and also denied receipt of sale consideration---Counsel for respondent contended that the burden to establish the sale lay upon the beneficiaries of the sale, i.e., the petitioners in terms of Article 115 of the Qanun-e-Shahadat, 1984; that respondent was not aware of the sale mutations and upon coming to learn of them filed the suit well within the period prescribed in the Limitation Act, 1908; that the respondent's lands were being looked after by her maternal uncle (petitioner No. 7), and as such she was in constructive possession thereof, which fact is further confirmed as she did not claim mesne profits in her suit; that only one of the beneficiaries of the purported sale came forward to testify, that is petitioner No. 2, who admittedly was a child at the time of the sale and as such could not have testified regarding facts thereof; that his father (petitioner No. 1) also testified but stated that the sale consideration was paid by his wife, who did not come forward to testify, and in not doing so an adverse presumption, in terms of Article 129(g) of the Qanun-e-Shahadat, 1984, would be drawn that if she had testified it would be that she had not paid the sale consideration---Validity---Contentions of the counsel representing the respondent were correct---Furthermore, burden to establish the sales and the sale mutations, lay upon the beneficiaries thereof, i.e. the petitioners, but they failed to discharge it, and when the same was not discharged it may be stated to constitute fraud---Petition for leave to appeal was dismissed and the revenue authorities of the area were directed to immediately ensure delivery of subject land's exclusive possession to the respondent, as she was deprived of her land.

Shahzeb Masud, Advocate Supreme Court and M. Anis Shahzad, Advocate-on-Record for Petitioners.

Muhammad Yasin Bhatti, Advocate Supreme Court for Respondent.

2024 S C M R 181

[Supreme Court of Pakistan]

Present: Yahya Afridi and Muhammad Ali Mazhar, JJ

JUNAID WAZIR---Petitioner

Versus

SUPERINTENDENT OF POLICE, PRU/ DOLPHIN POLICE, LAHORE-- Respondents

Civil Petition No.3186 of 2020, decided on 5th October, 2023.

(Against the Order dated 07.10.2020 passed by the Punjab Service Tribunal, Lahore in Appeal No. 1641 of 2020)

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

----S. 21---Punjab Service Tribunals Act (IX of 1974), S. 4---Police Rules, 1934, R. 12.21---Police official---Order of discharge from service under Rule 12.21 of Police Rules, 1934---Departmental appeal---Whether a departmental appeal could be filed against the order of discharge from service under Rule 12.21 of Police Rules, 1934---After the petitioner was discharged from service under the Rule 12.21, he filed a departmental appeal, which was rejected being not maintainable under said Rule---Petitioner filed an appeal before the Service Tribunal, which was dismissed on the point of limitation---Entire emphasis of the Tribunal was on the fact that, instead of filing a service appeal before the Tribunal, the petitioner filed a departmental appeal before the DIG of Police, which was not appealable before the department in terms of Rule 12.21---Validity---Although no right of appeal against the ,discharge from service is provided under Rule 12.21 of the Police Rules, 1934 but at the same time, one cannot ignore the niceties of section 21 of the Punjab Civil Servants Act, 1974 wherein it is clearly spelled out that if no provision for appeal or review exists, a civil servant aggrieved by any such order may make a representation to the authority next above the authority which made the order---Likewise, the nitty-gritties of Section 4 of the Punjab Service Tribunals Act, 1974 explicate that where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974, or any rules, against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal of application for review or representation to such departmental authority---In the present case the petitioner filed the departmental appeal and was only non-suited on the ground that no appeal lies against the discharge, but the departmental authority failed to consider that against the order of discharge, representation was maintainable---Departmental Authority should have seen the pith and substance of the grievance lodged by the petitioner rather than focusing solely on the nomenclature of the representation---Both the departmental authority and the Tribunal failed to take into account that if a right of appeal or review was not provided in Rule 12.21 then, in unison, it does not debar or prohibit the civil servant from electing the remedy of filing a representation as of right, which could not be turned down on hyper-technical grounds but should have been decided on merits, rather than rejecting it being non-maintainable as an appeal instead of representation---Petition for leave to appeal was converted into appeal and allowed; the impugned judgment was set aside and the matter was remanded to the appellate authority (department) where petitioner's appeal shall be deemed to be pending, which shall be treated as a representation under section 21(2) of the Punjab Civil Servants Act, 1974, and the same shall be decided strictly in accordance with law after due notice to the parties.

(b) Civil service---

----Incorrect provision of law cited---Even mentioning an incorrect provision of law does not debar or relieve the competent authority from examining the case according to the remedy provided under the law to an aggrieved civil servant.

(c) Administration of justice---

----Maxim 'ex debito justitiae'---Meaning and scope---Legal maxim "ex debito justitiae" means as a matter of right or what a person is entitled to as of right---This maxim 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 courts to act ex debito justitiae is an inherent power of courts to fix procedural errors.

(d) Public functionary---

----Public functionaries are supposed to execute and perform their duty in good faith, honestly and within the precincts of their legally recognized powers so that the person concerned may be treated in accordance with law.

(e) Civil service---

----Natural justice, principles of---Right of accused to be heard---Rational and impartial decision making---Principles of natural justice require that the delinquent should be afforded a fair opportunity to converge, explain and contest the claims against him before he is found guilty and condemned---Principles of natural justice and fair-mindedness are grounded in the philosophy of affording a right of audience before any detrimental action is taken, in tandem with its ensuing constituent that the foundation of any adjudication or order of a quasi-judicial authority, statutory body or any departmental authority regulated under some law must be rational and impartial and the decision maker has an adequate amount of decision making independence and the reasons of the decision arrived at should be amply well-defined, just, right and understandable.

Tariq Aziz-ud-Din, Human Rights Cases Nos. 8340, 9504-G, 13936-G, 13635-P and 14306-G to 14309-G of 2009 2011 PLC (C.S.) 1130; Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101 and Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997(7) SCC 622 ref.

Mahmood Ahmad Qazi, Advocate Supreme Court (Through video link from Lahore) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Sanaullah Zahid, Additional A.G., Punjab and Syed Intikhab Hussain, DSP for Respondents.

2024 S C M R 188

[Supreme Court of Pakistan]

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

GHANSHAM DAS---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Pakistan Forest Institute, Peshawar and others---Respondents

Civil Petition No. 546 of 2021, decided on 14th September, 2023.

(Against the judgment dated 21.12.2020 of the Khyber Pakhtunkhwa Service Tribunals Islamabad in Appeal No.876 of 2020)

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

----R. 20A---Deputation---Duration of term---Principles relating to duration of term of a deputationist stated.

Deputation within a government department holds a significant role, necessitating recruitment under exceptional circumstances when there is a lack of expertise within the department in the relevant subject or field. In such situations, the prescribed procedure outlined in Rule 20-A of the Civil Servants (Appointment, Promotion, and Transfer) Rules, 1973, must be adhered to. However, it is imperative to emphasize that deputation should not entail an indefinite period of service but should conform to the specified duration for the deputation. The normal period of deputation is three years and the concerned officer has to report back after completion of his three years period unless it has been extended to further two years and the maximum period is five years in terms of Serial No.27 (iv) of ESTA Code Volume-I (Civil Establishment Code), whereby both the borrowing and lending organization should ensure immediate repatriation of the deputationist. Furthermore, the period of deputation has to be defined specifically and after expiry of the said period, the officer should automatically be relieved from his office duties, unless his period has been extended.

A deputationist in the absence of any specific provision of law can not ask to serve the total period of deputation and he can be repatriated being a deputationist by the Competent Authority in the interest of exigency of service as and when so desired and such order of the competent authority cannot be questioned. The Civil Servants Act, 1973 and the rules made thereunder as well as ESTACODE are silent about the fact that a deputationist must serve his entire period of deputation and this omission seems deliberate enabling the Competent Authority to utilize the service of an employee in the manner as it may deem fit and proper. The period of deputation can at best be equated to that of an expression of the maximum period which can be curtailed or extended by the Competent Authority and no legal or vested rights whatsoever are available to a deputationist to serve his entire period of deputation in the borrowing Department.

Zain Yar Khan v. Chief Engineer 1998 SCMR 2419; Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330; Pakistan v. Fazal-ur-Rehman PLD 1959 SC (Pak.) 82; Ashraf Khan Niazi v. Chairman Board of Governors Allama Iqbal Medical College 2003 PLC (C.S.) 243; Dr. Shafi-ur-Rehman Afridi v. C.D.A 2010 SCMR 378 and S. Masood Abbas Rizvi v. Federation of Pakistan 2014 SCMR 799 ref.

On the last date of the period specified for deputation, the officer automatically stands relieved of his duties unless the orders of the competent authority have been obtained in advance for extending the period of deputation [Serial No.28-A of the ESTACODE, Volume-I (Civil Establishment Code].

Dr. G.M. Chaudhry, Advocate Supreme Court for Petitioner along with petitioner in person.

Sultan Mazhar Sher Khan, Additional A.G. Khyber Pakhtunkhwa and Atif Majeed, Dy. Director Technical Pakistan Forest Institute for Respondents Nos. 1 - 3.

Malik Javed Iqbal Wains, Additional Attorney General and Mohsin Saleem Ullah, A.D. (Legal) Ministry of IT & T for Respondents Nos. 4 - 6.

2024 S C M R 197

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

REGIONAL MANAGER, NADRA RHO, HAYATABAD, PESHAWAR and another ---Petitioners

Versus

Mst. HAJIRA and another---Respondents

Civil Petition No. 3575 of 2020, decided on 22nd November, 2023.

(Against the judgment dated 23.09.2020 of the Peshawar High Court, Peshawar passed in Writ Petition No. 514-P of 2020)

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

----O. VII, R. 1---Constitution of Pakistan, Art. 185(3)---Civil petition filed before the Supreme Court---Title of petition---Acronyms, use of---Mentioning an acronym in the title of the petition does not conform to how a party is to be described in the Code of Civil Procedure, 1908 ('C.P.C.').

(b) National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 11---National Database and Registration Authority (Pakistan Origin Card) Rules, 2002, R. 10(1)---Pakistan Origin Card (POC), issuance of---Unnecessary litigation by National Database and Registration Authority (NADRA) ['the Authority']---High Court allowed writ petition of respondents and directed the Authority to issue POC to one of the respondents---Counsel for the Authority stated that the POC has now been issued, therefore, the grievance of the respondents stood redressed---Supreme Court observed that it was unfortunate that the Authority rather than doing its job in the first instance had compelled the respondents to file a writ petition before the High Court, which was allowed; that the decision of the High Court was challenged before the Supreme Court, when certain questions were raised, and only then better sense prevailed and the Authority issued the POC to the respondent; that the Authority was a statutory organization and should have abided by its own law, and not generated unnecessary litigation---Petition was disposed of.

Afnan Karim Kundi, Advocate Supreme Court for Petitioners.

Both Respondents in-person.

Ch. Aamir Rehman, Additional Attorney-General for Pakistan on Court's Notice for the Federation.

2024 S C M R 199

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

JEHANZEB and others---Appellants

Versus

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

Civil Appeal No.1444 of 2013, decided on 7th November, 2023.

(On appeal against the Judgment dated 08.10,2013 passed by the Peshawar High Court, Abbottabad Bench, in W.P No.187-A of 2012)

Khyber Pakhtunkhwa Local Councils Naming and Renaming of Public Places Rules, 1994---

----R. 2---Land Records Manual, Para. 7.69---Change of name of a village---Objections and suggestions from inhabitants of the village not invited---Propriety---By way of a Notification, the Provincial Government changed the name of village Tambah Maha to Maira Swati Abad and in pursuance of the said Notification name of the Government Middle School Tambah was also changed to Government Middle School Maira Swati Abad by the EDO (E&S), Mansehra---Said notification and subsequent order were declared null and void by the High Court vide the impugned judgment---Validity---Khyber Pakhtunkhwa Local Councils Naming and Renaming of Public Places Rules, 1994 ('the Rules') relate to assigning a name to a road, street, square, park or any other public place or renaming any such road, street, square, park or any other public place---Nothing has been said in these Rules about changing the name of a village, however, the Supreme Court directed that the such procedure, as laid-down for assigning or renaming of a road, street, square, park or any other public place shall also be adopted by the Government before issuing Notification under Para 7.69 of the Land Records Manual, in the matter of changing the name of a village as the official name of a village is used in land revenue record, postal zone and other official and private documents; and that for such purpose objections/ suggestions of the inhabitants of village need to be invited through publication in newspapers---In the instant case neither any publication in the newspapers inviting objections/suggestions from inhabitants was made nor local council was involved in the process, which made the whole process discriminatory and downright illegal---Population of the village Tamba Maha was more than thirty thousand, and obviously it was a matter of great concern for the inhabitants if name of their village was changed without seeking their opinions/suggestions, hence, rights of the public at large had been violated by not making it public and without inviting objections and suggestions from the inhabitants of the village before issuing the Notification under Para 7.69 of the Land Records Manual---High Court has rightly declared the said Notification and subsequent Order to be null and void and also rightly observed that the authorities may do the change after inviting objections from the public at large---Appeal was dismissed.

Muhammad Ikram Ch., Advocate Supreme Court and Syed Riffaqat Hussain Shah, Advocate-on-Record for Appellants.

Muhammad Wajid Khan, Advocate Supreme Court and Zahid Yousaf Qureshi, Advocate-on-Record for Respondents.

2024 S C M R 202

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

GHULAM FAREED (DECEASED) through his L.Rs., and others---Petitioners

Versus

DAULAN BIBI---Respondent

Civil Petition No.3465-L of 2022, decided on 20th November, 2023.

(Against the order dated 25.11.2022 passed by the Lahore High Court, Lahore in Civil Revision No. 4911 of 2016)

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

----S. 54---Sale mutation---Proof---Burden of proof---Petitioners claimed that their predecessor (defendant) had purchased land through a sale mutation attested on 13 June 1994---Respondent-lady (plaintiff) filed a suit for declaration on 6 November 2008 to challenge the said sale mutation---Petitioners' contended that the suit of respondent was hopelessly time barred, and that the respondent had simply denied her thumb impression on the said mutation and the report of the Provincial Finger Print Bureau was in itself not sufficient for disproving that the sale mutation bore her thumb impression---Validity---Burden to establish the purported sale lay upon the beneficiary of the sale (i.e. predecessor of the petitioners) but this was not discharged---Respondent was not required to disprove the sale yet she undertook to do so; she came forward and had her purported thumb impression was sent for forensic determination by the Provincial Finger Print Bureau, which submitted a comprehensive report and the witness from Finger Print Bureau was also produced as a witness---It was conclusively established that the thumb impression on the sale mutation was not hers---No evidence was produced to show that the respondent-plaintiff was aware about the sale mutation much before then---Trial Judge had correctly noted that the onus to prove it lay upon the defendant (predecessor of the petitioners)--- In attending to the issue of limitation the trial Judge determined that the defendant had not been able to establish prior knowledge---Fifteen years had passed since the suit was filed by the respondent, and at three different forums she succeeded and the petitioners lost---Possession of the subject land remained with the petitioners, who had disregarded all three decisions of the courts and continues to retain the illegal possession of the land---As the petitioners had remained in illegal possession of the said land the Supreme Court imposed compensatory cost in the sum of one hundred thousand rupees---Supreme Court directed that the petitioners shall immediately hand over the subject land to the respondent, and if they failed to do so the concerned revenue officer/official shall ensure that its possession was delivered to the respondent immediately---Petition was dismissed with costs throughout.

Seerat Hussain Naqvi, Advocate Supreme Court through video link from Lahore Branch Registry for Petitioners.

Nemo for Respondent.

2024 S C M R 205

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

NAVEED SATTAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 317-L of 2023, decided on 20th September, 2023.

(On appeal against the order dated 14.02.2023 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 48864-B of 2022)

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

----S. 497(2)---Penal Code (XLV of 1860), 302, 34, 118, 120-B, 109 & 506---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, grant of---Further inquiry---After registration of FIR, the complainant recorded four supplementary statements---In the first three supplementary statements, the complainant did not nominate the petitioner as an accused---However in her fourth supplementary statement, recorded after a lapse of more than four months of the occurrence, she did nominate the petitioner for the first time---Bare look of the crime report and the subsequent four supplementary statements recorded by the complainant shows that she kept changing her stance---It appears there is no direct evidence against the petitioner and the prosecution case hinges upon circumstantial evidence---Petitioner is behind bars for the last more than 20 months---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 petitioner was admitted to bail.

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

----S. 497(2)---Penal Code (XLV of 1860), 302, 34, 118, 120-B, 109 & 506---Qanun-e-Shahadat (10 of 1984), Art. 22---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, grant of---Identification parade---Identification parade was conducted after petitioner's nomination by the complainant and in such circumstances, prima facie the sanctity of such test identification parade is open for determination---Petition for leave to appeal was converted into appeal and allowed and petitioner was admitted to bail.

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

----S. 497(2)---Penal Code (XLV of 1860), 302, 34, 118, 120-B, 109 & 506---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, grant of---Call Data Record (CDR)---So far as the Call Data Record (CDR) is concerned, in absence of any concrete material the CDR is not a conclusive piece of evidence to ascertain the guilt or otherwise of an accused---Petition for leave to appeal was converted into appeal and allowed and petitioner was admitted to bail.

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

----S. 497(2)---Penal Code (XLV of 1860), 302, 34, 118, 120-B, 109 & 506---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, grant of---Photographs allegedly connecting the petitioner with the commission of the crime---Nothing is available on record to show that said photographs were ever sent for forensic examination, therefore, it is unsafe to rely upon the same as a piece of evidence in a court of law---Petition for leave to appeal was converted into appeal and allowed and petitioner was admitted to bail.

Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675 ref.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Benefit of doubt---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.

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

----Ss. 497(2) & 156---Penal Code (XLV of 1860), 302, 34, 118, 120-B, 109 & 506--- Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, grant of---Opinion of police during investigation---Relevance---Although the petitioner was found involved during police investigation but it is settled law that ipse dixit of the police regarding the guilt or innocence of an accused could not be depended upon as the same would be determined by Trial Court on the basis of evidence available on record---Petition for leave to appeal was converted into appeal and allowed and petitioner was admitted to bail.

Humayoun Rashid, Advocate Supreme Court (through video link from Lahore) for Petitioner.

Irfan Zia, D.P.G. and Wahid and Iqbal, SI for the State.

Complainant in person.

2024 S C M R 209

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

M TAIMOOR ALI---Petitioner

Versus

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

Criminal Petition No. 1294 of 2023, decided on 28th November, 2023.

(Against the order dated 12 October 2023 passed by Lahore High Court Rawalpindi Bench Rawalpindi in Criminal Misc. No.2761-B of 2023)

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail application dismissed as withdrawn---Subsequent/second bail application, filing of---Fresh grounds---Scope---Present criminal petition for leave to appeal had been filed against the impugned order of the High Court wherein it was recorded that the petitioner's counsel did not press the (bail) petition in order to approach the Supreme Court---As per counsel of petitioner (accused) this statement was made because earlier the matter had come before the Supreme Court in another petition which was disposed of by recording that petitioner's counsel did not press it for the time being; and that a fresh ground had accrued to the petitioner on which bail was sought---Held, that if a fresh ground had become available to the petitioner prior to the passing of the impugned order then counsel should not have withdrawn the petition, but insisted that the petition be decided on merits---Legal position on the present issue was by now well settled by the Supreme Court in the cases reported as Nazir Ahmad v. State (PLD 2014 Supreme Court 241) and Muhammad Aslam v. State (PLD 2015 Supreme Court 41)---At present stage counsel for petitioner stated he did not press present petition as he wanted to avail an alternate remedy---Accordingly present petition was dismissed as withdrawn.

Nazir Ahmad v. State PLD 2014 SC 241 and Muhammad Aslam v. State PLD 2015 SC 41 ref.

(b) Practice and procedure---

----Repeated use of word 'august' before the Supreme Court of Pakistan or its alternative 'August Court'---Supreme Court observed that the Supreme Court is mentioned in the Constitution as the 'Supreme Court of Pakistan', without any prefix or adjective, and everyone should endeavour to abide by the descriptions mentioned in the Constitution.

Hassan Raza Pasha, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Agha Muhammad Ali, Advocate Supreme Court (on caveat) for Respondent No. 2/Complainant.

2024 S C M R 211

[Supreme Court of Pakistan]

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

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN and others---Appellants

Versus

MASOOD AHMED and another---Respondents

Civil Appeal No. 40-Q of 2018, decided on 26th July, 2023.

(On appeal from the judgment of the Balochistan Service Tribunal, Quetta dated 25.02.2015 passed in S.A. No. 394 of 2013)

Balochistan Service Tribunals Act (V of 1974)---

----S. 5(1)--- Service Tribunal, powers of--- Scope--- Pro forma promotion---Tribunal directed the Provincial Government to create a new post and grant pro forma promotion to a civil servant against such post---Legality---Creation of a new post for the purpose of pro forma promotion is a policy decision and the Service Tribunal(s) cannot exercise such executive authority.

Creation of a post is a policy decision, based upon the requirements of a department and involves economic factors, which is the sole discretion and executive authority to be exercised by the Government alone. The Tribunal cannot assign to itself such executive function, nor can it grant relief not provided under the law.

2023 SCMR 803; (2008) 1 SCC 683 ref.

Even otherwise, promotion of an officer in selection grades is based upon the principle of fitness-cum-seniority, which depends upon multiple factors, as per the service rules based upon the service record of the incumbent. These factors can only be determined by the Board and upon its recommendations, it is the prerogative of the Government to agree or disagree with such recommendations. However, in case of disagreement, reasons must be assigned by the competent authority. Consequently, directing the Government to create a new post and grant pro forma promotion to a civil servant amounts to exercise of power in excess of the Tribunal's authority, which is without jurisdiction.

Muhammad Ali Rakhsahani, Additional A.G. and Gohar Yaqoob Yousafzai, Advocate Supreme Court for Appellants.

Respondents ex parte.

2024 S C M R 298

[Supreme Court of Pakistan]

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

MUSLIM COMMERCIAL BANK LIMITED---Appellant

Versus

MUHAMMAD ANWAR MANDOKHEL and others---Respondents

Civil Appeal No. 377 of 2014, decided on 17th October, 2023.

(Against the judgment dated 19.12.2013 of the High Court of Balochistan, Quetta passed in C.P. No. 139 of 2012)

(a) Jurisdiction---

----Question of jurisdiction of the court or a judicial forum assumes paramount importance as the foremost and pivotal consideration---It defines which court is competent to handle a case, where it should be heard, and what types of cases it can address---Such determination is the cornerstone of a fair legal process, ensuring that cases proceed efficiently, prevent delays, and maintain clarity.

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

----Ss. 2(xxxii), 53 & 54 --- Balochistan Industrial Relations Act (XIV of 2010), Ss. 52(4) & 55(3) [since repealed]---Constitution of Pakistan, Art. 141---Trans-provincial establishment---Industrial dispute related to trans-provincial employer---Provincial Labour Court, jurisdiction of---It is not the nature of the dispute, particularly, unfair labour practice, which confers jurisdiction on one or the other forum but it is the status of the employer or the group of employers, which would determine the jurisdiction of the Provincial Labour Court and that of the National Industrial Relations Commission ("NIRC")---Once it is established through any means that the employer or group of employers has an establishment, group of establishments, industry, having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of overriding and superimposing effects over the Provincial Labour Court for resolving industrial disputes, including unfair labor practices, etc., related to such employers with establishments, branches, or industrial units in multiple provinces---Therefore, in such like cases recourse has to be made by the aggrieved party to the NIRC and not to the Provincial Labour Court---Furthermore Article 141 of the Constitution makes it abundantly clear that the Parliament has extra-territorial authority to legislate, but the Provincial Legislature has no legislative competence to legislate a law regulating the establishments and industries functioning at the trans-provincial level---Balochistan Industrial Relations Act, 2010 does invest the Provincial Labour Court with the authority to adjudicate upon the matters relating to the trans-provincial establishments, and even if it provides so, it cannot sustain under the law.

Pakistan Telecommunication Company v. Member NIRC 2014 SCMR 535; Sui Southern Gas Company Limited v. Federation of Pakistan and others 2018 SCMR 802 and Muhammad Shabbir v. Quaid-e-Azam University 2022 SCMR 487 ref.

(c) Interpretation of statutes---

----Special law and general law---Precedence---In the absence of a special law, the ordinary/general laws come forward to fill in the vacuum.

Air League of PIAC Employees through President versus Federation of Pakistan Ministry of Labour and Manpower Division Islamabad and others 2011 SCMR 1254 ref.

(d) Interpretation of statutes---

----Procedural law---Retrospective effect---Procedural law has retrospective effect unless the contrary is provided expressly or impliedly.

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

Shahid Anwar Bajwa, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Appellant.

Abdul Hafeez Amjad, Advocate Supreme Court and Sheikh Mehmood Ahmed, Advocate-on-Record for Respondent No. 1.

2024 S C M R 309

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Sayyed Mazahar Ali Akbar Naqvi

and Irfan Saadat Khan, JJ

PERVAIZ HUSSAIN SHAH and others---Petitioners

Versus

SECRETARY TO GOVERNMENT OF PUNJAB FOOD DEPARTMENT LAHORE and another---Respondents

Civil Petitions Nos. 1007 and 1112-L of 2022, decided on 14th November, 2023.

(Against the judgment dated 14.1.2022 passed by Punjab Service Tribunal, Lahore in Appeal No.4490 of 2014)

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

----S. 3--- 'Negligence' and 'gross negligence'--- Distinction---Expression "negligence" fact connotes a dearth of attentiveness and alertness or disdain for duty--- Genus of accountability and responsibility differentiates and augments an act of gross negligence to a high intensity rather than an act of ordinary negligence---To establish gross negligence, the act or omission must be of a worsened genre whereas ordinary negligence amounts to an act of inadvertence or failure of taking on the watchfulness and cautiousness which by and large a sensible and mindful person would bring into play under the peculiar set of circumstances.

The Postmaster General Sindh Province, Karachi v. Syed Farhan 2022 SCMR 1154; Hunter v. Hanley 1955 S.L.T 213 and Stroud's Judicial Dictionary of Words and Phrases, 10th Edition, Volume 2, (pp. 816) ref.

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

----S. 4(1)(c)(i)--- District Food Collector---Embezzlement of food stock---Case of 'negligence' as opposed to 'gross negligence'---Withholding of part of pension for a certain period---Proportionality of punishment--- Scope--- Petitioner's absence from the site of embezzlement, albeit due to the nature of his job, could not be used as a handy excuse to absolve himself of the loss caused to the public exchequer---Nevertheless, the petitioner's negligence was not 'gross negligence' given that the petitioner's conduct was not so marked a departure from the normal standard of conduct of a professional man as to infer a lack of that ordinary care which a man of ordinary skill would display---Thus, Inquiry Committee's decision to impose major penalty of withholding 100% of petitioner's pension failed the tests of proportionality (of punishment), suitability, and necessity---Petition for leave to appeal was converted into appeal and partly allowed by modifying the impugned judgment in the terms that the petitioner's pension shall be confined to 50% from the period of service ranging from the year 2014 to 2016 only; whereas pension for the remainder of his service, apart from the aforementioned period of service, shall be paid in its entirety i.e. 100% by the department.

Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019 SC 189; Kremnitzer, M., Steiner, T., Lang, A. (2022). Proportionality in action: Comparative and Empirical Perspectives on the Judicial Practice (pp. 1). Cambridge University Press; Divisional Superintendent, Postal Services v. Nadeem Reza 2023 SCMR 803; The Federation of Pakistan through the General Manager/Operations Pakistan Railways v. Shah Mohammad 2021 SCMR 1249; The Government of N.W.F.P. through the Secretary to the Government of N.W.F.P. Communications and Works Departments, Peshawar v. Mohamad Said Khan PLD 1973 SC 514 and Auditor-General of Pakistan v. Muhammad Ali 2006 SCMR 63 ref.

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

----S. 4---Penalty---Proportionality---Penalty should be proportionate to the guilt---Notion of proportionality requires that the punishment ought to reflect the degree of moral culpability associated with the offence for which it is imposed.

Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019 SC 189; Kremnitzer, M., Steiner, T., Lang, A. (2022). Proportionality in action: Comparative and Empirical Perspectives on the Judicial Practice (pp. 1), Cambridge University Press and Divisional Superintendent, Postal Services v. Nadeem Reza 2023 SCMR 803 ref.

(d) Civil service---

----Pension---Scope---Pension is not a bounty; it should be considered as a recognition of the satisfactory service of the retiring person.

The Federation of Pakistan through the General Manager/ Operations Pakistan Railways v. Shah Mohammad 2021 SCMR 1249 and The Government of N.W.F.P. through the Secretary to the Government of N.W.F.P. Communications and Works Departments, Peshawar v. Mohamad Said Khan PLD 1973 SC 514 ref.

(e) Interpretation of statutes---

----Curative Act---Scope and retroactive effect---Curative Act is generally passed to provide some correction or omission made in an existing statute---Acts of such character are obviously retroactive, and hence entitled, as a general rule, to retrospective operation.

Understanding Statutes, 4th Edition, S.M. Zafar, (pp. 234) and Rajby Industries Karachi v. Federation of Pakistan 2023

SCMR 1407 ref.

Muhammad Aftab Alam Rana, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Petitioner in person (in C.P. No. 1112-L of 2022).

Barrister Mumtaz Ali, Additional A.G., Abdul Majid, DFC, M. Rizwan, Assistant and M. Nawaz, Assistant for Respondents.

Respondent in person (in C.P. No. 1112-L of 2022).

2024 S C M R 344

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Munib Akhtar and Shahid Waheed, JJ

Haji SHINKAI---Appellant

Versus

ABDUL SHAKOOR and others---Respondents

Civil Appeal No. 23-Q of 2017, decided on 19th October, 2023.

(On appeal against the judgment dated 11.09.2017 passed by the High Court of Balochistan, Quetta in Regular First Appeal No.47 of 2012)

(a) Arbitration Act (X of 1940)---

----Ss. 31, 32 & 33---Suit for enforcing an award under section 32 of the Arbitration Act, 1940---Not maintainable---Plaintiff claimed that the dispute regarding recovery of Rs.3,800,000 from the defendants was referred to arbitration, and as a result, an award was made declaring that the defendants, for the liquidation of their liability, would give their two acres of land to the plaintiff---Plaintiff further claimed that though he was given possession of the land under the award, the mutation was not recorded in the revenue records---Based on these facts, he wanted the Court to declare him to be the owner of the land---In sum, it is clear that the plaintiff's suit was, for all intents and purposes, to enforce the award---Defendants, on the other hand, denied the arbitration agreement and maintained that the award was invalid and inoperative---Upon these pleadings, it is manifest that the instant suit raised the question as to the existence, effect or validity of the award and such a suit is expressly prohibited by section 32 of the Arbitration Act, 1940---If the plaintiff wanted to enforce the award, the proper procedure for him would have been first to get the award to be made a rule of the Court and then to enforce or execute the decree which might be passed on the basis of the award---Plaintiff could not resort to the procedure of filing a separate suit in disregard of the special procedure provided in the Arbitration Act, 1940---During the trial, a Commission was issued to an Advocate to inspect the suit land and to submit a report as to whether the land mentioned in the award and the land stated in the plaint were the same---On inspection, the Commission found the two lands to be different---None of the parties challenged the report of the Local Commission---In the context of the report of the Local Commission, the oral evidence adduced by the plaintiff regarding the handing over of the possession of the defendants' land became highly doubtful---Plaintiff should have produced a relevant revenue record or a revenue officer to establish that the defendants voluntarily acting upon the award had handed over the possession of their land to him, but he did not do so---Appeal filed by plaintiff was dismissed.

Moolchand Jothajee v. Rashid Jamshed Sons AIR 1946 Madras 346; M. Gulamali Abulhussein & Co. v. Vishwambharlal AIR 1949 Bombay 158; Ramchander Singh and 4 others v. Munshi Mian AIR 1950 Patna 48; Kanhyalal Vishweshwarlal Mahjan v. Ramchandra Shankarrao Holkar AIR 1959 Madhya Pradesh 415; Abdur Rehman v. Hamid Khan 1988 SCMR 1146 and Awan Industries v. Executive Engineer, Lined Channel Div. 1992 SCMR 65 ref.

(b) Arbitration Act (X of 1940)---

----S. 32---Bar to suits contesting arbitration agreement or award---Expression "effect of the award" employed in section 32 of the Arbitration Act, 1940---Connotation---Said expression is wide enough to cover a suit for enforcement of an award.

Narbadabai and others v. Natverlal Chunilal Bhalakia AIR 1953 Bombay 386 and Abdul Karim v. Bashir Ahmad PLD 1967 Lah. 365 ref.

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

----Ss. 42 & 55---Suit for declaration and permanent injunction in respect of immoveable property---Incompetent suit---Relief---Scope---Whether, in an incompetent suit, relief could be moulded, and the plaintiff could be awarded that relief which he did not even pray, and in which he was not interested---Held, that the High Court found the suit filed by the plaintiff to be incompetent, but taking into account the admission made by defendant in his written statement that he had only obtained a loan of Rs.2,200,000 from the plaintiff, modified the decree of the Trial Court and held that the plaintiff was entitled to the recovery of the amount from defendant, subject to deposit of court fee within one month---Plaintiff neither sought this relief in his plaint nor was it the subject matter of the relevant framed issue, which was to the effect "whether the plaintiff is entitled to the relief claimed for?"---So, it could not be granted, particularly when it was found that the suit was not maintainable---Furthermore the plaintiff's counsel was asked whether the plaintiff, in compliance with the judgment of the High Court, had provided the Court fee within time, to which he replied in the negative and said that the plaintiff was not interested in the recovery of the amount---In such a situation, the modification in relief made by the High Court was not justified---Appeal filed by plaintiff was dismissed.

Shams-ud-Din Achakzai, Advocate Supreme Court for Appellant.

Kamran Murtaza, Senior Advocate Supreme Court (via video link from Quetta) for Respondent No. 1.

Ex parte Respondents Nos.2 to 9.

2024 S C M R 353

[Supreme Court of Pakistan]

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

HASHAM KHAN (DECEASED) through LRs.---Appellants

Versus

WAHEED AHMED---Respondent

C.As. Nos. 170 and 171 of 2017 decided on 7th June, 2023.

(Against the judgment dated 21.09.2016 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision Nos. 688-D of 2011 and Civil Revision No. 689-D of 2011)

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

----S. 6(1)(a)---Right of pre-emption---Shafi Sharik (co-owner in suit land)---Proof---Plaintiff/pre-emptor/respondent was required to prove through documentary evidence his right of pre-emption upon the land sold in favour of the appellant/vendee/defendant---Admittedly, in column of ownership in Register Haqdaran Zameen the name of the respondent/plaintiff was mentioned in Khana Kafiyat and not in owner column in the khata wherefrom the property pre-empted was sold---Copy of Jamabandi produced for the relevant year did not contain the name of the plaintiff as co-owner in the Khata---Hence, the respondent had failed to prove his right of pre-emption on the basis of co-ownership against the appellants---Appeals were allowed and suit for possession through pre-emption filed by the plaintiff/respondent stood dismissed.

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

----Ss. 52 & 42---Presumption in favour of entries in records-of-rights and periodical records---Scope---Khana Kafiyat of Register of Record of Rights---Mutation register is distinct from the record-of-rights and consequently does not benefit from the legal presumption of truthfulness commonly associated with the latter---Presumption of correctness is attached only to the column of ownership and of possession of record of right and no such presumption is attached to the column of Lagan---Same is the correct law for the entries made in Khana Kafiyat of Register of Record of Rights/Jamabadi---Khana Kafiyat of Register of Record of Rights is not covered by section 52 of the Punjab Land Revue Act, 1967---Whenever, a party relies on this Column, they will have to prove the incorporated statement/entry through independent evidence.

Pervez Alam Khan v. Muhammad Mukhtar Khan 2001 CLC 1489 ref.

Shad Muhammad v. Khan Poor PLD 1986 SC 91 rel.

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

----S. 13(1)(b)--- Suit for pre-emption---Talb-i-Ishhad, notice of---Proof---Names of witnesses of Talb-i-Ishhad notice had not been mentioned in the plaint, which was a fatal defect---Alleged notice of Talb-i-Ishhad in both the suits was allegedly by "Mr. A", Advocate on behalf of the respondent-plaintiff, though the said notice contained the signatures of the plaintiff but "Mr. A", Advocate was required to prove the notice when he issued the notice on behalf of the plaintiff to the vendee---Language of the notice stated that on behalf of the plaintiff the Advocate was issuing the notice, therefore, it was required that the Advocate should have appeared before the Court in witness-box to prove the same---Furthermore the registered post was sent on a village address whereas the plaintiff admitted in cross-examination that the vendee/defendant was living in a foreign country---When appellant/ vendee appeared as his own witness and stated that real brother of the plaintiff is also working in the same foreign country and the plaintiff knows the foreign address of vendee and even his telephone number, this fact was not disputed in cross-examination by the counsel for the plaintiff, which meant that it was admission on the part of the respondent-plaintiff---One of the vendors who was relative of the plaintiff, appeared as a witness and stated that he went to the plaintiff and stated he wants to sell his share in the suit property but the plaintiff refused to purchase the suit property---Plaintiff did not prove the performance of Talbs in accordance with law---Appeals were allowed and suit for possession through pre-emption filed by the plaintiff/respondent stood dismissed.

Sh. Ahsan ud Din, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Sardar Abdur Raziq Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

Research made by: Bibi Tayyaba Kakar, Law Clerk.

2024 S C M R 360

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

MUSLIM COMMERCIAL BANK LIMITED---Petitioner

Versus

RIZWAN ALI KHAN and others---Respondents

Civil Petition No. 4980 of 2021, decided on 10th November, 2023.

(Against judgment dated 06.08.2021 passed by the Islamabad High Court, Islamabad in W.P. No. 776 of 2021)

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

----S. 2(xxxiii)--- 'Worker' and 'workman', status of---Burden of proof---Factors and evidentiary requirements to be considered by Courts while determining whether an employee is a workman stated.

Evidence must be produced to establish the nature of work and functions of the aggrieved claimant, particularly to show that the work is manual or clerical and not managerial or supervisory. The court has to give due consideration to the cumulative effect of the evidence in the context of the nature of work that the workman claims he was doing so as to determine if he is a workman and not rely on piecemeal evidence. For a claimant to be categorized as a workman, his designation alone is not relevant and cannot be considered conclusive evidence of his work status rather, it is the pith and substance of his duties and functions which must be manual or clerical. When understanding further the definition of 'worker' and 'workman,' mere reliance on the fact that it is routine work does not make one's functions and duties clerical or manual and is not sufficient to establish the workman status. Manual and clerical work involves physical exertion as opposed to mental or intellectual exertion. Furthermore, even routine work can involve the exercise of initiative, imagination, direction and supervision while maintaining registers, submission of reports, preparing of vouchers and statements and such jobs cannot be termed as being that of a workman simply because they are routine work.

Habib Bank Limited v. Gulzar Khan and others 2019 SCMR 946 and National Bank of Pakistan v. Anwar Shah and others 2015 SCMR 434 ref.

The judicial consensus of the Court with respect to the determination of the work status is clear such that the court must analyze the nature of the actual duties and functions of the employee to ascertain whether he falls within the ambit of the definition of worker or workman for which collective evidence must be examined to ascertain whether the duties were supervisory or managerial or whether they are manual or clerical. Therefore, in determining the work status, the overall nature of duties assigned to that person along with the functions of the job and the manner in which he performs his duties must be brought onto evidence and must be duly considered.

Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505 ref.

To determine whether a person is a workman is a finding of fact, routed in evidence and the person who approaches the court on the basis of an averment that he is a workman carries the initial burden of proof to establish that he is a workman. To emphasize, when dealing with the question of burden of proof in establishing the status of the workman, such burden lies on the person claiming to be a workman. It is the bounden duty of a person who approaches the Labour Court to demonstrate through evidence the nature of duties and functions, and to show that he is not working in any managerial or administrative capacity and that he is not an employer. In the absence of such evidence, a grievance petition would not be maintainable before the Labour Court for lack of jurisdiction. Moreover, this burden of proof is to be discharged by the claimant through documentary and oral evidence supporting his claim that the nature of his work is, in fact, manual or clerical. This requires the production of evidence, documentary or oral, which shows the nature of duties and the functions of the claimant pursuant to his claim that he is a workman. Even if there does not exist the power to hire or fire any person, the nature of the job as performed by the person must be evident from the holistic view of the record produced and it has to be determined through overall record whether he was employed as a workman doing manual and clerical work and whether he was discharging his functions in a managerial and supervisory role. Accordingly, it's vital for the court to consider all the evidence and to ascertain the duties and functions of the person claiming to be a workman and to ensure that the workman has discharged his burden with the required evidence.

National Bank of Pakistan v. Punjab Labour Court 5, Faisalabad and 2 others 1993 SCMR 672; National Bank of Pakistan v. Anwar Shah and others 2015 SCMR 434; Shahi Bottlers (Pvt.) Ltd. v. Punjab Labour Appellate Tribunal, Lahore and others 1993 SCMR 1370 and Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530 ref.

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

----S. 2(xxxiii)--- Bank employee---Whether a 'worker' and 'workman'---Duties such as issuing cheque books, checking ledgers and preparing statements of accounts are not merely manual or clerical tasks, and do not fall within the works of a workman as they involve the exercise of discretion and decision-making---Where bank employees are involved, duties and functions are documented as is (their) daily work, which should be brought before the court in evidence.

Ganga R. Madhani v. Standard Bank Ltd. and others 1985 SCMR 1511 ref.

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

----S. 2(xxxiii)--- Bank employee executing duties of a branch manager---Not a workman---Evidence produced by the petitioner-Bank showed that the respondent-employee was not a workman; that the respondent was appointed as a bank manager at one of the branches of the petitioner-Bank---Performance evaluation report of the respondent for the relevant period showed that he was working as OG-II/bank officer and his work included supervision and guidance; he was being assessed on the basis of management skills and not on the basis of clerical skills---Respondent was involved in financial management, people management, processes and controls, customer focus and operational efficiency---List of duties assigned to the respondent showed his control of internal working, development of branch deposit, advances, marketing, KB accounts opening etc.---Simply placing reliance on the respondent not being able to hire or fire or not having a power of attorney was not sufficient evidence for the purposes of determining the status of a workman---Respondent did not establish the nature of his work or his duties and his emphasis remained on what he did not have the authority to do---Labour Court and NIRC failed to analyse the evidence before them and ignored the established principles on how to establish workman status and the High Court, thereafter, affirmed those orders without considering the law and the evidence in the case---Petition was converted into an appeal and allowed, and the impugned judgments were set aside.

Muhammad Shoaib Rashid, Advocate Supreme Court (via video link, Lahore) for Petitioner.

Zubair Hussain, Advocate Supreme Court for Respondent No. 1.

2024 S C M R 424

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Elementary and Secondary Education Department, Peshawar and others---Petitioners

Versus

AMJAD UR RAHMAN and others---Respondents

Civil Petition No. 225-P of 2023, decided on 11th December, 2023.

(Against the judgment dated 22.02.2023 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat passed in W.P. No. 657-M of 2020)

Civil service---

----Appointment---Candidate on top of merit list not selected on the grounds that he was over qualified for the post advertised---Propriety---Frivolous litigation initiated by the Provincial Government---Petitioners had advertised in the year 2018 for the selection of two computer teachers in basic pay scale of 12 and had prescribed the minimum qualification as Intermediate with one year diploma in computer sciences---Respondent held a B.Sc. and M.Sc. degree in computer science and came on the top of the merit list but still was not appointed for the reason that he was over-qualified---Held, that it appeared that those in charge of educating the children of the province were bereft of common sense by disqualifying a person who was more qualified and thus better placed to impart computer science education and favoured one less qualified---Not only the respondent was made to suffer but the children, who would have benefited from his knowledge, were condemned---Leave to appeal was declined and the petition was dismissed with costs incurred by the respondent, that is two hundred thousand rupees to be paid to the respondent---Supreme Court directed that judgment regarding appointment of respondent will also be implemented, and if it is not complied with, the Provincial Secretary, Elementary and Secondary Education, may be proceeded against for contempt of Court, and that copy of present order be sent to the petitioners and the respondents, to the Advocate General, Provincial Chief Secretary and Secretary Law who will undoubtedly ensure that the government does not generate such unnecessary litigation and then, for no valid legal reason, challenge the decisions of the High Court which also drains the resources of the government, paid for by the taxpayers.

Sultan Mazhar Sher Khan, Additional Advocate General, Khyber Pakhtunkhwa along with Mehmood Ghaznavi, D.E.O. (Male) Chitral for Petitioners.

Respondent No.1 in person.

2024 S C M R 426

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and another---Appellants

Versus

Mst. ZUBEDA BIBI---Respondent

Civil Appeal No. 343-L of 2020, decided on 13th December, 2023.

(Against the judgment dated 15.10.2020 of the Lahore High Court Lahore passed in Insurance Appeal No. 171 of 2016)

Insurance Ordinance (XXXIX of 2000)---

----S. 118---Life insurance claim---Death of insured in road accident---Legal heirs opting not to conduct post-mortem examination of deceased (insured)---Proof to establish cause of death---Scope---Payment of liquidated damages on late settlement of claim---Appellant (insurer) never challenged the validity of death certificate of deceased (insured)---Entry in the death register of concerned union council and the report of the incident lodged at police station were official documents and presumption of truth was attached with them and the same should be taken into consideration---In circumstances where a person is met with an accident/unnatural death, his legal heirs ordinarily avoid conducting post-mortem examination, however in the present case, if the appellant/insurer deemed it to be necessary, it should have done the same by itself in order to protect its rights---Record further reflected that the insurance claim was lodged by the respondent with the appellant by complying with all procedural requirements, however, the appellant had badly failed to make due payment (within the time) as prescribed under the law---High Court had rightly decreed the suit for recovery of claim along with liquidated damages as prescribed under section 118 of the Insurance Ordinance, 2000---Appeal filed by insurer was dismissed.

Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822 ref.

Ibrar Ahmed, Advocate Supreme Court for Appellants.

Imran Muhammad Sarwar, Advocate Supreme Court for Respondent No. 1.

Asad Ullah Khan, Additional Attorney General for Pakistan for the Federation.

2024 S C M R 430

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

AMANULLAH---Appellant

Versus

MUHAMMAD SHAREEF KHAN---Respondent

Civil Appeal No. 179 of 2016, decided on 31st October, 2023.

(On appeal from the judgment dated 12.11.2015 passed by the Peshawar High Court, D.I. Khan Bench in C.R. No.165-D of 2014)

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

----S. 13(3)---Suit for possession through pre-emption---Talb-i-ishhad, notice of---Format---Notice of Talb-i-ishhad tendered on a printed specimen/form, with blank columns filled by the petition writer---Invalid---Tendering of the notice of Talb-i-ishhad through a printed format/pro forma does not fulfill the conditions laid down under section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.

In this case, admittedly, the notice of Talb-i-ishhad was tendered on a printed form containing stereotyped and generalized text with different columns for land, house, and shops, allowing the pre-emptor or petition writer, as the case may be, to simply erase/cut out the inapplicable terms and fill in the blanks. This ready-made format does not fulfill the purpose of a statutory notice and the court cannot countenance the use of such pro form as which every pre-emptor can simply purchase from a vendor, shop/stall, or petition writer who, for his own convenience, gets the template for the notice printed in advance and utilizes stereotyped text in all cases by simply filling in the blank spaces for the pre-emptor to sign and send. Such a notice does not provide any classification of the pre-emptory rights and fails to convey a confirmation of the intention to press the demand of pre-emption. The purpose of a notice under the law is to convey all the necessary particulars, specifically and with a proper application of mind, on a case to case basis, in a customized/personalized form, or in the vein of a tailor-made notice rather than a ready-made notice in which the mixing or merging of irrelevant or general text with the relevant information cannot be avoided. Therefore, a notice on a printed pro forma cannot be considered a valid notice in accordance with the tenets and dictates of the law and the same should be drafted especially and individually for each particular case on its own facts and circumstances. The notice should not be a published template of the petition writer who in the present case was either not capable of drafting a custom-made or customized notice or, due to sluggishness or laziness, wrongly advised the appellant (pre-emptor) to send notice in the template form. In this regard the appellant is also equally responsible for depending solely on the petition writer. Further, the argument of the counsel for the appellant, that the aforesaid lapses should be excused as the appellant was an illiterate man, is without force. Even if the appellant was an illiterate man, as contended, he was well-aware of his right of pre-emption and the requirement of tendering talbs, hence he should also have been aware of the proper manner for performing the same and, if there was any ambiguity in his mind, he could have sought proper legal advice or assistance to structure his case of pre-emption without any legal defect and lacuna. Appeal filed by pre-emptor was dismissed.

Syed Mastan Ali Zaidi, Advocate Supreme Court for Appellant.

Syed Abid Hussain Shah, Advocate Supreme Court for Respondent.

2024 S C M R 443

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

LIAQAT UNIVERSITY OF MEDICAL AND HEALTH SCIENCES (LUMHS) JAMSHORO through Registrar and another---Petitioners

Versus

MUHAMMAD AHSAN SHAKEEL and others---Respondents

Civil Petition No. 3933 of 2023, decided on 6th December, 2023.

(Against the judgment dated 28.9.2023 passed by High Court Sindh, Circuit Court, Hyderabad in C.P. No. D-663 of 2023)

(a) Educational institution---

----Medical university---Fake and forged mark sheet presented to the university for admission---Admission, cancellation of---Internal policies of universities/colleges---Non-interference by Courts---In academic matters there should be strict discipline and malpractices should be severely punished---Allegations of fraud or fabricated documents are treated with the utmost seriousness by the Supreme Court, and those found to be engaging in such a practice are dealt with accordingly---Institutions imparting medical or dental education are not merely seen as service providers but also as custodians of the nation's health and the primary training centers for its doctors and healthcare professionals---With such a heavy onus cast on institutions that impart education in medicine, it is logical that such institutions be given a freehand to regulate discipline and regulate those who offend such discipline, as the institutions see fit---Every university has the right to set out its disciplinary and other policies in accordance with law, and unless any such policy offends the fundamental rights of the students or violates any law, interference by the courts would result in disrupting the smooth functioning and governance of the said universities---University sent the mark sheet of respondent/student to the relevant Board of Education twice, and on each occasion, the said mark sheets were termed as fake/ bogus and fabricated---Moreover while furnishing his mark sheet the respondent tendered an affidavit at the time of his admission mentioning that all documents submitted by him along with application form were genuine and correct and no false document had been submitted; that if any document/information was found to be false, incorrect or otherwise his admission was liable to cancelled---It is on the basis of this surety that the respondent was granted provisional admission in the MBBS program and since his mark sheet turned out to be fake and fabricated the University was quite justified in cancelling his admission---Respondent was not entitled for admission in the MBBS program for the academic year 2022-2023, which he managed to secure on the basis of a fake/forged and bogus mark sheet---Civil petition for leave to appeal was converted into an appeal and allowed accordingly.

Muhammad Zubair Chaudhry v. Pakistan Medical and Dental Council 2023 SCMR 2145; Khyber Medical University v. Aimal Khan PLD 2022 SC 92 and Director (Studies), Dr. Ambedkar Institute of Hotel Management, Nutrition and Catering Technology Chandigarh and others v. Vaibhav Singh Chauhan (2009) 1 SC 59 ref.

(b) Administration of justice---

----"Equity"---Scope---Courts have never permitted their judicial powers to be invoked or used for retention of illegal and ill-gotten gains---Nor have the Courts ever opted to exercise their powers in aid of injustice or to grant any relief to persons with unclean hands or for protecting the unethical or underserved benefits.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 ref.

Abdul Salam Memon, Advocate Supreme Court, Hameed Ullah Dahri, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Ms. Pareesa Nawaz Bhutto, Dir. Admn. and Basharat Memon, Dy. Director (via video link, Karachi) for Department.

Muhammad Arshad, S. Pathan, Advocate Supreme Court for Respondent No. 1.

2024 S C M R 452

[Supreme Court of Pakistan]

Present: Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

NASIR KHAN---Petitioner

Versus

NADIA ALI BUTT and others---Respondents

Civil Petition No. 2885 of 2022, decided on 8th November, 2023.

(Against the order dated 20.06.2022 passed by the Islamabad High Court, Islamabad in W.P No. 2086 of 2022)

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 2(g)---Ejectment petition---Landlady, status of---Suit for declaration filed by tenant to prolong his possession over the property---At the time of filing of ejectment petition on 22.04.2021 against the petitioner (tenant), the respondent was the 'landlady' within the meaning of section 2(g) of the Islamabad Rent Restriction Ordinance, 2001 (the Ordinance), because a court of competent jurisdiction on 17.10.2020, had declared her and another lady to be the legal heirs of the deceased owner of the property---Whereas person "A" (paternal uncle of deceased owner) had also obtained judgment and decree dated 02.06.2021 in respect of legal heirship of deceased owner and allegedly entered into a sale agreement with the petitioner (tenant) solely and exclusively in respect of the demised premises on 04.12.2020---Thus the suit for the specific performance filed by the petitioner (tenant) against person "A" on 05.05.2021 was later in time than the rent case filed by the respondent (landlady)---Person cannot remain in occupation of rented premises simply because he asserts to be the owner of the rented premises and has instituted a suit for declaration in this regard---Tenant remains a tenant; he cannot prolong his occupation by exercising his right of being subsequent purchaser unless so held by the court of competent jurisdiction---In the present case the Rent Controller was fully justified in allowing the ejectment petition and directing the petitioner to handover peaceful and vacant possession of the demised premises to the respondent---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Nisar v. Izhar Ahmed Shaikh and others PLD 2014 SC 347 and Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 ref.

(b) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 25(3)---Ejectment petition---Ex-parte proceedings against tenant---Tenant deliberately delaying proceedings by not appearing before the Rent Tribunal---Eviction petition was instituted on 22.04.2021 and summons were issued to the petitioner (tenant) for appearance on 30.04.2021, however, despite receipt thereof by the petitioner's brother, the petitioner was (also) duly served through alternate mode by way of publication in the newspaper and its affixation---Despite of that the petitioner failed to appear before the Rent Controller---Before passing ex-parte order, proceedings were adjourned on five consecutive dates i.e. 07.05.2021, 25.05.2021, 03.06.2021, 09.06.2021 and 16.06.2021 but the petitioner failed to ensure his appearance---On 21.06.2021, ex-parte proceedings were initiated whereby the evidence produced by the respondent (landlady) was recorded---After recording of the evidence, the petitioner made an application before the Rent Controller for setting aside ex-parte proceedings, however, he was unable to justify why he failed to contest the rent case and how he got knowledge if the summons were not duly served upon him---Deliberate disappearance by the petitioner in the rent case, prima facie, spoke volumes about his intention to prolong/delay the rent proceedings---Thus, the Rent Controller was fully justified in allowing the ejectment petition and directing the petitioner to handover peaceful and vacant possession of the demised premises to the respondent---Petition for leave to appeal was dismissed and leave was refused.

Imtiaz Ahmed Kayani, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2024 S C M R 457

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

COLLECTOR OF CUSTOMS and another---Petitioners

Versus

Messrs YOUNG TECH PRIVATE LIMITED and others---Respondents

Civil Petitions Nos.890-K to 909-K of 2023, decided on 22nd November, 2023.

(Against the Order dated 14.03.2023 passed by High Court of Sindh, Karachi in C.Ps. Nos. 5389, 5245, 5004, 6120, 47, 361, 529, 530, 583, 5069, 5689, 6028, 7470, 7668, 7771 of 2021 and 241, 242, 474, 966 of 2023)

Finance Act (XXX of 2018)---

----S. 10 [as amended by the Finance Act (XIII of 2022)]---Mobile handset levy on imported phones---Levy on ordinary phones other than smart phones---Legality---Respondents had imported mobile phones and were aggrieved by the imposition of mobile handset levy under section 10 of the Finance Act, 2018 ("Act") on mobile phones that were admittedly not smart phones---Section 10 of the Act imposed mobile handset levy on smart phones supported by a table which gave categories of smart phones and the rates of levy per set---Subsequently in the Finance Act, 2022, the table of section 10 was amended and the amended table replaced the words "category of smart phone" with the words "Mobile Phones having C&F Value (US Dollars)"---Stance of the department was that by changing the table, it had been conferred the power to recover the said levy not only on the smart phones but also on the ordinary phone which did not fall in the category of smart phones---High Court came to the conclusion that without amending the charging section, i.e. section 10 and merely by amending the table, the levy could not be recovered---Validity---Right to recover any levy rests in the charging section and not in the table that specifies the rates at which such charge is to be recovered---Power to recover a levy is anchored in the charging section and the table is merely meant to prescribe the rates at which such levy is to be recovered on various goods/items---Unless the charging section confers a power to recover a levy on an article or class of goods, mere mention of a different class, types or category of goods clearly goes beyond the scope of the charging section---This cannot be done---Schedule/table is merely a supplement of the charging section and cannot go beyond it and create a new and altogether different levy on a different class of goods not mentioned or contemplated by the charging section---Impugned order of the High Court was in-line with settled principles of law on interpretation of fiscal statutes and tax laws---Petitions were dismissed and leave to appeal was refused.

Dr. Farhat Zafar, Advocate Supreme Court (in all cases) along with Ms. Ume Kalsoom, D.C. Law East Karachi and Nabeel Siraj, D.C. Customs (both via video link, Karachi) for Petitioners.

Nemo for Respondents.

2024 S C M R 461

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

Sardar CONFUCIUS IMRAN QASRANI and another---Appellants

Versus

Sardar Mir BADSHAH KHAN QAISRANI and others---Respondents

Civil Appeals Nos.981, 984 and 985 of 2018, decided on 11th December, 2023.

Elections Act (XXXIII of 2017)---

----S. 232(2)---Constitution of Pakistan, Art. 62(1)(f)---Elections for seat of Provincial and National Assembly---Eligibility---Disqualification period under Article 62(1)(f) of the Constitution---Counsel for the appellants stated that disqualification was for life by relying on the decision in the case of Sami Ullah Baloch v. Abdul Karim Nausherwani (PLD 2018 Supreme Court 405) which held that when Article 62(1)(f) of the Constitution is attracted, the disqualification is for life---However, the counsel for the respondent disputed this and stated that the period of disqualification was for five years as per section 232(2) of the Elections Act, 2017, which provision was enacted through the Elections (Amendment) Act, 2023, promulgated on 26 June 2023---Counsel were unanimous in stating that unless there was a clear pronouncement by the Supreme Court on the matter the returning officers in the forthcoming general elections may wonder whether to apply section 232(2) of the Elections Act, 2017, or the said judgment of the Supreme Court, which may create needless confusion in the elections and shall not be conducive to democracy, and that there was also the likelihood of election tribunals and courts being inundated with cases arising out of the uncertainty---Supreme Court directed that notices under Order XXVIIA of the Code of Civil Procedure, 1908 were to be issued to the Attorney-General, to all the Advocate Generals of the provinces, to the Election Commission of Pakistan and public notice be published in a prominent English and Urdu newspaper having wide circulation as the decision in these appeals may also affect those who are not parties hereto; that concise statements attending to the said constitutional and legal questions, without reference to facts and the particulars of individual cases may be filed; that pendency of these appeals and the questions raised herein shall not be used as a pretext to delay the forthcoming general elections scheduled to be held on 8 February 2024, and that these cases, and any others involving the same question, be fixed for hearing in early January, 2024 before a Bench constituted by the Committee under the Supreme Court (Practice and Procedure) Act, 2023.

Sami Ullah Baloch v. Abdul Karim Nausherwani PLD 2018 SC 405 ref.

Muhammad Saqib Jillani, Advocate Supreme Court (via video-link from Lahore) for Appellants (in C.As. Nos. 981 and 985 of 2018).

Sh. Usman Karim-ud-Din, Advocate Supreme Court for Appellants (in C.A. No. 984 of 2018).

Khalid Ibn-e-Aziz, Advocate Supreme Court for Respondent No. 1 (in C.A. No. 981 of 2018).

M. Arshad, D.G. (Law) and Falak Sher, Legal Consultant for ECP.

Rana Asadullah Khan, Additional A.G.P. for Federation.

2024 S C M R 464

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

SAID NABI---Petitioner

Versus

AJMAL KHAN and another---Respondents

Criminal Petition No. 104-P of 2023, dated 21st September, 2023.

(On appeal against the order dated 19.06.2023 passed by the Peshawar High Court, Peshawar in Criminal Misc. B.A. No. 1706-P of 2023)

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 427, 148, 149, 337-A(ii) & 337-F(ii)---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, grant of---As per the contents of the crime report, the allegation against the petitioner (accused) is of generalized nature---Two co-accused of the petitioner, who were ascribed similar role, have been acquitted by the court of competent jurisdiction after fulfilling all the legal requirements whereas three accused out of the seven have been acquitted on the basis of compromise between the parties---Hence, the bulk of the prosecution case has already been decided by the court of competent jurisdiction---Only allegation against the petitioner that remains in the field is that he remained absconder for five years---Nothing incriminating has been recovered from the possession or on the pointation of the petitioner---In these circumstances, coupled with the fact that the case of the petitioner is at par with the co-accused, since acquitted, the petitioner has made out a case for concession of bail---Petition for leave to appeal was converted into appeal and allowed, and petitioner was admitted to bail.

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

----S. 497---Penal Code (XLV of 1860), S. 302---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail---Abscondence of accused---No doubt abscondence does constitute a relevant factor when examining question of bail---However abscondence is not to be considered in isolation to keep a person behind bars for an indefinite period---Person who is named in a murder case, rightly or wrongly, if he becomes fugitive from law, his conduct is natural.

State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 and Muhammad Tasaweer v. Hafiz Zulkarnain PLD 2009 SC 53 ref.

Shabbir Hussain Gigyani, Advocate Supreme Court for Petitioner.

Altaf Khan, Additional A.G. Khyber Pakhtunkhwa for the State.

Suleman, son for the Complainant.

2024 S C M R 468

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

COMMISSIONER INLAND REVENUE, LAHORE---Appellant

Versus

Messrs ATTA CABLES (PVT.) LTD., LAHORE and others---Respondents

Civil Appeal No.247 of 2021, decided on 2nd November, 2023.

(Against judgment dated 22.4.2019 passed by the Lahore High Court, Lahore in I.C.A. No. 18093 of 2019)

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

----S. 214D [since omitted]---Automatic selection for audit---Scope---In the ordinary course, and in terms of other provisions of the Income Tax Ordinance, 2001 ('the Ordinance'), selection for audit is not automatic but is a result that comes about after going through various statutory filters, including such as are set out in various circulars issued by the Federal Board of Revenue---Section 214D, inasmuch as it applied automatically (subject to certain exceptions contained in its subsections (3) & (4)) and therefore bypassed the filters otherwise built into the Ordinance before an audit could be undertaken, had therefore to be construed and applied strictly---More particularly, the conditions that had to exist for the section to be attracted had to apply precisely---Any deviation or discrepancy, howsoever minor, slight or even inconsequential it may otherwise appear to be would apply, and go, in favor of the taxpayer.

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

----S. 214D [since omitted]---Automatic selection for audit---Scope---Taxpayer had not filed its return for tax year 2015 within the date required---Date for filing the return was 21.01.2016---On that date the respondent-taxpayer properly filed an application under section 119 of the Income Tax Ordinance, 2001 ('the Ordinance') for extension of time---Commissioner did not respond to said request---On such basis, the department claimed that the respondent came within the ambit of section 214D---Validity---In the present case, section 214D would have applied if the Commissioner had, under section 119, extended the period for filing the return (subject to a thirty day condition) and the return was not filed within such extended period---Now, the fact of the matter was that the Commissioner never took any action on the application, which was otherwise properly filed, for extension---Subsection (3) of section 119 specifically requires the Commissioner to grant the extension in writing---Since section 214D had to be applied exactly, this meant that for purposes of this provision the refusal of the Commissioner also had to be in writing---In other words, any inaction on the part of the Commissioner, or a failure to reject or refuse the application for extension in any manner other than in writing, would mean that for the purposes of section 214D the application would be regarded as pending---There could be no refusal or denial of extension by implication---For a provision as harsh and severe as section 214D to apply merely by way of implication or on a deemed basis would be incorrect---Clearly therefore, until the application for extension was actually disposed of by an order in writing the section would not become applicable---Furthermore, the condition of thirty days would have to apply, in the context of section 214D, not from the due date for the filing of the return, but the date of the order made by the Commissioner granting an extension---Of course, if the Commissioner refused the extension in writing, then the section would apply from the date of such order, subject to any remedies available to the taxpayer to challenge such refusal---Therefore, in the facts and circumstances presented in this case, section 214D never became applicable---Appeal filed by the department was dismissed.

Muhammad Mujahid Qureshi and others v. Federation of Pakistan and others 2019 PTD 535 declared to be incorrectly decided.

Ibrar Ahmed, Advocate Supreme Court (via video-link, Lahore) for Appellant.

Javed Iqbal Qazi, Advocate Supreme Court (via video-link, Lahore) for Respondent No. 1.

2024 S C M R 472

[Supreme Court of Pakistan]

Present: Yahya Afridi, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

INTERNATIONAL ISLAMIC UNIVERSITY, ISLAMABAD through Rector and another---Petitioners

Versus

Syed NAVEED ALTAF and others---Respondents

Civil Petition No.835 of 2021, decided on 16th November, 2023.

(Against judgment dated 18.01.2021 passed by the Islamabad High Court, Islamabad in I.C.A. No. 1100 of 2013)

(a) International Islamic University Ordinance (XXX of 1985)---

----S. 38---Law Reforms Ordinance (XII of 1972), S. 3(2), proviso---Decision of the Board of Governors---Intra Court Appeal---Maintainability---Section 38 of the International Islamic University Ordinance, 1985 ('Ordinance of 1985') provides for the remedy of appeal or review before the Board of Governors against any order punishing a teacher or other employees of the university---Original order in the present case was an order by the Board of Governors discontinuing incentives which order was first challenged by the respondents by way of a departmental appeal and then subsequently in a writ petition---Respondents admittedly availed the remedy of appeal provided against the original order by the Board of Governors in terms of section 38 of the Ordinance of 1985----Consequently, the proviso to section 3(2) of the Law Reforms Ordinance, 1972 created a bar on the remedy of appeal for the petitioners (University)---As there was a remedy of appeal available under the Ordinance of 1985, hence the impugned judgment of the High Court was correct in dismissing the Intra Court Appeal---Petition for leave to appeal was dismissed and leave was refused.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 applicable.

Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 ref.

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3(2), proviso---Intra Court Appeal (ICA)---Maintainability---Proviso to section 3(2) of the Law Reforms Ordinance, 1972---Scope---Essential requirement to invoke the proviso to section 3(2) of the Law Reforms Ordinance, 1972 is to see whether the remedy of at least one appeal, review or revision is available under the law against the original order, in the proceedings in which the law is applicable to decide the ICA on merit---Law must prescribe for the remedy of appeal, review or revision, and if so section 3(2) of the Law Reforms Ordinance, 1972 will be applicable, notwithstanding whether that remedy is available to the person filing the ICA.

Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 ref.

Rehan-ud-Din Khan, Advocate Supreme Court for Petitioners.

Muhammad Munir Paracha, Advocate Supreme Court for Respondents.

2024 S C M R 476

[Supreme Court of Pakistan]

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

AKHTAR---Petitioner

Versus

KHWAS KHAN and another---Respondents

Criminal Petition No. 1054 of 2023, decided on 23rd October, 2023.

(On appeal from the judgment dated 09.08.2023 passed by the Peshawar High Court, Peshawar in Criminal M (B.A) No.2414-P of 2023)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 120-B, 201 & 109---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, criminal conspiracy, causing disappearance of evidence of offence, abetment, possession of illegal weapon---Bail, grant of---Further inquiry---Name of the petitioner-accused was not mentioned in the FIR which was against some unknown persons---There was also no eye-witness of the incident---Pistol was recovered in the absence of the petitioner, from his brother, for which a separate FIR had been lodged---Even if the empties recovered from the scene of the crime were matched, it was to be seen by the Trial Court after recording evidence whether the bullets were shot by the petitioner or not---Reliance on a single picture captured from a CCTV system could not be treated as a substantial piece of evidence at bail stage, rather it was subject to the evidence, as may be recorded by the Trial Court, whether it had any nexus to the scene of crime---FIR was lodged on 11.12.2002 against unknown persons but on 15.12.2022 the complainant, by means of statement recorded under section 164, Cr.P.C., implicated the petitioner on the ground that there was a quarrel between the deceased and the petitioner, which alleged incident was in the knowledge of the complainant, but no such indication or disclosure was made while lodging the FIR---Case of petitioner required further inquiry to prove his guilt which could only be thrashed out after recording of evidence in the Trial Court---Petition for leave to appeal was converted into appeal and allowed, and accused was granted post-arrest bail.

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

----Ss. 161 & 497(2)---Qanun-e-Shahadat (10 of 1984), Arts. 38, 39 & 40---Confession made by accused before the police---Such confession is not admissible.

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

----S. 497(2)---Constitution of Pakistan, Art. 185(3)---Bail---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---It pre-supposes the tentative assessment which may create doubt with respect to the involvement of the accused in the crime.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Principles---Expression reasonable grounds used in section 497, Cr.P.C---Meaning---Expression "reasonable grounds" as contained under section 497, Cr.P.C., necessitates the prosecution to show that it is in possession of sufficient material or evidence to demonstrate that accused had committed an offence falling within the prohibitory limb of section 497, Cr.P.C.---However for seeking the concession of bail, the accused person has to show that the material or evidence collected during investigation against him creates reasonable doubt or suspicion in the prosecution case---While deciding bail applications, it is the foremost duty of the Courts to apply judicious mind tentatively for reaching the just and proper conclusion regarding whether reasonable grounds are made out or not to enlarge the accused on bail, and the expression 'reasonable grounds' signifies and corresponds to the grounds which are legally rational, acceptable in evidence and attractive to the judicial mind, as opposed to being imaginative, fallacious and/or presumptuous---Whenever reasonable doubt ascends with regard to the involvement of an accused person in the crime or about the certainty or probability of the prosecution case and the evidence proposed to be produced in support of the charge in Court during trial, the accused should not be deprived of the benefit of bail and it would be better to keep him on bail than in jail.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Principles---Principle that prosecution has to prove its case beyond reasonable doubt---Said principle applies at all stages including the pre-trial stage, and even at the time of deciding whether the accused is entitled to bail or not.

Sher Aman Khan, Advocate Supreme Court for Petitioner.

Altaf Khan, Additional A.G., Khyber Pakhtunkhwa and Ziarat Gul, SI, Mardan for the State.

Respondent No. 1 in Person.

2024 S C M R 481

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

GUL ZAMAN---Appellant

Versus

DEPUTY COMMISSIONER/COLLECTOR GWADAR and others---Respondents

Civil Appeal No.13-Q of 2020, decided on 8th November, 2023.

(Against the judgment dated 24.11.2020 passed by the High Court of Balochistan, Circuit Bench at Turbat in R.F.A. No. (T)01 of 2017)

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

----Ss. 18, 19, 20 & 21---Land acquisition---Reference to Court---Pre-requisites---Conditions mentioned under sections 18 to 21 of the Land Acquisition Act, 1894 ('the Act') have to be fulfilled before the Collector is empowered to make the reference, and then alone the Court has any jurisdiction to entertain the reference---Matter (of landowner seeking enhancement for compensation of his land) goes to Court only upon a reference made by the Collector---It is only after such a reference is made that the Court is empowered to determine the objections made by a claimant to the award---In fact, it is the order of reference which provides the foundation of the jurisdiction of the Court to decide the objections referred to it---Section 18(1) of the Act does not authorise or permit or provide for a person aggrieved, to make an application directly to the Court.

The appellant (land owner), after having received partial compensation directly filed an application under section 18 of the Land Acquisition Act, 1894 ('the Act') in the Court of District Judge, praying therein to enhance the compensation of land, by setting aside the award announced by the Land Acquisition Collector. The District Judge entertained this application, registered it as a suit, and proceeded with its trial. Question was whether it was open to the land owner-appellant to have directly made an application under section 18 of the Act before the District Judge.

There are certain conditions which have to be fulfilled before the Collector is empowered to make the reference, and then alone the Court has any jurisdiction to entertain the reference. These conditions are:

(a) A written application should be made before the Collector;

(b) The person applying should be one interested in the subject matter of the reference, but who does not accept the award;

(c) The grounds of objection as to the measurement, or the amount of compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested should be stated in the application; and

(d) The application should be within the period prescribed under the provisos (a) and (b) to section 18 of the Act.

Above are all matters of substance, which may be conveniently called jurisdictional facts, and their compliance is a condition precedent to the exercise of the power of reference under section 18 of the Act. The matter goes to Court only upon a reference made by the Collector. It is only after such a reference is made that the Court is empowered to determine the objections made by a claimant to the award. In fact, it is the order of reference which provides the foundation of the jurisdiction of the Court to decide the objections referred to it. The Court is bound by the reference and cannot widen the scope of its jurisdiction or decide matters which are not referred to it. It is thus, not within the domain of the Court to entertain any application under the Act pro interesse suo (that is, according to his interest) or in the nature thereof.

Prayag Upnivesh Awas Evam Nirman Sahavi Samiti Ltd. v. Allahabad Vikas Pradhikaran and others AIR 2003 SC 2302; Shyamali Das v. Illa Chowdhry and others AIR 2007 SC 215 and The Land Acquisition Collector, Pak-Arab Refinery Limited and others v. Khan (deceased) and others 2019 MLD 968 ref.

Remedy by filing an application under the Act directly to the Court of District Judge was clearly misconceived, inasmuch as section 18(1) of the Act does not authorise or permit or provide for a person aggrieved, to make an application directly to the Court, and the Trial Court had no jurisdiction whatsoever to decide the points arising in the application; therefore, the proceedings of the District Judge were void ab-initio. Appeal was dismissed.

(b) Jurisdiction---

----Principle---Whenever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein, it is a universal principle that those terms should be complied with in order to create and raise the jurisdiction, and if they are not complied with, the jurisdiction does not arise.

Nusserwanjee Pestonjee and others v. Meer Mynoodeen Khan Wullud (1885) 6 MIA 134 and Mansab Ali v. Amir and others PLD 1971 SC 124 ref.

(c) Administration of justice---

----Purpose of law is to settle down and not to devise means to multiply contest between the parties.

Kamran Murtaza, Senior Advocate Supreme Court for Appellant.

Muhammad Ayyaz Swati, Additional A.G. with Qamar Abbas, Focal Person for Respondents.

2024 S C M R 486

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

Mst. QURAT-UL-AIN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SADDAR JALALPUR JATTAN, DISTRICT GUJRAT and others---Respondents

Civil Petition No. 3718 of 2023, decided on 13th December, 2023.

(Against the order/judgment of the Lahore High Court, Lahore dated 21.09.2023 passed in Writ Petition No.59365 of 2023)

(a) Constitution of Pakistan---

----Art. 199(1)(b)(i)---Hebeas corpus, writ of---Scope---Invocation and passing of the writ of habeas corpus is subject to the satisfaction of the High Court that no adequate remedy is provided by the law.

(b) Constitution of Pakistan---

----Art. 199(1)(b)(i)---Guardians and Wards Act (VIII of 1890), Ss. 7 & 25---Habeas corpus, writ of---Scope---Custody of minor---Whatever the inter se relations between the parents may be, the purpose of a writ of habeas corpus when it comes to the production of a child is to ensure that the child is, at any given moment, capable of being produced before a Court of law---However, there can be no question that a writ of habeas corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child---Clear grounds must be made out and the writ must only be issued in favour of a person who is entitled to custody of the child---Issuing of such a writ is subject to the satisfaction of the High Court that a minor is not being held in custody without lawful authority or in an unlawful manner---Before issuing writ of habeas corpus the High Court should be satisfied that seeking remedy under the Guardians and Wards Act, 1890, or any other law for the time being in force, would not be an adequate remedy; that the production of the child before the High Court is in the best interests of the child/minor; and, that handing over custody of the minor/child to the person petitioning the High Court is in the best interests of the child/minor.

Dushyant Somal v. Sushma Somal AIR 1981 SC 1026 ref.

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

----Ss. 7 & 25---Constitution of Pakistan, Art. 199(1)(b)(i)---Hebeas corpus petition---Maintainability---Alternate remedy, availability of---Incompetently filed petition---Interim custody of minor girl restored to mother---Mother contracting second marriage---High Court awarding custody of minor girl to paternal grandmother as an interim arrangement after mother contracted second marriage---Legality---Grandmother, no matter the love she may have for her grandchildren, is not the parent of a child for the purposes of the law and must clearly specify why a writ of habeas corpus must be issued for the production of her grandchild(ren), especially so when it is admitted that the grandchild is in the custody of one or both parents---Paternal grandmother failed to aver that she was filing the writ petition in her capacity as a friend of the minor---At no point had the paternal grandmother averred that she was authorised by her son (minor's father) to file the writ petition---No correspondence whatsoever was produced before either the High Court or the Supreme Court which could show that the paternal grandmother was authorised to file the writ petition as a representative of the minor's father---Mere assertion in her petition that paternal grandmother wants to "properly look after the detenue" was insufficient to show that she was interested in the welfare of the child---In the absence of a competently filed writ petition and the presence of an alternative remedy for the paternal grandmother under the Guardian and Wards Act, 1890, the High Court ought to, in the first place, have satisfied itself that despite these shortcomings, it was still in the best interests of the minor that she be produced before the High Court more so: (i) when it was admitted by paternal grandmother in her petition that the minor was in the custody of her real mother; and (ii) an absence as to how the minor being in the custody of her own mother was without lawful authority which necessitated the production of the minor before the Court---Ordering of the divestment of custody by the impugned judgment/order was without lawful authority---In the presence of an adequate remedy, the High Court was constitutionally barred from exercising jurisdiction under Article 199 of the Constitution---All proceedings in the paternal grandmother's writ petition were declared to be without lawful authority and the writ was liable to be dismissed---Appeal was allowed accordingly with the direction that the Guardian Court, seized of the guardian petition filed by the mother would proceed with the matter expeditiously.

(d) Constitution of Pakistan---

----Art. 199(1)(b)(i)---Guardians and Wards Act (VIII of 1890), Ss. 7 & 25---Hebeas corpus, writ of---Custody of minor---Friend of minor---Scope---Where a person entitled to custody is shown to be incapable of approaching the Court or where no such person exists, the question of the right of a friend to make such an application arises---In such a situation, the friend of the minor must show that (i) no one who is legally entitled to the custody of the minor or to represent him/her exists, or that such a person, if any, is present and available but unable to file a habeas corpus petition; and (ii) the friend is interested in the welfare of the child.

Raj Bahadur v. Legal Remembrancer AIR 1953 Cal. 522 ref.

(e) Constitution of Pakistan---

----Art. 199(1)(b)(i)---Guardians and Wards Act (VIII of 1890), Ss. 7 & 25---Hebeas corpus, writ of---Scope---Custody of minor---Tendency of the High Courts to readily issue writs of habeas corpus in custody matters---Observations recorded by the Supreme Court deprecating such tendency stated.

The tendency of the High Courts to readily and unhesitatingly resort to extreme measures by involving law enforcement agencies in family matters cannot be appreciated, especially so where no element of criminality is there and the child is in the lawful and rightful custody of the parent. Such actions cause unnecessary trauma and harassment for the concerned parent, specially where the concerned parent is the real mother of the child. The High Court must exercise extreme care, caution, and circumspection in such matters. Only in exceptional and extraordinary circumstances, where all other methods and measures fail and an element of criminality, forced removal, kidnapping and/or abduction of the child is involved, the High Court may exercise its constitutional jurisdiction.

Issuance of a writ of habeas corpus in a custody matter should be an exception, and not the rule, as the Guardians and Wards Act, 1890 provides the Guardian Court with all requisite powers to pass and enforce its orders in matters of custody of the child(ren). It is, inappropriate for a constitutional court to encroach upon and arrogate itself the powers of a Guardian Court, which is the court of competent jurisdiction under the law, to decide all matters relating to custody of child(ren).

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

----Ss. 7 & 25---Convention on the Elimination of All Forms of Discrimination Against Women, Arts. 1 & 16---United Nations Convention on the Rights of the Child (UNCRC), Arts. 9 & 37---Custody of minor---Mother contracting second marriage---Mother remarrying does not automatically bar her under the law from the custody of her children---Holistic reading of the relevant Islamic principles, the Convention on the Rights of the Child, and Convention on the Elimination of All Forms of Discrimination Against Women leads to the conclusion that there is no legal justification for separating a mother from her child if the mother remarries.

Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Muhammad Owais v. Nazia Jabeen 2022 SCMR 2123 and Najaat Welfare Foundation v. Federation of Pakistan PLD 2021 FSC 1 ref.

Iftikhar Ahmad Bashir, Advocate Supreme Court for Petitioner along with Petitioner in person.

Zafar Iqbal Klasoon, Advocate Supreme Court (via V.L. Lahore) for Respondent No. 3.

Baleeghuz Zaman, Additional A.G. Punjab for Respondent Government.

Nemo for other Respondents.

2024 S C M R 508

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

NAZ TAHIR---Petitioner

Versus

KAFAYAT ULLAH and others---Respondents

Civil Petition No. 151 of 2024, decided on 26th January, 2024.

Elections Act (XXXIII of 2017)---

----S. 62---Constitution of Pakistan, Art. 62(1)(d), (e), (f) & (g)---Elections for seat of National Assembly---Nomination papers---Nomination papers of petitioner (candidate) rejected by the High Court on the ground that she was the wife of a proclaimed offender---Counsel for the petitioner submitted that there was no provision under the Constitution or the Elections Act, 2017 that deprived the petitioner from contesting elections on this ground---Validity---Counsel for the Election Commission of Pakistan (ECP) had not been able to show the Court any such provision of law---Article 62(1) (d), (e), (f) and (g) of the Constitution was not self-executory and served as guidelines for the voters in exercising their right to vote---Operation of the impugned order of the High Court was suspended with the direction that the nomination paper of the petitioner shall stand provisionally accepted and the ECP shall continue taking all the steps required in the electoral process including printing of the ballot papers, allocation of symbol etc., in view of present order.

Hamza Rasheed Khan v. Election Appellate Tribunal and others Civil Appeal No. 982 of 2018 ref.

Muhammad Shahzad Shaukat, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Muhammad Arshad, DG (Law) and Falak Sher, Consultant Law for the ECP.

Shoukat Hayat, Advocate Supreme Court along with Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 1.

2024 S C M R 510

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

IKRAMUDDIN RAJPUT---Petitioner

Versus

INSPECTOR GENERAL OF POLICE, INDH and others---Respondents

Civil Petition No. 940-K of 2022, decided on 19th December, 2023.

(Against the Judgment dated 31.03.2022 passed by the Sindh Service Tribunal at Karachi in Appeal No. 473 of 2020)

(a) Civil service---

----Departmental inquiry---Object and purpose---Standard of proof---Object of a departmental inquiry is to investigate allegations of misconduct in order to maintain discipline, decorum, and efficiency within the institution, and strengthening and preserving public confidence---In a departmental enquiry, the standard of proof is that of balance of probabilities or preponderance of evidence but not proof beyond reasonable doubt, which is a strict standard required in a criminal trial, where the potential penalties are severe.

(b) Sindh Police (Efficiency and Discipline) Rules, 1988---

----S. 4(b)(v)---Police official---Allegation of unfair and dishonest investigation in a rape case involving a minor girl---Dismissal from service---According to the statement of allegations, the Medico-Legal Report declared that the hymen of the victim was freshly torn and bleeding, the chemical analysis report confirmed the presence of human sperm in the vaginal swab and shalwar of the victim---In the disciplinary proceedings, the competent authority concluded that there was no justification for the petitioner (police official) to insert section 511, P.P.C. based solely on the statement of a seven-year-old minor girl, recorded under section 164, Cr.P.C., while ignoring the ocular testimony of the victim's father who caught the accused with the help of neighbors committing the act of rape and handed him over to the police---Even the victim in her recorded statement under section 164, Cr.P.C. did not absolve the accused but the petitioner prematurely added section 511, P.P.C to provide advantage to the accused during his prosecution---Police force is a disciplined force with significant accountability and the responsibility of maintaining law and public order in the society---Therefore, any person who wants to be part of the disciplined force should be a person of utmost integrity and uprightness with an unimpeachable, spotless character, and clean antecedents---In the case in hand, disciplinary action was taken against the petitioner after complying with due process of law and on the basis of self-evident and self-explanatory documents---Enquiry officer, rightly found the petitioner guilty in his report for further necessary action---Dismissal from service order passed against the petitioner was maintained---Petition was dismissed and leave was refused.

Sughra Bibi v. State PLD 2018 SC 595; Gajoo v. State of Uttarakhand (2012) 9 S.C.C. 532; Babubhai v. State of Gujrat and others (2010) 12 SCC 254 and State of Gujarat v. Kishanbhai (2014) 5 SCC 108 ref.

Javed Ahmed Chhtari, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Saleem Akhtar, Additional P.G., Sibtain Mehmood, Additional A.G. and Malik Qasim S.P. for Respondents.

2024 S C M R 518

[Supreme Court of Pakistan]

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

CHIEF EXECUTIVE OFFICER NPGCL, GENCO-III, TPS MUZAFARGARRAH---Petitioner

Versus

KHALID UMAR TARIQ IMRAN and others---Respondents

Civil Petition No. 1787-L of 2022, decided on 16th January, 2024.

(Against the order dated 26.04.2022 of the Lahore High Court

Lahore passed in W.P. No.77743 of 2019)

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

----Ss. 58 & 85---Civil Procedure Code (V of 1908), O. IX, R. 13---Limitation Act (IX of 1908), S. 5---Ex-parte judgment---Deliberately abstaining from joining proceedings---Dismissal order was challenged by the respondent (employee) before the Labour Court, which was subsequently transferred to the National Industrial Relations Commission ("NIRC")---Petitioner (department) failed to appear before the NIRC---Resultantly ex-parte judgment was passed in favour of respondent (employee)---Application was filed by petitioner under Order IX, Rule 13, C.P.C., accompanied by an application for condonation of delay, to set aside the said ex-parte judgment, however both said applications were dismissed by the Member NIRC, the Full Bench of NIRC, and by the High Court---Validity---Section 58 of the Industrial Relations Act, 2012 ("IRA"), stipulates that any person aggrieved by a 'decision given' by any Bench of the NIRC may, within thirty days of such decision, prefer an appeal to the NIRC; and, the appeal shall be heard and adjudicated by the Full Bench of the NIRC---Aggrieved person is required to file the said appeal within thirty days of such order---So, the petitioner, if feeling aggrieved by the said ex-parte judgment dated 09.11.2018 of the member NIRC, should have filed an appeal by 09.12.2018---It is a matter of record that the petitioner did not file any appeal, and the prescribed period of limitation for filing the appeal under section 58 of IRA expired; therefore, the said ex-parte judgment is final between the parties on the basis of the principle of res judicata---To justify the delay in filing the application to set aside the ex-parte judgment, the petitioner, in the application for condonation of delay, asserted that he did not receive any notice or information regarding the pendency of the grievance petition filed by the respondent; he claimed to have knowledge about the ex-parte judgment on 10.12.2018 when he received an application from a former employee---However, this stance of the petitioner is self-contradictory as the record indicates that he, initially, appeared and participated in the proceedings before the member NIRC and opposed the grievance petition by filing a contesting written reply---Petitioner deliberately chose to abstain from joining the proceedings and displayed non-cooperation with the NIRC---Therefore, petitioner had no right to request its (NIRC) indulgence and seek the setting aside of the ex-parte decree passed against him---Petitioner chose to file an application to set aside the ex-parte judgment instead of filing an appeal under section 58 of IRA---Having failed in the attempt to set aside the ex-parte judgment, the petitioner cannot subsequently venture into other concurrently or coexisting available remedies, such as the remedy of an appeal under section 58 of IRA against the said ex-parte judgment---Petitioner did not file any application for condonation of delay under section 85 of the IRA read with section 5 of the Limitation Act, 1908 along with his appeal before the Full Bench of NIRC---Had the said application been filed, his appeal could have been decided on its merits rather than solely on the point of limitation---Appeal filed by petitioner was rightly dismissed by the Full Bench of NIRC, and by the High Court---Petition was dismissed and leave was refused.

Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145 and Mukhtiar Hussain v. Mst. Shafia Bibi 2023 SCMR 159 ref.

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

----S. 11 & O. II, R. 2---Qanun-e-Shahadat (10 of 1984), Art. 114---Concurrent or co-existent actions or remedies---Choice of aggrieved person---'Doctrine of election'---Scope---When an aggrieved person intends to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he has to elect and or choose from amongst the actions or remedies available under the law---Choice to initiate and pursue one out of the available concurrent or coexistent actions or remedy from a forum of competent jurisdiction vests with the aggrieved person---Once the choice is exercised and the election is made then the aggrieved person is prohibited from launching another proceeding to seek relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/action and or remedy, which in legal parlance is recognized as 'doctrine of election'---Giving a choice to select a remedy from among several coexistent and/or concurrent remedies prevents the recourse to multiple or successive redressals of a singular wrong or impugned action---It also provides an opportunity for an aggrieved person to choose a remedy that best suits the given circumstances---Such a rule of prudence has been developed by courts of law to reduce the multiplicity of proceedings---As long as a party does not avail of the remedy before a Court of competent jurisdiction all such remedies remain open to be invoked---Once the election is made then the party generally, cannot be allowed to hop over and shop for one after another coexistent remedies.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828 ref.

(c) Limitation---

----Principles---Law of limitation provides an element of certainty in the conduct of human affairs---Law of limitation is a law that is designed to impose quietus on legal dissensions and conflicts; it requires that persons must come to Court and take recourse to legal remedies with due diligence---Therefore, the limitation cannot be regarded as a mere technicality---With the expiration of the limitation period, valuable rights accrue to the other party.

Ghulam Rasool and others v. Ahmad Yar and others 2006 SCMR 1458; Collector Sales Tax (East), Karachi v. Customs, Excise and Sales Tax Appellate Tribunal, Karachi and another 2008 SCMR 435 and Messrs SKB-KNK Joint Venture Contractors through Regional Director v. Water and Power Development Authority and others 2022 SCMR 1615 ref.

Mian Muhammad Javaid, Advocate Supreme Court and Abdus Sattar, Director, HR (via video link at Lahore) for Petitioners.

Shuja-ud-Din Hashmi, Advocate Supreme Court for Respondent No. 1.

2024 S C M R 527

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

VICE-CHANCELLOR AGRICULTURE UNIVERSITY, PESHAWAR and others---Petitioners

Versus

MUHAMMAD SHAFIQ and others---Respondents

C.Ps. Nos.2270, 4783 and 4784 of 2019, C.Ps. Nos.1228 to 1230, 1295 to 1298, 1555, 1781 to 1783, 1807, 456-P and 496-P of 2020, C.P. No. 5871/2021, C.P. No. 5872/2021, C.P. No. 2291/2022, C.P. No. 2782/2022, C.P. No. 3811/2022 to C.P. No. 3813/2022 and C.P. No. 1438/2019, decided on 17th January, 2024.

(Against the order(s)/judgment(s) of Peshawar High Court Peshawar dated 02.04.2019, passed in W.P. No. 956-P of 2018 dated 11.02.2020, passed in W.P. No.3799-P/2019 dated 13.02.2020, passed in W.P. No.4433-P/2019 dated 13.02.2020, passed in W.P. No.4088-P/2019 dated 06.02.2020, passed in W.P. No.3253-P/2019 dated 06.02.2020, passed in W.P. No.4507-P/2019 dated 06.02.2020, passed in W.P. No. 1568-P/2019 dated 06.02.2020, passed in W.P. No. 1512-P/2019 dated 12.03.2020, passed in W.P. No.3091-P/2019 dated 12.03.2020, passed in W.P. No.3582-P/2019 dated 12.03.2020, passed in W.P. No.3583-P/2019 dated 12.03.2020, passed in W.P. No. 5318-P/2019 dated 12.03.2020, passed in W.P. No. 5893-P/2018 dated 04.06.2020, passed in W.P. No.4875-P/2019 dated 29.06.2020, passed in W.P. No. 3538-P/2019 dated 23.09.2021, passed in W.P. No. 1762-P/2020 dated 14.10.2021, passed in W.P. No.3788-P/2020 dated 10.05.2022, passed in W.P. No.2699-P/2020 dated 01.06.2022, passed in W.P. No. 1561-P/2021 dated 12.03.2020, passed in W.P. No.4526-P/2019 dated 12.03.2020, passed in W.P. No.4729-P/2019 dated 12.03.2020, passed in W.P. No.3679-P/2019 dated 07.03.2019, passed in W.P. No.3125-P/2017)

(a) Civil service---

----Contractual employees---Regularization in service---Principles---Once the contractual services are regularized, the appointment can become substantive or permanent and cannot be terminated without due process---Therefore, the regularization of a contractual employee is a fresh appointment into the stream of regular appointment.

Province of Punjab through Secretary, Livestock and Dairy Development, Government of Punjab v. Dr. Javed Iqbal 2021 SCMR 767 ref.

(b) Civil service---

----Contractual employees---Regularization in service---Parameters for regularization in service---Institutional autonomy---Scope---Any institution opting for regularization of its employees must be either mandated by law or must carry out regularization through a well-thought out policy of the institution concerned laying down the criteria and the process for regularization; performance evaluation of the contractual employee must be assessed to determine if the employee meets the standards required for a regular position; there must be availability of positions that match the skills and experience of the contractual employee; the budgetary considerations and financial implication of a regular employee be weighed and considered---There must be a fair assessment of the employee's qualifications, performance and merit, so as to ensure only competent and committed employees be granted permanent employment status---Regularization is, therefore, not a ritualistic and mechanical exercise---It requires fresh assessment of the candidature of the contractual employee by the competent authority before he is made a regular employee as any such act carries long term financial implications on the institution concerned---Process of regularization is grounded in principles of fairness, openness, transparency, non-discrimination and public interest---Regularization therefore has a close nexus with institutional policy and autonomy.

Hadayat Ullah v. Federation of Pakistan 2022 SCMR 1691; Syed Mubashir Raza Jaffri v. Employees of Old Age Benefits Institution 2014 PLC 428 and Ikhlaq Ahmed v. Chief Secretary, Punjab 2018 SCMR 1120 ref.

(c) Civil service---

----Contractual employees---Regularization in service---Principles---There is no vested right to seek regularization for employees hired on contractual basis unless there is any legal or statutory basis for the same---Process of regularization requires backing of any law, rules or policy---It should adhere to the relevant statutory provisions and government policies---In the absence of any of the same, a contractual employee cannot claim regularization---Any regularization without the backing of law offends the principles of fairness, transparency and meritocracy and that too at the expense of public exchequer.

Faraz Ahmed v. Federation of Pakistan 2022 PLC 198; Government of Khyber Pakhtunkhwa v. Sher Aman and others 2022 SCMR 406; Vice Chancellor, Bacha Khan University Charsadda, Khyber Pakhtunkhwa v. Tanveer Ahmad 2022 PLC (C.S.) 85; Pakistan Telecommunication Company Ltd. v. Muhammad Samiullah 2021 SCMR 998; Messrs Sui Northern Gas Company Ltd. v. Zeeshan Usmani 2021 SCMR 609; Khushal Khan Khattak University v. Jabran Ali Khan 2021 SCMR 977; Pakistan Telecommunication Company Ltd. v. Muhammad Samiullah 2021 SCMR 998; Government of Khyber Pakhtunkhwa v. Saeed-ul-Hassan 2021 SCMR 1376; Muzaffar Khan v. Government of Pakistan 2013 SCMR 304; Government of Balochistan, Department of Health v. Dr. Zahid Kakar 2005 SCMR 642; Government of Khyber Pakhtunkhwa, Workers Welfare Board v. Raheel Ali Gohar 2020 SCMR 2068; Government of Khyber Pakhtunkhwa v. Intizar Ali 2022 SCMR 472 and Pir Imran Sajid v. Managing Director Telephone Industries of Pakistan 2015 SCMR 1257 ref.

(d) Constitution of Pakistan---

----Art. 25---Civil service---Contractual employees---Regularization in service---Principle of similarly placed employees---Scope---Where a contractual employee wishes to be regularized, he must demonstrate statutory basis for such a claim, in the absence of which, relief cannot be granted solely on the principle of "similarly placed persons"---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---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.

Deputy Director Finance and Administration FATA v. Dr. Lal Marjan 2022 SCMR 566 and Muhammad Yasin v. D.G. Pakistan, Post Office 2023 SCMR 394 ref.

(e) Civil service---

----Contractual employees---Regularization in service---Policy matter---Non-interference by Courts---Institutional autonomy---Process of regularization is a policy matter and the prerogative of the Executive which cannot be ordinarily interfered with by the Courts especially in the absence of any such policy---It does not befit the courts to design or formulate policy for any institution, they can, however, judicially review a policy if it is in violation of the fundamental rights guaranteed under the Constitution---Wisdom behind non-interference of courts in policy matters is based on the concept of institutional autonomy.

Waqas Aslam v. Lahore Electric Supply Company Limited 2023 SCMR 549 and Province of Punjab through Chief Secretary, Lahore v. Prof. Dr. Javed Iqbal 2022 SCMR 897 ref.

(f) Civil service---

----Public sector University---Contractual employees---Regularization in service---Policy matter of the University---Non-interference by Courts---Institutional autonomy, concept of---Wisdom behind non-interference of courts in policy matters is based on the concept of institutional autonomy which is defined as a degree of self-governance, necessary for effective decision making by institutions of higher education regarding their academic work, standards, management, and related activities---Institutional autonomy is usually determined by the level of capability and the right of an institution to decide its course of action about institutional policy, planning, financial and staff management, compensation, students, and academic freedom, without interference from outside authorities---Autonomy of public institutions is not just a matter of administrative convenience, but a fundamental requirement for the effective functioning of a democratic society, as public sector organizations are guardians of the public interest---Democracy, human rights and rule of law cannot become and remain a reality unless higher education institutions and staff and students, enjoy academic freedom and institutional autonomy---Courts must sparingly interfere in the internal governance and affairs of educational institutions i.e., contractual employments; this is because the courts are neither equipped with such expertise, nor do they possess the relevant experience that would allow for interference in such policy matters---Under this autonomous realm, educational institutions are entitled to deference when making any decisions related to their mission---At the same time, any transgression by Courts would amount to the usurpation of the power of another, which would be against the spirit of Article 7 of the Constitution as it is not the role of the Courts to interfere in policy decisions.

Chapter V, Recommendation concerning the Status of Higher-Education Teaching Personnel (1997) UNESCO < https:// en.unesco. org/about-us/legal-affairs/recommendation-concerning - status - higher-education-teaching-personnel?>; OECD, Governance and Quality Guidelines in Higher Education: A Review of Governance Arrangements and Quality Assurance Guidelines (2005); Khyber Medical University v. Aimal Khan PLD 2022 SC 92; Principles, Values and Responsibilities, Magna Charta Universaitum (2020); Waqas Aslam v. Lahore Electric Supply Company Limited 2023 SCMR 549; Hafsa Habib Qureshi v. Amir Hamza and others 2023 SCP 388; Abdul Hameed and others v. Water and Power Development Authority 2021 PLC (C.S.) 1439; Regents of University of Michigan v. Ewing 474 U.S. 214 (1985); Healy v. James 408 U.S. 169 (1972); R v. Dunsheath; Ex parte Meredith [1950] 2 All ER 741; Thorne v. University of London [1966] 2 All ER 338; Neelima Misra v. Harinder Kaur Paintal (1990) 2 SCC 746; Bhushan Uttam Khare v. Dean, B. J Medical College (1992) 2 SCC 420 and Basavaiah v. H. L. Ramesh AIR (2010) 8 SCC 372 ref.

(g) Void order---

----When the basic order is without lawful authority, then the entire superstructure raised thereon falls to the ground automatically.

Pakistan People's Party Parliamentarians v. Federation of Pakistan PLD 2022 SC 574 and Atta-ur-Rehman v. Sardar Umar Farooq PLD 2008 SC 663 ref.

(h) Civil service---

---Contractual employees---Regularization in service---Prospective effect---Regularization takes effect prospectively, from the date when a regularization order is passed---This is because regularization is based on several considerations which help guage not only the competence and ability of the employee, proposed to be regularized, but also the financial impact and long term legal obligations on the employer institution---It is a conscious decision to be taken by the employer institution at a particular time and therefore cannot be given a retrospective effect.

Province of Punjab through Chief Secretary, Lahore v. Prof. Dr. Javed Iqbal 2022 SCMR 897 and Province of Punjab through Secretary, Livestock and Dairy Development, Government of Punjab v. Dr. Javed Iqbal 2021 SCMR 767 ref.

Naveed Akhtar, Advocate Supreme Court along with Jahan Bakht, V.C. and Muhammad Rizwan, Registrar for Petitioners.

Ms. Tahmina Ambreen, Advocate Supreme Court, Hafiz S.A. Rehman, Senior Advocate Supreme Court, Shahid Saleem Khel, Advocate Supreme Court, Jehanzeb Mahsud, Advocate Supreme Court, Niaz Wali Khan, Advocate Supreme Court, Ijaz Ahmad, Advocate Supreme Court, Muhammad Asif Yousafzai, Advocate Supreme Court, Zartaj Anwar, Advocate Supreme Court, Nasrum Minallah, Advocate Supreme Court, Waseem ud Din Khattak, Advocate Supreme Court, Amjad Ali, Advocate Supreme Court, Khaled Rehman, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record, Wakeel Khan in person, Shafique, in person and Sultan Mazhar Sher, Additional A.G. Khyber Pakhtunkhwa for Respondents.

Umer A. Ranjha, Law Clerk, Research Assistance.

2024 S C M R 538

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

SECRETARY FINANCE, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and another---Appellants

Versus

Syed JEHANGIR SHAH and others---Respondents

Civil Appeal No. 894 of 2015, decided on 29th November, 2023.

(On appeal against the judgment dated 24.04.2015 passed by

the Peshawar High Court, Peshawar, in Writ Petition No.2095-P of 2008)

Constitution of Pakistan---

----Art. 25---Civil service---Employees of Solicitor Office, Law Department, Peshawar ('the respondents')---Special allowance and utility allowance, denial of---Discrimination---Two allowances in question were also drawn by the respondents but later payment of such allowances was discontinued by the Government on the ground that the employees of the Solicitor Office were not part of the Civil Secretariat, therefore, not entitled for such allowances---Legality---High Court rightly allowed said allowances to the respondent by holding that that the classification so made by the Government qua granting of said two allowances to specified employees while denying the same to other employees who were also posted inside the walled premises of the Civil Secretariat, could not be termed as reasonable and amounted to offend the principle of equity before the law---High Court correctly noted that the office of the Solicitor having a separate entity in the Law Department was situated within the premises of the Civil Secretariat, therefore, the employees of the Solicitor Office were similarly placed and were entitled to the grant of special allowance and utility allowance---Counsel for the Provincial Government could not point out any illegality or perversity in the impugned judgment of the High Court, which was maintained---Resultantly, appeal was dismissed.

Zahid Yousaf Qureshi, Advocate Supreme Court for Appellants.

Muhammad Asif Yousafzai, Advocate Supreme Court for Respondents.

2024 S C M R 541

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

RAHIMULLAH KHAN---Petitioner

Versus

DEPUTY POSTMASTER GENERAL, SOUTHERN POSTAL REGION, KHYBER PAKHTUNKHWA and others---Respondents

Civil Petition No. 1066 of 2022, decided on 24th November, 2023.

(Against the Judgment dated 28.01.2022 passed by Federal Service Tribunal, Islamabad in Appeal No. 848(P)CS/2019)

Fundamental Rules---

----F.R. 54---Civil Service Regulations (C.S.R.), Art. 417-A---Pensionary benefits---Pensionary benefits for intervening period before reinstatement into service---F.R. 54 of the Fundamental Rules provides that in the case of reinstatement of dismissed or removed employee, only the revising or appellate authority may grant him his pay for the period of his absence from duty, and if he is honourably acquitted then, the full pay to which he would have been entitled to, and his period of absence from duty will be treated as a period spent on duty---Though this Rule is not germane to the present controversy, but at the same time, it is a ground reality that neither the department placed anything on the record to show that the Divisional Superintendent, Postal Service Kohat, was actually the revising or appellate authority, nor any document was submitted to show that he was authorised to issue any such letter or take any such decision in the capacity of a revising or appellate authority under the exactitudes of F.R. 54---Petitioner was deprived of his pay for the intervening period, from 01.09.2013 to 17.05.2015, in view of F.R. 54(a) merely on the ground that he was not honourably acquitted by the Tribunal, and the major penalty was modified in view of the judgment passed on 25.05.2016---Still, in tandem, the department is ignoring that the same Tribunal in the same judgment also set aside the impugned orders, and the petitioner was reinstated into service with consequential back benefits---In another judgment in the case of the same petitioner by the same Tribunal on the very next date, i.e., 26.05.2016, the major penalty of withholding of two steps increment for two years without future effect was modified into withholding one increment for one year only---However, in the judgment dated 25.05.2016, the reinstatement order was passed with consequential back benefits, which order is in the field---When the Tribunal has passed the reinstatement order with consequential back benefits, then, in this particular situation, the revising or appellate authority cannot undo or make ineffective the order or judgment passed by the Tribunal for the payment of consequential back benefits---Penalty imposed on the petitioner was only confined to withholding of an increment for a certain period, which does not otherwise mean to withhold his pay for the period he actually rendered his services to the department, and the principle of "no work, no pay" is not applicable when consequential back benefits have been accorded by the Tribunal---Petitioner retired on 18.05.2015 and the letter for withholding his emoluments from 01.09.2013 to 17.05.2015 was issued to him on 14.02.2019, whereas, under Article 417-A of the Civil Service Regulations (C.S.R.), the pending disciplinary proceedings could not continue if the officer attains the age of superannuation before the completion of the inquiry---Therefore, in that context too, the pending proceedings if any were abated and there was no justification to issue the letter after considerable period of retirement for withholding the salary with retrospective effect which was totally unjustified and unwarranted---Petition was converted into an appeal and allowed, impugned judgment of the Federal Service Tribunal and the directions issued by the Divisional Superintendent, Postal Service Kohat for withholding the pay of the petitioner were set aside, and he was held entitled to be paid for the period from 01.09.2013 to 17.05.2015 accordingly.

Misbah Ullah Khan, Advocate Supreme Court for Petitioner.

Malik Javed Iqbal Wains, Additional A.G.P. and Shahid Akhtar, D.S. Kohat for Respondents.

2024 S C M R 548

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik and Yahya Afridi, JJ

MUHAMMAD ZAFRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 597 of 2018, decided on 3rd April, 2019.

(On appeal against the judgment dated 29.02.2016 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 27-J of 2013)

Penal Code (XLV of 1860)---

----S. 295-B---Defiling of Holy Quran---Reappraisal of evidence---Serious lapses in investigation---Allegation against the accused was that he was found burning verses of the Holy Quran---There are serious lapses on the part of the investigating officer; for instance, the "machis" or matchbox has been introduced at a later stage, which appears to have been done to strengthen the prosecution's case---Strikingly, neither the initial written complaint of complainant, nor the proceedings recorded by the police official on the written complaint mentions the "machis" or matchbox---Similarly, the body of the recovery memo, which was stated to have been prepared at the spot, does not mention the "machis" or a matchbox---In fact, the word "machis" appears to have been inserted at a later stage, and that too, only on the heading of the recovery memo, and not in the body thereof, while other recovered items have clearly been mentioned therein---Furthermore, on closer examination of the said recovery memo, it was noted that the word "machis" has been written with a different pen---To compound the above investigational transgressions, the complainant, has, in his evidence, not mentioned the recovery of the "machis" or matchbox from the accused at the place of the crime---This being so, the prosecution has not been able to prove: firstly, the willful act of the accused; and secondly, that he was burning the verses of the Holy Qur'an at the time of his arrest---No specific description of the verses of the Holy Qur'an has been made at any stage of the proceedings---Complainant in his written complaint, recovery witnesses in their statements recorded under section 161 of the Cr.P.C., the recovery memo, and even all of the prosecution witnesses remained silent about the description of the recovered verses of the Holy Qur'an---Verses of the Holy Qur'an, which, as per prosecution, were alleged to have been recovered at the place of occurrence, should have had an identifiable description to a degree of certainty dispelling any doubt---Holy Qur'an has an identifiable description in the form of any of its 30 Paraas, 114 Surahs and 6666 Ayats---Lack of description of the recovered verses of the Holy Qur'an raises serious doubts about what was actually recovered from the place of occurrence, and thereby renders its very admissibility in legal peril---For a serious offence the investigation was not at par with what was required keeping in view the nature of the offence, and the severity of the punishment prescribed therefor---Appeal was allowed, the conviction and sentence of accused were set aside, and he was acquitted of the charge framed against him.

Zulifqar and another v. The State 1970 PCr.LJ 47 and Hayatullh v. State 2018 SCMR 2092 ref.

Saghir Ahmed Qadri, Advocate Supreme Court for Appellant.

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

2024 S C M R 553

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

UMAR ASLAM KHAN---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Civil Petition No. 159 of 2024, decided on 26th January, 2024, (Against the order of Lahore High Court, Lahore dated 12.1.2024, passed in Writ Petition No.2224 of 2024)

Elections Act (XXXIII of 2017)---

----S. 62---Constitution of Pakistan, Art. 62(1)(d), (e), (f) & (g)---Elections for seat of National Assembly---Nomination papers---Nomination papers of petitioner (candidate) rejected by the High Court on the ground that he was a proclaimed offender in a criminal case---Validity---There was no provision either in the Constitution or in the Elections Act, 2017 that made a proclaimed offender disqualified from contesting the election, and the courts cannot on their own create such additional disqualification, without any backing of the law---Further, in this particular case, the petitioner was declared a proclaimed offender in a criminal case, however, he obtained a protective bail in the case by surrendering himself to the court; he, therefore, could not be considered a proclaimed offender---Furthermore Article 62(1)(d), (e), (f) and (g) was not self-executory and served as guidelines for the voters in exercising their right to vote, hence even being a proclaimed offender did not attract the disqualification under the said provisions--- Petition was converted into an appeal and the same was allowed; the impugned order of the High Court was set aside and the nomination paper of the petitioner for the seat of a Member of the National Assembly stood accepted with the direction to the Election Commission of Pakistan (ECP) to ensure that all the necessary steps to be taken in the electoral process were completed forthwith so that the petitioner could contest the election on the scheduled date for the seat in question, without fail.

Hamza Rasheed Khan v. Election Appellate Tribunal and others Civil Appeal No. 982 of 2018 ref.

Syed Ali Zafar, Advocate Supreme Court, Zahid Nawaz Cheema, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Rashid Hanif, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents.

Falak Sher, Consultant Law for ECP.

2024 S C M R 556

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Muhammad Ali Mazhar and Musarrat Hilali, JJ

ELECTION COMMISSION OF PAKISTAN through Secretary, Islamabad---Petitioner

Versus

DAWOOD SHAH and others---Respondents

Civil Petition No. 4522 of 2023, decided on 2nd January, 2024.

(Against the judgment dated 27.12.2023 passed by Peshawar High Court, Peshawar, in W.P. No. 6194-P of 2023)

Elections Act (XXXIII of 2017)---

----Ss. 51(1) & 62---Returning Officer of a constituency changed by the Election Commission of Pakistan (ECP) on medical grounds---Single Judge of High Court passing an ad-interim ex-parte order suspending the notification of ECP whereby the returning officer was changed---Legality---ECP, for justifiable reasons, had issued the notification substituting the returning officer---It is also the responsibility of the ECP to conduct elections---Moreover, no allegation against the newly appointed returning officer was made---Therefore, it cannot be stated that the exercise of discretion by the ECP was in any manner illegal or unconstitutional---Supreme Court observed with concern that an ad interim ex-parte order was passed by the Judge of the High Court without issuance of notice to or hearing the ECP; which would adversely affect the election programme and jeopardise the elections to be held in the said constituency---Petition for leave to appeal was converted into an appeal and allowed; the impugned order was set-aside with the directions that since the stipulated date for the scrutiny of nomination papers of candidates could not be completed on account of the ad-interim ex-parte order, the scrutiny of the nomination papers of candidates, including the respondents, whose scrutiny of nomination papers had not taken place be undertaken as per the given fresh schedule.

Afnan Karim Kundi, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record along with Zafar Iqbal Hussain, Spl. Secretary, M. Arshad, DG Law and Falak Sher, Legal Consultant for Petitioner.

Syed Sikandar Hayat Shah, Advocate Supreme Court (via video link from Peshawar) for Respondents Nos. 1 and 2.

2024 S C M R 559

[Supreme Court of Pakistan]

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

The PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION, LAHORE through Commissioner and others---Petitioner/Applicants

Versus

JAVED IQBAL and others---Respondents

Civil Petition No. 2007-L of 2023, C.M.A. No. 2782-L of 2023 in

C.P. No.2007-L of 2023, C.P. No.2008-L of 2023 and C.M.A. No.4417-L of 2023 in C.P. No.2008-L of 2023, decided on 18th January, 2024.

(Against judgment dated 30.03.2023, passed by the Lahore

High Court, Lahore in Writ Petitions Nos.33961 of 2022 and 178510 of 2018)

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

----S. 4(1)(b)(vi)---Contractual employee of Punjab Employees Social Security Institution, Lahore (the PESSI)---Reinstatement in service from date of dismissal with all back benefits---With regard to the allegation levelled against the respondent (employee) regarding his poor performance from 06.11.2011 to 21.08.2020, the fate of the said allegation could only be decided after conducting a thorough probe/regular enquiry---Said allegation stood belied from the remarks recorded by the Reporting Officer in the Personal Evaluation Reports of the respondent from the years 2009 to 2020, wherein his performance had been shown as satisfactory---Conduct of the petitioners (departmental authorities) established mala fide on their part to dispense with the services of the respondent as all penal actions against the respondent were initiated by them after filing of writ petitions and contempt petitions/applications by the respondent---As regards the allegation against the respondent of not following duty timings properly, it was apparent from the record that without specifying days when the respondent did not attend the office on time supported the plea of the respondent that he performed his duties to the entire satisfaction of his superiors---Moreover, the Reporting Officer while recording the remarks in the column of "Punctuality" did not give any adverse remarks against the respondent---Last allegation in the show cause notice that despite previous enquiries initiated against the respondent his behaviour remained very irresponsible during his service, no incident or untoward situation during the service of the respondent had been pointed out or referred to by the petitioners---High Court rightly reinstated the respondent in service from the date of his dismissal with all back benefits, and gave directions to the departmental authorities to take up the matter regarding regularization of services of the respondent with the relevant authority and upon fulfilment of codal formalities to ensure decision within a period of six months positively---Petitions were dismissed and leave was refused.

Aftab Raheem, Advocate Supreme Court and Muhammad Shoaib Tabish, Law Officer (via video link from Lahore) for Petitioner/ Applicants (in both cases).

M. Irian Khan Ghaznavi, Advocate Supreme Court for Respondent No. 1 (in both cases).

2024 S C M R 563

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Amin-ud-Din Khan, Jamal Khan Mandokhail, Ayesha A. Malik and Athar Minallah, JJ

Syed ASGHAR ALI SHAH and another---Petitioners

Versus

KALEEM ARSHAD and others---Respondents

Civil Petitions Nos. 167-P and 391 of 2022, decided on 15th January, 2024.

(Against the judgment dated 18.12.2021 passed by Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal in Service Appeal No.06-P of 2021)

Per Syed Mansoor Ali Shah, J; Amin-ud-Din Khan, Jamal Khan Mandokhail and Athar Minallah, JJ. agreeing; Ayesha A. Malik, J. also agreeing with regard to maintainability of present petitions but not with the reasons given for the same [Majority view]

Constitution of Pakistan---

----Arts. 212(2), proviso, 212(3) & 142---Order of a Tribunal created by a Provincial law---Appeal to the Supreme Court under Article 212(3) of the Constitution---Maintainability---Whether an appeal lies to the Supreme Court under Article 212(3) against an order of a Tribunal created by a Provincial law to which the proviso to Clause (2) of the Article 212 has not been made applicable---[Per Syed Mansoor Ali Shah, J. (Majority view): Proviso to clause (2) does not apply to clause (3) of Article 212 of the Constitution---Appeals against orders of the Provincial Administrative Tribunals are competent before the Supreme Court under Article 212(3) of the Constitution---Supreme Court over ruled the law declared in such regard in the judgment reported as Gomal Medical College v. Armaghan Khan (PLD 2023 SC 190)]---[Per Ayesha A. Malik, J. (Minority view): As Article 212(1) of the Constitution itself confers jurisdiction on the Provincial Legislature to establish the Provincial Tribunal under Article 212(1), the Constitution also confers appellate jurisdiction to the Supreme Court from a judgment, decree, order or sentence of the said Provincial Tribunal---Discussion of the majority opinion in the instant matter on Entry 55 of the Federal Legislative List (FLL), is not relevant to the dispute at hand]

Per Syed Mansoor Ali Shah, J. (Majority view)

Clause (2) of Article 212 of the Constitution is merely an ouster clause and not a jurisdiction clause. In case of Federal Tribunals, it provides that no other court can take jurisdiction over any matter which falls under the subject matter of the Administrative Tribunal established under Article 212(1). If clause (2) has not been made applicable to a Provincial Tribunal, it at best means that there are other forums also available to redress the grievance of the officers, e.g., the High Court under Article 199 or the Civil Courts under section 9 of the Civil Procedure Code, 1908. In the absence of clause (2), all the judicial forums in a Province have concurrent jurisdiction along with the Provincial Administrative Tribunal. Once a civil servant invokes the jurisdiction of the Provincial Tribunal, the remedy of an appeal by leave against any decision of the Provincial Tribunal before the Supreme Court becomes alive. Remedy of appeal under clause (3) will not be available if the civil servant approaches the High Court or the Civil Court for the redressal of his grievance. Applicability of clause (2) to a Provincial Tribunal is totally insignificant as it has no effect on the remedy of appeal against the decision of the Provincial Tribunal before the Supreme Court which is ensured under clause (3).

Clause (3) is the third part of Article 212, which provides than an appeal shall lie to the Supreme Court from a judgment, decree order or sentence of the Administrative Tribunal, and the Supreme Court shall grant leave if the Supreme Court is satisfied that a substantial question of law of public importance arises in the case. Clause (3) has no correlation whatsoever with the ouster clause of clause (2). Whether a Provincial Tribunal enjoys the ouster clause or not, does not affect the appellate jurisdiction of the Supreme Court. Clause (3) is independently connected with all the administrative Tribunals, including Provincial Tribunals, established under Article 212(1). The appeal to the Supreme Court is available against orders of both the Federal and Provincial Administrative Tribunals by a special constitutional scheme provided under Article 212, which due to the non obstante clause is over and above any sub-constitutional legislation under the regular constitutional scheme.

The law declared in the judgment reported as Gomal Medical College v. Armaghan Khan (PLD 2023 SC 190) that unless and until the proviso to Article 212(2) of the Constitution is activated, appeal against an order of a Provincial Tribunal is not available before the Supreme Court under Article 212(3) of the Constitution, and that in the absence of such a law passed by the Parliament, the decision of a Tribunal established under the Provincial law is to be challenged under Article 199 of the Constitution, is not correct and is therefore overruled.

Dean/Chief Executive, Gomal Medical College, Medical Teaching Institution, D.I. Khan v. Muhammad Armaghan Khan PLD 2023 SC 190 overruled.

Per Ayesha A. Malik, J. (Minority view)

Article 212(3) of the Constitution is the constitutional mandate which prescribes that leave to appeal before the Supreme Court for the Tribunal established under Article 212(1) of the Constitution can be filed directly, meaning thereby, the Constitution itself provides for the remedy of appeal before the Supreme Court. Both Sub-Articles (1) and (3) of Article 212 of the Constitution are exceptions to the legislative authority contained in Article 142 of the Constitution as the Constitution itself authorizes and permits the Federal and Provincial Legislature, irrespective of the authority given in Article 142 of the Constitution read with the Federal Legislative List (FLL), to establish the Tribunal and to allow its leave to appeal directly before the Supreme Court. Article 212(2) merely ousts the jurisdiction of other courts or fora. Resultantly, even though the Tribunal is established under Article 212(1), the ouster of jurisdiction of other courts is automatically triggered by Article 212(2) of the Constitution and with respect to federal courts but for the provincial courts it is necessary that the Provincial Assembly activate the proviso to Article 212(2) of the Constitution. In such case, the Tribunal will be an exclusive forum, which totally and completely ousts the jurisdiction of all other courts or fora with respect to the special subject-matters contained in sub Articles (a), (b) and (c) of Article 212(1) of the Constitution. However, if the proviso is not activated, meaning there is no resolution by the Provincial Legislature (followed by an Act of Parliament) the ouster of jurisdiction will not be triggered. Consequently, a litigant will have the option to avail its remedy before any other forum including the remedy before the Supreme Court.

The law declared in the judgment reported as Gomal Medical College v. Armaghan Khan (PLD 2023 SC 190) appears to read exclusivity and ouster as synonymous, because it relies on the principle that the Provincial Legislature cannot act upon the jurisdiction of the Supreme Court without intervening Federal legislation, hence, in order for the Tribunal to have exclusive jurisdiction, the proviso must be activated. This in turn means that if the proviso is activated, then the exclusivity of the Tribunal will mean ouster of the jurisdiction as well. However, exclusivity will not per se oust the jurisdiction of other courts without an express provision stating so as exclusivity of jurisdiction does not imply the ouster of jurisdiction. For ouster of jurisdiction to take effect an express provision is required which is precisely what Article 212(2) of the Constitution does. In other words, the proviso does not act as a bridge between Sub-Articles (1) and (3) of Article 212, rather it allows and empowers the Provincial Legislature to decide whether, for the purposes of the establishment of the Provincial Tribunal, remedy should lie exclusively to the Supreme Court or, in the alternate, giving more options to the litigant.

The discussion of the majority opinion in the instant matter on Entry 55 of the Federal Legislative List (FLL), is not relevant to the dispute at hand. The issue before the Court in this matter is simply whether the remedy of appeal as provided in Article 212(3) of the Constitution is available to the petitioners. The answer to this question is in the affirmative as this remedy has been provided, specifically and categorically, by the Constitution itself, and not by way of any ordinary legislation. Therefore, there is no issue pertaining to legislative competence under Entry 55 of the FLL.

Petitioner in -person (in C.P. 167-P of 2022).

Hafiz S. A. Rehman, Senior Advocate Supreme Court for Petitioners (in C.P. 391 of 2022).

Syed Hamid Ali Shah, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Respondents (in C.P. 391 of 2022).

Hasan Nawaz Makhdoom, Additional A.G.P., Ch. Amir Rehman, Additional A.G.P., Ayyaz Shoukat, A.G. (Islamabad), Khalid Ishaq, A.G. (Punjab), Sanaullah Zahid, Additional A.G. (Punjab), Baleeghuzzaman, Additional A.G. (Punjab), Malik Waseem Mumtaz, Additional A.G. (Punjab), Sultan Mazhar Sher Khan, Additional A.G. (Khyber Pakhtunkhwa), M. Ayyaz Khan Swati, Additional A.G. (Balochistan) and Barrister Zeeshan Adhi, Additional A.G. (Sindh) for Respondents.

2024 S C M R 581

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

SENIOR GENERAL MANAGER, PAKISTAN RAILWAYS and others---Appellants

Versus

MUHAMMAD PERVAIZ---Respondent

Civil Appeal No. 512 of 2021, decided on 20th November, 2023.

(Against the Judgment dated 17.09.2018 passed by Federal Service Tribunal, Islamabad in Appeal No.848 (R) CS/2016)

(a) Civil service---

----Employee of Pakistan Railways---Advance increments to officials for possessing/attaining higher education qualifications, entitlement to---Federal Service Tribunal held that the respondent (employee) was entitled to receive advance increments from the date of acquiring the higher qualification of L.L.B. (Legum Baccalaureus/Bachelors in Law)---Legality---Perusal of the relevant Standing Instruction (SI.) No.32, available at page 1043 of the Estacode (2007 Edition), Volume-II and the two relevant Office Memorandums (O.M.) pertaining to the advance increments policy of the appellant-department showed that the policy of granting advance increments on acquiring L.L.B. degree was only available to the employees of the courts, and two advance increments were allowed on acquiring L.L.B. degree, being equal to a M.A./M.Sc. degree, to all the officials working in the organizations which were either dispensing justice or directly connected with the work of dispensing justice, with immediate effect---Counsel for the respondent neither argued that the respondent was ever engaged in or assigned any duty which was directly related to court work or directly connected with the work of dispensing justice, nor was she able to highlight that any other persons were granted advance increments on qualifying L.L.B. in addition to, or in spite of already having been granted advance increments on qualifying M.A./M.Sc.---Admittedly the respondent had been allowed the benefit of two increments on attaining the qualification of M.A. in accordance with the instructions contained in SI. No.32---Scheme conferring advance increments to law graduates was introduced purposely keeping in view the assignment of jobs in the field of law, and with the rider that if advance increments had been granted on Master Degrees then no further increment shall be allowed on law graduation---Appeal was allowed and judgment of Federal Service Tribunal was set-aside.

(b) Judicial review---

----Policy decisions of the Executive---Interference by Courts---Scope of judicial review of Government policies stated.

The ambit and purview of judicial review of government policies is now well settled and defined and thereunder the Court can neither act as an appellate authority with the aim of scrutinizing the propriety, suitability, and/or adequacy of a policy, nor may it act as an advisor to the executive on matters of policy which they are entitled to formulate. The object of judicially reviewing a policy is to ascertain whether it violates the fundamental rights of the citizens, or is at variance to the provisions of the Constitution, or opposed to any statutory provision, or demonstrably arbitrary or discriminatory. The court may invalidate laws, acts and governmental actions that are incompatible with a higher authority, or an executive decision for being unlawful which maintains a check and balance. Such a declaration can be sought on the ground that the decision-maker misdirected itself in law, exercised a power wrongly or improperly or purported to exercise a power that it did not have, which is known as acting ultra vires; a decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it, or due to a failure to observe the statutory procedures. The dominance of judicial review of the executive and legislative action must be kept within the precincts of the constitutional structure so as to avoid any misgivings or apprehension that the judiciary is overstepping its bounds by engaging in unwarranted judicial activism.

Jawad Mehmood Pasha, Advocate Supreme Court (Via video-link from Lahore) for appellants.

Ms. Shireen Imran, Advocate Supreme Court for Respondent.

2024 S C M R 589

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Muhammad Ali Mazhar and Musarrat Hilali, JJ

KASHIF---Petitioner

Versus

IMRAN and another---Respondents

Criminal Petition No. 188-P of 2023, decided on 17th January, 2024.

(Against the judgment dated 10.11.2023 passed by the

Peshawar High Court, Peshawar in Criminal Misc. (BA) No.3997-P of 2023)

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

----S. 497(2)---Penal Code (XLV of 1860), S. 395---Constitution of Pakistan, Art. 185(3)---Dacoity---Bail, grant of---Further inquiry---FIR stated that three sub-machine guns and one pistol, gold ornaments and mobile phones were stolen when the dacoity was committed---In view of the fact that the description of the petitioner (accused) was not mentioned in the FIR, it brought into question the identification parade---None of the stolen goods were recovered from the petitioner which made the present case one of further inquiry---Petition was converted into appeal and allowed, and petitioner was granted bail.

(b) Constitution of Pakistan---

----Arts. 9, 25 & 184(3)---Arms Rules, 1924, Sched. 1 [since repealed]---Prohibited bore weapons, license for---Issuing authority---Discrimination in issuing licenses---During hearing of a petition filed by the petitioner (accused) seeking bail in a dacoity case, the Supreme Court asked the Investigating Officer ('IO') whether he had inquired from the complainant or the owner of the stolen firearms to produce their licenses and the Supreme Court was informed that the same was not done---To establish that his stolen weapons were licensed the complainant produced a piece of paper issued by a Deputy Inspector General of Police, which purportedly was a license of a sub-machine gun (SMG) which was a prohibited bore weapon---Supreme Court observed that notifications were also issued by the government exempting the requirement of obtaining licenses or permitting licenses for prohibited bore weapons to certain categories of persons, including Chief Justices, Judges, Ministers, Parliamentarians, as mentioned in Schedule I of the Arms Rules, 1924 (since repealed)---Supreme Court further observed that the present case raised the following questions; first, under what legal authority had the Deputy Inspector General of Police, issued the document which purported to be a license to carry an SMG, which was a prohibited bore weapon?; second, whether licenses of SMG and other prohibited bore weapons could be issued?; third, if the answer to second question was in the affirmative, the applicable law and procedure, and the person(s) who could issue exemptions/ licenses?; fourth, the number of licenses, including permits, issued with regard to SMGs and other prohibited bore weapons?; fifth, the approximate number of SMGs and other prohibited bore weapons in private use in the country?; sixth, whether exempting certain categories of persons or granting them the right to obtain licenses for SMGs and other prohibited bore weapons accorded with Article 25 of the Constitution, which mandates that all citizens are equal before the law?; and seventh, whether enabling the easy availability of SMGs and other prohibited bore weapons accords with Article 9, the Fundamental Right to life guaranteed by the Constitution?---Since the present matter prima facie was one of public importance with regard to the enforcement of Fundamental Rights, including Articles 9 & 25 of the Constitution, therefore, the Supreme Court directed office to make a separate file and title it 'Sub Machine Guns and other Prohibited Bore Weapons' and register it as a constitution petition under Article 184(3) of the Constitution and the same be placed for consideration of the Committee constituted under Supreme Court (Practice and Procedure) Act, 2023.

Shabbir Hussain Gigyani, Advocate Supreme Court for Petitioner.

Complainant in person.

Altaf Khan, Additional A.G. Khyber Pakhtunkhwa for the State.

2024 S C M R 594

[Supreme Court of Pakistan]

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

SHAUKAT ALI and another---Petitioners

Versus

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

Criminal Petitions Nos. 528-L and 1068-L of 2023, decided on 15th January, 2024.

(Against orders dated 05.05.2023 and 06.09.2023, passed by the Lahore High Court, Lahore in Criminal Miscellaneous Nos.22217-B and 41247-B of 2023)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, cancellation of---Misuse of bail---Extending threats to complainant party---Accused (respondent) had been nominated in the FIR with a specific role and the recovery of weapon used in commission of offence had been effected from him---Medical evidence fully supported the stance taken by the prosecution---Complainant and the eye-witnesses fully implicated the accused for the offence while deposing that the accused with the intent to kill the deceased has made straight firing upon him---Furthermore, after registration of FIR, the investigation was handed over to a Police Inspector, who failed to investigate the case fairly/impartially and became partisan with the accused persons and gave his opinion regarding non-involvement of the accused persons in the offence---Complainant filed a private complaint before the Judicial Magistrate, which was, accordingly forwarded to the Additional Sessions Judge, who subsequently found that sufficient incriminating material was available against all the accused persons---As regards the accused being a highly influential person who was extending threats of dire consequences to the complainant, the same amounted to misuse of concession of bail---Petition was converted into appeal and allowed, and bail granted to accused was recalled/cancelled.

Amir Faraz v. The State 2023 SCMR 308 ref.

Irfan Sadiq Tarar, Advocate Supreme Court for Petitioner (in Criminal P. No. 528-L of 2023).

Ch. Waseem Ahmed Gujar, Advocate Supreme Court (through video link Lahore) for Petitioner (in Criminal P. No.1068-L of 2023).

Javed Imran Ranjha, Advocate Supreme Court (through video link Lahore) for Respondent No. 2 along with Petitioner Respondent (in Criminal P. No.528-L of 2023).

Irfan Sadiq Tarar, Advocate Supreme Court for Respondent No. 2 (in Criminal P. No.1068-L of 2023).

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

2024 S C M R 599

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan, Jamal Khan Mandokhail and Musarrat Hilali, JJ

JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI, JUDGE SUPREME COURT OF PAKISTAN and others---Petitioners

Versus

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

Constitution Petitions Nos.43 to 46 of 2023, decided on 9th January, 2024.

Supreme Court Rules, 1980---

----O. XXV, R. 9---Civil Procedure Code (V of 1908), O.I, R. 10---Constitution of Pakistan, Arts. 209(5)(b) & 184(3)---Proceedings against a Judge of the Supreme Court before the Supreme Judicial Council---Constitutional petitions under Article 184(3) of the Constitution filed by the Judge, and the complainant/informers of the complaints against the Judge---Whether the informers of the complaints against the Judge on the basis of which the Supreme Judicial Council was proceeding against the Judge were necessary or proper party as respondents in the petitions filed by the Judge, and whether the Judge was also to be impleaded as a respondent in the petitions of the complainant/informers or not---Held, that as the informers had been attending the proceedings of the Supreme Judicial Council and were directed to substantiate their complaints with evidence, therefore, at least they were proper party for adjudication of the present petitions before the Supreme Court---If with regard to any of the complaints any observation was made by the Supreme Court or even as per the pleadings of the petitioner-Judge it was presumed that same were mala fide, frivolous and politically motivated, to consider these pleadings on the basis of which prayer for quashment of proceedings before Supreme Judicial Council was claimed, these could be considered only if complainants/informers were party before the Supreme Court---In the interest of justice, it was necessary in the peculiar circumstances of the present case that the complainants/informers who filed complaints before the Supreme Judicial Council against the petitioner-Judge being proper person be made party as respondent and be heard to satisfy the maxim that no one should be condemned unheard, if the Supreme court wanted to comment upon their complaints---When all the pleadings in the body of the present petitions revolved around the complaints/information by the informers, their impleadment as respondent in these petitions would serve the purposes of justice---Supreme Court gave directions for impleading the complainants/ informers and the Judge as respondents in their relevant petitions.

Muhammad Makhdoom Ali Khan, Senior Advocate Supreme Court and Saad Mumtaz Hashmi, Advocate Supreme Court for Petitioners (in Constitution Petitions Nos. 43 and 44 of 2023).

Anwar Mansoor Khan, Senior Advocate Supreme Court, Pervaiz Abid Haral, President District Bar Gujranwala, Mrs. Bushra Qamar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Constitution Petition No. 45 of 2023).

Nemo for Petitioners (in Constitution Petition No. 46 of 2023).

Malik Javed Iqbal Wains, Additional A.G. for Federation.

2024 S C M R 605

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

WAQAS SHAHZAD---Petitioner

Versus

INSPECTOR GENERAL POLICE PUNJAB, LAHORE and others---Respondents

Civil Petition No. 152 of 2022, decided on 23rd November, 2023.

(Against the judgment dated 17.11.2021 passed by Punjab Service Tribunal, Lahore in Appeal No. 1674/2021).

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

----R. 12---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), S. 17---Punjab Service Tribunals Act (IX of 1974), S. 4---Revision---Scope---No vested right to file a revision is available under Section 17 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and Rule 12 of Punjab Police (Efficiency and Discipline) Rules, 1975---Powers of revision in both the aforesaid provisions are suo motu i.e. on its own motion and not on application 'of any aggrieved person' -- However, one thing is common in both the aforesaid provisions that in the case of any enhancement of sentence or punishment intended in exercise of revisional powers, the said authority may provide opportunity of showing cause to such person as to why the punishment should not be enhanced---In case of any adverse findings or punishment or enhancement of punishment imposed in exercise of suo motu powers of revision within the time frame, the aggrieved person may approach the service tribunal for redress but the fact remains that revision cannot be filed as a matter of right and in case of rejection or dismissal of departmental appeal, the aggrieved employee should file the appeal before the Tribunal rather than filing revision petition or waiting for the decision of revision by the competent authority which is in fact detrimental and prejudicial to the own interest of such person who despite having in hand an adverse order passed against him in the departmental appeal, prefers to file revision petition which is not a vested right but such provision is provided to exercise suo motu powers and is not based on the condition of application 'of any aggrieved person'---In case any adverse order is passed under suo motu powers of revision against any person then obviously, he can approach the Tribunal against the adverse order being an original one but it is not meant as a remedy to cure the orders passed by the competent authority in the departmental appeal to hear it as a second appeal for which the direct remedy in the form of appeal is already provided before the concerned Service Tribunal.

Ahmad Ali v. Inspector-General, Punjab Police and others 1990 SCMR 1450 and Muhammad Yaqoob v. District Police Officer, District Sahiwal and others 2006 SCMR 310 ref.

M. Shahid Tasawar, Advocate Supreme Court for Petitioner (Via Video Link from Lahore).

Malik Waseem Mumtaz, Addl. A.G., Punjab and Ata-ul-Mustafa, Office Superintendent for Respondents.

2024 S C M R 614

[Supreme Court of Pakistan]

Present: Yahya Afridi and Jamal Khan Mandokhail, JJ

MUHAMMAD SALEEM---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and another---Respondents

C.M.A. No.145-Q of 2022 in Civil Petition No. 61-Q of 2018, decided on 21st December, 2023.

(For restoration of C.P. No. 61-Q of 2018 against the judgment dated 13.12.2017 of the Service Tribunal Balochistan, Quetta passed in S.A. No. 273 of 2016).

(a) Civil service---

----'Lien' against a post---Meaning and scope---In the context of service law, the term "lien" has a statutory connotation and refers to a legal right of a civil servant to hold a particular post, typically a higher one, to which they have been promoted or transferred, while still retaining a right on their original post, based on provisions provided for the same under the rules or regulations framed by the appropriate Government---Hence, simply put, lien in service law is a right of a civil servant to return to his original position, based on the fulfilment of the conditions set out in the rules or regulations framed by the appropriate Government.

(b) Civil Servants (Confirmation) Rules, 1993---

----Rr. 6(2) & 5---Balochistan Civil Servants (Confirmation) Rules, 2012, R. 7(2)---Acquiring and termination of lien against a post---Reading of Rules 5 & 6(2) of the Civil Servants (Confirmation) Rules, 1993 ("Rules of 1993") clearly stipulates that a civil servant shall forfeit his lien against a post, when accepting an appointment in an autonomous body under the control of Federal Government, as is the situation with the petitioner in the present case---As per Rule 6(2) of the Rules of 1993, a civil servant who takes up an appointment on selection, other than by way of transfer on deputation, to a position in an autonomous body under the control of Federal Government, Provincial Government, local authority or a private organisation, effectively undergoes a change of status from that of a civil servant to a different employment category---Crucially, this transition results in the forfeiture of his lien against the post in his parent department or authority---Lien, representing the legal right to return to his former position within the civil service, is thus relinquished when he moves, on his own accord, to a non-governmental body and accepts an appointment therein on selection---While transfers within various Government departments (whether Federal or Provincial) do not alter the fundamental status of a civil servant, a move to an autonomous body under the control of Government, except by way of transfer on deputation, signifies a substantive change in the nature of employment---This change is of such a magnitude that it necessitates the relinquishment of specific rights and privileges inherent to his previous civil service position, including the lien---As to the subject office order, wherein the petitioner was to retain his lien against the post of Junior Scale Stenographer in S&GAD till his confirmation in NADRA is concerned, the same is blatantly in violation to the then applicable Rules of 1993, and in particular, the provisions of Rule 6(2)---Petitioner in this case was appointed in NADRA, an autonomous body under the control of Federal Government, and therefore, this would lead to the cessation of any lien against a previously held position in the S&GAD, Government of Balochistan---This conclusion aligns with the stipulations of Rule 6(2) of the Rules of 1993 and Rule 7(2) of the Balochistan Civil Servants (Confirmation) Rules, 2012---Given the subject office order is devoid of any legal sanction, it could not be made an anchor sheet for the petitioner to claim his lien against the post in the parent Department---Petition was dismissed.

Sajjad Hussain v. Secretary, Establishment Division 1996 SCMR 284; Muhammad Israrullah v. Assistant Director, Manpower 2005 SCMR 716 and Government of N.W.F.P v. Syed Zafarmand Ali 2005 SCMR 1212 distinguished.

Farid Muhammad v. Secretary, Ministry of Food 1996 SCMR 818 ref.

Muhammad Usman Yousafzai, Advocate Supreme Court and Gohar Yaqoob Yousafzai, Advocate-on-Record for Applicant.

Amir Zaman Jogazai, Addl. AG and Noor Hussain Baloch, Addl. Secretary for Respondents.

2024 S C M R 622

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

CHAIRMAN, EVACUEE TRUST PROPERTY BOARD, LAHORE and others ---Appellants

Versus

Sufi NAZIR AHMED and others---Respondents

Civil Appeals Nos. 248, 249, 250, 251, 252 of 2014 and C.M.A. No.5086 of 2022 in Civil Appeal No.250 of 2014, decided on 29th November 2023.

(On appeal against the judgments dated 09.10.2013 passed by the Peshawar High Court, Abbottabad Bench in Writ Petitions Nos.104-A, 159-A, 165-A of 2007 and 183-A/2008 and 685-A of 2010).

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 4(2)(f)---Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977, Clasues 10 & 11---Evacuee trust properties---Tenants---Assessment/re-assessment of rent---Amendment to clauses 10 and 11 of the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977, (the Scheme), vide SRO No.13KE/2006 dated 13th of February, 2006---Vires of---Evacuee Trust Property Board ('Board') is empowered under section 4(2)(f) of the Act, to assess or reassess the rent of the evacuee trust properties---Although it is not specifically mentioned in the Evacuee Trust Properties (Management and Disposal) Act, 1975, nevertheless, it is implied that the rent payable by the tenant shall be just, equitable, impartial, dispassionate, uncoloured and objective---It is desirable that some protection should be provided to the tenants in order to ensure that they are not exploited---At the same time, the rent has to be revised periodically, as it is normal for the market rent to become marginal or insignificant every three to four years with the prevailing rate of inflation---Protection of legitimate expectation is present in the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977 ('Scheme'), and its existence brings procedural fairness in two ways: first, a policy or practice that dictates a particular procedure to be followed gives rise to the right of the tenant to demand that the procedure for assessment or reassessment of rent be followed; and secondly, if there is a legitimate expectation of a reasonable benefit, it may give rise to a right for a fair procedure before the benefit is withheld---It is clear from clauses 10 and 11 of the Scheme that the District Officer is mandated to fix the rent of the evacuee trust property, keeping in view the market rent and rent of other properties in the vicinity in similar circumstances---This means that his powers are not unbridled; he cannot act on his whims while assessing the rent; he is bound to observe the standards mentioned in the Scheme, so as to eliminate any improper motive and possibility of coercion---It is also evident that to bring transparency in the rent assessment procedure, the existing clause 10 ensures that not only the proposed assessment is open to inspection by the tenant but also provides them an opportunity for objections and hearings---An additional measure to prevent unfairness in the determination of rent is provided by empowering the Chairman of the Board or the Administrator concerned to suo moto examine the correctness or propriety of the determination of rent--- At that, it has been mandated to periodically reassess the rent every six years and increase it at the rate of eight per cent per annum---Clauses 10 and 11 of the Scheme (as amended) are neither arbitrary nor oppressive or unreasonable---Appeals were allowed.

Muzzafar Khan v. Evacuee Trust Property 2002 CLC 1819 and McInnes v. Onslow-Fane (1978) 1 WLR 1520 ref.

Hafiz Ahsan Ahmed Khokhar, Advocate Supreme Court for Appellants (in all cases).

Sabir Hussain Tanoli, Advocate Supreme Court for Respondents (L.Rs of Respondent No.2 in C.A. No. 248 of 2014).

Zulfiqar Ali Abbasi, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondents (Nos. 1-19 in C.A. No. 248, Respondent No.1 in C.As. Nos. 249 and 252 of 2014).

Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos. 1, 4, 7, 10, 19, 21 and 26 (in C.A. No. 250 of 2014).

Nemo for other Respondents.

2024 S C M R 628

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

MUHAMMAD ISHAQUE and others---Petitioners

Versus

Messrs ZEAL PAK CEMENT FACTORY LTD.---Respondent

Civil Petitions Nos. 175-K, 176-K and 177-K of 2022, decided on 22nd December, 2023.

(Against order dated 30.11.2021, passed by the High Court of Sindh, Circuit Court, Hyderabad on M.A. No. 1719 of 2020 moved in C.P. No.D-217 of 2001).

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

----Ss. 3 & 4---Constitution of Pakistan, Art.204---Contempt of High Court---Employees of a company---Termination from service---Judgment issued by the High Court directing reinstatement in service with all consequential benefits---Non-compliance by the company (employer)---Whether company (employer) made substantial compliance with the judgment of the High Court?---Held, that seemingly, the directions issued by the High Court for reinstatement in service with all benefits, which the petitioners (employees) were entitled to at the date of termination of their services, were not complied with---Therefore, the petitioners filed an application in the High Court for initiating contempt proceedings for the non-compliance of judgment---However, the High Court declined to initiate contempt proceedings based on the statement of the alleged contemnors (company) that substantial compliance of the judgment had been made---Impugned order of the High Court did not reflect whether any verified statement of accounts was filed in the High Court by the alleged contemnors to demonstrate compliance and payments, if any, made to the petitioners---Additionally, no due diligence was made by the High Court to ensure compliance with its own judgment---Despite the High Court passing various harsh and deterrent orders on different dates of hearing for ensuring compliance and implementation of its judgment, the contempt application was disposed of precipitously and inconsiderately, and the sole observation was that substantial compliance had been made---What substantial compliance was allegedly made should have been reflected in the order to determine whether due compliance had been achieved or not---So, in all fairness, it was not enough for the High Court to dispose of the contempt application on the ground that if the petitioners had any substantial claim against the respondent (company), they were at liberty to seek a remedy, if any, under the law---Court has to assess the contempt and its gravity and may also purge it if an unqualified apology is tendered by the contemnor; however, there is no concept or parameter to relieve or emancipate the contemnors on the notion that substantial compliance has been made, which had not been demonstrated in the present case---Court has to evaluate the compliance of its judgment in its entirety and not the ratio or percentage of compliance---In the present case denial of exercising jurisdiction proactively in the contempt proceedings for revitalising and assuring the compliance of judgment not only rendered the main judgment worthless and inconsequential, but for all practical purposes, also undermined the writ of the Court and watered down the efficacy of the orders passed by different benches in the same proceedings for ensuring compliance---Petitions were converted into an appeal and allowed; the impugned Order of the High Court was set aside and the matter was remanded back to the High Court for deciding the contempt application afresh and for examining whether the judgment had been implemented as per the directions issued by the High Court or not.

Petitioners in Person.

Respondent not Represented.

2024 S C M R 634

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

SOHAIL AHMED---Petitioner

Versus

Mst. SAMREENA RASHEED MEMON and another---Respondents

Civil Petitions Nos. 488-K and 489-K of 2023, decided on 20th December, 2023.

(Against order dated 06.02.2023 passed by High Court of Sindh, Karachi in C.P. No. S-262 of 2021 and C.P.No. S-457 of 2021).

(a) Family Courts Rules, 1965---

----R. 6---Dissolution of marriage by way of khula---Marriage solemnized in a foreign country (United States of America)---Wife a dual citizen of Pakistan and USA---Wife residing in USA at the time of institution of suit for dissolution of marriage by way of khula---Family Courts in Pakistan, jurisdiction of---In terms of proviso to Rule 6 of the West Pakistan Family Courts Rules, 1965, the rigours of normal rule providing for territorial jurisdiction for trial of cases in Family Court have been relaxed in favour of a female filing a suit for dissolution of marriage or recovery of dower---Words "Ordinarily resides" and "shall also have jurisdiction" used in the said proviso demonstrate the intention of parliamen to facilitate things for the wife and off-set her handicap---Therefore, the option of instituting such suits vests with the wife and the Court is bound to take into account her convenience subject to law---In the present case, although the wife (respondent) was living in the USA at the time of the institution of the suit through her duly constituted attorney, however, the respondent usually came to Pakistan; acquired her education in Karachi and visited her family in Karachi from time to time---Hence, Family Courts in Pakistan had jurisdiction to entertain the matter and the trial court had rightly exercised the same---Petitions were dismissed and leave to appeal was refused.

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

----Ss. 10(3) & 10(4)---Dissolution of marriage by way of khula---Pre-trial proceedings---Scope---Section 10(3) of the Family Courts Act, 1964 imposes a legal obligation on the Family Courts to make a genuine attempt for reconciliation between the parties---Trial Court shall remain instrumental and make genuine efforts in resolving the dispute between the parties---In case if despite of genuine efforts, reconciliation fails, the Trial Court under proviso of section 10(4), without recording evidence is empowered to pass a decree of dissolution of marriage forthwith---At this juncture if the court observes that the wife without any reason is not willing to live with her husband, then under the said proviso the Court is left with no option, but to dissolve the marriage---Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation.

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

----S. 10(4)---Dissolution of marriage by way of khula---Preliminary decree passed by Family Court---Application for withdrawal of suit in respect of remaining prayer clauses filed by wife after passing of preliminary decree---Effect---On failure of reconciliation proceedings, an order for the dissolution of marriage by way of Khula was passed by the Family Court and preliminary decree was prepared on the same day---Subsequently suit was fixed for evidence in respect of certain prayer clauses, when the wife (respondent) filed a statement supported with an affidavit of her attorney for the withdrawal of the suit in respect of said prayer clauses---Suit was disposed of as withdrawn by the trial court---Thus, preliminary decree already passed/prepared shall be deemed to be the final decree as the respondent had already withdrawn the suit to extent of remaining prayer clauses---Petitions were dismissed and leave to appeal was refused.

Petitioner in-person.

Nemo for Respondents

2024 S C M R 640

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Athar Minallah and Irfan Saadat Khan, JJ

Civil Appeal No. 722 of 2012

(Against the judgment of Lahore High Court, Lahore, dated 14.5.2012, passed in Civil Revision No.691/2012)

and

Civil Appeal No. 2649 of 2016.

(Against the judgment of High Court of Sindh, Karachi, dated 07.10.2016, passed in HCA No.99/2015)

TAISEI CORPORATION and another---Appellants

Versus

A.M. CONSTRUCTION COMPANY (PVT.) LTD. and another---Respondents

Civil Appeal No. 722 of 2012 and Civil Appeal No. 2649 of 2016, decided on 28th February, 2024.

(a) Arbitration Act (X of 1940)---

----Preamble---Arbitration, concept of---Minimal interference by courts in international commercial arbitration---Minimal interference and support for the arbitration by the courts as an alternate mode of dispute resolution, explained.

The idea of arbitration is that of binding resolution of disputes accepted with serenity by those who bear its consequences because of their special trust in chosen decision makers. It is difficult for courts to achieve this kind of acceptance; public justice tends to be distant and impersonal. Arbitration is a private initiative. The idea of Arbitration is freedom reconciled with law. The philosophical premise is that people are free to arrange their private affairs as they see fit, provided that they do not offend public policy or mandatory law. Arbitration thus embodies the principles of autonomy and voluntariness, respecting the parties' freedom to design a process that best suits their needs. It reflects a philosophical shift towards self-governance in dispute resolution, allowing parties to choose their arbitrators and the applicable law, thereby creating a more tailored and potentially equitable outcome. The role of courts in the context of arbitration has therefore evolved with a trend towards minimal interference.

Jan Paulsson, Idea of Arbitration, Oxford University Press (2013) ref.

More significant is the minimal interference in international commercial arbitration that stands as a cornerstone in the resolution of cross-border commercial disputes, offering a preferred alternative to litigation in national courts for businesses worldwide. One of the foundational aspects of international commercial arbitration is its emphasis on neutrality, expeditiousness, efficiency and the ability to provide solutions tailored to the needs of international business transactions. International commercial arbitration plays a crucial role in resolving disputes arising from cross-border trade and commerce, expeditiously and efficiently. The global view on international commercial arbitration is therefore overwhelmingly positive, with businesses and legal professionals alike recognizing its benefits over traditional litigation.

(b) Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the "New York Convention")---

----Art. I---International commercial arbitration---Pro-enforcement bias of the New York Convention for enforcing foreign awards, explained.

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 plays a pivotal role, underpinning the global enforcement regime for foreign awards that has made arbitration a linchpin in international commerce. The Convention facilitates the recognition and enforcement of arbitration agreements and awards across its member States, significantly reducing the uncertainty and complexity associated with cross-border dispute resolution. The role of courts in the context of international commercial arbitration has thus evolved to support and complement the arbitration process. Courts are no longer seen as competitors to arbitration but as essential partners in ensuring the effectiveness and integrity of the process. Their duty is to support, not to supplant, the arbitral process.

This approach of minimal interference and support for the arbitral process is enshrined in the concept of "pro-enforcement bias", which refers to the inclination of legal frameworks, such as the New York Convention and national laws, to facilitate the enforcement of arbitral awards. This bias underscores the commitment to uphold the integrity of arbitration as a means of settling international disputes by limiting the grounds on which enforcement can be refused and placing the burden of proof on the party resisting enforcement. The courts' role is to interpret these provisions narrowly to promote certainty and predictability in international transactions. This bias is not about unjustly favoring one party over another but is aimed at promoting the effectiveness and efficiency of arbitration as a dispute resolution mechanism. The pro-enforcement bias underscores the commitment of the legal system, embodied in international conventions, like the New York Convention, to respect and uphold the parties' agreement to arbitrate and to ensure that the outcome of such arbitrations (the arbitral awards) are recognized and enforced with minimal interference. This bias is critical in providing parties with the confidence that their decisions to arbitrate disputes will be supported by courts around the world, thus enhancing the attractiveness of arbitration as a method of resolving international commercial disputes. This enforceability is crucial for the fluidity of international trade, providing businesses with the certainty and security needed to engage in cross-border transactions.

(c) Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011)---

----Ss. 2(b), 2(c) & 2(e) ---International commercial arbitration---Foreign arbitral award---Scope---Whether an award made in a Contracting State, in pursuance to an arbitration agreement governed by the law of Pakistan, is a foreign arbitral award for applicability of the Recognition and Enforcement of Arbitration Agreement and Foreign Award Act 2011?---Held, that as per the definitions provided in sections 2(b), 2(c) & 2(e) of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 ('the 2011 Act'), an arbitral award made in a State which is a party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 or in such other State as may be notified by the Federal Government in the official Gazette, is a "foreign arbitral award" for applicability of the 2011 Act---Nothing more is required to make an award the "foreign arbitral award" for applicability of the provisions of the 2011 Act---Law governing the main contract between the parties, the law governing the arbitration agreement, and the law governing the arbitration proceedings are all irrelevant and extraneous in determining the status of an arbitral award under the 2011 Act---In defining a "foreign arbitral award" for applicability of the 2011 Act, the legislature has adopted a pure "territorial approach" and has made in this regard the "seat of arbitration" the sole criterion---Not only the governing laws but also the nationality of the parties to the award are irrelevant in determining the status of an arbitral award under the 2011 Act---In the present case the Award had been made in a Contracting State, i.e., Singapore---Nothing more was required to make it a foreign arbitral award, for applicability of the 2011 Act---In this regard, the facts that the main contract between the parties and the arbitration agreement were governed by the law of Pakistan, did not have any effect.

(d) Interpretation of statutes---

----Repealed law---Scope---Court cannot administer a repealed law, except to the extent specified by the legislature itself in the repealing law or some other general law providing the effect of the repeal of laws.

(e) Interpretation of statutes---

----Expression 'means' used in a statute to define any word, term or expression---When the legislature employs the verb "means" in defining any word, term or expression, the definition provided is restrictive and exhaustive, and nothing else can be added to the same---Such definition being itself the most authentic expression of the legislature's intent as to the meaning of a particular word used in the law enacted by the legislature is binding on the courts and leaves no room for them to discover by way of interpretation some other intent of the legislature.

Commissioner of Income Tax v. Khurshid Ahmad PLD 2016 SC 545 ref.

(f) Interpretation of statutes---

----Prospective and retrospective effect of a law---Principles stated.

A new law that only deals with the procedure and does not in any way affect the substantive rights of the parties applies both prospectively to future proceedings as well as retrospectively to pending proceedings. However, a law that takes away or abridges the substantive rights of the parties only applies prospectively unless either by express enactment or by necessary intendment the legislature gives to it the retrospective effect. The notable point is that even a procedural law that affects, though indirectly, the substantive rights of the parties is to be applied only prospectively, in the absence of any contrary provision therein, such as the right to institute an action for the enforcement of a substantive right or the right to appeal arising from that action as an appeal is considered a continuation of the original action. Denial of the remedy, it is said, is destruction of the right. Without remedy, there is no right; it is the remedy that makes the right real. The proper approach, therefore, to the construction of a statute as to its prospective or retrospective applicability, in the absence of legislature's express enactment or necessary intendment, is not to decide what label to apply to it, procedural or otherwise, but to see whether the statute if applied retrospectively to a particular type of case would impair existing rights and obligations. Such an examination, however, is needed only where the legislature has not, by express enactment or necessary intendment, provided for retrospective effect; as the legislature can by express enactment or necessary intendment also affect the existing rights and obligations. The legislature which is competent to make a law also has the power to legislate it retrospectively and can by legislative fiat take away even the vested rights.

State v. Jamil PLD 1965 SC 681; Alam v. State PLD 1967 SC 259; Adnan Afzal v. Sher Afzal PLD 1969 SC 187; Abdullah v. Imdad Ali 1972 SCMR 173; Commissioner of Income Tax v. Asbestos Cement Industries 1993 SCMR 1276; Gul Hasan & Co. v. Allied Bank 1996 SCMR 237; Tariq Badr v. National Bank 2013 SCMR 314; Controller General of Accounts v. Abdul Waheed 2023 SCMR 111; PTCL v. Collector of Customs 2023 SCMR 261; Yew Bon v. Kenderaan 1983 PSC 1200 (Privy Council); Commissioner of Income Tax v. Asbestos Cement Industries 1993 SCMR 1276; In re: Joseph Suche & Co. Limited (1875) 1 Ch. D. 48; Sutlej Cotton Mills v. Industrial Court PLD 1966 SC 472 (5-MB); Shohrat Bano v. Ismail Soomar 1968 SCMR 574; Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249; The Colonial Sugar Refining Co. v. Irving 1905 AC 369; Iftikhar Ahmed v. State 2018 SCMR 1385; Hassan Nawaz v. Muhammad Ayub PLD 2017 SC 70; Mubeen-Us-Salam v. Federation of Pakistan PLD 2006 SC 602; F.A. Khan v. Government of Pakistan PLD 1964 SC 520; Shahmir Transport Company v. Board of Revenue PLD 1964 Lah 710; Garikapati v. Subbiah Choudhury PLD 1957 SC (Ind.) 448; National Bank v. SAF Textile PLD 2014 SC 283; Shahida Zaheer v. President of Pakistan PLD 1996 SC 632; Yew Bon Tev v. Kenderaan Bas Mara 1983 PSC 1200 (Privy Council); Haider Automobile v. Federation of Pakistan 1969 SC 623; Molasses Trading v. Federation of Pakistan 1993 SCMR 1905 and Annoor Textile v. Federation of Pakistan PLD 1994 SC 568 ref.

(g) Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011)---

----Ss. 1(3) & 4---Arbitration Act (X of 1940), S. 34---International commercial arbitration---Scope of section 1(3) as to the retrospective effect of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 ('the 2011 Act') on arbitration agreements---As for subsection (3) of Section 1 of the 2011 Act, which states that the Act shall apply to arbitration agreements made before the date of commencement of the Act, it only applies for the purpose of Section 4 of the 2011 Act to stay the legal proceedings in respect of a matter which is covered by the arbitration agreement and to refer the parties to arbitration---Notable point, however, is that because of the retrospective effect given by Section 1(3) of the 2011 Act, all courts in Pakistan are to recognize and enforce arbitration agreements, wherein the parties have agreed to have the arbitration held in a Contracting State, within the scope of the provisions of Section 4 of the 2011 Act, not of Section 34 of the Arbitration Act, 1940 ('the 1940 Act'), despite that such agreements have been made before the commencement of the 2011 Act.

(h) Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011)---

----Ss. 1(4) & 10(2)---Arbitration (Protocol and Convention) Act (VI of 1937) [since repealed], S. 2---International commercial arbitration---Foreign arbitral award---Scope of Section 1(4) as to the retrospective effect of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 on foreign arbitral awards expounded.

Subsection (4) of Section 1 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 ('the 2011 Act') states that the Act shall not apply to foreign arbitral awards made before 14 July 2005 and thus by necessary intendment gives the Act retrospective effect on foreign arbitral awards that have been made on or after the said date.

As per subsection (2) of Section 10 of the 2011 Act, notwithstanding its repeal the Arbitration (Protocol and Convention) Act, 1937 ('the 1937 Act') is to continue to have effect in relation to foreign arbitral awards made before the date of commencement of this Act and within the meaning of section 2 of the 1937 Act, which are not foreign arbitral awards within the meaning of section 2 of the 2011 Act.To come within the compass of the saving provisions of Section 10(2) of the 2011 Act, a foreign arbitral award must therefore fulfill both the conditions mentioned in clauses (a) and (b), i.e., (a) it must have been made before the date of commencement of the 2011 Act, and (b) it must fall within the meaning of "foreign award" as defined in Section 2 of the 1937 Act.

In section 10(2)(b) of the 2011 Act the phrase "which are not foreign arbitral awards within the meaning of section 2 of this Act" is like a proviso to the saving provisions and has qualified them in their scope and applicability. This phrase has exempted from the purview of the saving provisions those foreign awards which though fulfill both the conditions mentioned in clauses (a) and (b) of section 10(2) but they are also foreign arbitral awards within the meaning of Section 2 of the 2011 Act. It means that an award which is a foreign arbitral award within the meaning of Section 2 of the 2011 Act shall not come within the scope of the saving provisions and shall therefore be dealt with in accordance with the provisions of the 2011 Act, not of the 1937 Act.

The object of the saving provisions of Section 10(2) of the 2011 Act, is to save certain foreign arbitral awards, after the repeal of the 1937 Act, from falling within the scope of the Arbitration Act, 1940.

(i) Arbitration Act (X of 1940)---

----Preamble---Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011), Preamble---International commercial arbitration---Foreign arbitral award---Non-applicability of the Arbitration Act, 1940 ('the 1940 Act')---Since, the 1940 Act relates, in pith and substance, to domestic arbitration, its status after the 18th amendment to the Constitution is that of a provincial law---The 1940 Act, a provincial law after the 18th amendment that came into force on 19 April 2010, cannot deal with international arbitration and any award made therein---So, in no way the remedies available to a party, before the 18th amendment, under the 1940 Act in relation to the Award made in an international arbitration would continue to be so after the 18th amendment, and more so, after the enactment of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 by the Federal Legislature.

Shahbaz Garments v. Government of Sindh 2021 SCMR 1088 ref.

(j) Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011)---

----S. 2(c)---Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the "New York Convention"), Arts. III & V---International commercial arbitration---Foreign arbitral award---Non-interference by domestic courts in Pakistan---Exceptions --The New York Convention implemented in Pakistan by the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 ('the 2011 Act'), contains no ground as to the invalidity of a foreign award or its being against the law of the Contracting States, to refuse its recognition and enforcement and thus leaves no room for the courts of a Contracting State to enter into the exercise of examining the merits of a foreign award on the points of facts or law---In accordance with its objective, the New York Convention grants the Courts of the Contracting States the discretion to refuse to recognize and enforce a foreign arbitral award only on the grounds listed in Article V of the Convention and places the burden to prove those grounds on the party opposing the recognition and enforcement of the award---Article V(1) provides five grounds whereby the recognition and enforcement of an award may be refused at the request of the party against whom it in invoked, and Article V(2) lists two further grounds on which the Court may refuse enforcement on its own motion---Ultimate burden of proof, however, remains on the party opposing recognition and enforcement---It is, therefore, only when the party against whom the award is invoked discharges this burden that a challenge may be sustained against the recognition and enforcement of an award---Language of Article V for refusing recognition and enforcement of foreign arbitral awards is permissive and not mandatory, and the exceptions stated therein are exhaustive and construed narrowly in view of the public policy favouring the enforcement of such foreign arbitral awards---Courts may nonetheless recognize and enforce the award even if some of the exceptions exist.

Gary B. Born, International Commercial Arbitration 3418-24 (2nd ed. 2014); Gary B. Born, International Commercial Arbitration 3413, 3418 and 3428 (2nd ed. 2014); Gary B. Born, International Commercial Arbitration 3413 (2nd ed. 2014); Redfern and Hunter on International Arbitration (6th ed. 2015); Albert Jan van den Berg's The New York Arbitration Convention of 1958 (1981); Russel on Arbitration, Sweet & Maxwell (24th ed. 2015) and Gary B. Born, International Commercial Arbitration 3410 (2nd ed. 2014) ref.

(k) Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011)---

----S. 2(c)---Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the "New York Convention"), Art. V---International commercial arbitration---Foreign arbitral award---Non-interference by domestic courts in Pakistan---Exceptions---Public policy---Objectives sought to be achieved by the New York Convention underscore the "pro-enforcement bias" informing the Convention, guiding the Courts towards a "narrow reading" of the grounds of defence listed in the Convention, particularly, the public policy ground---Ground of defence that the arbitrator's decision is erroneous in law or fact is, therefore, not provided in the Convention; it cannot be read into in any ground of defence provided in the Convention, particularly, the public policy ground, by a "liberal reading" instead of a "narrow reading" thereof---An expansive construction of the public policy ground "would vitiate the Convention's basic effort to remove preexisting obstacles to enforcement---Recognition and enforcement of a foreign arbitral award may be refused by the courts of Pakistan on the public policy ground only where it would violate the most basic notions of morality and justice prevailing in Pakistan---Public policy ground cannot be used to examine the merits of a foreign arbitral award or to create more grounds of defence that are not provided for in the Convention, such as misapplication of the law of Pakistan by the arbitrator in making the award or the arbitrator's decision being contrary to the law of Pakistan.

Parsons and Whittemore v. Societe Generale, 508 F.2d 969 (2d Cir.1974) and Orient v. SNGPL 2021 SCMR 1728 ref.

(l) Interpretation of statutes---

----Prospective and retrospective effect of a law---Principles---While interpreting a provision of law or construing its effect, a constitutional court only declares what the law is and does not make or amend it---Law so declared by the court, therefore, as a general principle applies both prospectively to future cases and as well as retrospectively to pending cases, including the one in which it is declared---It is only as an exception to this general principle that while considering the possibility of some grave injustice or inconvenience due to the retrospective effect, the courts sometimes provide for the prospective effect of their judgments from such date as they think just and proper in the peculiar facts and circumstances of the case---But this exception cannot be invoked in a case where its effect would be tantamount to negation of the legislature's intent.

Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Muhammad Khan v. Haider PLD 2020 SC 233 ref.

Zahid F. Ebrahim, Advocate Supreme Court for Appellant (in C.A. No. 722 of 2012) and the Respondent (in C.A. No. 2649 of 2016).

Uzair Karamat Bhandari, Advocate Supreme Court, Tariq Aziz, Advocate-on-Record, Sheikh Muhammad Ali, Advocate Supreme Court assisted by Ali Uzair Bhandari, Advocate for Respondent (in C.A. No. 722 of 2012) the Appellant (in C.A. No. 2649 of 2016)

Ch. Aamir ur Rehman, Addl. A.G.P. for the Federation (On Court's call).

Assisted by Muhammad Hassan Ali and Umer A. Ranjha, Law Clerks.

Date of hearing: 22nd February 2024.

Table of Contents

Preface…………………………………………………………………………………… 650

Facts………………………………………………………………………………………… 651

Proceedings of the courts below in Civil Appeal No. 722 of 2012…….. 652

Proceedings of the courts below in Civil Appeal No. 2649 of 2016…… 652

Competing contentions of the parties ………………………………………………… 653

(i) Whether the Award is a foreign arbitral award………………………………… 653

Relevancy of Hitachi…………………………………………………………….. 654

Definition of "foreign arbitral award" in the 2011 Act…………………… 654

Effect of word "foreign" in definition clause and option of reciprocity in the Convention ………………………………………………………………………… 655

The definition in Section 2(e) of the 2011 Act is restrictive and exhaustive……………………………………………………………………………. 657

The Award is a foreign arbitral award…………………………………………. 657

(ii) Whether the 2011 Act applies retrospectively to the Award made in arbitration proceedings commenced before its enforcement………………………. 657

Principles for construing a law as to its prospective and retrospective effect…………………………………………………………………………………. 658

Scope of Section 1(3) as to the retrospective effect of the 2011 Act on arbitration agreements……………………………………………………………. 659

Scope of Section 1(4) as to the retrospective effect of the 2011 Act on foreign arbitral awards…………………………………………………………….. 660

Effect of the 2011 Act on remedy under Sections 30 and 33 of the 1940 Act…………………………………………………………………………………….. 662

Effect of the change of legislative power on the subject of arbitration by the 18th Amendment to the Constitution ……..………………………………. 663

No remedy in the 2011 Act against the misapplication of the law of Pakistan in making an award ……………………………………………………. 665

Pro-enforcement bias of the New York Convention 666

The 2011 Act applies retrospectively to the Award made in arbitration proceedings commenced before its enforcement…………………………….. 670

Prospective or retrospective applicability of the construction of the 2011 Act 670

Decision in Civil Appeal No. 722 of 2012……………………………………………. 671

2024 S C M R 673

[Supreme Court of Pakistan]

Present: Yahya Afridi, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

GHULAM ABBAS SOOMRO---Appellant

Versus

The PROVINCE OF SINDH and others---Respondents

Civil Appeal No. 84-K of 2023, decided on 7th February, 2024.

(Against the order dated 28.01.2021 passed by the Sindh Service Tribunal, at Karachi in Appeals Nos. 19 and 20 of 2020).

Pakistan Engineering Council Act, 1975 (V of 1976)---

----Ss. 2(x), 2(xii) & 2(xiv)---Constitution of Pakistan, Art. 25---Persons working in the Government departments, autonomous bodies, local authorities and private firms or companies---Whether provisions of Pakistan Engineering Council Act, 1975 ['PEC Act'] are applicable to such persons---Conflicting judgments of the Supreme Court---Post of Executive Engineer (BS-18)---Case reported as Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad (PLD 1995 SC 701) ['Fida Hussain's case'] provides that if the Government employs a professional engineer as defined in the PEC Act for performing professional engineering work as envisaged by the PEC Act in section 2, the provisions of the PEC Act would be attracted and not otherwise---Whereas the case reported as Maula Bux Shaikh v. Chief Minister Sindh and others (2018 SCMR 2098) ['Maula Bux Shaikh's case'] introduces a cautionary note and explicitly dictates the Government regarding postings and transfers of Executive Engineer (BS-18) and directs that the Government shall not allow or permit any person to perform professional engineering work as defined in the PEC Act, who does not possess accredited engineering qualification from the accredited engineering institution and his name is not registered as a registered engineer or professional engineer under the PEC Act---This cautionary note raises critical concerns about the permissibility of employing engineers not licensed by the PEC for professional engineering tasks, which, according to the PEC Act, should only be undertaken by licensed professionals---Effect of these cases creates a scenario: where a person, on the one hand, is eligible to be promoted to the post of Executive Engineer (BS-18), but on the other hand, is denied to perform professional engineering works entailed for an Executive Engineer (BS-18)---This raises a very serious issue that may lead to creating different classes of employees within the same cadre, one who is eligible to perform professional engineering works, while the other is denied the same, and thus, exposing the current position to be against the principle of equality and nondiscrimination provided under Article 25 of the Constitution---Accordingly, it would be safe to hold that, while both cases, Fida Hussain's case and Maula Bux Shaikh's case, affirm that it is the domain of the Government concerned to decide, whether a particular academic qualification of a civil servant employee is sufficient for promotion from one Grade to another higher Grade---However, the questions which still alludes a definite determination are: whether any governmental policy regarding promotion can be given effect if the same can lead to the violation of the PEC Act or any other statute or expose the person who benefited from such policy to a criminal liability; and whether denying an Executive Engineer (BS-18) to perform professional engineering works entailed for an Executive Engineer (BS-18) creates different classes of employees within the same cadre, thereby violating the principle of equality and nondiscrimination provided under Article 25 of the Constitution---In the circumstances, the present case warrants further consideration but before a larger bench of the Supreme Court---Supreme Court directed Office to place the present case before the Committee constituted under section 2 of the Supreme Court (Practice and Procedure) Act, 2023 for fixation of the case before an appropriate bench.

Abdul Salam Memon, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Appellant.

Sibtain Mehmood, Addl. A.G., Ms. Abida Parveen Channar, Advocate-on-Record, M. Nawaz, Secretary, Works and Altaf Hussain Memon, D.S. for Respondents.

2024 S C M R 684

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Irfan Saadat Khan, JJ

COMMISSIONER INLAND REVENUE---Petitioner

Versus

Messrs RIAZ BOTTLERS (PVT.) LTD. (Now Lotte Akhtar Beverages (Pvt.) Ltd.) ---Respondent

Civil Petition No.3200-L of 2019, decided on 19th February, 2024.

(Against the Order dated 12.9.2019 passed by the Lahore High Court, Lahore in P.T.R. No. 142 of 2009).

(a) Companies Profits (Workers' Participation) Act (XII of 1968)---

----Ss. 2(c) & 9---Income Tax Ordinance (XXXI of 1979) [since repealed], S. 25(c)---Workers Profit Participation Fund (WPPF)---Amount transferred by a company to the WPPF---Not liable to tax under section 25(c) of the Income Tax Ordinance, 1979---Transferred amount to the WPPF could not be termed as arising out of a trade/trading rather the same is a statutory liability---Such amount was granted an exemption because a statute, in the present case, Companies Profits (Workers' Participation) Act, 1968, allowed for it---Hence, the amount transferred to the WPPFis nothing but a statutory liability and thus did not attract the provisions of section 25(c) of the Income Tax Ordinance, 1979---Petition was dismissed and leave to appeal was refused.

(b) Interpretation of statutes---

----Special law and general law---Preference---According to the principle of harmonious interpretation, special law would take precedence over the general law.

Gulistan Textile Mills Ltd. v. Soneri Bank 2018 CLD 203 ref.

Mian Yusuf Umar, Advocate Supreme Court for Petitioner

(via Video link, Lhr.)

Ali Sibtain Fazli, Sr. Advocate Supreme Court for Respondent

(via Video link, Lhr.)

2024 S C M R 689

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Muhammad Ali Mazhar and Musarrat Hilali, JJ

PROVINCE OF PUNJAB through Secretary (Primary and Secondary Healthcare Department), Lahore and others---Appellants

Versus

Hafiz MUHAMMAD KALEEM-UD-DIN---Respondent

Civil Petition No.1893-L of 2021, decided on 17th January, 2024.

(Against the judgment dated 13.09.2021 passed by the Lahore High Court, Bahawalpur Bench, in W.P. No.3963 of 2021).

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

----S. 8(6)(a)---Constitution of Pakistan, Art. 212(1)---Retired civil servant---Pro-forma promotion on a selection post sought---Ouster of jurisdiction of the High Courts and Civil Courts---Post to which the respondent wanted (pro-forma) promotion was a selection post and such post according to Section 8 (6) (a) of the Punjab Civil Servants Act, 1974 could only be filled on the basis of merit and not on seniority---Furthermore Article 212 of the Constitution ousts the jurisdiction of the High Courts and Civil Courts in the matters relating to the terms and conditions of a civil servant as the bar in the Constitution is absolute---Petition was converted into appeal and allowed.

Barrister Muhammad Mumtaz Ali, Addl. AG, Punjab along with Ms. Saima Jehan, Sr, Law Officer and Nasir Ali, Law Officer for Petitioners.

Muhammad Naveed Farhan, Advocate Supreme Court for Respondent.

2024 S C M R 692

[Supreme Court of Pakistan]

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

MUHAMMAD RIAZ---Appellants

Versus

MUHAMMAD AKRAM and others---Respondents

Civil Petition No.2148-L of 2022, decided on 25th January, 2024.

(Against the judgment dated 15.04.2022 passed by the Lahore High Court, Lahore in Civil Revision No.2108 of 2014).

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

----S. 13(1)(a)---Suit for possession through pre-emption---Talb-i-Muwathibat---Pre-emptors, two in number, making joint Talb-i-Muwathibat in the same meeting---One of the pre-emptors announcing his right to exercise right of pre-emption one or two minutes after the other pre-emptor---Delay of one or two minutes in the making of Talb-i-Muwathibat by one of the pre-emptors---Effect---Fatal for the pre-emption suit---Record of the present case showed that one of the pre-emptors waited for the other pre-emptor to complete his declaration of Talb-i-Muwathibat before making his own declaration, resulting in a brief delay of one or two minutes---As soon as the pre-emptors acquire knowledge of the sale of the pre-empted property, they should make an immediate demand of their desire and intention to assert their right of pre-emption without the slightest loss of time---Pre-emptor in question failed to prove the validity of his Talb-i-Muwathibat for exercising his right of pre-emption over the suit land---Petition was converted into appeal and allowed and judgment of the trial Court dismissing the suit of pre-emptors was restored.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Muhammad Nazeef Khan v. Gulbat Khan and others 2012 SCMR 235; Bashir Ahmed v. Muhammad Zaman 2021 SCMR 134 and Mst. Rooh Afza v. Auranazeb and others 2015 SCMR 92 ref.

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

----S. 13(1)(a)---Suit for possession through pre-emption---Talb-i-Muwathibat---Proof---Complete chain of source of information---Person who conveys the information of the fact of sale must be a person who has observed the fact of sale and it is he who can then pass on the said fact to another person(s)---Thus, the chain of information regarding the sale, starting from the very first person with direct knowledge and passing it on to the person who lastly informs the pre-emptor, must be complete---Only the complete chain of the source of information of the sale can establish the essential elements of Talb-i-Muwathibat, which are: (i) the time, date and place when the pre-emptor obtained the first information of the sale, and; (ii) the immediate declaration of his intention by the pre-emptor to exercise his right of pre-emption, then and there, on obtaining such information---In the present case, such chain of the source of passing on the information, as to the fact of the sale of the suit land has not been proved as person "B" in his evidence categorically stated that he refused to meet and share the information about the sale of the suit land with the informer---Entire case of the pre-emptors (respondents) regarding the issuance of Talb-i-Muwathibat built on the hearsay evidence of the informer faIls to the ground due to an incomplete chain of information about the sale of the suit land---Therefore, the trial court correctly observed that when the source of information provided by the informer is not proved, the transmission of this information to the pre-emptors also becomes highly doubtful---Pre-emptors failed to prove the validity of Talb-i-Muwathibat made by them for exercising their right of pre-emption over the suit land---Petition was converted into appeal and allowed and judgment of the trial Court dismissing the suit of pre-emptors was restored.

Farid Ullah Khan v. Irfan Ullah Khan 2022 SCMR 1231 ref.

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

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Suit for possession through pre-emption---Two pre-emptors---One of the pre-emptors failing to appear before the trial Court to substantiate his claim---Effect---Fatal for the pre-emption suit---Pre-emption is a personal right and a pre-emptor is required to prove it through his own statement---One of the pre-emptors did not appear as a witness before the trial court to substantiate his claim nor did he attempt to produce an attorney on his behalf---It was also not the case of said pre-emptor that he was suffering from some disability to appear before the court---Therefore, his failure to appear in the witness box would adversely affect his right of pre-emption---Clearly the evidence of said pre-emptor, which would have been the best evidence has been withheld by the pre-emptors---Consequently, in accordance with Article 129(g) of the Qanun-e-Shahadat, 1984, an adverse inference can also be drawn against him---Although one of the pre-emptors appeared as a witness, but it did not provide any help to the pre-emptor who did not appear---Suit, to the extent of non-appearing pre-emptor, is liable to be dismissed, therefore, no partial or full decree can be passed in favour of the other pre-emptor---Petition was converted into appeal and allowed and judgment of the trial Court dismissing the suit of pre-emptors was restored.

Dilshad Begum v. Mst. Nisar Akhtar 2012 SCMR 1106; Nawab Din through L.Rs. v. Faqir Sain 2007 SCMR 401 and Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 ref.

Muhammad Jawad Zafar, Advocate Supreme Court for Petitioner (through video link from Lahore).

Haroon Dugal, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents..

2024 S C M R 700

[Supreme Court of Pakistan]

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

COMMISSIONER INLAND REVENUE, LAHORE---Appellant

Versus

Messrs MILLAT TRACTORS LIMITED, LAHORE and others---Respondents

Civil Appeals Nos.87 to 106 of 2024 in Civil Petitions Nos.2447-L, 2448-L, 2601-L to 2606-L, 2765-L, 2787-L, 2834-L, 2901-L, 2915-L, 2928-L, 2944-L to 2946-L, 2992-L of 2022 and Civil Petitions Nos. 646-L and 647-L of 2023, decided on 1st February, 2024.

(Against the judgment/order(s) of Lahore High Court, Lahore dated 09.06.2022, passed in ITR No.59534 of 2021, etc. and dated 12.01.2023 passed in ITR No. 79913 of 2022 and ITR No. 1420 of 2023).

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

----Ss. 111 & 122 (as it existed prior to amendment by the Finance Act, 2020)---Unexplained income or assets---Amendment of an assessment---Notices issued under Sections 111 & 122(9) of the Income Tax Ordinance, 2001 ("Ordinance")---Whether a separate notice is required under Section 111 of the Ordinance or whether a notice under Section 122(9) is enough to initiate proceedings for amendment of the assessment on the grounds mentioned in Section 111 of the Ordinance---Held, that the proceedings under Sections 111 & 122 of the Income Tax Ordinance, 2001 ("Ordinance") are different and distinguishable in nature and cannot be subsumed---Before an assessment can be amended under Section 122 on the basis of Section 111, the proceedings under Section 111(1) are to be initiated, the taxpayer is to be confronted with the information and the grounds applicable under Section 111(1) through a separate notice under the said provision, and then the proceedings are to be culminated through an appropriate order in the shape of an opinion of the Commissioner---This then becomes definite information for the purposes of Section 122(5), provided the grounds mentioned in Section 122(5) are applicable---The taxpayer is then to be confronted with these grounds through a notice under Section 122(9) and only then can an assessment be amended under Section 122.

The initiation and culmination of proceedings under Section 111 of the Income Tax Ordinance, 2001 ('Ordinance') becomes necessary before action can be taken under Section 122 to amend assessments on the basis of proceedings undertaken under Section 111. The information available with the department under Section 111(1) is mere information. It is only after the taxpayer is confronted with this information through a separate notice by calling for an explanation, and when no explanation is offered or the explanation is not satisfactory in the opinion of the Commissioner under Section 111(1), that it transforms or crystallizes into "definite information" for the purposes of action under Section 122(5) for amendment of assessment under Section 122. The taxpayer will then be confronted with the grounds applicable under Section 122(5) through a notice under Section 122(9) of the Ordinance. As such, where the Commissioner has formed an opinion against the taxpayer as to the fulfilment of one of the grounds mentioned in Section 111(1)(a) to (d) of the Ordinance, and is of the view that any of the grounds in Section 122(5) is applicable, the process under Section 122 is to be initiated to amend assessments through a notice under Section 122(9). Thus, unless the proceedings under Section 111(1) are initiated and completed, Section 122(5) cannot be given effect to and no notice under Section 122(9) can be issued for the purposes of amending an assessment through an addition contemplated under Section 111. After the amendment introduced in Section 122(5) of the Ordinance through the Finance Act, 2020, the words "definite information acquired from an audit or otherwise" have been substituted with "audit or on the basis of definite information". Therefore, the interpretation rendered above as to the applicability of Section 122(5) may not be applicable to cases post 2020 and the effect of the substituted expression will have to be determined in an appropriate case in the future.

Commissioner Inland Revenue v. Bashir Ahmed 2021 SCMR 1290; Commissioner Inland Revenue v. Faqir Hussain 2019 PTD 1282; Commissioner Inland Revenue v. Ranipur CNG Station 2017 PTD 1839 and Commissioner Inland Revenue v. Muhammad Shafique 2015 PTD 1823 ref.

Before an assessment can be amended under Section 122 on the basis of Section 111, the proceedings under Section 111(1) are to be initiated, the taxpayer is to be confronted with the information and the grounds applicable under Section 111(1) through a separate notice under the said provision, and then the proceedings are to be culminated through an appropriate order in the shape of an opinion of the Commissioner. This then becomes definite information for the purposes of Section 122(5), provided the grounds mentioned in Section 122(5) are applicable. The taxpayer is then to be confronted with these grounds through a notice under Section 122(9) and only then can an assessment be amended under Section 122. A notice under Section 111 can be simultaneously issued with a notice under Section 122(9), however, proceedings under Section 111 have to be finalized first in terms of an opinion of the Commissioner so as to constitute definite information, as is required under Section 122(5) of the Ordinance.

Commissioner Inland Revenue v. Falah 2021 PTD 192; Commissioner Inland Revenue v. Faqir Hussain 2019 PTD 1828; Commissioner Inland Revenue v. Ranipur CNG Station 2017 PTD 1839 and Commissioner Inland Revenue v. Bashir Ahmed 2021 SCMR 1290 ref.

Even where a notice under Section 111 is issued simultaneously with a notice to amend an assessment under Section 122(9) of the Ordinance, no proceedings can be undertaken under the latter until the proceedings under Section 111 are finalized and result in an opinion against the taxpayer. This is because, even if some basis for action under Section 111 is mentioned in a notice under Section 122(9), it cannot constitute definite information for the purposes of Section 122(5). The proceedings under the notice issued under Section 122(9) can only be formally initiated when the requirement of definite information is satisfied under Section 122(5) after finalization of the proceedings under Section 111 through an opinion of the Commissioner. Therefore, where no opinion is formed against the taxpayer under Section 111, the proceedings under both provisions i.e., Sections 111 and 122 would lapse, and the notice under Section 122(9) would be of no legal effect. Where, however, there is an opinion formed against the taxpayer as definite information for the purposes of Section 122(5), the proceedings on the notice issued under Section 122(9) can formally proceed and shall be deemed to have commenced. It must also be noted that where the opinion formed against the taxpayer under Section 111 is materially different from what has been confronted to the taxpayer through the notice already issued under Section 122(9), and the Commissioner is of the view that another or different ground under Section 122(5) is applicable, a fresh or supplementary show cause notice under Section 122(9) must be issued to the taxpayer by confronting such ground(s) to the taxpayer. This is in view of the right to be treated in accordance with the law, and the principles of fair trial and due process enshrined in Articles 4 and 10A of the Constitution, respectively, and in terms of settled law that 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.

Commissioner Inland Revenue v. RYK Mills 2023 SCMR 1856; Collector Central Excise v. Rahm Din 1987 SCMR 1840 and Commissioner Inland Revenue v. Rose Food Industries 2023 SCMR 2070 ref.

Two provisos have been added after Section 122(9) through the Finance Act, 2021 and further amended through the Finance Act, 2022, which provide for a time period from the date of issuance a show cause notice for making an order under Section 122. The said time period is to be considered as commencing on the day that the taxpayer is confronted with the opinion formed by the Commissioner under Section 111(1), as it is only then that the proceedings under Section 122 are to be formally taken up. This reconciliation harmonizes Section 111, its Explanation and Section 122(5) of the Ordinance.

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

----Ss. 111, Explanation & 122---Explanation introduced in Section 111 of the Income Tax Ordinance, 2001 ('Ordinance') pursuant to the Finance Act, 2021---Effect---On a plain reading of the said Explanation, it appears that it is couched in clarificatory and declaratory terms for "removal of doubt"---However, the intention behind the Explanation and the effect of adding the Explanation is to take away the right to a separate notice and proceedings under Section 111 if the grounds under Section 111(1)(a) to (d) are confronted to the taxpayer through a notice under Section 122(9) of the Ordinance---Therefore, in essence, it abridges the right to a separate notice and proceedings under Section 111 of the Ordinance, which was the requirement of the law---As a consequence, the Explanation takes away a substantive right of separate proceedings of the taxpayer, which otherwise existed prior to the introduction of the Explanation in Section 111---Explanation added in Section 111 of the Ordinance divests and affects a substantive right of the taxpayer to a separate notice and proceedings under Section 111, thus, the same would not have retrospective effect and would apply prospectively---Effect of the Explanation, therefore, is only to dispense with the requirement of a separate notice under Section 111, however, it cannot subsume two different and distinguishable proceedings under Sections 111 & 122---As such, while the Explanation dispenses with the requirement of a separate notice under Section 111, it does not dispense with the requirement that in case proceedings are initiated under Section 122(5) on the basis of definite information to be provided through Section 111, the proceedings under Section 111 are to be concluded first in the manner provided under the law and till such time, the proceedings under Section 122(9) cannot be given effect to---Therefore, as far as the cases prior to the Explanation are concerned, a separate notice is required to be issued under Section 111 before proceedings can be initiated under Section 122---Simultaneity of notices issued under Sections 111 & 122(9) is not of much consequence and the proceedings under Section 111 have to proceed first and be finalized before proceedings under Section 122 are formally taken up---After the introduction of the Explanation in Section 111 in the year 2021, a notice encompassing both the grounds under Section 111(1) and Section 122(5) can be issued under Section 122(9), however, the proceedings under Section 111 still have to be concluded first and thereafter the remaining part of the notice under Section 122(9) can be given effect to.

(c) Interpretation of statutes---

----Explanation to an enactment---Rationale and scope---Purpose of an Explanation is ordinarily to explain some concept or expression or phrase occurring in the main provision---It is not uncommon for the legislature to accord either an extended or restricted meaning to such concept or expression by inserting an appropriate Explanation---Such a clarificatory provision is to be interpreted according to its own terms having regard to its context and not as to widen the ambit of the provision---As a general rule, an explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows, it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision---Object of adding an Explanation to a statutory provision is only to facilitate its proper interpretation and to remove confusion and misunderstanding as to its true nature---It is relied upon only as a useful guide or in aid to the construction of the main provision---It is in this view of its effect that courts have normally given retrospective effect to such clarificatory or declaratory provisions in the shape of an Explanation---However, where the effect of the Explanation warps out of its normal purpose explained above, and acts as a substantive enactment or deeming provision, or enlarges substantive provisions of law or creates new liabilities, such an Explanation cannot be given retrospective effect unless the express language of the Explanation warrants such an interpretation.

M.N. Rao and Amita Dhanda in N S Bindra's - Interpretation of Statutes (12th Edition, 2016); Rehman Cotton Mills v. Federation of Pakistan 2016 PTD 1256; M. P. Tandon - Interpretation of Statutes (12th Edition, 2019); Rehman Cotton Mills v. Federation of Pakistan 2016 PTD 1256; Hussain Patel v. Habib PLD 1981 SC 1; Chief Administrator Auqaf v. Koura PLD 1991 SC 596; Hamid Ashraf v. Commissioner Inland Revenue 2020 SCMR 843; Commissioner of Income Tax v. Asbestos Cement Industries 1993 SCMR 1276; Kohinoor Sugar Mills v. Federation of Pakistan 2018 PTD 821; Commissioner Inland Revenue v. Trillium Pakistan 2019 SCMR 1643 and Commissioner of Income Tax v. Nazir Ahmed and Sons 2004 PTD 921 ref.

(d) Interpretation of statutes---

----Retrospective and prospective application of law---Principles---A change in substantive law which divests and adversely affects vested rights of the parties shall always have prospective application unless by express word of the legislation and/or by necessary intendment/ implication such law has been made applicable retrospectively---As a cardinal principle of interpretation of statutes, tax statutes operate prospectively and not retrospectively unless clearly indicated by the legislature, therefore, retrospectivity cannot be presumed---Where an insertion or deletion of any provision in the rules or the law is merely procedural in nature, the same would apply retrospectively but not if it affects substantive rights which already stood accrued at the time when the un-amended rule or provision was in vogue---A provision curtailing substantive rights does not have retroactive operation unless the legislature elects to give it retrospective effect---Thus, where existing rights are affected or giving retroactive operation causes inconvenience or injustice, the Court will not favour an interpretation giving retrospective effect even where the provision is procedural.

Controller General of Accounts v. Abdul Waheed 2023 SCMR 111; Tariq Badar v. National Bank of Pakistan 2013 SCMR 314; Commissioner of Income Tax v. Eli Lilly Pakistan 2009 SCMR 1279; Hassan v. Fancy Foundation PLD 1975 SC 1; Province of East Pakistan v. Sharafatullah PLD 1970 SC 514; Nagina Silk Mill v. Income Tax Officer PLD 1963 SC 322; Rajby Industries v. Federation of Pakistan 2023 SCMR 1407; Member (Taxes) Board of Revenue v. Qaisar Abbas 2019 SCMR 446; Zila Council Jhelum v. Pakistan Tobacco Company PLD 2016 SC 398; Commissioner of Income Tax v. Eli Lilly Pakistan 2009 SCMR 1279; Manzoor Ali v. United Bank 2005 SCMR 1785; Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa 2015 SCMR 43; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Gul Hasan v. Allied Bank of Pakistan 1996 SCMR 237 ref.

Ahmad Pervaiz, Advocate Supreme Court, Muhammad Yahya, Advocate Supreme Court, Muhammad Shahzad Cheema, Advocate Supreme Court, Muhammad Qasim, Addl. Commissioner and M. Saeed Tahir, Advocate Supreme Court for Appellants (through V.L. from Lahore).

Imtiaz Rashid Siddiqui, Advocate Supreme Court (Through V.L. Lahore Registry)

Shahryar Kasuri, Advocate Supreme Court for Respondents.

Assisted by Muhammad Hassan Ali and Umer A. Ranjha, Law Clerks, Supreme Court of Pakistan.

2024 S C M R 719

[Supreme Court of Pakistan]

Present: Yahya Afridi and Ayesha A. Malik, JJ

Messrs PAK TELECOM MOBILE LIMITED---Appellant

Versus

MUHAMMAD ATIF BILAL and 2 others---Respondents

Civil Petition No. 34 of 2022, decided on 30th January, 2024.

(Against the judgment dated 17.12.2021 of the Islamabad High Court, Islamabad passed in Writ Petition No. 4481 of 2021).

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

----Ss. 2(xxxiii) & 33---Individual grievance of a worker, who has been terminated, removed, retrenched, discharged, or dismissed from employment in a trans-provincial establishment---Redressal---Competent forum---Appropriate forum of redressal for a workman who is terminated, removed, retrenched, discharged, or dismissed from service in a trans-provincial establishment is NIRC, as provided under Section 33 of the Industrial Relations Act, 2012 (IRA of 2012)---Said provision states that a 'worker' may bring his grievance in respect of any right guaranteed or secured to him by or under any law---Competent forum for the redressal of personal grievance of a 'worker/ workman' of a trans-provincial establishment is NIRC, and the mode and manner of enforcing any right guaranteed or secured to him by or under any law has been provided under section 33 of the IRA of 2012.

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

----Ss. 2(xxxiii) & 33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & Sched., S.O. 12(3)---Individual grievance of a worker, who has been terminated, removed, retrenched, discharged, or dismissed from employment in a trans-provincial establishment---Redressal---In case a 'workman' is terminated, removed, retrenched, discharged, or dismissed from service in a trans-provincial establishment, he would be required to first prove that he fulfills the conditions precedent of a 'workman' provided under the Industrial Relations Act, 2012 (IRA of 2012), to render his individual grievance maintainable under Section 33 of the IRA of 2012---Once, the grievance petition is held to be filed by the legally competent person, then in order to enforce his rights under Standing Order 12(3) of Schedule to the Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), the aggrieved petitioner would have to prove that he is a 'workman' envisaged under section 2(i) of the said Ordinance.

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

----Ss. 2(xxxiii) & 33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 2(i)---Grievance of an aggrieved worker---Whether a worker---Onus of proof---Regarding the onus of proof, it is trite law that the initial onus is on the person asserting a fact for seeking a relief---In the present case initial onus was upon the aggrieved 'worker' to prove that he was a 'workman' under both statutes i.e. the Industrial Relations Act, 2012 and the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Shahi Bottles (Pvt.) Limited v. Punjab Labour Appellate Tribunal 1993 PLC 587; National Bank of Pakistan v. Punjab Labour Court 1993 PLC 595; Sadiq Ali Khan v. Punjab Labour Appellate Tribunal 1994 PLC 211; Granulars (Pvt.) Limited v. Muhammad Afzal 2002 PLC 1; Muslim Commercial Bank v. Ehtasham ul Hassan 1997 PLC 24 and MCB v. Rizwan Ali 2024 SCMR 360 ref.

Shahid Anwar Bajwa, Advocate Supreme Court and Raheel Zafar, S.M. (L) for Petitioner.

Barrister Ahsan Hameed Dogar, Advocate Supreme Court for Respondent No. 1.

2024 S C M R 734

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Muhammad Ali Mazhar and Musarrat Hilali, JJ

BABAR ANWAR---Petitioner

Versus

MUHAMMAD ASHRAF and another---Respondents

Civil Petition No. 5972 of 2021, decided on 24th January, 2024.

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

----Ss. 39 & 42---Gift deed, cancellation of---Suit for declaration and cancellation of registered gift deed---Property in question was originally owned by the plaintiff's (respondent's) father, who gifted it to the respondent vide a gift deed and also handed over its possession---Thereafter, plaintiff raised construction on the land and also executed a power of attorney in the name of his father for administration and supervision of the property, but the father (attorney) gifted the property in question to the petitioner (defendant) vide another gift deed---Plaintiff filed a suit for declaration and cancellation of the registered gift deed in favour of petitioner with the plea that his father (attorney) due to his old age and cardiac issues, was not in a proper frame of mind, therefore, the gift deed in favour of petitioner was the result of connivance and disingenuousness---Validity---Property in question was gifted to the petitioner through the general attorney of plaintiff---Neither is anything reflected from the record that the general attorney obtained permission or consent from his principal for transferring the property in question by means of gift to the petitioner, nor was it ever pleaded that the earlier gift in favour of plaintiff was revoked for any reason---All the more so, the petitioner pleaded in his defense that he purchased the property in question against valuable consideration, but at the same time, he was also claiming the property as a lawful donee---Both pleas are mutually destructive if considered in juxtaposition---If it was a case of gift, then the plea of sale was misleading and erroneous, and if the property was purchased against valuable consideration, then there was no logical reason for the execution of a gift deed rather than a conveyance deed to unveil a straightforward sale transaction---As far as the proof of possession of plaintiff is concerned, it clearly transpires from the documents exhibited in the Trial Court that though the petitioner's special attorney averred that at the time of transfer of property, possession was also delivered, but subsequently, it was snatched by the plaintiff, which assertion was belied and in support of thereof, the plaintiff produced copies of Form P.T.I, and a bunch of electricity and gas bills to corroborate and substantiate the factum of possession---Petitioner filed a complaint under Section 3 of the Illegal Dispossession Act, 2005 against the plaintiff and his special attorney, but the Trial Court acquitted them, which was upheld by the High Court---One more important aspect that cannot be lost sight of is that plaintiff has two sons and four daughters, and seemingly, there was no rhyme or reason on record to divulge why the plaintiff deprived his own offspring, and conveyed his attorney to gift the property to the petitioner---An attorney or agent may gift the property on express permission and instructions of his principal, however in the present case nothing was presented on record through cogent evidence that the attorney ever asked for the permission or consent of his principal to gift the property in question to the petitioner; therefore, such a gift was not validated by the courts below in three concurrent judgments---Suit filed by the plaintiff had been rightly decreed---Petition was dismissed and leave was refused.

Jamil Akhtar and others v. Las Baba and others PLD 2003

SC 494; Muhammad Ashraf and 2 others v. Muhammad Malik and others PLD 2008 SC 389; Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and others 2016 SCMR 1781 and Allan Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402 ref.

(b) Islamic law---

----Gift---Pre-requisites----Doner should be compos mentis, meaning thereby a person who is of sound mind and has the mental capacity to understand the legal implications of his act of making a gift, and he must be of age and also the owner of the property intended to be gifted; the thing gifted should be in existence at the time of making hiba; the thing gifted should be such that benefitting from it is lawful under the Shariah; the donor must be free from any coercion/duress or undue influence while making a gift; the thing gifted should come into the possession of the donee himself or through his representative/guardian for an effective hiba---Under Muslim law, the constituents and components of a valid gift are tender, acceptance and possession of property---It is also obligatory that the donor divest and dissociate himself from the dominion and ownership over the property of the gift and put into words his categorical intention to convey the ownership to the donee distinctly and unambiguously with the delivery of possession of the property and ensure that donee has secured physical ascendency over the property to constitute the delivery of possession

Abid Hussain and others v. Muhammad Yousaf and others PLD 2022 SC 395 ref.

Mian Muhammad Yasin, Advocate Supreme Court for Petitioner.

Respondents not represented.

2024 S C M R 741

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

COMMISSIONER INLAND REVENUE, ZONE-IV, KARACHI---Appellants

Versus

Messrs A.P. MOLLER MAERSK and another---Respondents

C.Ps. Nos. 560-K to 589-K of 2019, decided on 12th February, 2024.

(Against the consolidated judgment of High Court of Sindh at Karachi dated 31.05.2019, passed in ITRAs No.22 of 2014, etc.).

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

----S.107---Treaties for the avoidance of double taxation, interpretation of---Scope---International tax treaties, conventions or agreements, given their unique nature, require a distinct interpretive approach compared to the one used while interpreting domestic legislation---These agreements being international treaties are governed by the rules of interpretation outlined in the Vienna Convention on the Law of Treaties---Tax treaties differ from domestic tax laws in language, application, and purpose---These treaties are relieving in nature and seek to avoid double taxation, while domestic tax law imposes tax in specific situations---Tax treaties require a broad purposive interpretation, and their interpretation may be more liberal than domestic law---Treaty interpretation is a separate subject from statutory interpretation, accentuating the need to interpret tax treaties independently of domestic law---Role of a State in 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---Given that the primary purpose of tax treaties is to avoid and relieve double taxation through equitable and acceptable distribution of tax claims between the countries, it is important that the provisions of these treaties are interpreted in a common and workable manner, taking into account international tax language, legal decisions of other countries, model treaties, along with their commentaries, developed by the Organization for Economic Cooperation and Development ("OECD") and the United Nations ("UN"), and scholarly academic works where appropriate.

Snamprogetti Engineering B.V. v. Commissioner of Inland Revenue 2023 SCMR 1055 ref.

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

----S. 107---Convention between the Islamic Republic of Pakistan and the Kingdom of Denmark for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, Art. 8---Convention between the Kingdom of Belgium and the Islamic Republic of Pakistan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, Art. 8---Income arising from container detention charges ("CDC"), container service charges ("CSC") and terminal handling charges ("THC")---Such income falls within the category of "profits from the operation of ships in international traffic" in the context of double taxation conventions concluded between Pakistan and Denmark, as well as between Pakistan and Belgium.

The Commentary on Article 8 of the OECD Model Convention ("OECD MC") provides guidance about qualifying activities and related profits with respect to income falling under the head of "profits from the operation of ships in international traffic". The expression "profits from the operation of ships in international traffic" also covers profits from activities directly connected with such operations as well as profits from activities which are not directly connected with the operation of the enterprise's ship in international traffic as long as they are ancillary to such operation - activities that the enterprise does not need to carry on for the purposes of its own operation of ships in international traffic but which make a minor contribution relative to such operation and are so closely related to such operation that they should not be regarded as a separate business or source of income of the enterprise should be considered to be ancillary to the operation of ships in international traffic.

The objective scope of Article 8 of the OECD MC and the UN Model Convention ("UN MC") with its reference to "profits from the operation of ships in international traffic" covers not only profits directly obtained by the enterprise from the transportation of passengers or cargo by ships that it operates in international traffic, but also, profits from activities directly connected with such operations as well as profits from activities which are not directly connected with the operation of the enterprise's ships in international traffic as long as they are ancillary to such operation. Activities are to be considered ancillary to the operation of ships in international traffic if (i) the enterprise does not need to undertake them for the purposes of its own operation of ships in international traffic but which otherwise (ii) make a minor contribution relative to such operation and (iii) are so closely related to such operation that they should not be regarded as a separate business or source of income. Article 8 OECD and UN MC therefore applies not only to profits directly obtained in international traffic e.g. transport of passengers or cargo, sales of tickets of the enterprise, leasing of ships, but also to profits directly connected with international traffic and to profits ancillary to international traffic e.g. inland transport, interest, code sharing and slot chartering, haulage services and catering services, provision of goods and services to other enterprises, sales of tickets on behalf of other enterprises, advertising on behalf of other enterprises, letting of immovable property, rental of containers.

Georg Kofler, in Reimer and Rust (eds), Klaus Vogel on Double Taxation Conventions (5th edn 2021) vol 1, art 8, paras 33, 35 ref.

Profits arising from short-term storage of containers or from detention charges for the late return of containers, are covered within the purview of "profits from the operation of ships in international traffic". Further, special remuneration for services ancillary to container operations are covered within the ambit of shipping income from international traffic. Income derived from services provided for cargo handling is also considered part of shipping income from international traffic when directly connected or ancillary to the operation of ships in international traffic.Thus, profits arising from container detention charges ("CDC"), container service charges ("CSC") and terminal handling charges ("THC") are connected with and ancillary to the operation of ships in international traffic. Consequently, these profits squarely fall within the purview of the expression "profits from the operation of ships in international traffic". Therefore, CDC, CSC, and THC collected by the respondents (non-resident cargo shipping companies incorporated in Denmark and Belgium) are part of the revenue earned in shipping in international traffic and are to be dealt with in accordance with the provisions of the Pakistan-Denmark Double Taxation Convention and the Pakistan-Belgium Double Taxation Convention, as the case may be.

Dr. Shahnawaz, Advocate Supreme Court and Abdul Wahid, Addl. Commissioner, FBR for Petitioner (in all cases).

Khalid Javed Khan, Advocate Supreme Court for Respondents (Through V.L. Karachi Registry) (In all cases).

2024 S C M R 749

[Supreme Court of Pakistan]

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

MUMTAZ ALI---Appellant

Versus

The STATE through Chairman NAB and others---Respondents

C.M.A. 501-K in C.A. No. 85-K of 2018, decided on 29th December, 2023.

(Application for Return of Surety)

National Accountability Ordinance (XVIII of 1999)---

----Ss. 33-E & 9---Application for return of surety, dismissal of---Accused was convicted by NAB Court and was sentenced to ten years of rigorous imprisonment and a fine of Rs.61,79,238/-.---Said order further stipulated that the fine shall be recoverable as arrears of land revenue in accordance with Section 33-E of the National Accountability Ordinance, 1999---High Court maintained the conviction, but reduced the sentence from ten years to the period already served and with this modification, the appeal was disposed of, but for all practical purposes, the liability of the payment of the fine remained intact and unremitting---During the pendency of trial before the NAB Court, the appellant applied for bail before the Supreme Court which was allowed subject to the deposit of the entire amount of his liability---Counsel for the accused, on instructions, conveyed that the accused voluntarily proposed and was ready to deposit the entire amount of his liability and not as surety---On this offer, the prosecution extended its no objection and post-arrest bail was granted subject to depositing the entire liability---Consequently the applicant (son of the accused) deposited sixteen original Defence Savings Certificates with the Assistant Registrar of the Supreme Court to cover up and secure the fine amount commensurate to the bail order---Nothing in the bail order of the Supreme Court reflected that the accused was called upon to furnish the surety, but he showed willingness to deposit the entire amount of liability---Accused tendered the amount in lieu of availing the discretionary relief of bail and the same liability/fine was fixed against him in the NAB Court affirmed by the High Court---Had the accused been acquitted by the High Court in appeal, he could have asked for the refund or release of the full amount deposited by him---However, the High Court maintained the conviction to the extent of the already undergone sentence without upsetting or affecting the quantum of the fine imposed upon the appellant by the NAB Court---There was no logical justification to call upon the NAB to start from scratch and initiate proceedings under Section 33-E of the National Accountability Ordinance, 1999, after returning the amount to the accused---Allowing it would amount to defrauding and deceiving the Court to first secure bail through misrepresentation and, after finalization and affirmation of the judgment of the conviction by the Trial Court and Appellate Court, implore the release of the amount deposited---In such circumstances the application for the withdrawal of surety was misconceived and injudicious---Application was dismissed with the directions that office shall hand over the Defence Savings Certificates to the NAB after fulfilling all requisite formalities for the encashment of liability determined by the NAB Court and affirmed by the High Court to attain finality in the matter; however, on encashment of the Defence Savings Certificates by the NAB, if any excess amount was found over and above the quantum of liability on account of any accumulated profit/increase, the same shall be refunded back to the applicant after adjusting the liability/fine.

Shamraiz Khan v. The State 2000 SCMR 157 ref.

Muhammad Ashraf Kazi, Sr. Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Applicant.

Sattar Mohammad Awan, DPG (NAB) for Respondents.

2024 S C M R 757

[Supreme Court of Pakistan]

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

MEHBOOB HASSAN---Petitioner

Versus

AKHTAR ISLAM and others---Respondents

Crl. Petition No. 235-L of 2015, decided on 27th October, 2023.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 13.01.2015 passed in Crl. Appeal No. 4/ATA of 2011, Crl. Appeal No. 05/ATA of 2011 and Crl. Appeal No. 06/ATA of 2011).

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

----S. 7---Penal Code (XLV of 1860), Ss. 365-A, 201 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Constitution of Pakistan, Art.185(3)---Kidnapping or abduction for ransom---Petition against acquittal of accused---Re-appraisal of evidence---Test identification parade---Lapses---Combined and joint identification parade---Belatedly conducted identification parade---Though the Magistrate managed to make five rows consisting of under-trial prisoners and each of the respondents (accused persons), but the fact remained that they all were present in the same premises under one roof---Manner in which the Magistrate managed to conduct the identification parade lead to the conclusion that it was a combined and joint identification parade, which is a nullity in the eyes of law---Persons who abducted the abductee and those who received the ransom amount were not known to the witnesses prior to the identification parade, therefore, it was necessary for the witnesses to have given some features of each of the respondents, with their specific role, during the investigation, before the identification parade, enabling the Magistrate to manage the person of identical features for the purpose of including them in identification parade as dummies---Admittedly the witnesses did not disclose any such fact in respect of the respondents---Moreover, in order to maintain secrecy, it was the responsibility of the concerned police to ensure that the accused were not seen by the witnesses while in police station lock-up or in police custody---Police was required to have taken every precaution to conceal the identity of the detainees before conducting the identification parade---All these precautions should not only be taken, but must have been proved to have been taken---There was nothing on the record to prove that any step was taken by the police in this behalf---Before conducting the identification parade, the respondents had raised an objection before the Magistrate that the witnesses saw them in the lockup and their photographs were published in the newspapers in connection with some other case---Prosecution did not deny this objection---Magistrate was required to record the objection and to decide its fate, but he ignored the objection and instead, continued to complete the process of identification parade---Identification was conducted after a lapse of more than two years of the occurrence, therefore, it was hard to believe that the witnesses could still have momentary glimpse of the respondents---Respondents were picked up in the identification parade, but the role attributed to them was not stated by the witnesses---Identification parade in the circumstances was not in line with Article 22 of the Qanun-e-Shahadat, 1984, hence, was of no evidentiary value and could not be relied upon---High Court after proper appraisal of the record and scanning the evidence in its true perspective, had reached a correct conclusion by acquitting the respondents of the charge---Petition was dismissed and leave was refused.

Gulfam's case 2017 SCMR 1189; Shafqat Mehmood's case 2011 SCMR 537; Mian Sohail Ahmed's case 2019 SCMR 956 and Nazir Ahmad's case 2011 SCMR 527 ref.

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

----S. 7---Penal Code (XLV of 1860), Ss. 365-A, 201 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Constitution of Pakistan, Art.185(3)---Kidnapping or abduction for ransom---Petition against acquittal of accused---Re-appraisal of evidence---Alleged ransom amount recovered from house of the accused persons---Not consequential---Prosecution relied upon the amount recovered after more than two years of the occurrence from the respective houses of the respondents (accused persons)---It was unbelievable that someone would retain the crime amount for such a long time---Even otherwise, the recovered currency notes admittedly did not contain any identification mark nor had the prosecution given any description or denomination thereof at the time they were allegedly delivered by the complainant to the respondents---It is a common practice that most people retain some cash amount in their houses, therefore, it is not safe to consider the recovered amount in the present case to be a part of the ransom amount---Prosecution had failed to prove that the recovered amount was actually a portion of the ransom amount, allegedly paid by the complainant to the alleged abductors, hence, such recovery could not be believed or relied upon for the purpose of convicting the respondents---High Court after proper appraisal of the record and scanning the evidence in its true perspective, had reached a correct conclusion by acquitting the respondents of the charge---Petition was dismissed and leave was refused with the direction that the amount recovered from the respondents should be returned to them.

(c) Constitution of Pakistan---

----Arts. 10-A & 37(d)---Inordinate and unreasonable delay in conclusion of criminal trials and appeals/petitions---Observations, recommendations and directions issued by the Supreme Court to address the issue of such delay stated.

An issue faced by the litigants is the inordinate and unreasonable delay in conclusion of criminal trials and appeals/petitions, without any substantial progress, which is a crucial challenge to the Administration of Criminal Justice System in our country. Such delay is antithetic to the foundational principles of liberty, fair trial and due process. Under such circumstances, it is the primary duty of the investigating agencies and every judge of the country to take into account such fundamental rights of persons, whose cases are brought before them by strict adherence to law. When the legal machinery fails to deliver justice within a reasonable time, it not only violates the constitutional mandate, but also leads to frustration. Thus, an inexpensive and timely justice is a requirement of the Constitution, which must be observed by all stakeholders in all circumstances without any excuse.

There is no doubt that the prosecuting agencies and the courts are over-burdened because of increase in the number of cases as a result of population explosion and lack of basic facilities, necessary for early dispensation of justice, but still they are under constitutional and legal obligations to conduct and conclude fair investigation and fair trial within a stipulated period to the extent possible, or in a reasonable period where there is no time limit provided by law for doing so. Within the prevailing system, it is difficult to achieve the desired results, but some improvements could be made into the system by proper management in order to streamline the investigation and judicial proceedings. Such goal cannot be achieved without the cooperation of investigating agencies, complainants, lawyers, prosecutors and all relevant persons/authorities. It is incumbent upon investigating officers, lawyers and prosecutors to follow the law and cooperate with courts so as to avoid unnecessary and unjustified delays in early disposal of the cases. Likewise, cooperation between investigating agencies and prosecutors/complainants is essential in order to pursue the matter to ensure timely and fair conclusion of the cases.

To address the deficiencies in prosecution's cases, and to avoid unreasonable delays in the timely conclusion of criminal trials and appeals, it is an obligation of the State under Article 37(d) of the Constitution to ensure inexpensive and expeditious justice. In this behalf, the vacancies of judicial officers across the country must be filled on merits without any delay; increase in the number of judges should be considered, wherever it is so required; modern techniques, equipment, devices and tools should be introduced to ensure upgradation of the investigation mechanism; regular and fruitful training courses for investigating officials should be conducted; independence of judiciary and investigating agencies should be ensured; basic facilities and friendly and workable atmosphere should be provided to the Courts and the investigating agencies, ensuring safety and protection of the judicial officers, and investigating officials and witnesses. The Government must also take steps to curb the trend of registration of false and frivolous litigation; and ensure that frivolous litigants are not let off scot-free for such acts. For taking all such measures, certain laws are required to be amended or certain legislation is required, which may be considered by the Government and the Parliament/Assemblies. Till the time, such a policy is devised or necessary enactments are made, the courts must exercise their powers already granted to them by available laws to do complete justice and to discourage frivolous and malicious litigation.

Ch. Azeem Sarwar, Advocate Supreme Court for Petitioner. (Via video link Lahore)

Mirza Abid Majeed, D.P.G. for the State.

2024 S C M R 766

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Muhammad Ali Mazhar and Musarrat Hilali, JJ

PROVINCE OF PUNJAB through Secretary, Population Welfare Department, Lahore and others---Petitioners

Versus

SHEHZAD ANJUM and others---Respondents

Civil Petition for Leave to Appeal No.1974-L of 2020, decided on 1st February, 2024.

(Against the order dated 22.09.2020 passed by the Lahore High Court, Lahore in I.C.A. No.128925 of 2018).

Civil Procedure Code (V of 1908)---

----O.II, R. 2---Constitution of Pakistan, Art. 199---Civil service---Regularization in service---Second constitutional petition filed on the basis of the same cause of action which was decided in the first constitutional petition---Maintainability---Respondents (employees) had sought their regularization from the date of their appointment in the first constitutional petition ('the first petition') filed before the High Court, which was disposed of by the High Court directing that the respondents be regularized in terms of the said judgment---If the respondents were not satisfied with the said judgment they should have appealed the same or if the same was not implemented they should have sought its implementation, which could have been by invoking the contempt jurisdiction of the High Court---In any event on the same cause of action, and one which had been decided pursuant to the judgment in the first petition, another constitutional petition ('the second petition') was not maintainable, and as no fresh cause of action had accrued to the respondents---This critical aspect of the case was overlooked by the Single Judge of the High Court who passed the order in the second petition---Though this is not the respondents' case, if for the sake of argument it is assumed that in the first petition the respondents had only sought their regularization, and after they were regularized they wanted the regularization to take effect from the date of their initial appointment on contract basis, they could not seek this relief subsequently in the second petition because of the restriction in Order II, Rule 2 of the Civil Procedure Code, 1908---Petition for leave to appeal was converted into appeal and allowed, and the second petition filed by the respondents was dismissed.

Barrister M. Mumtaz Ali, Addl. AG Punjab for Petitioners.

Nemo for Respondents Nos. 1 to 21.

Syed Rifaqat Hussain Shah, Advocate Supreme Court/Advocate-on-Record for Respondents Nos.22 to 29 and 31 to 35.

Junaid Jabbar Khan, Advocate Supreme Court for Respondent No.30.

2024 S C M R 770

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

NADIR KHAN---Appellant

Versus

QADIR HUSSAIN and others---Respondents

Civil Appeal No.499 of 2017, decided on 26th January, 2024.

(On appeal against the judgment dated 19.01.2017 passed by the Peshawar High Court, Peshawar, in R.F.A. No.65-P of 2012).

(a) Partnership Act (IX of 1932)---

----Ss. 7, 32(1)(c) & 32(2) & 32(3)---Suit for recovery along with profits against a partner---Partnership at will---Retirement of partner---Procedure provided for retirement not followed---Trial Court held the respondent (defendant in the suit) liable to pay the suit amount and passed a preliminary decree in favour of the appellant (plaintiff) against the respondents to the extent of Rs. 2,38,00,000/- -- Admittedly, the appellant, who was a third party, was the sufferer as he made a huge investment in the (partnership) firm---Since in the instant case no deed of contract had been brought on record determining the period of partnership and determination of partnership, therefore, the High Court rightly observed that the provision of Section 7 of the Partnership Act, 1932 ('Act') would apply, and hence the nature of the partnership was a partnership at will---High Court however erred in deciding the manner of retirement of the respondent---Section 32 (1) (c) of the Act explicitly mentions the precondition of issuing a notice by a retiring partner in writing to all other partners of his intention to retire, which was not issued by the respondent/ retiring partner in the present case---High Court in its reasons applied the procedure of retirement of a partner as given in Section 32 (2) of the Act, which states that the a retiring partner has the obligation of entering into an agreement with the third party and partners of reconstituted firm to discharge him from the liabilities of the partnership before retirement, however there was no agreement available in this case---Further, even if the respondent had fulfilled the requirements of Section 32 (1) (c) and Section 32 (2) of the Act, he would still not be discharged from the liabilities against a third party until a public notice was given by him or by any partner of the reconstituted firm as required under Section 32 (3) of the Act, but in the present case no such public notice was issued---Appeal was allowed and the impugned judgment passed by the High Court was set aside and consequently the judgment and decree of the Trial Court was restored.

(b) Administration of justice---

----When the law requires that a particular thing should be done in a particular manner, it must be done in that manner and not otherwise.

Syed Mastan Ali Zaidi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellant.

Ismail Khan Khalil, Advocate Supreme Court for Respondent No.1.

Ex parte for Proforma Respondents Nos.2-3.

Fida Gul, Advocate Supreme Court for Proforma Respondents Nos.4-6.

2024 S C M R 775

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

TAHIR SADIQ---Petitioner

Versus

FAISAL ALI and others---Respondents

Civil Petitions Nos. 150 and 152 of 2024, decided on 29th January, 2024.

(Against the judgments of the Lahore High Court, Lahore dated 16.01.2024, passed in W.Ps. Nos. 2974 and 2994 of 2024).

(a) Constitution of Pakistan---

----Arts. 17(2), 19, 62 & 63---Elections Act (XXXIII of 2017), S. 62---Elections---Right to vote for a candidate of one's choice---Scope---Interpretation of elections laws in favour of enfranchisement rather than disenfranchisement---Nomination papers for elections---Acceptance or rejection---Principles.

The courts, in their role as guardians of democracy and fundamental rights, should approach electoral matters with circumspection, ensuring that their interventions uphold the democratic principles upon which the nation thrives and the fundamental rights of citizens to contest elections and vote for the candidates of their choice. The right to vote freely for the candidate of one's choice is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. The working of democracy depends on whether the people can decide the fate of the elected form of government. It depends on the choices that people make in different ways. This choice of people cannot be compromised, as their mandate in elections changes the destinies of government. Through the electoral process and voting, citizens participate in democracy. By voting, citizens take part in the public affairs of the country. Thus, citizens by voting enjoy their right to choose the composition of their government by exercising their choice and ability to participate.

Reynolds v. Sims (1964) 377 U.S. 533 and Anoop Baranwal v. Union of India (2023) 6 SCC 161 ref.

The right to form or be a member of a political party under Article 17(2) of the Constitution includes not only the right to contest elections but also the right to vote for the candidate of one's choice. When viewed against the backdrop of the constitutional value of 'political justice', Article 17(2) remains hollow unless it also recognizes the right of citizens to choose their representatives fairly and freely from amongst the candidates. The right of citizens to participate in national elections as voters is the core of the democratic form of government. This right is also an expression of the choice of the citizens, which finds further support under Article 19 of the Constitution. In exercise of these fundamental rights, citizens shape their destiny by forming the government they want.

Wesberry v. Sanders (1964) 376 U.S. 1; Javed Jabbar v. Federation of Pakistan PLD 2003 SC 955; Pakistan Muslim League (Q) v. Chief Executive of Islamic Republic of Pakistan PLD 2002 SC 994; Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Province of Sindh v. M.Q.M. PLD 2014 SC 531; Nasir Iqbal v. Federation of Pakistan PLD 2014 SC 72 and Arshad Mehmood v. Delimitation Authority PLD 2014 Lah. 221 ref.

It is in this context of both the right of the candidates to contest the election and the right of the voters to vote for the candidate of their choice that the qualification and disqualification of a candidate become material. The aim of prescribing qualifications and disqualifications for candidacies to contest elections is to maintain the integrity and effectiveness of the political process. They are designed to ensure that individuals holding public office meet certain standards. In a well functioning democracy, the criteria for qualifications and disqualifications are clearly defined, publicly known and uniformly applied. Qualifications and disqualifications of a candidate for the electoral process must therefore be clearly spelled out in the Constitution or the law. Otherwise, electoral laws must be interpreted in favour of enfranchisement rather than disenfranchisement so that maximum choice remains with the voters to elect their future leadership. With this approach rooted in the high constitutional rights and values, the courts are to deal with the matters of acceptance or rejection of the nomination papers filed for contesting elections.

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

----Ss. 62, 231 & 232---Constitution of Pakistan, Arts. 62 & 63---Criminal Procedure Code (V of 1898), S. 87---Elections for seat of National Assembly---Nomination papers---Proclaimed offender---Nomination papers of petitioner (candidate) rejected by the High Court on the ground that he was a proclaimed offender in a criminal case---Validity---Counsel for the Election Commission of Pakistan (ECP) could not show any proclamation issued against the petitionerunder Section 87 of the Code of Criminal Procedure 1898 ("Cr.P.C.")---Objector, too had no document to establish that the petitioner was a proclaimed offender---In the absence of proceedings taken under Section 87, Cr.P.C, an accused cannot be said or treated to be a proclaimed offender---Further, as the rule of declining discretionary reliefs to a proclaimed offender is one of propriety when the same is confronted with a right, it is the right, not the rule of propriety, that prevails---The disadvantage, if any, forbeing a proclaimed offender ordinarily relates only to the case in which a person has been so proclaimed, and not to the other cases or matters which have no nexus to that case, for instance the civil right of a person to contest an election---In the absence of any contrary provision in the Constitution or the Elections Act 2017 ("Act"), status of being a proclaimed offender in a criminal case does not affect said right of a person---Counsel for the ECP could not point out any provision either in the Constitution or in the Act that empowers the Returning Officers to reject the nomination papers of the candidates on the ground of their being proclaimed offenders---Since there is no law that makes a proclaimed offender disqualified from contesting election, the Returning Officers, the Appellate Tribunals or the Courts cannot on their own create such additional disqualification, without the backing of law---Articles 62 and 63 of the Constitution read with Sections 231 and 232 of the Act provide for qualification and disqualification of a candidate, which does not mention that a "proclaimed offender" is disqualified from being elected or from being a member of Parliament---Grounds provided for rejection of a nomination paper in Section 62(9) of the Act also do not empower the Returning Officers to reject the nomination paper of a candidate on the ground of his being a proclaimed offender---Petitions were converted into appeals and the same were allowed; the impugned orders of the High Court were set aside and the nomination paper of the petitioner for the seat of a Member of the National Assembly stood accepted.

Parvez Elahi v. E.C.P. 2024 SCP 41; Khan Mir v. Amal Sherin 1989 SCMR 1987; Muhammad Shafi v. State 2016 SCMR 1593 and Nawazish Ali v. E.C.P. 2018 CLC 1301 and Umar Aslam v. E.C.P. 2024 SCP 40 ref.

Muhammad Shahzad Shaukat, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Muhammad Arshad, DG (Law) and Falak Sher, Consultant Law for the ECP.

Syed Azmat Ali Bokhari, Advocate Supreme Court and Faisal Ali, in person (for the objector).

2024 S C M R 781

[Supreme Court of Pakistan]

Present: Yahya Afridi, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

ALAY JAVED ZAIDI---Petitioner

Versus

HABIBULLAH and others---Respondents

Civil Petition No. 1278-K of 2023, decided on 7th February, 2024.

(Against the order dated 30.08.2023 passed by the High Court of Sindh, Karachi in C.P. No-S-1405 of 2019).

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 15 & 18---Change of ownership---Willful default by tenant in payment of rent---Scope---Despite acquiring knowledge about the change of ownership of subject tenement, the petitioner (tenant) avoided/neglected/refused to pay the rent to the respondent (new owner) rather he continued to deposit the rent amount in the name of previous landlady in the Court of the Rent Controller Karachi which constituted a willful default on the part of petitioner (tenant)---Petition filed by tenant was dismissed.

Ghulam Samdani v. Abdul Hameed 1992 SCMR 1170 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 8, 15 & 18---Change of ownership---Intimation of such change to the tenant---Substantial compliance of section 18 of the Sindh Rented Premises Ordinance, 1979 ('the Ordinance')---Scope---Institution of an application for determination of fair rent by the new landlord under section 8 of the Sindh Rented Premises Ordinance, 1979 would be deemed to be sufficient intimation to the tenant regarding change of ownership i.e. substantial compliance of the provisions of Section 18 of the Ordinance---Even institution of application for eviction would be deemed to be substantial compliance of the provisions of Section 18 of the Ordinance.

Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24 ref.

(c) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 8---Fair rent, fixation---Four factors to be considered by the Court provided under section 8 of the Sindh Rented Premises Ordinance, 1979 ('the Ordinance')---It is not necessary for a landlord to prove hike in respect of all four factors as detailed in section 8 of the Ordinance---Moreover it is not necessary that all these four factors must co-exist in each and every case seeking fixation of fair rent, rather one or two grounds are sufficient.

State Life Insurance Corporation of Pakistan and another v. Messrs British Head and Footwear Store and others 2018 SCMR 581 ref.

Petitioner in person

Nemo for Respondents.

2024 S C M R 788

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

COMMISSIONER INLAND REVENUE, ISLAMABAD---Appellant

Versus

Messrs FAUJI FOUNDATION and another---Respondents

Civil Appeal No.2434 of 2016, decided on 1st November, 2023.

(On appeal against the judgment dated 25.11.2014 passed by the Islamabad High Court, Islamabad in Income Tax Reference No.04 of 2014).

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

----Ss. 18(1)(d) & 122(5) & 122(9)---Amendment of original assessment order---Pre-requisites---Income from business---Scope---Subsidiary company's shares---Increase in value---Whether the increase in the fair market value of the subsidiary company's shares held by the taxpayer-respondent as long-term investment was taxable under the head "income from business" in terms of section 18(1)(d) of the Income Tax Ordinance, 2001---Held, that section 18(1)(d) of the Income Tax Ordinance, 2001 prescribes a two-pronged test for bringing income under the head "income from business" ; first is that any benefit or perquisite must have a fair market value, not necessarily whether it can be converted into money; second is that a person may have received the value of that benefit or perquisite during or under a past, present, or prospective business relationship---Coexistence of both is necessary and the absence of one of them will not constitute income from a business---As regards the first constituent component of the test, the notional gain derived by the taxpayer from the increase in the fair market value of its shares may in appropriate circumstances be counted as "benefit"---However, no definite answer need be given on this, in the facts and circumstances of the present case---With respect to the second constituent component of the test, the principle to be applied for purposes of present case is whether the investment which led to the notional gain was connected with the carrying on of the taxpayer's business---It bears mentioning that enhanced fair market value of any benefit or prerequisite may be so assessable under Section 18(1)(d) of the Income Tax Ordinance, 2001, where what is done is not merely a realisation or change of investment, but an act done in what is truly the carrying on, or carrying out, of a business---In the present case, the Revenue has not brought any material on record which discloses definite information that the taxpayer had made the said investment in furtherance of its business or in connection therewith---Given this scenario, the relationship between the taxpayer and its subsidiary may be held to be contractual, and governed by articles of association---So viewed, the facts of this case do not meet the test for section 18(1)(d) of the Income Tax Ordinance, 2001, and thus, the taxpayer's gain from its investment cannot be treated as business income in terms of section 18(1)(d)---Furthermore, according to section 122(5) of the Income Tax Ordinance, 2001, two conditions have to be complied with before a Taxation Officer acquires jurisdiction to issue notice under section 122(9) in respect of an assessment beyond the period of five years from the end of the relevant financial year---These two conditions are: firstly, that the Taxation Officer must have obtained definite information from the audit or otherwise; and secondly, that on that basis he must also be satisfied that income chargeable to tax had escaped assessment or total income has been undervalued, or assessed at too low a rate, or has been the subject of excessive relief or refund or any amount under a head of income has been misclassified---In the present case the two conditions of section 122(5) were not adhered to while assuming jurisdiction to amend the original assessment order---Show cause notice and the order amending the original assessment speaks elaborately that the Taxation Officer had not acquired any definite information subsequent to the original assessment order---On the contrary, the Taxation Officer based on the information provided in the return and documents attached to it by the taxpayer, proceeded to amend the assessment---Taxation Officer had only made reanalysis of existing information and came to a conclusion that was different from the one that was drawn in the original assessment order---Notice issued under section 122(9) of the Income Tax Ordinance, 2001 was without jurisdiction, and the order passed in consequence of it was also void---Appeal was dismissed accordingly.

Californian Copper Syndicate (Limited and Reduced) v. Harris (Surveyor of Taxes) 5 TC 159 and United Liner Agencies of Pakistan (Pvt.) Ltd. Karachi v. Miss Mahenaee Agha 2003 SCMR 132 ref.

(b) Jurisdiction---

----Principle---Whenever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein, it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with, the jurisdiction does not arise.

Nusserwanjee Pestonjee and others v. Meer Mrioodeen Khan Wullud Meer Sudroodeen Khan Bahadoor (1885) UK PC 15 ref.

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

Syed Ali Zafar, Advocate Supreme Court for Respondents (via video link from Lahore)

2024 S C M R 795

[Supreme Court of Pakistan]

Present: Yahya Afridi and Ayesha A. Malik, JJ

GHULAM MUSTAFA---Petitioner

Versus

Mst. MAH BEGUM and others---Respondents

Civil Appeal No.43-Q of 2018, decided on 24th January, 2024.

(Against judgment dated 28.11.2014 passed by the High Court of Balochistan, Quetta in C.R. No.234 of 2006).

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

----S. 42---Limitation Act (IX of 1908), S. 3 & First Sched., Art. 120---Suit for declaration---Limitation---In the instant case, the impugned mutation regarding the disputed property was entered on 03.04.1984, which led the appellant to file the suit in 1998 seeking declaration of ownership, recovery of possession and permanent injunction---In the suit filed by the appellant, the reliefs for recovery of possession and permanent injunction are consequential ones, dependent on the main relief of declaration of ownership of the disputed property, which in the present case was filed after 14 years, and thus, goes clearly beyond the six-year period of limitation provided under Article 120 of the First Schedule to the Limitation Act, 1908---When the main relief of declaration of ownership is barred by time, the consequential reliefs, even if within time, would be of no legal avail---Appeal was dismissed.

Muhammad Din v. Deputy Settlement Commissioner 2022 SCMR 1481 and Javaid Shafi v. Rashid Arshad PLD 2015 SC 212 ref.

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

----S. 3---Co-owner---Denial of right in property---Limitation to challenge such denial---Co-owner of the joint property who, despite possessing knowledge of an "actual denial of his right", refrains from challenging the said invasion of his right within the stipulated period of limitation, is denuded of the right to challenge the same---Similarly, in cases of joint property, where the third party interest is created and reflected in subsequent revenue records (Jamabandi), the same would not give rise to a renewed cause of action since it amounts to the actual denial of his right.

Haji Muhammad Yunis v. Mst. Farukh Sultan 2022 SCMR 1282 ref.

Habib-ur-Rehman, Advocate Supreme Court for Petitioner.

Kamran Murtaza, Sr.Advocate Supreme Court for Respondent No.3.

Nemo for other Respondents.

2024 S C M R 800

[Supreme Court of Pakistan]

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

MUJAHID HUSSAIN and another---Petitioners

Versus

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

Criminal Petition No.1329 of 2023, decided on 19th January, 2024.

(Against order dated 11.10.2023, passed by the Lahore High Court, Multan Bench, Multan in Criminal Miscellaneous Nos.6567-B of 2023 and 6296-B of 2023).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148, & 149---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Case of cross versions---Discharge report prepared in favour of accused---On the recommendation of the Regional Standing Board (RIB) of police, the investigation was changed and fresh investigation was conducted by the Inspector-RIB under the supervision of the SP-RIB---Investigating agencies on the basis of the material available on the record came to the conclusion that both the petitioners (accused persons) and other co-accused be discharged, final report whereof was submitted to the trial Court---Prosecution confirmed the discharge of the petitioners by the Regional Investigation Branch (RIB)---Law Officer for the prosecution supported the contentions of the counsel for the petitioners qua exoneration/discharge of the petitioners by the Regional Standing Board (RIB) and confirmation of the approval of the final report by the District Police Officer (DPO) concerned---Present case was a case of two versions one narrated by the complainant party in the FIR and the second by the investigating agencies on behalf of the State after conducting fresh investigation under the supervision of an SP and the final report had been approved by the DPO concerned---Petitioners had made out a case for grant of bail as their case squarely fell within the purview of Section 497(2) Cr.P.C.---Consequently, petition was converted into an appeal and allowed, and the petitioners were admitted to post arrest bail.

Sardar Muhammad Latif Khan Khosa, Sr.Advocate Supreme Court for Petitioners.

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

Muhammad Jaffar, Additional Prosecutor General, Punjab, Amjad Khalid, Inspector and Kazam Munir, SI for the State (via video link from Lahore).

2024 S C M R 805

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

MIR MUHAMMAD---Petitioner

Versus

The STATE through Prosecutor General Sindh---Respondent

Criminal Petition No.705 of 2023, decided on 22nd November, 2023.

(Against the order dated 24.05.2023 passed by the High Court of Sindh, Hyderabad Bench, in Cr.B.A. No. S-421 of 2023).

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

----S. 498---Penal Code (XLV of 1860), Ss. 324, 147, 148, 149, 427 & 504---Constitution of Pakistan, Art. 185(3)---Attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly, intentional insult with intent to provoke breach of peace---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Possibility of fabricated injuries---There were inconsistencies between the injuries mentioned in the FIR and the initial medico-legal report---In the FIR, the petitioner (accused) had been assigned the specific role of causing a firearm injury to the injured, however in the final medico legal report, the alleged injuries were said to have been caused by a "sharp cutting" object, and subsequently the injured was examined by the Special Medical Board, which, vide a medico-legal report found the injuries to be fabricated---Even the Investigation Officer ("IO") informed the Court that he did not find the petitioner guilty and also submitted a report under Section 168 Cr.P.C to the Station House Officer ("SHO"), but the SHO ignored the report without any rhyme or reason and a report under Section 173 Cr.P.C. was submitted in the Trial Court---Based on the divergence and obvious contradiction in the initial medico-legal report vis-à-vis the seat of injury mentioned in the FIR, as well as the opinion subsequently rendered by the Special Medical Board comprising six doctors, and the statement of the IO made before the Court (which was not controverted by the complainant or the prosecution ), it appeared that the case of the petitioner required further inquiry and there were reasonable grounds to confirm his pre-arrest bail---So far as the culpability of the petitioner in the commission of offence, if any, was concerned, that would be better adjudged by the Trial Court after production of pro and contra evidence---However, at present stage, on the basis of a tentative assessment of the material placed before the Court, the possibility of mala fide intention or ulterior motive on the part of the complainant to implicate the petitioner in the case could not be ruled out and required further inquiry---Petition was converted into appeal and allowed, and ad-interim pre-arrest bail already granted to the petitioner by the Supreme Court was confirmed.

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

----S. 498---Pre-arrest bail---Principles and grounds---Grounds for grant of pre-arrest bail stated.

While considering the petition for bail, the Court has to ascertain the gravity and seriousness of the accusation. The precise role of the accused must be determined and the Court must also gauge the existing material in order to reach a tentative assessment on whether the accused has been indicted with the object of injuring, demeaning or disgracing his image and reputation. No doubt, anticipatory bail can be granted in the exceptional circumstances. The jurisdiction to consider the grounds of bail in pre-arrest and post-arrest are different. The remedy of pre-arrest bail is meant to safeguard and shelter an innocent person who has been dragged into a case with mala fide intention or ulterior motives by the complainant or prosecution. While entreating the exercise of discretion of the Court for the grant of anticipatory bail, the accused is obligated to demonstrate that the case against him is based on mala fide and must divulge reasonable grounds to substantiate that he is not guilty of the offence and that sufficient grounds are available to lead further inquiry. The concepts of mala fide, ulterior motives or false implication are elementary and indispensable constituents for enlarging the accused on pre-arrest bail with the imminent apprehension of his arrest if the bail is declined. The mere gravity of the allegation does not impede the grant of prearrest bail if reasonable grounds are otherwise available on a tentative appraisal of the evidence.

Aftab Alam Yasir, Advocate Supreme Court for Petitioner.

Petitioner in-person (via video link from Karachi).

Zafar Ahmed Khan, Addl. PG Sindh, Ali M. Bajeer, SI, Yar Muhammad, ASI and M. Hussain, ASI for the State.

Complainant in person (via video link from Karachi).

2024 S C M R 809

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, ACJ, Syed Mansoor Ali Shah and Athar Minallah, JJ

The SECRETARY SCHOOL EDUCATION, GOVERNMENT OF THE PUNJAB, LAHORE and others---Appellants

Versus

RIAZ AHMED and 2 others---Respondents

Civil Petitions Nos. 928-L to 930-L of 2021, decided on 19th December, 2023.

(Against the judgment dated 12.02.2021 of the Punjab Service Tribunal, Lahore passed in Appeals Nos. 1137, 1138 and 1139 of 2020).

(a) Punjab Civil Servants Pay Revision Rules, 1977---

----R. 8(3)---Civil service---Graduate Primary Teachers regularized in service ('the respondents')---Selection grade, grant of---Legality---Respondents could not show any policy of the Government which entitled the 'Graduate Primary Teachers' for the grant of 'selection grade'---They solely relied on Rule 8(3) of the Punjab Civil Servants Pay Revision Rules, 1977 and a notification---Rule 8 (3) of the Rules of 1977 provides that where, for a class of posts, apart from the ordinary pay scale, a higher pay scale has been sanctioned for a percentage of the number of said posts, then, in such an eventuality, the higher pay scale shall be admissible to the holders of the post in BS-1 to BS-16, subject to a minimum length of two years service in the ordinary pay scale of the said posts---Higher pay scale was never sanctioned for the post of 'Graduate Primary Teacher' and, therefore, Rule 8(3) was not attracted in the case of the respondents---Even the notification in question does not include the post of 'Graduate Primary Teacher' for the purposes of grant of selection grade---Government had not formulated any policy regarding the grant of selection grade for the post of 'Graduate Primary Teacher'---Tribunal, in the absence of a policy specifically covering the grant of selection grade for the post of 'Graduate Primary Teacher' was not competent to purportedly create a right in favour of the respondents---Petitions were converted into appeals and allowed, and the impugned judgment of the Tribunal was set aside.

(b) Civil service---

----Selection grade, grant of---Scope---Grant of selection grade is not an appointment against a post in the mode of promotion---Selection grade is thus not an appointment against a higher post but is meant to extend financial benefits of a higher grade---Selection grade is meant to financially compensate a civil servant who, despite serving against a particular post for a considerably long period, does not have the prospect of being promoted to a higher post---It is within the exclusive domain of the Government to consider and decide whether a civil servant is to be compensated for serving on a post without having the prospects of being promoted to a higher post---It is an executive function performed through formulating a policy in the case of each post---Grant of selection grade and its eligibility criterion is thus necessarily governed under a policy which has to be formulated by the Government---It is not one of the terms and conditions of the civil servant under the Punjab Civil Servants Act, 1974 nor the Punjab Civil Servants (Appointment and Conditions of Service) Rules,1974, or the Punjab Civil Servants Pay Revision Rules, 1977---A right, therefore, does not accrue in favour of a civil servant to claim selection grade in the absence of a specific policy that has been competently formulated by the Government---No court or tribunal has the power and jurisdiction to compel the Government to make a policy, or to interfere with a policy which has been competently made in relation to a specified post---As a corollary, the tribunal is bereft of jurisdiction to assume that a right exists in favor of a civil servant for the grant of selection grade unless the Government has formulated a policy.

Barrister Mumtaz Ali, Additional Advocate General, Punjab along with Akram, Litigation Officer and M. Zahid Aslam, DEO (SE), Khanewal for Petitioners (in all cases)

Respondents in person. (in all cases)

2024 S C M R 814

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

MUHAMMAD SHAFIQUE---Appellant

Versus

MUHAMMAD IMRAN and another---Respondents

Criminal Appeal No.558 of 2019, decided on 18th March, 2024.

(Against judgment dated 09.03.2016, passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 52 and 176 of 2012 and Murder Reference No. 12 of 2012).

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 337-F(i)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah---Re-appraisal of evidence---Sentence, reduction in---Mitigating factors---Single fire shot---Non-repetition of fire shot---Parties were close relatives and known to each other, therefore there was no possibility of misidentification or substitution---Prosecution was able to prove its case against the appellant beyond any shadow of doubt through convincing evidence duly supported by medical evidence---However, as far as the quantum of punishment was concerned, it was prosecution's own case that the appellant hit the deceased with his pistol on the left side of his body below armpit---He was also not attributed any injury to the injured witnesses---Co-accused, who was attributed fatal injuries to deceased was, however, acquitted by the Trial Court---Despite having ample opportunity to cause more injuries to the deceased, the appellant fired only once causing single injury to the deceased---Medical Officer, who conducted post-mortem examination, observed a solitary firearm injury with its corresponding exit on the dead body of the deceased---Certainly, this fact serves as a mitigating circumstance where penalty of death was unjustified rather a legal sentence i.e. life imprisonment was apt---As far as the conviction and sentences of the appellant qua other deceased and injured witnesses were concerned, the appellant had ample opportunity to repeat the fire on the deceased and also to fire on the other persons but he refrained from doing so, therefore, he could not be convicted for the murder/injuries to those persons, especially when the co-accused who were alleged to have caused the death/injuries to them had been acquitted by the courts below---Appeal was partly allowed; the conviction awarded to the appellant under Section 302(b), P.P.C. was maintained, however, sentence of death on two counts was altered to life imprisonment on single count, with the benefit of Section 382-B Cr.P.C.; and, the amount of fine of Rs.200,000/- imposed upon the appellant by the Trial Court remained intact---Rest of the sentences were set aside and the appellant was acquitted of the charge to the extent of all remaining offences.

Talat Mahmood Zaidi, Advocate Supreme Court and Muhammad Sharif Janjua, Advocate-on-Record for Appellant.

Altaf Hussain, Advocate Supreme Court for the Complainant/ Respondent.

Irfan Zia, DPG, Punjab for the State.

2024 S C M R 819

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Irfan Saadat Khan, JJ

SANAM JAVAID KHAN through Attorney---Appellant

Versus

ELECTION APPELLATE TRIBUNAL, PUNJAB and others---Respondents

C.P.L.A. No. 184 of 2024, decided on 26th January, 2024.

(Against the judgment dated 12.01.2024 passed by Lahore High Court, Lahore in W.P. No. 2467 of 2024).

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

----S. 60(2)(b)---Election Rules, 2017, R. 51---Election for seat of Provincial Assembly---Nomination papers, acceptance of---Joint bank account for elections expenses---Permissibility---It is not mandatory for the bank account opened or dedicated for the purpose of election expenses to be a single signature account---However, the Election Commission of Pakistan ("ECP") exercising its delegated power under section 239 of the Elections Act, 2017 ('the Act') amended Rule 51 of the Election Rules, 2017 ('the Rules') with the effect that the bank account so opened for the purpose to document election expenditure should not be a joint signatory account---Stipulation in Rule 51 that the bank account so opened or dedicated should not be a joint signatory account is inconsistent with the express provision of section 60(2)(b) of the Act---Since Rule 51 (as amended) travels beyond the ambit of the Act, it is ultra vires and cannot be given any effect, and resultantly, based on it the nomination papers could not be rejected---Leave petition was converted into appeal and allowed, impugned judgment of the High Court as well as the orders of the fora below were set aside with the result that the nomination papers of the petitioner for PP-150 (Lahore) were deemed accepted and her name was deemed included in the final list of candidates for the General Elections of 2024.

Sanaullah Sani v. Secretary Education Schools 2024 SCMR 80 ref.

(b) Delegated legislation---

----Rules made under a statute---Scope---If a rule goes beyond the rule-making power conferred by the statute or if a rule supplants any provision for which power has not been conferred, it becomes invalid---Delegated power to legislate by making rules cannot be exercised to bring into existence substantive rights, obligations or disabilities not contemplated by the provisions of the statute.

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

----Ss. 60(2)(b) & 62(9), Proviso (ii)---Election Rules, 2017, R. 51---Election for seat of Provincial Assembly---Nomination papers, acceptance of---Joint bank account for elections expenses---Permissibility---Column No.3 of the declaration, provided in the nomination papers, by which a candidate is required to declare his/her bank account---Interpretation---Tenor of column No.3 of the declaration provides two options for a candidate---First, the candidate has to declare that he/she has opened an exclusive single signatory account, which means that before filing nomination papers, the candidate has opened an exclusive single signatory account for the purpose of documentary evidence of election expenses---If, for any reason, the candidate cannot open an exclusive single signatory account before filing the nomination papers, the other option for him/her is to declare that he/she will use his/her existing account for the purpose of election expenses---This implies two things: firstly, the existing account may be single or joint, and secondly, a candidate is given the opportunity, if their account is joint, to have it converted into a single signatory account for the purpose of election expenses later on---This option seems to be for those candidates who, due to some exigencies including illness, imprisonment, etc., cannot open their exclusive single signatory bank account or convert their existing joint account to a single signatory account before filing nomination papers---Purpose of providing such a facility can only be to ensure that the citizens are not deprived of their fundamental right, that is, to contest election freely---So the objection, if any, in the present case with regard to the joint bank account declared by the petitioner (candidate), it could not be held to be a defect which was substantial in nature as the petitioner had the option, as stated above, to rectify it under proviso (ii) to subsection (9) of section 62 of the Act, and convert it into single signatory account---This aspect of the matter escaped consideration of the High Court, and so, it misdirected itself while declining the petitioner's prayer---Leave petition was converted into appeal and allowed, impugned judgment of the High Court as well as the orders of the fora below were set aside with the result that the nomination papers of the petitioner for PP-150 (Lahore) were deemed accepted and her name was deemed included in the final list of candidates for the General Elections of 2024.

Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 418 ref.

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

----S. 62(9)---Election for seat of Provincial Assembly---Nomination papers, acceptance of---Nomination papers of the petitioner-candidate, who was an under trial prisoner, were rejected by the High Court on the ground that her signatures and thumb impression on nomination papers, Form-B and the Affidavit were not properly attested and, therefore, not genuine---Validity---Scope of inquiry under section 62(9) of the Elections Act, 2017 does not permit the Returning Officer ("RO") to get the signature of the petitioner verified from the jail authorities, nor the non-verification or attestation of the nomination papers by the jail authorities is a condition precedent, nor was the difference in the candidate's signature a valid reason for rejecting the nomination papers, particularly when the petitioner/candidate filed an appeal admitting her signature, and then a constitutional petition---Thus, it could not be used as a basis to draw the inference that signatures were not genuine and to reject the nomination papers---Leave petition was converted into appeal and allowed, impugned judgment of the High Court as well as the orders of the fora below were set aside with the result that the nomination papers of the petitioner for PP-150 (Lahore) were deemed accepted and her name was deemed included in the final list of candidates for the General Elections of 2024.

Shazib Masud, Advocate Supreme Court, Moiz Tariq, Advocate Supreme Court assisted by Mian Ali Ashfaq, Ahad Khokhar, M. Fiaz Kandwal, Advocates and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Zafar Iqbal, Special Secretary, Muhammad Arshad, DG

Law, Mansoor Akhtar Sherwani, DG Political Finance, Khurram Shahzad, Addl. Director and Falak Sher, Legal Consultant (on Court's call).

2024 S C M R 826

[Supreme Court of Pakistan]

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

AMIR SULTAN and 2 others---Petitioners

Versus

ADJUDICATING AUTHORITY-III EOBI, ISLAMABAD and others---Respondents

C.P. No.3531 of 2021, C.Ps. Nos. 408, 2451, 2452, 2453, 2454, 2455, 2456, 2457, 2468, 2469, 2470, 2471, 2472, 2473 of 2023 and C.P. No. 3495 of 2023, decided on 18th February, 2024.

(Against the judgment of Islamabad High Court, Islamabad dated 27.04.2021 passed in W.P. No. 2502 of 2020 etc.)

(a) Employees' Old-Age Benefits Act (XIV of 1976)---

----S. 22 & Preamble---Employees' Old-Age Benefits Act, 1976---Liberal interpretation---Employees' Old-Age Benefits Act, 1976 is a beneficial statute intended to provide security and old-age benefits to employees of industrial, commercial or other organizations covered by it and, therefore, its provisions have to be construed liberally in order to advance its objective.

Don Basco High School v. The Assistant Director EOBI, PLD 1989 SC 128 and Lahore Race Club v. Deputy Director EOBI, 1998 SCMR 1571 ref.

(b) Employees' Old-Age Benefits Act (XIV of 1976)---

----S. 22(2)---Old age pension---Exception under Section 22(2) of the Employees' Old-Age Benefits Act, 1976 ("the EOB Act, 1976)---Applicability---Stage when the exception under Section 22(2) of the EOB Act, 1976 becomes applicable---To avail the exception under Section 22(2) of the the EOB Act, 1976, the insured person must satisfy that he was in employment in the industry or establishment on the first day of July 1976 or on the day the Act became applicable to such an industry or establishment and was of the age mentioned in Section 22(2)(i) and (ii) of the Act.

Section 22(1) of the Employees' Old-Age Benefits Act, 1976 ("the Act") provides that an insured person is entitled to monthly old-age pension if (i) he is over sixty years of age, or over fifty-five years of age in the case of a woman, and (ii) the contribution in respect of such insured person was paid by the employer for not less than fifteen years. It is only when both these conditions are fulfilled that an insured person is entitled to monthly old-age pension under the said provision. An exception is provided under Section 22(2) of the Act whereby the number of years of contribution paid by the employer on behalf of the insured person is reduced to seven and five years, respectively instead of fifteen years under section 22(2) if on the first day of July, 1976 or on any day thereafter on which the Act becomes applicable to an industry or establishment; (i) the insured person is over forty years of age, or over thirty-five years of age in the case of a woman or (ii) the insured person is over forty-five years of age, or over forty years in the case of a woman.

The first cut-off date i.e., first day of July 1976 is the date when the Act was implemented. As per section 9 of the Act, the first contribution was paid by the employer on the said date. The second cut-off date is when the Act becomes applicable to an industry or establishment. Section 1(4) of the Act provides three different modes through which the Act becomes applicable to an industry or establishment. It is at these two points in time when the age of the insured person in terms of Section 22(2)(i) and (ii) becomes relevant for invoking the exception of reduced years of contribution under the said provision. The age of the insured person alone is not the determining factor for the case to fall within the exception under

Section 22(2) but it is also that the age must be so at the relevant cut-off dates mentioned above. As such, an insured person cannot avail the exception under Section 22(2) if he was employed after the cut-off date, i.e., first day of July 1976 or after the date when the Act became applicable to the industry or establishment under Section1(4) of the Act. Therefore, to avail the exception under Section 22(2)

of the Act, the insured person must satisfy that he was in employment

in the industry or establishment on the first day of July 1976 or on

the day the Act became applicable to such an industry or establishment and was of the age mentioned in Section 22(2)(i) and (ii) of the Act.

For the Petitioner(s):

Haroon Irshad Janjua, Advocate Supreme Court.

Ch. Akhtar Ali (in C.P. No. 3531 of 2023).

Muhammad Tariq, Advocate Supreme Court (in C.P. No. 3495 of 2023).

Muhammad Umer Riaz, Advocate Supreme Court.

Khurram M. Qureshi, Advocate Supreme Court

Barrister Abu Bakar along with Muhammad Amin, Deputy Director General, EOBI and Abdul Ahad, Director (Law) EOBI.

Ghulam Muhammad, Director (Operations), EOBI (in C.P. No. 408 of 2023, C.P's Nos. 2451-2458 of 2023 and C.P's Nos. 2469-2473 of 2023).

For the Respondent(s):

Mukhar Ahmed Maneri, Advocate Supreme Court (in C.P. No. 3531 of 2023 and C.P. No. 3495 of 2023).

Raja Muhammad Rafiq Janjua, Advocate High Court along with Private Respondents (in C.Ps. Nos. 408, 2451-2458 and 2469-2473 of 2023).

2024 S C M R 833

[Supreme Court of Pakistan]

Present: Yahya Afridi, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

B.P. PAKISTAN EXPLORATION AND PRODUCTION, INC---Appellants

Versus

ASHIQUE HUSSAIN HALEPOTO and 2 others---Respondents

Civil Appeals Nos. 1653 to 1655 of 2007, decided on 7th February, 2024.

(On appeal from the judgment dated 31.08.2007 passed by the High Court of Sindh, Hyderabad Circuit in 1st Appeals Nos. 22, 23 and 24 of 2005).

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

----S. 54---Land acquisition---Compensation, award of---Appellant-company, for whom the land was acquired, was aggrieved of the enhancement of compensation by the Referee Court and hence filed an appeal before the High Court---Maintainability---Such an appeal was maintainable in terms of section 54 of the Land Acquisition Act, 1894.

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

----Ss. 23(2) & 28A & 34---Land acquisition---Compensation, quantum of---Compulsory charges and additional compensation---Acquisition of land in favour of appellant-company for a public purpose---Referee Court enhanced the compensation from Rs. 95,000/- per acre to Rs. 120,000/- per acre---Propriety---Appellant-company itself leased and used the acquired-property before it was acquired---Since the appellant-company negotiated and set the rent, the possibility for manipulation of the potential value of the demised property would be minimal---Furthermore, the time period that had lapsed between the issuance of Section 4 notification and the passing of the Award in 'respect of the acquired-property that was already leased by the appellant-company does not render the amount of compensation adjudged to be unreasonable---Compensation for the property being acquired must not only be based on its market value but also the potential value thereof---In the peculiar circumstances of the present case, the compensation adjudged appears to have been reasonably determined---In the present case, the notification issued under Section 4 of the Act, declared the acquisition to be made for a 'public purpose', and thus, the compensation awarded to the landowners requires correction---Accordingly, the compulsory charges payable by the appellant-company to the respondents/landowners is reduced from 25% to 15% of the market value of the acquired-property---Moreover section 28A of the Land Acquisition Act, 1894, has been omitted through Section 4 of the Land Acquisition (Sindh Amendment) Act, 2009 (Act XVI of 2010)---Thus, it would be safe to state that in view of the present legislative dispensation, the appellant-company cannot be burdened with the payment of additional compensation to the landowners under Section 28-A of the Act---Finally, it was admitted that prior to the commencement of the acquisition proceedings for the acquired-property in 1985, the same was leased by the appellant-company---Appellant-company kept on paying the lease-money to landowners till 1995---Appellant-company in these circumstances cannot simultaneously be taxed to pay the lease amount and also the interest on the compensation for the acquired property since 1985---Therefore, in all fairness, the private-respondents/landowners are entitled to interest on the compensation amount only after they ceased to receive the lease money for the acquired-property---Accordingly, the appellant-company is only liable to pay interest on the compensation awarded to the private respondents/landowners from the time they stopped paying rent until the full compensation for the acquired property was paid---Appeals were allowed accordingly.

Land Acquisition Collector v. Mst. Surraya Mehmood Jan 2015 SCMR 28 and Dilawar Hussain v. Province of Sindh PLD 2016 SC 514 ref.

Hussain Ali Almani, Advocate Supreme Court and Syed Mehmood Abbas, Advocate-on-Record for Appellants.

Azhar Farid, Advocate Supreme Court for Respondents.

2024 S C M R 840

[Supreme Court of Pakistan]

Present: Munib Akhtar and Shahid Waheed, JJ

ALI RAZA---Petitioner

Versus

REGIONAL POLICE OFFICER and another---Respondents

C.P.L.A. No.1593-L of 2020, decided on 14th March, 2024.

(Against the order dated 01.09.2020 passed by the Punjab Service Tribunal, Lahore in Appeal No.2313 of 2020).

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

----Rr. 14 & 12 [as it existed prior to being amended by Notification No.6206-EXEC-II dated 16th of March, 2023, issued by the Provincial Police Officer]---Punjab Civil Servants Act (VIII of 1974), S. 21---Police official---Dismissal from service---Departmental appeal, filing of---Limitation---Notwithstanding Rule 14 of the Punjab Police (Efficiency and Discipline) Rules, 1975, where no time period for filing an appeal has been provided, the time frame specified under section 21 of the Punjab Civil Servants Act, 1974, is to be followed, which is sixty days.

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

Baleegh-uz-Zaman Ch., Addl. A.G., Punjab along with Nasrullah Khan, DSP for Respondents.

2024 S C M R 843

[Supreme Court of Pakistan]

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

ZAIN SHAHID---Petitioner

Versus

The STATE and another---Respondents

Crl. Petition No. 29-K of 2022, decided on 29th December, 2023.

(On appeal from the judgment of the High Court of Sindh Karachi dated 19.01.2022 passed in Spl. Criminal A.T. Appeal No. 100 of 2020).

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

----S. 221---Charge, framing of---Scope, significance and purpose of framing of charge against an accused explained.

Framing of charge is the foundation of trial, with a purpose and object to enable accused to know the exact nature of allegations and the offences with which he is charged, so that he is given reasonable opportunity to prepare his case and defend himself. Similarly, it enables the prosecution to produce relevant evidence in support of its case against the accused in order to prove the charge. Framing of proper charge is, therefore, significant for the court concerned to be cautious regarding the real points in issue, so that evidence could be confined to such points and to reach a correct conclusion.

Section 221 of the Cr.P.C. has provided an elaborate procedure for framing of charge. It requires that all material particulars as to time, place, as well as specific name of the alleged offence, if any; the relevant law, its applicable section(s), subsection(s) and clause(s) in respect of which the offence is said to have been committed, shall be mentioned in the charge. Where any particular section of law with which a person is intended to be charged contains several parts, the relevant part of that section which depicts from the police report and the material available on record, should be mentioned therein. It is the responsibility of the Trial Judge to take all necessary and possible steps to ensure compliance of law with regard to framing of proper and unambiguous charge. Steps should also be taken to explain the charge to the accused to a possible extent, enabling him to fully understand the nature of allegations against him. If necessary ingredients of the offences with which the accused is charged, are not mentioned in the charge, or it is framed in an incomplete, defective or vague manner, it might mislead the accused, which would be a failure of justice. It is, however, to be noted that every omission in a charge cannot be regarded as material illegality or irregularity, unless the accused is in fact misled by such error or omission and it has occasioned a failure of justice, as provided by section 225 of the Cr.P.C.

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

----Ss. 11-H(i) & (ii) & 11-F(i)---Fund raising for a proscribed organization---Re-appraisal of evidence---Defective and vague framing of charge---Effect---Failure of justice---Trial Court while framing the charge, did not specify as to which of the sub-clause of section 11-H of the Anti-Terrorism Act, 1997 ('ATA of 1997') was applicable in the facts and circumstances of the present case---There was no evidence on the record to suggest that the petitioner (accused) was guilty of an offence either under section 11(1)(a) or 11(1)(b) of the ATA of 1997---FIR, the police report and the other material available on the record were insufficient for the Trial Court to frame charge against the petitioner under any of the clauses of section 11-H of the ATA of 1997, yet defective and vague charge was framed under the stated offences, without mentioning in detail the purported act of the petitioner, which constituted an offence---In absence of relevant information and evidence to prima facie constitute an offence, it was incumbent upon the Trial Court to have refrained itself from framing of charge against the petitioner---In the FIR, in the police report, the documents attached therewith and the evidence available on the record, there was nothing to establish that the petitioner was busy in collecting the money, nor was there any allegation with regard to his intent that money recovered from him was the outcome of the donation he collected, and was to be used or had reasonable cause to suspect that it may be used for the purpose of terrorism or by a terrorist or by an organization concerned in terrorism---It was alleged that the petitioner was arrested having a donation book on which name of a proscribed organization was printed and leaves of it contained his signature, along with an amount of Rs.1500/- were recovered from him---Admittedly, the petitioner did not sign any leaf of the book in presence of the witnesses---Moreover, no leaf of it having the alleged signatures of the petitioner was sent to the forensic laboratory for obtaining expert's opinion to verify the signatures---First Information Report was registered upon an information received by the complainant from DIG CTD, but it too did not disclose commission of the offence under section 11-H of the ATA of 1997, against the petitioner at the relevant time---Rather it was just a presumption and apprehension of the DIG that the petitioner belonged to a proscribed organization Daesh, and collected donations and funding for the said organization and the said money was potentially used in carrying out terrorist activities across the country---Admittedly, neither the DIG nor any officer of DIG's office participated in the investigation nor did they appear before the Trial Court as a witness, to substantiate the contents of the FIR---There is no detail in the FIR as to the date, time, place and manner of collecting such money by the petitioner, nor his intention or any reasonable cause on his behalf to suspect that the amount shall be or may be used for terrorist activities---Before registration of the FIR, the petitioner's name was included in Fourth Schedule to the ATA of 1997 and he was regularly appearing before the concerned police---Had he indulged in any criminal activity, an FIR could have been registered against him under the relevant provision of law for any of his specific act, but the needful was not done for the reason that the concerned police officials did not find him involved in any such activity---Fact remains that there was lack of ingredients of any of the subsections of section 11-H of the ATA of 1997, the prosecution continued to produce irrelevant evidence in this behalf---Witnesses produced by the prosecution did not establish the commission of an offence, but still the petitioner was held guilty of offences under sections 11H(i) and (ii) of the ATA of 1997 and was sentenced for a period of ten years by the fora below, without specifying the sentence separately for each subsection---This act of the Trial Court had seriously prejudiced the petitioner by convicting him for an offence, which was not committed by the petitioner, nor was it mentioned in the charge framed against him, hence, it was a failure of justice---Petition was converted into appeal and allowed, and accused was acquitted of the charge framed against him.

Khawaja Naveed, Advocate Supreme Court for Petitioner.

Saleem Akhtar, Addl. P.G. for the State.

2024 S C M R 853

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

COMMISSIONER INLAND REVENUE, LARGE TAXPAYERS OFFICE, ISLAMABAD ---Petitioner

Versus

PAKISTAN OILFIELDS LTD., RAWALPINDI and others---Respondents

Civil Petitions Nos. 3472 to 3475 of 2023, decided on 29th February, 2024.

(Against the orders of Islamabad High Court, Islamabad, all dated 08.08.2023 passed in W.Ps. Nos. 2436 to 2439 of 2023).

(a) Constitution of Pakistan---

----Arts. 185(3) & 199---Interim order passed by the High Court---Interference by the Supreme Court---Scope---Established practice and policy of the Supreme Court is that it does not ordinarily intervene in the interim orders of the High Courts---Such intervention is warranted only in exceptional circumstances, such as cases involving a flagrant violation of law, a clear wrongful exercise of jurisdiction or a manifest grave injustice.

Attiq ur Rehman v. Tahir Mehmood 2023 SCMR 501 and Province of Sindh v. Sartaj Hyder 2023 SCMR 459 ref.

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

----S. 4C [as amended by the Finance Act 2023]---Constitution of Pakistan, Art. 199(4)---Supertax under Section 4C of the Income Tax Ordinance, 2001---Recovery of---High Court granting interim relief against collection of super tax---Constitutionality---Violation of the constitutional requirement of granting interim relief under Article 199(4) of the Constitution---Plain reading of Article 199(4) of the Constitution shows that where the making of an interim order would have the effect of impeding the assessment or collection of public revenues, the High Court shall not make an interim order unless: (i) the prescribed law officer has been given notice of the application for interim relief and he or any person authorized has had an opportunity of being heard; and (ii) the High Court, for reasons to be recorded in writing, is satisfied that the interim order would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction---Use of the negative language, i.e., "shall not", in Article 199(4) leaves no doubt that its provisions are mandatory and an interim order passed without adhering to the procedure provided therein will be illegal and without jurisdiction---In the present case, it is an admitted fact that the High Court did not give notice of the application for interim relief and provide an opportunity of hearing to the prescribed law officer, i.e., the Attorney-General, nor did the High Court record its finding, and the reasons therefor, that the interim order would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction---Both the mandatory requirements of Article 199(4) were not complied with by the High Court in making the impugned orders, which failure makes these orders illegal and without jurisdiction---Present case, thus, involves a flagrant violation of law and a clear wrongful exercise of jurisdiction, which warrants interference by the Supreme Court in theimpugned interim order---Petitions were converted into appeals and allowed; the impugned orders were set aside with the directions that the respondents' (tax payers') applications for interim relief shall be decided by the High Court after affording a fair and reasonable opportunity of hearing as envisaged under Article 199(4) of the Constitution; that the High Court shall also identify the order or proceedings under challenge in terms of Article 199(4)(b)(ii) of the Constitution; that the High Court will also attend to the other contention of the counsel for the petitioner (tax department) regarding suspension of legislation through an interim order in the light of the law cited by her.

(c) Interpretation of statutes---

----Provision couched in a negative language---Where any provision couched in a negative language requires an act to be done in a particular manner then it should be done in the manner as required by the statute otherwise such act will be illegal and without jurisdiction.

Atta Muhammad v. Settlement Commissioner PLD 1971 SC 61; Shujat Hussain v. State 1995 SCMR 1249 and Province of Punjab v. Javed Iqbal 2021 SCMR 328 ref.

Ms. Asma Hamid, Advocate Supreme Court, assisted by Hassan Ali and Mustafa Khalid, Advocates and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Salman Akram Raja, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents.

2024 S C M R 858

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, ACJ, Syed Mansoor Ali Shah and Athar Minallah, JJ

CHIEF COMMISSIONER/COMMISSIONER IR ZONE-II/ZONE-III, RTO, PESHAWAR---Appellant

Versus

Messrs AKBAR KHAN FILLING STATION and others---Respondents

Civil Appeals Nos. 1314 to 1337 of 2014 and Civil Appeals Nos.1611 to 1624 of 2013, decided on 19th December, 2023.

(Against the judgment dated 26.05.2014 of the Peshawar High Court, Peshawar passed in T.Rs. Nos. 1-P to 23-P of 2013 and judgment dated 03.07.2013 of the Peshawar High Court, Mingora Bench (Dar ul Qaza) Swat passed in T.Rs. Nos.1-M to 13-M of 2011).

Income Tax Ordinance (XLIX of 2001)---

----S. 156A---Sale of petroleum products to petrol pump operators operating in Federally Administered Tribal Areas (FATA)---Deduction of tax from the amount of commission or discount allowed to the operator---Refund, claim for---Applicability of the Income Tax Ordinance, 2001---Enforcement of the Income Tax Ordinance, 2001 ('Ordinance of 2001') was not extended to the territorial limits of FATA and, therefore, its provisions were not attracted to the income arising therein---It is not disputed that the respondents are operating petrol pumps in FATA---Section 156 A of the Ordinance of 2001 provides that every person selling petroleum products to a petrol pump operator shall deduct tax from the amount of commission or discount allowed to the operator at the rates specified in Division VI A of Part III of the First Schedule---Tax deductible under subsection (1) shall be a final tax on the income arising from the sale of petroleum products---Obligation of deduction of tax is on the person selling the petroleum products to the operator of the petrol pump while the said deduction is relatable to the commission paid to or discount allowed by the latter---In the present case the respondents assert to be operators of petrol pumps and they were claiming refund of the tax deducted from their commission by the persons who had sold the petroleum products to them---Factum of income having been accrued was on account of the commission paid to the respondents for the sale of petroleum products and not the sale of the petroleum products to the consumers at the petrol pumps operated in FATA---Deduction of tax fell under the final tax regime---Admittedly, the contractual arrangement for the sale of petroleum products, the actual sale and payment as well as deduction of the tax had taken effect in the areas of Pakistan outside the territorial limits of FATA and, therefore, the transactions and the income arising from such sale were not immune from the enforcement of the provisions of the Ordinance of 2001---Income derived by the respondents was on account of commission paid to them by the seller companies outside FATA---Immunity from the payment of taxation under the Ordinance of 2001 shall not be claimed merely on the basis that the business premises have been established in FATA, rather the onus was on the tax payer to establish the fact that taxable income was not being derived from the area where the statute was enforced and applicable---This crucial factum could not be successfully established by the respondents and their refund claims were, therefore, justifiably rejected by the taxation officer---Claim of refund of the tax deducted under section 156A of the Ordinance of 2001 was not tenable and, therefore, rightly rejected---Appeals were allowed accordingly.

C.I.T. v. Gul Cooking Oil and Vegetable Ghee (Pvt.) Ltd. 2008 PTD 169 ref.

Ghulam Shoaib Jally, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant (in all cases).

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondents (in C.As. Nos. 1318, 1616-1624 of 2013).

Junaid Akhtar, Advocate Supreme Court for Respondents (in C.A. No. 1611 of 2013).

2024 S C M R 862

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

CHAIRMAN, BOARD OF CONTROL, CANTEEN STORES, HQ, RAWALPINDI and others---Petitioners

Versus

MUHAMMAD AZAM KHAN and others---Respondents

Civil Appeal No.515 of 2015, decided on 22nd November, 2023.

(Against the judgment dated 15.12.2014 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in I.C.A. No. 127 of 2013 in W.P. No. 1516 of 2011).

(a) Constitution of Pakistan---

----Art. 199(3)---Employees of Canteen Stores Department (CSD)---Not in the service of the Armed Forces---Bar contained under Article 199(3) of the Constitution does not apply - In the present case the letters of appointment of the employees of CSD showed that the posts offered to them were private, and they were not subject to any law relating to Armed Forces of Pakistan---With respect to the terms and conditions of its employees, the CSD cannot put forward the bar contained in clause (3) of Article 199 of the Constitution before the High Court.

General Manager, Canteen Stores Department, Karachi v. Abdul Rashid 1983 SCMR 487 ref.

(b) Constitution of Pakistan---

----Art. 199(5)---Employees of Canteen Stores Department (CSD)---CSD does not comewithin the meaning of "person" provided in clause (5) of Article 199 of the Constitution---CSD is neither a body politic nor corporate nor an authority; as such, a petition against it by its employees before the High Court in its constitutional jurisdiction is not competent.

Canteen Stores Department (CSD) is not a body politic or corporate. It has not come into being by a statute or under a statute. Entire capital of CSD belongs to it and does not form part of the government money or government funds. It has independent financial resources and is run by its own funds, receives no funds from any source of the Government and is completely autonomous in its internal administration. The Public Accounts Committee does not scrutinise its accounts to include the same in the Public Fund Account of the Federal Government. It is a private commercial organization and does not perform any function of the Government. CSD cannot be held as an authority of the Government.

The list of Government Departments is provided in Schedule III to the Rules of Business, 1973. It is important to note that only that can be termed a (Government) Department whose name is mentioned in Schedule III. Since CSD is not mentioned in Schedule III to the Rules of Business, 1973, it cannot be called a government department.

It is clear that CSD is neither a body politic nor corporate nor an authority or Government Department; as such, a petition against it by its employees before the High Court in its constitutional jurisdiction is not competent.

The rules contained in the CSD Revised Instructions and Procedures Manual (2006) are non-statutory because these have not been framed under the authority of the Constitution or any statute. In the present case since the respondents were employed when the CSD had ceased to be a government department or undertaking, the inter se relationship of the respondents and CSD was governed by the ordinary law of Master and Servant, and, as such, it follows that respondents being employees of CSD, which does not come within the meaning of clause (5) of Article 199 of the Constitution, could not maintain their writ petition before the High Court to obtain an order of their reinstatement. Under Article 199 of the Constitution, their petition was incompetent. Appeal was allowed.

Ch. Sultan Mansoor, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Brigadier (Retd.) Farasat Ali Khan, Legal Consultant for Appellants.

Abdul Rahim Bhatti, Advocate Supreme Court for Respondents Nos.1-10.

Raja Shafqat Mehmood Abbasi, Deputy Attorney General for Federation.

2024 S C M R 876

[Supreme Court of Pakistan]

Present: Munib Akhtar, Syed Hasan Azhar Rizvi and Shahid Waheed, JJ

GOVERNMENT OF BALOCHISTAN through Secretary Mines And Minerals Department and another---Petitioner

Versus

ATTOCK CEMENT PAKISTAN LIMITED and another---Respondents

Civil Petitions Nos. 167-Q and 168-Q of 2023, decided on 14th March, 2024.

(Against Judgment dated 17.04.2023 passed by the High Court of Balochistan Quetta in C.P.No.1294 of 2017 and C.P.No.1826 of 2021).

Balochistan Mineral Rules, 2002---

----R. 102(1)---Mining lease agreements with the Provincial Government---Notification that has received ex-post facto approval by the Provincial Cabinet---No retrospective applicability---Secretary Mines and Minerals Department, Government of Balochistan by virtue of a notification No. SOT(MMD)4-1/2017/748-68 dated 06.09.2017 ("impugned notification") revised and enhanced the rates of application fee relating to mineral titles and mineral concessions mentioned in the first schedule, rates of annual rentals mentioned in the second schedule, and the royalties mentioned in the third schedule, part II and part III of the Balochistan Mineral Rules, 2002. ("Rules of 2002")---Legality---Perusal of the record reveals that neither the Chief Minister nor the Cabinet made any decision regarding price fixation prior to the issuance of the impugned notification which was solely passed by the Secretary Mines and Mineral Department, Government of Balochistan---Subsequently, on 01.02.2022, the Cabinet authenticated the impugned notification through ex-post facto approval---High Court had correctly determined that the impugned notification takes effect from the date of authentication/approval by the cabinet, i.e. 01.02.2022---This interpretation aligns with the principle that if the provincial cabinet provides ex-post facto approval, the validity of the notification is recognized from that date of approval and cannot be applied retrospectively---Petitions were dismissed and leave was refused.

Messrs Mustafa Impex Karachi and others v. The Governmet of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 ref.

Muhammad Ayaz Sawati, Addl. A.G. Balochistan for Petitioners.

Umar Soomro, Advocate Supreme Court for Respondents.

2024 S C M R 913

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

SAGHEER AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1241-L of 2023, decided on 13th March, 2024.

(Against the order dated 20.10.2023 of the Lahore High Court Lahore passed in Cr.Misc. No. 62731-B of 2023).

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(1), Sr. No. 3(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)---Constitution of Pakistan, Art. 185(3)---Possession and transportation of 1420 grams charas---Bail, grant of---Further inquiry---Delay in sending samples to the Forensic Science Laboratory---Safe custody of samples with the police not established---Accused was arrested on the same day of the registration of the FIR---As per the report of the Punjab Forensic Science Agency, the sample of the charas was received by Forensic Science Laboratory after a delay of more than a month---Provisions relating to the sending of samples to the forensic Science Laboratory were provided in Rule 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001, which provides that the samples may be dispatched for analysis under cover of Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours of the seizure---There was nothing on record to show to whom the alleged recovered narcotics were handed over at the police station for safe custody during that period---Fact of the safe custody of the recovered narcotic substance is to be established or proved by the prosecution during the trial; however, the unreasonable delay of more than one month in the present case could be considered at the time of deciding the bail, which made the case of the petitioner (accused) one of further inquiry---Accused was behind the bars since his arrest and the trial had not concluded so far, even after a considerable period had elapsed---Moreover, the maximum sentence for the alleged offence was fourteen years, and as such, it did not attract the bar of Section 51 of Control of Narcotic Substances Act, 1997---Petition was converted into an appeal and the same was allowed, and the petitioner was allowed bail after arrest.

Saeed Ahmed v. State through P.G. Punjab and another PLJ 2018 SC 812 and Abbas Raza v. The State 2020 SCMR 1859 ref.

Akhtar Nawaz Raja, Advocate Supreme Court (via video link Lahore) for Petitioner.

Irfan Zia, D.P.G. and Muhammad Mushtaq, S.I. for the State.

2024 S C M R 916

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

Mst. FARZANA ZIA and others---Appellants

Versus

Mst. SAADIA ANDALEEB and others---Respondents

Civil Appeal No.1012 of 2018, decided on 18th March, 2024.

(Against the judgment dated 13.06.2018 passed by the Islamabad High Court, Islamabad in C.R.No.35 of 2016).

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

----S. 25---Release deed/Relinquishment deed, authenticity of---Fraud and misrepresentation by brother to deprive his sisters of their share in inheritance---Subject property devolved upon all the legal heirs---Brother (respondent No.2) took the other legal heirs to district court in the guise of making transfer of the property in the name of all legal heirs---Copy of a public notice published in the newspaper was available on case file which demonstrated that the legal heirs of the deceased had moved an application for transfer of the subject property in their name---This public notice showed that the application was made for a joint transfer and not in the sole name of the brother---It was asserted by the brother that he gave an extra amount of Rs. 3,75,000/- after selling a plot owned by his father and gave the share of the plaintiffs (sisters) amounting to Rs. 75,000/- from the another plot---If the brother paid the inheritance share of his sisters in some other property, it does not allow or absolve the brother from paying their share in other properties of their deceased father---Brother was in a dominant position and all title documents were in his possession---So far as the veracity or authenticity of the release deed was concerned, both marginal witnesses contradicted the version of the brother---Defence witness deposed that he did not know that the release deed was made, while the other defence witness admitted that the signatures were not made in his presence---Both the marginal witnesses deposed during the cross examination that they were told that the release deed was meant for distribution amongst siblings and that the property was being distributed---No family settlement was produced on record to show the distribution of shares amongst the legal heirs for the estate of their predecessor---Item No. 55 of Schedule 1 and Section 29(a) of the Stamp Act 1899 Act are germane to the deed of release---Indenture of the release is required to be registered compulsorily and for the purposes of stamp duty, the assessment should be made on the basis of the amount of the claim or value of the property---Neither anything on record showed that any consideration was paid to the sisters against the suit property nor any individual specific share of each releasor was carved out or specified in the release deed which was allegedly relinquished by them in favour of the brother---No stamp duty was assessed or paid on the part of the relinquished share or the value of the property---No logical conclusion could be drawn as to why both sisters, who had their own children and husbands, executed a release deed out of love and affection in favour of their brother and deprived their own children---If everything was done with free will and consent or there was a conscious abandonment of rights, then the best marginal witnesses to the deed would be the husbands of both sisters, but this was avoided by the brother, which also transpired that the sisters had no independent advice to understand the nature of the document to safeguard their interest but they signed it in good faith on the understanding that the property was being transferred in the name of all legal heirs---Record reflects that neither the joint sub-registrar was summoned by the defendant nor one of the sisters ever appeared before the Tehsildar/sub-registrar for any such purpose which fact was admitted by the brother in his cross examination---Trial Court, after proper assessment and comprehension of the entire evidence, reached the correct conclusion that the preparation of the release deed, its execution, signatures of the plaintiffs (sisters) over the same, and the appearance of the plaintiffs before the joint sub-registrar was doubtful and the release deed and subsequent transfer was declared void ab-initio and ineffective---On account of misrepresentation and deception, the share of the sisters was siphoned off/divested from the estate of their deceased father which devolved upon them according to Muslim Law of inheritance---Release deed was secured in bitter violation and contravention of Section 25 of the Contract Act, 1872, and rightly declared invalid by the Trial and Appellate Courts---Appeal was allowed; impugned judgment of the High Court was set aside and the concurrent judgments and decrees passed by the Trial Court and Appellate Court in favour of the sisters were restored.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Muhammad Shamim through Legal heirs v. Mst. Nisar Fatima through Legal Heirs and others 2010 SCMR 18; Sadar Din v. Mst. Khatoon and others 2004 SCMR 1102 and Mirza Abid Baig v. Zahid Sabir (Deceased) through LRs and others 2020 SCMR 601 ref.

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

----S. 25---Legal heirs---Release deed/ Relinquishment deed---Scope---Substratum of the indenture of the Release Deed or the Relinquishment Deed encompasses the conveyance of right, title, or interest in the immovable property by the legal heirs in the joint property by which, often, a co-owner, renounces his rights in favour of another legal heir with consideration or even without consideration or on account of some family settlement, but the parties to a relinquishment deed must be the co-owners/co-sharers---The deed of release or relinquishment should be cautiously put in order which must encapsulate, the date when the right to the property was given up; purpose of giving up the right; consideration, if any; consent of the party giving up the right in the property, etc. with the aspiration to put an end to any unresolved or unsettled issue or differences between the parties to prevent future litigation.

Black's Law Dictionary, Sixth Edition, 1990 (Pages 1289-1290) ref.

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

----Ss. 123 & 129---Islamic law---Gift---Scope and principles---Transfer of Property Act, 1882, has no application to the gift envisioned and encapsulated under the Muslim Law and for this reason, Sections 123 and 129 of the Transfer of Property Act can neither surpass nor outweigh or preponderate the matters of gifts contemplated under the Muslim Law---However, the donor should be of sound mind and understand the legal implications of making the gift, free from any coercion, duress, or undue influence---Under the Muslim Law, the constituents of a valid gift are tender, acceptance, and possession of property---Muslim can devolve his property under Muslim Law by means of inter vivos (gift) or through testamentary dispositions (will)---Islamic law does not make any distinction between movable or immovable property regarding the conception of gift, rather any property may be gifted by any person having ownership and dominion over the property intended to be gifted on fulfilling requisite formalities.

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

----Ss. 100 & 115---Revision---Second appeal---Scope---High Court has the powers to reevaluate the concurrent findings of fact arrived at by the lower courts in appropriate cases but cannot upset such crystalized findings if the same are based on relevant evidence or without any misreading or non-reading of evidence---If the facts have been justly tried by two courts and the same conclusion has been reached by both the courts concurrently then it would not be judicious to revisit it for drawing some other conclusion or interpretation of evidence in a second appeal under Section 100 or under revisional jurisdiction under Section 115, C.P.C., because any such attempt would also be against the doctrine of finality.

Muhammad Ilyas Shaikh, Advocate Supreme Court for Appellants.

Agha Muhammad Ali, Advocate Supreme Court and Syed Shajjar Abbas Hamdani, Advocate Supreme Court for Respondents Nos. 1 and 2.

Khalid Mehmood Khan, Advocate Supreme Court (Via video link from Lahore) for Respondent No.3.

2024 S C M R 929

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

SHAUKAT HUSSAIN---Appellant

Versus

The STATE through PG Punjab and another---Respondents

Cr. Appeal No.425 of 2019 and Cr. Petition No.632 of 2020, decided on 14th March, 2024.

(Against the judgment dated 23.02.2016 of the Lahore High Court, Rawalpindi Bench passed in Crl. Appeal No. 492 of 2011).

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

----S. 302(b)---Qatl-i-amd---Re-appraisal of evidence---Delay of about four hours in reporting the matter to the police---Consequential---There was a delay of about four hours in reporting the crime to the Police whereas Police Station was situated at a distance of about 20 kilometers from the place of occurrence---No explanation at all was furnished for causing delay in reporting the crime to the Police---Contention that approximately four hours delay in lodging the FIR is a normal thing does not appeal to the mind---Had the matter been reported within reasonable time, the police would have easily reached at the place of occurrence within about an hour---Why the matter had not been reported immediately by the eye-witnesses was a question which could not be satisfactorily explained by the witnesses during their evidence---In the circumstances, chances of deliberations and consultations before reporting the matter to the Police could not be ruled out---Appeal was allowed; the judgments passed by the Trial Court and High Court were set aside to the extent of the appellant; and he was acquitted of the charge.

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

----S. 302(b)---Qatl-i-amd---Re-appraisal of evidence---Co-accused persons acquitted on the same evidence---Effect---On the same set of evidence, the co-accused persons had been acquitted of the charges, whereas the appellant (accused) had been convicted and sentenced---Benefit of the same should have also been extended to the appellant---Injured, shown as a witness in the calendar of witnesses in the charge sheet, had not been produced by the prosecution for evidence in support of its case without any cogent and plausible reason, thus the prosecution had withheld the best evidence---Case of the prosecution was on weak footings and the benefit of doubt arose in favour of the appellant (accused)---Appeal was allowed; the judgments passed by the Trial Court and High Court were set aside to the extent of the appellant; and he was acquitted of the charge.

Ansar Nawaz Mirza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant/Petitioner (in Crl.A. No. 425 of 2019).

Malik Waheed Anjum, Advocate Supreme Court for Respondent No. 2 (in Crl. A. 425 of 2019).

Irfan Zia, D.P.G., Punjab for the State.

2024 S C M R 934

[Supreme Court of Pakistan]

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

ZAHID SARFARAZ GILL---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 1192 of 2023, decided on 22nd November, 2023.

(Against the order dated 20.09.2023 of the Islamabad High Court, Islamabad passed in Criminal Misc. No. 1285-B of 2023).

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Constitution of Pakistan, Art.185(3)---Possession of narcotics---Bail, grant of---Further inquiry---Counsel for the petitioner (accused) contended that it was surprising that in the month of May at 6 pm during daylight hours at a popular public park, the only witnesses were policemen, none of whom made a video recording, nor took any photographs of the seizure and arrest---Validity---Facts and circumstances of the instant case made it a case of further inquiry---Petition for leave to appeal was converted into appeal and allowed and accused was granted bail.

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

----Ss. 9 & 25---Criminal Procedure Code (V of 1898), Ss. 103 & 497---Qanun-e-Shahadat (10 of 1984), Arts. 164 & 165---Narcotics cases---Use of video recording and photographs by the police and members of the Anti-Narcotics Force (ANF) when search, seizure and/or arrest is made---If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure and arrest, it would be useful evidence to establish the presence of the accused at the crime scene, the possession by the accused of the narcotic substances, the search and its seizure---It may also prevent false allegations being levelled against ANF/police that the narcotic substance was foisted upon the accused for some ulterior motives.

Section 25 of the Control of Narcotic Substances Act, 1997 ('the Act') excludes the applicability of section 103 of the Code of Criminal Procedure, 1898 which requires two or more respectable inhabitants of the locality to be associated when search is made. However, it was not understandable why the police and members of the Anti-Narcotics Force ('ANF') do not record or photograph when search, seizure and/or arrest is made. Article 164 of the Qanun-e-Shahadat, 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques, and its Article 165 overrides all other laws.

In narcotic cases the prosecution witnesses usually are ANF personnel or policemen who surely would have a cell phone with an in-built camera. In respect of those arrested with narcotic substances generally there are only a few witnesses, and most, if not all, are government servants. However, trials are unnecessarily delayed, and resultantly the accused seek bail first in the trial court which if not granted to them is then filed in the High Court and there too if it is declined, petitions seeking bail are then filed in the Supreme Court. If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure and arrest, it would be useful evidence to establish the presence of the accused at the crime scene, the possession by the accused of the narcotic substances, the search and its seizure. It may also prevent false allegations being levelled against ANF/police that the narcotic substance was foisted upon them for some ulterior motives.

Supreme Court directed that copy of present order be sent to the Secretary Ministry of Narcotics Control, Government of Pakistan, Director-General, Anti-Narcotics Force, the Secretaries of the Home Departments of all the provinces, Inspector Generals of Police of all the provinces and of the Islamabad Capital Territory; that they may also consider whether they want to amend the ANF/Police rules to ensure making video recordings/taking photographs whenever possible with regard to capturing, preserving and using such evidence at trial.

M. Shoaib Shaheen, Advocate Supreme Court for Petitioner.

Ch. Rifaqat Ali, State Counsel, Islamabad along with Daud Sabir, SI for the State.

2024 S C M R 938

[Supreme Court of Pakistan]

Present: Shahid Waheed and Musarrat Hilali, JJ

Mst. SEHAT BIBI---Appellant

Versus

BAHAR KHAN and 2 others---Respondents

Civil Appeal No.26-Q of 2017, decided on 1st December, 2023.

(On appeal against the judgment dated 06.10.2017, passed by the High Court of Balochistan, Sibi Bench, in Civil Revision No.22 of 2016).

Islamic law---

----Inheritance---Oral gift deed---Proof---Brother depriving sister from her share in inheritance---Deceased's son (respondent) sold part of the disputed property in which the daughter (appellant) had a 1/3rd inheritance share---Suit filed by the daughter was decreed, however the High Court directed the son to pay the daughter 1/3rd of the sale proceeds instead of 1/3rd share in the property---Legality---Legal heirs inherit property to the extent of his/ her share the very moment his/ her predecessor passes away---In the present case the inheritance mutation was procured in favour of the son (respondent) by fraud after the exclusion of the daughter (appellant) from the inherited property, with connivance of the revenue officials by concealing the fact of existence of the appellant---Hence, the son could not make out a case claiming ownership of the entire property of his late father to the exclusion of the daughter---Appellant being daughter of deceased, could not be deprived of her right in inherited property by any illegal mutation sanctioned at the behest of male heirs---High Court completely failed to apply the law and granted only 1/3rd share out of the sale price of Rs. 13,00,000/- to the daughter--- Grant of 1/3rd share out of the sale price and exclusion of the daughter from the inheritance was against the law---Supreme Court cancelled the inheritance mutation and all subsequent mutations attested on the basis of the same, and gave directions that the revenue authorities shall mutate the entire property of late father of the parties afresh among his legal heirs i.e. son and the daughter, strictly in accordance with law, and that the property already sold out by the son shall be made part of his share while mutating the estate of the late father---Appeal was allowed.

Farhan Aslam and others v. Mst. Nuzba Shaheen and another 2021 SCMR 179 and Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 ref.

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

Ex-parte: For Respondents Nos.1 and 3.

Mir Talal Rind, Advocate Supreme Court for Respondent No.2.

2024 S C M R 942

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Irfan Saadat Khan and Naeem Akhtar Afghan, JJ

Civil Review Petition No. 835 of 2018 in HRC No. 3654 of 2018

(For review of order dated 8.11.2018 of this Court passed in HRC No.3654 of 2018)

AND

Civil Review Petitions Nos. 866, 867 and 868 of 2018

(Appointment of Managing Director, Pakistan Television Corporation).

In

C.M.As. Nos. 11306 and 11172 of 2018

PERVAIZ RASHEED and 3 others---Petitioners

Versus

PAKISTAN TELEVISION CORPORATION---Respondent

Civil Review Petition No. 835 of 2018 in HRC No. 3654 of 2018, Civil Review Petitions Nos. 866, 867 and 868 of 2018, C.M.As. Nos. 11306 and 11172 of 2018, decided on 21st March, 2024.

Constitution of Pakistan---

----Arts. 184(3) & 188---Chairman and Managing Director of Pakistan Television Corporation ("PTV")---Appointment, salary and allowances---Legality---Purported financial loss caused to PTV, recovery of---By way of judgment under review [which was heard and decided under Article 184(3) of the Constitution) the appointment of petitioner as Chairman and Managing Director of PTV was declared illegal and directions were given to recover the purported loss to PTV from four persons, i.e., the petitioner, the then Minister for Information, Minister for Finance and Secretary to the Prime Minister---Validity---Article 184(3) of the Constitution is an extraordinary power bestowed by the Constitution on the Supreme Court and it may be invoked when Fundamental Rights of the people are under attack or are being undermined---It is questionable whether the emoluments of a single individual would justify invoking the jurisdiction of the Supreme Court under Article 184(3)---Applicability of the Articles 18 and 25 is also not self evident, and it has not been explained in the judgment under review, how either of these two provisions were attracted---Factual determination of the purported loss was arbitrary and also incorrect---Petitioner was paid just a little more than his predecessor, which if inflation is factored in would be justified---It was a material error to assume that petitioner's programme's air time was lost revenue; it could also be contended that his programme contributed towards PTV's earnings---It would not be fair to penalize someone on the basis of mere conjecture---There is no evidence to suggest that an amount of Rs.197,867,491 was paid to the petitioner or that he had caused such a loss to PTV---As regards the salary of one million and five hundred thousand rupees being paid to the petitioner is concerned, it was just a little over what was paid to the previous MD, which was an important fact which was overlooked and also the fact that the petitioner's increased salary a few years later could be justified on account of inflation---In these circumstances, to seek the recovery of an arbitrarily determined loss was neither legally permissible nor factually correct---Moreover, to make liable the then Minister for Information, Minister for Finance and the Secretary to the Prime Minister with regard to half the purported loss amount, and to pay it, had no legal basis, was without precedence and was not justified, and to do so when there was nothing on record to suggest that they had financially benefited from petitioner's appointment nor was there any proof of nepotism on the record---Review petitions were allowed and the judgment under review was recalled.

M. Zafar Ullah Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in C.R.P. No. 835 of 2018).

Salman Aslam Butt, Sr. Advocate Supreme Court and Shoaib Rashid, Advocate Supreme Court for Petitioner (in C.R.P. No. 866 of 2018).

Fawad Hassan Fawad, In-person (in C.R.P. No. 867 of 2018).

Muhammad Akram Sheikh, Sr. Advocate Supreme Court for Petitioner (in C.R.P. 868 of 2018).

Muhammad Nazir Jawwad, Advocate Supreme Court (on behalf of PTV).

2024 S C M R 947

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

PROVINCE OF PUNJAB through Secretary C&W, Lahore and others---Appellants

Versus

Messrs HAROON CONSTRUCTION COMPANY, GOVERNMENT CONTRACTOR and others---Respondents

C.P.L.As. Nos. 2226-L of 2021 to C.P.L.A. No. 2241-L of 2021, C.P.L.As. Nos. 2253-L of 2021 to C.P.L.A. No. 2255-L of 2021, C.P.L.A. No. 2270-L of 2021, C.P.L.A. No. 2277-L of 2021, C.P.L.As. Nos. 371-L of 2022 to C.P.L.A. No. 373-L of 2022 and C.P.L.A. No. 3396-L of 2022, decided on 20th February, 2024.

(Against the judgment(s) of Lahore High Court Lahore all dated 30.09.2021, passed in I. C.A. No.18231 of 2021, etc.).

(a) Punjab Procurement Rules, 2014---

----Rr.27 & 56---Tenders for construction works---Bidding documents---Additional performance security imposed by procuring agency---Legality---Bidding documents should comply with the Punjab Procurement Rules, 2014 (Rules) especially Rules 27 and 56---Procuring agency cannot introduce additional security in violation of the Rules---Procuring agency cannot require the bidder to pay additional performance security over and above the bid security and performance guarantee provided under Rules 27 and 56 of the Rules.

The imposition of additional security not only disincentivizes the contractors trying to submit competitively low bids, but it also defies logic as the successful bidder has to give lesser security than the lowest bidder, who might not be a successful bidder, eventually. Where the lowest bidder becomes the successful bidder, he will have to furnish two securities while any other bidder who is not the lowest bidder, but has been declared successful bidder, must only furnish one security. This incongruence in the bidding documents leads to discrimination and offends the principles of public procurement. Therefore, compliance to the regulator framework becomes mandatory in public procurement to uphold the foundational principles of public procurement. Therefore, in the present case the insertion of additional performance security in the Bid Document and the follow up clauses dealing with the consequence of non-payment of additional performance security in the bidding document are beyond the scope of the Punjab Procurement Rules, 2014 (Rules) being inconsistent with Rules 27 and 56 of the Rules. Consequently, the Supreme Court set aside the demand raised for the payment of additional performance security by the procurement agencies as being unlawful and violative of the Rules, and directed that any additional security to be imposed on a contractor can only be introduced through Rules to be framed by the Government so that the principles of procurement are met and there is transparency, level playing-field and non-discrimination in public procurement.

(b) Punjab Procurement Rules, 2014---

---R.68---Procurement---Bidding documents, dispute over---Mediation---Significance of mediation and pro mediation bias of courts explained.

Courts must encourage out of court settlements through Alternate Dispute Resolution ("ADR"), in particular mediation. The essence of mediation lies in its voluntary and confidential process, where a neutral third party, the mediator, assists disputants in reaching a consensus. Unlike in litigation, where the outcome is often a zero-sum game, mediation thrives on the principle of win-win solutions, preserving relationships and allowing for creative resolutions that legal parameters might not accommodate.

Justice Sandra Day O'Connor, Speech at the Minnesota Conference for Women in the Law, April 1985 ref.

Mediation, as a form of alternative dispute resolution (ADR), has garnered widespread acclaim for its efficiency, cost-effectiveness, and ability to facilitate amicable settlements. In contrast to the adversarial nature of litigation, mediation embodies a collaborative approach, encouraging parties to find mutually beneficial solutions. The courts should not only encourage mediation but also exhibit a pro-settlement bias and a pro-mediation bias. Pro-mediation bias or pro-settlement bias means a predisposition or preference within the legal system for resolving disputes through mediation rather than through litigation or other forms of dispute resolution. This bias is not about favoring one party over another but rather about favoring the process of mediation itself as a preferred method of dispute resolution. This bias is grounded in the belief that settlements are generally more efficient and satisfactory for all parties involved compared to outcomes determined by a court. Courts may exhibit a pro-settlement bias by encouraging parties to settle even before the case goes to trial or during the litigation process.

By fostering a pro-settlement bias, courts can contribute to a more harmonious and efficient dispute resolution landscape, where parties are empowered to resolve conflicts collaboratively and constructively. Encouraging mediation aligns with the broader goals of justice systems worldwide: to resolve disputes in a manner that is fair, efficient, and conducive to the long-term well-being of all involved parties.

Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO, July 1996 ref.

Ms. Samia Khalid, Addl. A.G. Pb., Zakir Shah, SLO, C&W., Rana Azhar, S.E. Highway and Muhammad Usama, XEN, Mian Muhammad Kashif, Advocate Supreme Court, Assisted by: Ms Alizeh Akbar, Advocate (in C.P. No. 2277-L of 2021) and Ch. Muhammad Sarwar, Advocate Supreme Court (in C.P. No. 3396-L of 22) for Petitioners.

Mian Muhammad Kashif, Advocate Supreme Court and Ch. Muhammad Sarwar, Advocate Supreme Court for Respondents (in C.P. No. 2228-L of 2021).

Muhammad Younis, Contractor (In person)

2024 S C M R 956

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Muhammad Ali Mazhar and Musarrat Hilali, JJ

Civil Appeal No. 1471 of 2013 and Civil Appeal No.53 of 2014

(Against the judgments dated 21.02.2013 passed in W.P. No.1124 of 2006 and dated 07.10.2013 in F.A.O.71 of 2011 by Peshawar High Court, Peshawar).

Civil Appeals Nos.187 to 191 of 2018

(Against the judgments dated 17.01.2017 passed in I.C.As. Nos.157 and 275 of 2011 by Lahore High Court, Multan Bench, Multan).

C.M.A.5008/ 2014 in C.A.1471 / 2013

(Impleadment)

PAKISTAN ENGINEERING COUNCIL through its Chairman and others---Appellants

Versus

MUHAMMAD SADIQ and others---Respondents

Civil Appeal No. 1471 of 2013 and Civil Appeal No.53 of 2014, Civil Appeals Nos. 187 to 191 of 2018 and C.M.A.5008 of 2014 in C.A. No.1471 of 2013, decided on 15th February, 2024..

(a) Educational institution---

----Admissions policy---Eligibility criteria---Judicial review---Scope---In the affairs of admission and examination in educational institutions, the concerned authorities are vested with the powers and jurisdiction to lay down the eligibility criteria in their own rules, regulations, or prospectus---They are independent to follow their own policy for admission, and in other affairs, therefore, the academic, administrative, and disciplinary autonomy of a university must be respected---Interference by the courts in the admission policy would give rise to glitches for the said institutions to administer the matters harmoniously and efficiently---Educational institutions are competent to manage their own affairs without any outside intervention from executive or judicial organs unless they contravene or disregard the compass of their authority or act in breach of applicable statutes or admission policies as laid down in the prospectus.

Noor Muhammad Khan Marwat v. Vice Chancellor, Gomal University PLD 2001 SC 219; Muhammad Ilyas v. Bahauddin Zakariya University 2005 SCMR 961; Secretary Economic Affairs Division, Islamabad v. Anwarul-Haq Ahmed 2013 SCMR 1687; Murad Ali Khan v. Vice Chancellor, University of Health Sciences, Lahore 2016 SCMR 134 and Khyber Medical University and others v. Aimal Khan and others PLD 2022 SC 92 ref.

(b) Pakistan Engineering Council Act, 1975 (V of 1976)---

----Ss. 10 & 14---Regulations for Engineering Education in Pakistan, 1985 (issued via Notification S.R.O.1142(I)/85 dated 20-11-1985), Art. 2(c)(ii)---B.Tech. (Hons.) degree and B.Sc. Engineering degree---Distinction---B.Tech. (Hons.) qualification is not equivalent to B.Sc. Engineering degree---According to Pakistan Engineering Council (PEC), B.Tech. courses are implementation oriented and B.Sc. engineering courses are design and research oriented---Both qualifications are also regulated internationally through two separate accords---Bachelor of Science in Engineering emphasizes theories and advanced concepts, while an Engineering Technology degree emphasizes hands-on application and implementation with the major difference that B.E. is more knowledge based while B.Tech. is skill-oriented.

Muhammad Sadiq and others v. University of Sindh and another PLD 1996 SC 182; Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad PLD 1995 SC 701 and Maula Bux Shaikh and others v. Chief Minister Sindh and others 2018 SCMR 2098 ref.

(c) Civil service---

----Appointment--- Eligibility criteria--- Judicial review--- Scope---Discretion of employer---Essential qualifications for appointment to any post is the sole discretion and decision of the employer---Employer may prescribe required qualifications and the preference for appointment of candidate who is best suited to his requirements---Court cannot set down the guidelines or conditions of eligibility or fitness for appointment or promotion to any particular post---In no case can the Court, in the garb of judicial review, seize the chair of the appointing authority to decide what is best for the employer and impose conditions in internal recruitment matters, unless there is a grave violation of applicable law, rules and regulations---In the private sectors, the employer is free to decide the criteria of appointment and promotions and other terms and conditions of employment and for this purpose, may set down its business strategy, H.R. policies, and progression plans---Whereas for the appointment, transfer and promotion in the civil service, the Appointment, Promotion and Transfer Rules framed by the Federal Government and Provincial Governments separately under their Civil Servants Acts prevail and are followed, and in case of statutory bodies, appointments and promotions are made in accordance with their statutory requirements, rules and regulations; but in all such circumstances, it is within the domain of the competent authority to prescribe required qualification and experience in the recruitment and promotion process---Courts cannot force to accept or interchange any other qualification equivalent to the specific post with specific qualification advertised for inviting applications for recruitment or setting benchmark for promotion of employees to any particular post or grade on attaining any particular length of service.

Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad PLD 1995 SC 701 and Maula Bux Shaikh and others v. Chief Minister Sindh and others 2018 SCMR 2098 ref.

For the Appellants:

Waseem-ud-Din Khattak, Advocate Supreme Court (in C.A. No. 1471 of 2013).

Rashdeen Nawaz Qasoori, Addl.AGP (in C.A. No. 53 of

2014).

Abdul Razzaq Raja, Advocate Supreme Court (in C.As. Nos. 187 and 188 of 2018).

Hafiz Hafiz ur Rehman, Advocate Supreme Court (in C.As. Nos. 189 and 190 of 2018).

Muhammad Akram Shaikh, Senior Advocate Supreme Court (in C.A. No. 191 of 2018).

For the Applicants:

Farooq Malik, Advocate Supreme Court (in C.M.A. No. 5008 of 2014).

For the Federation:

Rashdeen Nawaz Qasoori, Addl.AGP

For FPSC:

Haroon Rasheed, Dy. Dir. FPSC

For Respondent No. 1:

Aftab Alam Yasir, Advocate Supreme Court (in C.As. Nos. 187 and 189 of 2018).

For Respondents Nos. 1-2:

Dr. Khalid Ranjha, Senior Advocate Supreme Court (in C.As. Nos. 188, 190 and 191 of 2018).

For Respondents Nos. 5-9:

Abdul Razzaq Raja, Advocate Supreme Court (in C.A. No. 189 of 2018 and for Respondents Nos. 7-10 in C.A. Nos. 190 of 2018 and for Respondent No. 5 (in C.A. No. 191 of 2018).

2024 S C M R 978

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

Civil Misc. Application No. 6336 of 2023

(For restoration of CRP which was dismissed for non-prosecution on 27.04.2023 by this Court)

In

Civil Review Petition No. 272 of 2022

(For review of the order dated 25.05.2022 passed by this Court in C.P. No. 2627 of 2019)

MUHAMMAD MUMTAZ KHAN (deceased) through L.Rs. and others---Applicants

Versus

Mst. SIRAJ BIBI (deceased) through L.Rs. and others---Respondents

Civil Misc. Application No. 6336 of 2023 in Civil Review Petition No. 272 of 2022, decided on 3rd November, 2023.

Contract Act (IX of 1872)---

----S. 215---Specific Relief Act (I of 1877), Ss. 39 & 42---Land Revenue Act (XVII of 1967), S. 42---Constitution of Pakistan, Arts. 24(1) & 188---Review petition---Suit for declaration and cancellation of sale mutations---Attorney misusing the power-of-attorney to sell land---Depriving a female/woman of her immoveable property---Extra care to be exercised by Courts---Power-of-attorney was executed in favour of "F" (attorney) by his sister (predecessor of the respondents) which was used by "F" to purportedly sell 109 kanals of land to his four sons---Power-of-attorney did not specifically authorize the sale of the land in favour of the attorney or his sons, and "F" had misused it---Sister repudiated the sale transactions and filed a suit for declaration and cancellation---Suit was decreed and the decision of the Trial Court was upheld throughout---Validity---Conduct of the attorney, "F", and his four sons, the purported buyers, was deplorable and reprehensible as a sister and aunt was illegally deprived of her land---Often vulnerable members of society are exploited and deprived of their properties by such dubious methods, and then they spend a lifetime to regain what is rightfully theirs---Sister was entangled in a web of perpetual litigation, and, even though all the decisions were in her favour, she remained deprived of the land and its produce throughout her lifetime---"F" and his sons violated Article 24(1) of the Constitution, which guarantees that no person shall be deprived of his property save in accordance with law---Purported sale/transfer of the subject land was effected in derogation of section 42 of the Land Revenue Act, 1967, and of the judgments of the Supreme Court which stipulate that extra care must be exercised with regard to the property of women---Revenue officers/officials were either complicit in recording the illegal mutations or were incompetent---Review petition was dismissed with the directions that the petitioners shall immediately hand over the possession of the subject land to the respondents (legal heirs of the sister), and if they do not do so the concerned revenue authorities should immediately dispossess the petitioners therefrom, and that on account of the petitioners' most unreasonable conduct they shall pay to the respondents one million rupees as costs, and till payment is made such amount shall constitute a charge on the landholding of the petitioners.

Muhammad Rafiq v. Mst. Ghulam Zoharan Mai 2023 SCMR 988; Tahsinullah v. Mst. Parveen 2022 SCMR 346; Mst. Parveen LRs v. Muhammad Pervaiz 2022 SCMR 64; Ghulam Qasim v. Mst. Razia Begum PLD 2021 SC 812; Atta Muhammad v. Mst. Munir Sultan 2021 SCMR 73; Farhan Aslam v. Mst. Nuzba Shaheen 2021 SCMR 179; Mirza Abid Baig v Zahid Sabir 2020 SCMR 601 and Muhammad Naeem Khan v Muqadas Khan PLD 2022 SC 99 ref.

Malik Saleem Iqbal Awan, Advocate Supreme Court along with Ghulam Sajjad Khan, P. No. 9(b) for Applicants.

Nemo for Respondents.

2024 S C M R 982

[Supreme Court of Pakistan]

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

NATIONAL BANK OF PAKISTAN through President and another---Petitioners

Versus

MUHAMMAD ADEEL and others---Respondents

C.P.L.A. No. 1800-L of 2018 and C.P.L.A. No. 1364 of 2023, decided on 13th March, 2024.

(Against the judgment of Lahore High Court, Lahore dated 06.06.2018, passed in I. C.A. No. 179944 of 2018 and order dated 06.02.2023 passed in I.C.A. No. 17830 of 2021).

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3(2), proviso---Intra Court Appeal (ICA)---Maintainability---Test to determine whether remedy of ICA is available---Main test to determine whether an ICA is available under the proviso to Section 3(2) of the Law Reforms Ordinance, 1972 ('the Ordinance') is to see whether the proceedings, in which the original order has been passed, provide for an appeal, revision or review (collectively referred to as "appeal," for convenience) to any Court, Tribunal or authority against the original order---Applying this test what needs to be seen and verified is whether the proceedings provided for an appeal against the original order and not whether parties to the proceedings enjoyed the right to appeal against the original order---Proviso under Section 3(2) of the Ordinance is proceedings specific and not parties specific---So it matters less if one of the parties to the proceedings is not entitled to right of appeal against the original order passed in the said proceedings.

Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 ref.

(b) National Bank of Pakistan (Staff) Service Rules, 1973---

----R. 40---Law Reforms Ordinance (XII of 1972), S. 3(2), proviso---Intra Court Appeal (ICA) filed by the bank---Maintainability---In the instant case, the proceedings under the National Bank of Pakistan (Staff) Service Rules, 1973, provide for an appeal under Rule 40 against the original order---This is sufficient to disentitle the parties to maintain an intra-court appeal, irrespective of the fact that one or more of the parties to the proceedings did not have a right of appeal against original order---Therefore, ICA is not maintainable in the present case---Petition was dismissed and leave was declined.

National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Ltd. PLD 2015 Lah. 661 disapproved.

Umer Abdullah, Advocate Supreme Court (in C.P. 1800-L of 2018) and Junaid Jabbar Khan, Advocate Supreme Court (in C.P. No. 1364 of 2023) for Petitioners.

Umer Abdullah, Advocate Supreme Court (in C.P. No. 1364 of 2023) and Junaid Jabbar Khan, Advocate Supreme Court (in C.P. No. 1800-L of 2018) for Respondents.

2024 S C M R 985

[Supreme Court of Pakistan]

Present: Munib Akhtar and Syed Hasan Azhar Rizvi, JJ

MUNAWAR ALAM KHAN---Petitioner

Versus

QURBAN ALI MALLANO and others---Respondents

Criminal Petition No.31-K of 2022, decided on 8th April, 2024.

(Against the order dated 14.02.2022, passed by the High Court of Sindh, Bench at Sukkur in Criminal Miscellaneous Application No.S-644 of 2020).

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

----Ss. 22-A & 22-B---Misuse of provisions of sections 22-A & 22-B, Cr.P.C.---It is the prime duty of the Court that such misuse be taken care of and an application filed under 22-A & 22-B, Cr.P.C. should not be lightly entertained and decided in a mechanical manner for issuing direction to the police to lodge an FIR, conduct investigation in the matter and prosecute the accused.

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

----Ss. 22-A & 22-B---Application filed under sections 22-A & 22-B, Cr.P.C---Mala fide of applicant---In the present case both the parties to the lis belonged to the legal fraternity and were contesting bar elections on yearly basis against each other---Animosity amongst them was an admitted fact---In earlier elections both the groups had resorted to a brawl---Allegation levelled against the respondent (accused) was that on his instigation the co-accused had committed the offence---Before the High Court, counsel for the petitioner (applicant) admitted that the respondent (accused) was not present when the occurrence took place---Even otherwise from the comments filed by medical officer before the trial Court, it had been found that he had provided treatment to the petitioner but no medical certificate was issued in this regard on the ground that the petitioner had failed to furnish the police letter---Common culture prevailing within our society and often chosen by the legal fraternity is to settle disputes by converting them into criminal prosecution against each other which, was (also) apparent on the record of the present case owing to cases running in Court inter se the parties---After having received kicks and fists blows at the hands of the accused and co-accused persons, the petitioner had remained successful in seeking a direction for lodging an FIR from the trial Court, whereas another FIR was also lodged against the petitioner in a similar context by some Advocates of accused/respondents' group---Trial Court had taken into consideration all material aspects of the matter and rightly dismissed the application under sections 22-A(6)(1) & 22-B, Cr.P.C. on the ground that the same was tainted with mala fide, which order was upheld by the High Court through the impugned order---Petition was dismissed and leave to appeal was declined.

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

Petitioner in person.

Nemo for Respondents.

2024 S C M R 997

[Supreme Court of Pakistan]

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

ZULFIQAR ALI BHATTI---Appellant

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Civil Appeal No. 142 of 2019

(Against the order (notification) dated 18.01.2019, of the Election Commission of Pakistan).

Civil Petition No. 1369 of 2019

(Against the order of the Islamabad High Court, dated 15.02.2019, passed in W.P. No. 312/2019).

Civil Appeal No. 142 of 2019 and Civil Petition No. 1369 of 2019, decided on 2nd November, 2022.

(a) Constitution of Pakistan---

----Arts. 218 & 225---Expressions "election" and "conduct the election" as used in Articles 218 & 225 of the Constitution---Meaning---Both expressions have been used in Articles 218 & 225 of the Constitution in a wide sense to connote the entire election process consisting of several steps starting with the issuance of the election programme and culminating with the declaration of the returned candidate, which includes filing of the nomination papers, scrutiny of the nomination papers, withdrawal of the candidates, holding the poll, counting of the votes, consolidation of the result and declaration of the returned candidates, etc.---In this wide sense, the process of conducting the election starts with the issuance of the election programme and stands completed on the publication of the names of the returned candidates in the official gazette.

Election Commission v. Javaid Hashmi PLD 1989 SC 396 ref.

(b) Constitution of Pakistan---

---Arts. 4,17(2), 218(3) & 222(d)---Elections Act (XXXIII of 2017), S. 8(c)---Election Commission---Powers and duties as to conducting elections---Law enacted by Parliament to regulate duties and power of the Election Commission---Scope---Under Article 218(3) of the Constitution the Election Commission does not have such general and inherent power which is absolute or superior to the law enacted by the Parliament---General power under Article 218(3) of the Constitution and section 8(c) of the Elections Act, 2017 can be exercised by the Election Commission within two parameters: (i) during the election process, which starts with the issuance of the election programme and culminates with the publication of the name of thereturned candidates in the official gazette, and (ii) when there is no express provision in the law enacted by the Parliament to deal with the matter or issue that arises during the performance of constitutional duty of conducting the elections honestly, justly, fairly and in accordance with law---Scope of the general powers of the Election Commission under Article 218(3) of the Constitution and section 8(c) of the Elections Act, 2017 stated.

Reading of clause (d) of Article 222 of the Constitution makes it clear that the Parliament can enact a law that regulates the conduct of elections and such law would consequentially also regulate the constitutional duty and power of the Election Commission to conduct the election. However, Parliament cannot, by enacting a law, confer any of the duties and functions of the Election Commission entrusted to it under Part VIII of the Constitution to any other executive or judicial authority or office, either entirely or partly.

Province of Sindh v. M.Q.M. PLD 2014 SC 531 and Election Commission v. Province of Punjab PLD 2014 SC 668 ref.

So far as the general power of the Election Commission under Article 218(3) is concerned, the expression "and in accordance with law" used in that very Article clearly suggests that it is to be exercised to ensure that the election is conducted in accordance with the law enacted by the Parliament, and not in suppression thereof. The Election Commission, thus, cannot exercise its general power in a manner that would make the conduct of election otherwise than in accordance with the law enacted by the Parliament, that is, in violation or breach of such law. Therefore, a law enacted by the Parliament that regulates the conduct of elections and consequentially the constitutional duty and power of the Election Commission to conduct the election, is not hit by the provisions of the latter part of Article 222 of the Constitution; as the requirement for the Election Commission to conduct the election "in accordance with law" while performing its constitutional duty has been prescribed by the Constitution itself, not by a law enacted by the Parliament.

However, where the law enacted by the Parliament does not cover an unforeseen matter or issue that may arise during the election process, the Election Commission is to exercise its general power under Article 218(3) of the Constitution, in the same manner as all other discretionary powers are exercised, that is, fairly, reasonably and judiciously in accordance with the principles of equity, justice and good conscience. While exercising its general power in such a situation, the Election Commission must remember the fundamental principle that the general, plenary and inherent powers are exercised to supplement, not supplant or supersede, the law. Such powers cannot be exercised to defeat the express provisions of law but are invoked only when there is no specific provision of law on the matter or issue that needs to be dealt with.

Messrs Conforce v. Syed Ali PLD 1977 SC 599; Roazi Khan v. Nasir 1997 SCMR 1849 and Muhammad Sadiq v. Bashiran PLD 2000 SC 820 ref.

Accepting the contention that the Election Commission has such general and inherent power under Article 218(3) of the Constitution which is absolute or superior to the law enacted by the Parliament, would be tantamount to going against the constitutional mandate of the rule of law ensured under Article 4 of the Constitution. In the matter of elections, the right of the citizens to vote and contest elections cannot be entirely left to be dealt with at the discretion of the Election Commission under its general and inherent power by construing such power to be above the law enacted by the Parliament.

Province of Sindh v. M.Q.M. PLD 2014 SC 531 and Javed Jabbar v. Federation of Pakistan PLD 2003 SC 955 ref.

Thus, on the question of the status of the general power of the Election Commission under Article 218(3) of the Constitution vis-à-vis a law enacted by the Parliament, it is safe to conclude that this power operates in the area uncovered by such law. Alike is the scope and applicability of the powers of the Election Commission under Section 8(c) of the Elections Act, 2017 which is also evident from the opening words of Section 8, "Save as otherwise provided". These words indicate that if something otherwise is provided in the Elections Act, then this Section will not apply. Further, the amplitude of the power of the Election Commission under Section 8(c), like its general power under Article 218(3) of the Constitution, is extended to the performance of its executive duty to "conduct the election" and thus it can be exercised only at any stage of the election process, not after the completion thereof. In other words, one can say, the general power under Article 218(3) of the Constitution and Section 8(c) of the Elections Act can be exercised by the Election Commission within two parameters: (i) during the election process, which starts with the issuance of the election programme and culminates with the publication of the name of thereturned candidates in the official gazette, and (ii) when there is no express provision in the law enacted by the Parliament to deal with the matter or issue that arises during the performance of constitutional duty of conducting the elections honestly, justly, fairly and in accordance with law.

Mohinder Singh v. Chief Election Commissioner AIR 1978 SC 851; A.C. Jose v. Sivan Pillai AIR 1984 SC 921; Kanhiya Lal v. R.K. Trivedi AIR 1986 SC 111; Special Reference No.1 of 2002 AIR 2003 SC 87; Bartha Ram v. Lala Mehar 1995 SCMR 684 and Muhammad Salman v. Naveed Anjum 2021 SCMR 1675 ref.

(c) Constitution of Pakistan---

----Arts. 4 & 187(1)---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---No person, authority, tribunal or court exercising executive or judicial powers can take any action against any person in contravention of the law---Said principle equally applies to the Supreme Court in exercising its general and inherent power under Article 187(1) of the Constitution---Under Article 187(1), the Court can issue any direction, order or decree to do complete justice between the parties in any case or matter pending before it, but cannot pass an order in contravention of any of the fundamental rights or any constitutional provision or any relevant statutory law.

Dossani Travels v. Travels Shop PLD 2014 SC 1 and Prem Chand v. Excise Commissioner AIR 1963 SC 996 ref.

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

----Ss. 8(c), 9(1) & 88---Constitution of Pakistan, Art. 218(3)---Election Commission, powers of---Tampering with the election record---Order for re-poll at certain polling stations after the consolidation of the final result of the poll by the Returning Officer---Legality---Whether the Election Commission of Pakistan (ECP) has the power to order a re-poll in one or more polling stations or in the whole constituency, under Article 218(3) of the Constitution read with section 8(c) or section 9(1) of the Elections Act 2017, on the ground of tampering made with the election record (polling bags, ballot papers, etc.) after the consolidation of the final result of the poll by the Returning Officer under Section 95 and the publication of the name of the returned candidate in the official gazette under section 98 of the Elections Act, 2017.

Election Commission made an order ("impugned order"), under Article 218(3) of the Constitution read with Section 8(c) of the Elections Act, 2017('Elections Act') to hold a re-poll in the 20 polling stations of which record had been tampered with. The Election Commission passed the impugned order after the consolidation of the final result of the poll by the Returning Officer under Section 95 of the Elections Act and the publication of the name of the appellant as a returned candidate in the official gazette under Section 98 of the Elections Act, when the election process has been completed. But as the notification of the appellant as a returned candidate had been issued under the interim order of the Supreme Court, the same could not have concluded the election process to create a bar on the exercise of its general power by the Election Commission under Article 218(3) of the Constitution read with Section 8(c) of the Elections Act. The objection that the Election Commission exercised its power in the present case after the completion of the election process is, therefore, not sustainable.

The matter of directing a re-poll or a fresh poll by the Election Commission in the process of conducting the election has expressly been dealt with in the Elections Act. There are three provisions in the Elections Act that deal with this matter in relation to the duty and power of the Election Commission to "conduct the election", which are Sections 9, 88 and 121 of the Elections Act. As the matter of directing a re-poll by the Election Commission in the process of conducting the election has expressly been dealt with in the Elections Act, the Election Commission was not justified to invoke and exercise its general power under Article 218(3) read with Section 8(c) of the Elections Act in the present matter.

A reading of Section 88 of the Elections Act shows that the tampering with the ballot box referred to therein relates to the polling day, not thereafter. Secondly, the power of the Election Commission to direct a fresh poll at the relevant polling station is not to be exercised if the Election Commission is satisfied that the result of the election has been determined by the polling that has already taken place at that polling station (before stopping the poll by the Presiding Officer), along with the result of the polling at other polling stations in the same constituency. In the present case, as per the report of the Returning Officer as well as the report of the Inquiry Committee constituted by the Election Commission, the tampering with the election record had taken place not on the polling day, rather it was made after the consolidation of the final result of the poll by the Returning Officer under Section 95 of the Elections Act. The impugned order passed by the Election Commission can, therefore, not sustain within the scope of the provisions of Section 88 of the Elections Act.

In the present case, as the illegality of tampering with the election record had been committed after the consolidation of the final result of the poll by the Returning Officer under Section 95 of the Elections Act, the Election Commission could not have invoked and exercised its power under Section 9(1) of the Elections Act; for such illegality had not affected the result of the poll already consolidated by the Returning Officer under Section 95 of the Elections Act. Further, the fact that who, the appellant or the respondent, was responsible for the tampering made with the election record after the consolidation of the final result of the poll, could not have been decided, nor has it been decided, by the Election Commission within the scope of summary enquiry under Section 9(1) of the Elections Act. This fact could only have been decided by the Election Tribunal in a full-fledged trial. Without deciding that fact, ordering a repoll in 20 polling stations is tantamount to punishing the appellant without determining his fault, and awarding the suspected culprit, if he were the respondent. In such an uncertain situation, the Election Commission should not have vitiated the official acts of the election officials, which were the counting of votes and the consolidation of the final result of the poll, as they had a presumption of regular performance as per Article 129(e) of the Qanun-e-Shahadat 1984. The impugned order is, therefore, not sustainable under Section 9(1) of the Elections Act. The re-poll held in pursuance of the impugned order and the subsequent notification of the respondent as a returned candidate are quashed. The respondent shall be de-notified, while the appellant re-notified, as a returned candidate. Appeal is allowed.

Behram Khan v. Abdul Hameed PLD 1990 SC 352; Ejaz Shafi v. Ashraf Shah 1996 SCMR 605 and Jam Madad Ali v. Asghar Ali Junejo 2016 SCMR 251 ref.

(e) Administration of justice---

----Wrong or inapplicable provision of law mentioned by the Court---Effect---Mentioning of a wrong or inapplicable provision of law or non-mentioning of the applicable provision of law while exercising a jurisdiction or a power which is otherwise vested in a court, tribunal or authority, does not by itself have 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.

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

----Ss.9(1), 139, 142 & 154(1)(b)(i)---Power of the Election Commission to declare a poll void---Scope of section 9 of the Elections Act, 2017 stated.

The opening expression used in Section 9(1) of the Elections Act, 2017 ('the Elections Act'), "Notwithstanding anything contained in this Act", shows that the jurisdiction of the Election Commission under this Section has an overriding effect against any other provision of the Elections Act. Thus, the Election Commission is competent to exercise its jurisdiction under this Section, notwithstanding the availability of the remedy of the election petition under Section 139 read with Section 142 and the jurisdiction of the Election Tribunal to grant the same relief under Section 154(1)(b)(i) of the Elections Act. To the extent of the grounds specified in Section 9(1) upon which the Election Commission can exercise its power to order a re-poll, the jurisdiction of the Election Commission and the Election Tribunal is, therefore, concurrent. The Election Commission can exercise its jurisdiction under Section 9(1) of the Elections Act, to order a re-poll if:

i. There have been grave illegalities or violations of the provisions of the Elections Act or the Rules made thereunder;

ii. Such illegalities or violations are evident from facts apparent on the face of the record; and

iii. Such illegalities or violations have materially affected the result of the poll at one or more polling stations or in the whole constituency.

Aftab Mirani v. Muhammad Ibrahim PLD 2008 SC 779 ref.

Although the ground of grave illegalities or violations of the provisions of the Elections Act or the Rules made thereunder in the election process is common for the exercise of their respective jurisdictions by the Election Commission and the Election Tribunal, the difference lies in the nature of proof of those illegalities and violations, and in the scope of enquiry. The words "from facts apparent on the face of the record" used in Section 9(1) restrict the jurisdiction of the Election Commission to such grave illegalities or violations of the Elections Act or the Rules which are evident "from the facts apparent on the face of the record". The Election Commission can, therefore, exercise its jurisdiction under Section 9(1) only when the allegation or issue of grave illegalities or violations of the Elections Act does not require a full-fledged trial and recording of pro and contra evidence of the contesting parties, which can only be undertaken by the Election Tribunal.

Salahuddin Tirmizi v. Election Commission PLD 2008 SC 735 ref.

Khurshid Kasuri v. Returning Officer 1994 CLC 296 approved.

Although the Election Commission has the power, under Section 9(1) of the Elections Act, to conduct such enquiry as it may deem necessary for its satisfaction about the alleged grave illegalities or violations, in addition to the "facts apparent on the face of the record", but before initiating such inquiry by the Election Commission the facts apparent on the face of the record must prima facie indicate the commission of some grave illegality or violation of the Elections Act or the Rules made thereunder, during the election process. The Election Commission cannot initiate a roving enquiry to search for some illegalities or violations, on bald and vague allegations unsupported by prima facie proof, in the exercise of its jurisdiction under Section 9(1) of the Elections Act.

Further, the enquiry which the Election Commission can conduct under Section 9 can only be of a summary nature, notwithstanding the omission of the word "summary" in Section 9(1), as the Election Commission can make an order for re-poll under this Section before the expiration of sixty days after publication of the name of the returned candidate under Section 98 of the Elections Act, not thereafter. Where the Election Commission does not finally dispose of a case initiated under Section 9(1) within the said period, the proceedings stand abated and the election of the returned candidate is deemed to have become final, subject to the decision of the Election Tribunal on the election petition, if any, as per section 9(3) of the Elections Act. Moreover, as the dismissal of a petition or the abatement of proceedings of a case under Section 9 by the Election Commission does not bar the reagitation before and trial by the Election Tribunal, of the same grounds of grave illegalities or violations of the Elections Act or the Rules made thereunder, the legislature cannot be presumed to have intended two full-fledged trials of the same issue before both forums: the Election Commission and the Election Tribunal. Therefore, the enquiry to be conducted by the Election Commission under Section 9(1) can only be of a summary nature, notwithstanding the omission of the word "summary" in this Section.

Aftab Mirani v. Muhammad Ibrahim PLD 2008 SC 779 ref.

The second restriction on the exercise of power under Section 9(1) by the Election Commission is that by reason of the grave illegalities or violation of the provisions of the Elections Act or the Rules, the result of the poll at one or more polling stations or in the whole constituency must have been materially affected. Any illegality or violation which does not relate to holding and conducting the poll in the election process, and has thus not affected the result of the poll, cannot form the basis for invoking and exercising the power under Section 9(1) by the Election Commission. The grave illegalities or violations must be such that have materially affected the result of the poll. Although such illegalities or violations may have been committed at any stage of the election process, but not later than the final consolidation of the result of the poll by the Returning Officer under Section 95 of the Elections Act; as any illegality or violation committed after the consolidation of the final result by the Returning Officer cannot be said to have materially affected the result of the poll. It, therefore, does not fall within the scope of the provisions of Section 9(1) of the Elections Act and cannot be a subject of enquiry by the Election Commission to exercise jurisdiction under this Section.

Muhammad Salman v. Naveed Anjum 2021 SCMR 1675 ref.

Any fact-finding enquiry or departmental regular enquiry may be got conducted by the Election Commission, in the matter of any illegality or violation committed after the consolidation of the final result to take appropriate administrative or criminal action against the delinquent election officials, but not for an action under Section 9(1) of the Elections Act.

(g) Appeal---

----Scope---If a court, tribunal or authority not having jurisdiction wrongly assumes and exercises such a jurisdiction and makes an order without jurisdiction, an appeal lies from that order in the same manner as an appeal lies from an order with jurisdiction.

Muhammad Ashfaq v. State PLD 1973 SC 368; Sabir Shah v. Shad Muhammad PLD 1995 SC 66; MEPCO v. Muhammad Ashiq PLD 2006 SC 328 and Naseer Ahmed v. Returning Officer 2023 SCMR 179 ref.

Shahzad Shaukat, Advocate Supreme Court for Appellant.

Muhammad Arshad, DG Law for Respondent No. 1 (Election Commission).

Mian Abdul Rauf, Advocate Supreme Court and Mubeen-ud-Din Qazi, Advocate Supreme Court for Respondent No. 6 (Amir Sultan Cheema).

2024 S C M R 1021

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Ayesha A. Malik, JJ

REGIONAL POLICE OFFICER, DERA GHAZI KHAN REGION and others---Petitioners

Versus

RIAZ HUSSAIN BHUKHARI---Respondent

Civil Petition No. 469-L of 2023, decided on 14th September, 2023.

(Against the judgment dated 27.07.2022 passed by the Punjab Service Tribunal, Lahore in Appeal No.564 of 2021).

(a) Supreme Court Rules, 1980---

----O.XIII, R.1 & O.XXXIII, R.6---Government as petitioner before the Supreme Court---Time barred petition filed by the Government---Plea that administrative delays due to lengthy procedure prevented the Government from filing the petition within the limitation period---Such plea cannot be considered 'sufficient cause' or a reasonable ground in every case for condonation of delay---No preferential treatment can be accorded to Government Departments for condoning the delay.

Oftentimes cases concerning the Federal and Provincial Governments and autonomous bodies are instituted after the lapse of the period of limitation postulated by the law and the plea taken for condoning the delay is invariably and inevitably that the time was spent in fulfilling inter-departmental procedures and seeking final instructions from the competent authority. Even private sector/organizations have begun to take a similar plea, with delays being attributed to Board Resolutions, non-availability of the concerned head or officer, delay in the law department etc., despite the aforesaid entities having full-fledged legal departments and internal law officers. Seemingly, applications for condonation of delay are being filed as a routine matter while adopting a callous approach which fails to recognize that the delay cannot be condoned without the presence of sufficient cause or explaining the delay of each and every day. The mechanical and unpersuasive justification of administrative delays has almost become a trend which is consistently pleaded for condonation of delay through stereotypical and generalized applications, which in our point of view cannot be considered 'sufficient cause' or a reasonable ground in every case. On the contrary, it illustrates the recklessness and inefficiency of the concerned department in deciding whether they want to challenge the decision in the appellate jurisdiction of this Court or not. In the case of an individual, all decisions rest solely on him with regard to the procurement of advice for challenging the decision at higher forum; the decision to challenge; the engagement of an advocate; supplying the relevant documents to the advocate for the preparation of the appeal/petition and then following the case religiously; however, in the case of the Government or any of its departments, the party has at its disposal the assistance of its own legal department; the help and support of the Attorney General's Office, or the Advocate General's Office as the case may be. Therefore, immediately upon receiving a copy of the judgment/order, the Government departments may move for instructions rather than waiting for the lapse of the period of limitation provided for approaching the higher Courts. At times this cavalier attitude and approach smears and smacks mala fide and leads to the belief that the appeal is intentionally being presented belatedly only as a formality in order to provide an undue advantage to the other side, rather than due to any genuine intent to challenge the judgment or order.

Messrs SKB-KNK Joint Venture Contractors through Regional Director v. Water and Power Development Authority (WAPDA) and others 2022 SCMR 1615; Food Department, Gujranwala through Deputy Director and others v. Ghulam Farid Awan 2010 SCMR 1899; Khuda Bakhsh and others v. Muzaffar through L.Rs. and others 2007 SCMR 1032; Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractor, Sialkot 2006 SCMR 1248; Province of Punjab v. Sh. M. Riaz Shahid 2005 SCMR 1435; Province of Punjab through Secretary Education v. Kishwar Qudus Paul 2004 SCMR 571; Chief Secretary, Government of Sindh, Karachi and another v. Muhammad Rafique Siddiqui 2004 PLC (C.S.) 962; Chairman/ Secretary, Pakistan Railways, Ministry of Railways, Government of Pakistan, Islamabad and others v. Muhammad Sharif Javaid Warsi PLD 2003 SC 6 and Chairman, District Evacuee Trust, Jhelum v. Abdul Khaliq through L.Rs. and others PLD 2002 SC 436 and PLD 2003 Journal 95 ref.

While considering the grounds for condonation of delay, whether rational or irrational, no extraordinary clemency or compassion and/or preferential treatment may be accorded to the Government department, autonomous bodies or private sector/organizations, rather their case should be dealt with uniformly and in the same manner as cases of ordinary litigants and citizens. No doubt the law favours adjudication on merits, but simultaneously one should not close their eyes or oversee another aspect of great consequence, namely that the law helps the vigilant and not the indolent.

In the present case nothing has been articulated in the application moved by the petitioner (police department) for condonation of delay to ascertain where the delay was actually caused; when legal advice was received or sought; when the matter was referred to the competent authority or person in charge for the necessary instructions; who was responsible for the delay; and what punitive or disciplinary action was taken against the person who was instrumental in causing the delay. On the face of it, present petition is barred by 31 days but no plausible or satisfactory explanation has been propounded by the petitioner for the delay of each and every day; except a sweeping statement that the time was consumed in the lengthy procedure and formalities, which could have been followed and completed with due diligence within the period of limitation. Consequently the application for condonation of delay is dismissed and, as a consequence thereof, the Civil Petition is also dismissed. Supreme Court directed that Office shall transmit a copy of present judgment to the Office of the Attorney General of Pakistan, Advocates General of all the Provinces, including Islamabad Capital Territory, as well as the Federal and Provincial Law Secretaries for information and compliance.

Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724; Government of Balochistan through Secretary Board of Revenue, Balochistan Quetta and others v. Muhammad Ali and 11 others 2007 SCMR 1574; Muhammad Bashir and another v. Province of Punjab through Collector of District Gujrat and others 2003 SCMR 83 and Deputy Collector of Customs and 2 others v. Muhammad Tahir and another PLD 1989 SC 627 distinguished.

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

----S. 3---Limitation, question of---Under Section 3 of the Limitation Act, 1908 it is the inherent duty of the Court to delve into the question of limitation, regardless of whether it is raised or not.

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

----S. 5---Condonation of delay---Grounds---Carelessness, intentional or obvious sluggishness, or dearth of bona fide are no reason for condonation of delay.

Barrister Muhammad Mumtaz Ali, Addl. AG, Punjab for Petitioners.

Dil Muhammad Khan Alizai, Advocate Supreme Court for Respondent.

2024 S C M R 1037

[Supreme Court of Pakistan]

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

COMMISSIONER, RAWALPINDI/ PROVINCE OF THE PUNJAB and others---Petitioners

Versus

NASEER AHMED and others---Respondents

Civil Petitions Nos. 1441 to 1449 of 2021, decided on 11th September, 2023.

(Against the order of judgment of Lahore High Court, Rawalpindi Bench, dated 02.02.2021, passed in W.P. No.2038 of 2020 and other connected matters).

(a) Interpretation of statutes---

----Time limit for performing a certain act under a statute---When a statute is silent about limitation, a reasonable time limit is to be supplied by the Courts.

Federal Land Commission v. Habib Ahmed PLD 2011 SC 842 and Commissioner Inland Revenue v. Yasmeen Bano 2020 SCMR 1120 ref.

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

----Ss. 4, 5 & 17(1)---Land acquisition---Preliminary notification under section 4 of the Land Acquisition Act, 1894 ("Act")---Addendum or corrigendum notification to a preliminary notification under section 4 of the Act---Time limit---Where any notification is issued to amend, vary or add to the earlier (preliminary) notification issued under section 4 of the Act, the same is to be issued within a reasonable time which shall be determined according to the specific facts and circumstances of the case---Furthermore addendum or corrigendum to a notification under section 4 can only be issued before the next step in the acquisition process is undertaken i.e. before the issuance of a notification under section 5 or under section 17(4) of the Act, though fresh acquisition proceedings can be initiated by issuing a fresh notification under section 4 of the Act if some more land is needed or likely to be needed later for the same purpose.

Anwar Ali Sahto v. Federation of Pakistan 2002 PLC (C.S.) 526; Phoenix Security v. Pir Muhammad 2020 SCMR 132 and Khyber Zaman v. Governor, State Bank 2005 SCMR 235 ref.

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

----Ss. 4, 5 & 17(1)---Land acquisition---Date of notification under section 4 of the Land Acquisition Act, 1894 ("Act")---Scope---Said date will not necessarily be the date of the first notification issued under section 4 of the Act, instead, it will be whenever the complete and final land is notified---In instances where addendums or corrigenda to a notification under Section 4 are issued, the indicator of the finality of the land notified would be when, after the issuance of an addendum or corrigendum, the public functionaries move forward with the acquisition proceedings by either issuing a notification under section 5 or under section 17(4) of the Act---Therefore, the date of the last addendum or corrigendum issued in relation to the notification under section 4 of the Act before any step is taken to advance the acquisition proceedings to the next stage, is deemed to be the date of the notification under section 4 of the Act for the purposes of the acquisition proceedings under the Act---This is because the complete land under the said provision becomes finally notified through the addendum or corrigendum and, after this, the state functionaries take the next step in the acquisition proceedings.

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

----Ss. 4 & 23---Constitution of Pakistan, Arts. 23 & 24---Land acquisition---Compensating land owners---Interpretation and applicability of the provisions of the Land Acquisition Act, 1894 must be in consonance with the spirit of Articles 23 and 24 of the Constitution and the object of the Act, which require properly and adequately compensating landowners whose lands are being acquired thereunder.

Federal Government v. Mst. Zakia Begum 2023 SCP 57; Land Acquisition Collector v. Iqbal Begum PLD 2010 SC 719 and Nisar Ahmad v. Collector, Land Acquisition PLD 2005 SC 25 ref.

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

----Ss. 4 & 23---Land acquisition---Preliminary notification under Section 4 of the Land Acquisition Act, 1894 ("Act")---Addendum or corrigendum notification, issuance of---Market value of land, determination of---Where a notification under Section 4 of the Act is subsequently amended, varied or added to through an addendum or corrigendum, the date of the publication of the intial notification under Section 4 cannot be taken as the material date for the purposes of considering the market value of the land for determining compensation under Section 23(1) of the Act---Such an interpretation would not only be against the Constitutional mandate by upsetting the balance the Constitution seeks to maintain through adequately and properly compensating the owners of the land that is being acquired, it would also be against the object of the Act to that effect---Instead, in such circumstances, the date of publication of the subsequent addendum or corrigendum, finally notifying the complete land under Section 4 of the Act, must be considered to determine the market value of the land for the purposes of compensation.

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

----Ss. 4, 18 & 23---Constitution of Pakistan, Art. 199---Land acquisition---Compensation for land owners---Interference by High Court in its Constitutional jurisdiction---Scope---Interference on the matter of determination of fair compensation is not ordinarily warranted under the judicial review jurisdiction of the High Court under Article 199 of the Constitution and such matter is best decided by a civil court in its reference jurisdiction under Section 18 of the Land Acquisition Act, 1894 after recording the respective evidence of the parties---However, where the acquisition authorities under the Act have misdirected themselves on a point of law, which does not require any factual determination, the High Court must intervene to correct the legal error and set the course of law right.

Barrister Qasim Chohan, Addl. A.G. Punjab, Sh. Moeen-ud-Din, Chief Potohar, Sehar Ch., Law Officer, Irrigation, Mumtaz Watoo, XEN Small Dam and Syed Farhat Abbas, SDO for Petitioners.

Sardar Abdul Raziq Khan, Advocate Supreme Court for Respondents Nos. 1 and 2 (in C.P. No. 1441 of 2021).

Mrs. Hifza Ibrar Bukhari, Advocate Supreme Court for Respondent No.2 (in C.P. No. 1444 of 2021).

Khurram Masood, Advocate Supreme Court for Respondents (in C.P. No. 1446 of 2021).

Atiq-ur-Rehman Kayani, Advocate Supreme Court for Respondents Nos. 1-9 (in C.P. No. 1449 of 2021).

Nemo (for all other respondents)

Assisted by: Waqas Ali Mazhar, Research Officer, SCRC and Muhammad Hassan Ali, Law Clerk.

2024 S C M R 1049

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

Civil Appeals Nos. 1363 to 1365 of 2018

(Against the judgment dated 15.07.2017 of the High Court of Sindh, Karachi passed in Constitution Petitions Nos. D-2892/14, D- 1135 and D-3539 of 2016).

And

Civil Misc. Application No. 4728 of 2023

[For impleadment by Messrs Zubi International Private Limited, through its Assistant Manager, Hafiz Zahid Hassan]

In C.A. 1363 of 2018

CANTONMENT BOARD FAISAL and another---Appellants

Versus

HABIB BANK LIMITED, KARACHI and another---Respondents

And

In C.A. 1364 of 2018

CANTONMENT BOARD CLIFTON, KARACHI---Appellant

Versus

K & N FOODS (PVT.) LIMITED and others---Respondents

And

In C.A. 1365 of 2018

CANTONMENT BOARD CLIFTON, KARACHI---Appellant

Versus

Messrs VENUS PAKISTAN (PVT.) LIMITED and others---Respondents

Civil Appeals Nos. 1363 to 1365 of 2018 and Civil Misc. Application No. 4728 of 2023, decided on 13th October, 2023.

Cantonments Act (II of 1924)---

----S. 60(1) [as amended by the Cantonments (Amendment) Act (XLVII of 2023)] & Sched. VII---Cantonments (Amendment) Act (XLVII of 2023), S. 2(a)(i)---Constitution of Pakistan, Arts. 140A, 163 & Fourth Sched., Pt.1, Entry 2---Rules of Business, 1973, Second Sched., Entry 7(a)(ii)---Cantonment Boards---Professional tax---Cantonment Boards are not empowered to impose professional tax on those engaged in professions, trades, callings or employments in cantonment areas---Professional tax mentioned in Article 163 of the Constitution recovered by the Cantonment Boards is unconstitutional---Section 60(1) of the Cantonments Act, 1924 [as amended by the Cantonments (Amendment) Act, 2023] and its Schedule VII to the extent that they may authorize the imposition of the professional taxes are ultra vires the Constitution.

Section 60(1) of the Cantonments Act, 1924 dealing with general power of taxation was amended by the Cantonments (Amendment) Act, 2023, which also made additions to Schedule VII of the Cantonments Act, 1924 and included therein the professional taxes. The administrative division mentioned in section 60(1) of the Cantonments Act, 1924 is defined in section 2(a)(i) of the Cantonments (Amendment) Act, 2023, as: '"administrative division" means the division to which business of cantonments stands allocated.' The Second Schedule to the Rules of Business, 1973, stipulates that the business of cantonments stands allocated to the Defense Division. The aforesaid change meant that, previously the sanction of the Federal Government was required to be obtained for cantonment boards to impose taxes but now it has been delegated to a Division. This downgrading the power of the Federal Government does not seem to conform to democratic principles and obfuscates transparency.

Article 163 of the Constitution alone authorizes the provinces to impose the professional taxes, and the Supreme Court has already decided this very issue in the case reported as ICI Pakistan Ltd. v. Tehsil Council (PLD 2007 Supreme Court 428) ('the ICI case'). The attempt to distinguish the 'ICI case' on the ground that, after the insertion of Article 140A into the Constitution it changed the existing constitutional scheme, is not correct. Neither has Article 163 been made redundant nor has Article 140A empowered the Federation, including cantonment boards, to impose the professional taxes. It is also not correct to state that since the second entry of the Federal Legislative List mentions local self-government and cantonment areas the Federation has been authorized to impose the professional taxes. Article 163 of the Constitution specifically empowers the provinces to impose the professional taxes; it is the only provision in the Constitution which permits or authorizes this, and it must be given effect to; it cannot be disregarded or whittled down by untenable submissions.

ICI Pakistan Ltd. v. Tehsil Council PLD 2007 SC 428 fol.

Section 60(1) of the Cantonments Act, 1924 [as amended by the Cantonments (Amendment) Act, 2023] and its Schedule VII to the extent that they may authorize the imposition of the professional taxes are ultra vires the Constitution. The professional taxes mentioned in Article 163 of the Constitution recovered by the Cantonment Boards is unconstitutional, consequently, they cannot be retrained, which should be refunded and would have to be refunded. Appeals were dismissed with costs throughout.

Pfizer Laboratories Ltd. v. Federation of Pakistan PLD 1998 SC 64 ref.

For the Appellants:

(In all cases)

Muhammad Umer Riaz, Advocate Supreme Court.

Assisted by Ch. Abubakar.

Zaki Haider, CEO, Clifton.

Aamir Rashid, CEO, Faisal.

Tanveer Ashraf, Director, ML & C. and Javed Abbasi, Law Officer, ML & C.

(Through video-link from Karachi)

For the Applicant:

M. Naeem Sadiq, Advocate Supreme Court (in C.M.A. No. 4728 of 2023).

On Court's Notice:

Mansoor Usman Awan, Attorney-General for Pakistan and Ch. Aamir Rehman, Additional Attorney-General.

Respondents Nos. 1-2:

Ex-parte (in C.A. No. 1363 of 2018).

For Respondent No. 1:

Tahir Ishaq Mughal, Advocate Supreme Court and Mrs. Shaista Altaf, Advocate Supreme Court (in C.A. No. 1364 of 2018).

For Govt. of Sindh:

Zeeshan Adhi, Additional Advocate-General, Sindh.

Saifullah, Asst. Advocate-General, Sindh.

Ghulam Nabi Shah, Addl. Director Excise and Taxation.

Ayaz Ali Mangi, Dy. Director (P-II).

(Through video-link from Karachi) (in C.As. Nos. 1364 and 1365 of 2018)

Respondents Nos. 2, 3 and 5:

Ex-parte (in C.A. No. 1364 of 2018).

Respondents Nos. 1 and 3:

Ex-parte (in C.A. 1365 of 2018).

2024 S C M R 1059

[Supreme Court of Pakistan]

Present: Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

Kh. MUHAMMAD FAZIL---Petitioner

Versus

MUMTAZ MUNNAWAR KHAN NIAZI (deceased) through L.Rs. and another---Respondents

Civil Petition No. 2351 of 2019, decided on 10th November, 2023.

(Against the judgment dated 10.04.2019, passed by the Lahore High Court, Multan Bench in W.P. No. 6785 of 2011).

(a) Court-fees Act (VII of 1870)---

----S. 7(iv)(c)---Civil Procedure Code (V of 1908), Ss. 148 & 149 & O.VII, R.11---Court fee---Deficiency in payment---Rejection of plaint---Direction of Trial Court to make good court fee deficiency by next date of hearing---Non-compliance by plaintiff---By it order dated 27.04.2010 ('the Order') Trial Court allowed the plaintiff time to make the court fee deficiency good with the rider that, in case of non-payment of court fee by the next date of hearing, the plaint would be deemed as rejected---On the next date of hearing i.e. 13.05.2010, without any request from the plaintiff the Trial Court granted the plaintiff a last opportunity to deposit the court fee---Revisional Court, as well as the High Court, both concurrently held that the Order granting time for making good the deficiency was a conditional order and, since the order was not complied with, the plaint was deemed to have been rejected automatically and thereafter the Trial Court could not extend the time and had become functus officio---Legality---On 27.04.2010, time was allowed under Section 149, C.P.C. by the Trial Court to pay the court fee by 13.05.2010, failing which the plaint shall be deemed to have been rejected, however on 13.05.2010, although the court fee stood unpaid, the Trial Court extended the time for payment of court fee without even fixing any time frame in the extension order, and that too without any oral or written request showing any plausible or sufficient cause by the plaintiff/petitioner for not complying with the Order within the stipulated timeframe---Trial Court, without considering the sanctity of its previous order in which the non-compliance of the order impacted an automatic rejection of the plaint and without enquiring or questioning the reasons for non-compliance, extended the time in a slipshod manner on its own motion without realizing the repercussions and consequences of its earlier Order---By passing a conditional order, the Trial Court had not only surrendered and abandoned its jurisdiction of enlargement of time under Section 148, C.P.C., but also closed the doors for the plaintiff in the event of non-compliance of the Order---Supreme Court deprecated practice and tendency of passing such conditional orders and directed that if any act is not complied within the time stipulated in the C.P.C. or time granted by the Court, the most appropriate legal action or step would be for the Court to take up the matter at the end of the expiry period and pass an appropriate order for non-compliance and if the party at default applies for the enlargement of time to comply with the direction(s) due to some sufficient cause(s) including force majeure circumstances which prevented compliance within time, then of course on such request the Court may further extend or enlarge time for compliance---Trial Court had passed the Order for enlargement of time with a perfunctory approach which was unjustified and unwarranted, hence the Revisional Court rightly set aside the Order and the High Court rightly maintained the same---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Wahid and another v. Nasrullah and another 2016 SCMR 179 and Shujat Ali v. Muhammad Riasat and others PLD 2006 SC 140 ref.

(b) Court-fees Act (VII of 1870)---

----Ss. 4 & 6---Civil Procedure Code (V of 1908), S. 149---Court fees---Power to make up deficiency of court-fees---Discretion of Court---Scope---Section 149, C.P.C. is an exception to the command delineated under Sections 4 and 6 of the Court Fees Act, 1870 ("Court Fees Act")---Exercise of discretion by the Court at any stage is, as a general rule, expected to be exercised in favour of the litigant on presenting plausible reasons which may include bona fide mistake in the calculation of the court fee; unavailability of the court fee stamps; or any other good cause or circumstances beyond control, for allowing time to make up the deficiency of court fee stamps on a case to case basis, and the said discretion can only be exercised where the Court is satisfied that sufficient grounds are made out for non-payment of the court fee in the first instance.

(c) Words and phrases---

----Maxim "Functus officio"---Meaning and scope---"Functus officio" denotes that once the competent authority has finalized and accomplished the task for which it was appointed or engaged, its jurisdiction and authority is over and ended or, alternatively, the jurisdiction of the competent authority is culminated once it has finalized and accomplished its task for which it was engaged---If the Court passes a valid order after providing an opportunity of hearing, it cannot reopen the case and its authority comes to an end and such orders cannot be altered save for where corrections need to be made due to some clerical or arithmetical error---Doctrine of functus officio is applicable to both judicial and quasi-judicial authorities, and, if it is not adhered to, it may result in turmoil for the litigating parties---If the authorities or the judges would be able to alter, change or modify orders capriciously and variably then resultantly it will leave no certainty and firmness to any order or decision passed by any Court or authority---It is imperative for a sound judicial system to result in finality and certitude to the legal proceedings.

Black's Law Dictionary, (Tenth Edition, Page 787); While P. Ramanatha Aiyar's Advanced Law Lexicon, (Third Edition, Page 1946); Wharton's Law Lexicon, (Fifteenth Edition, Page 720) and Corpus Juris Secundum, (Volume 37, Page 1401) ref.

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

----S. 148---Enlargement of time---Court, discretion of---Scope---No doubt the time allowed for doing a thing can be enlarged by the Court under Section 148, C.P.C., in its discretion from time to time, even though the period originally fixed or granted may have expired, but this discretion cannot be exercised arbitrarily, capriciously or whimsically, rather such discretion must be exercised and structured in a reasonable and judicious manner.

(e) Jurisdiction---

----Neither the Court should assume or take on the jurisdiction not vested in it by law, nor the Court should abdicate or renounce a jurisdiction so vested in it by law.

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

----Preamble---Civil Procedure Code, 1908 ("C.P.C.") is a consolidatory law which is primarily procedural in nature and may be defined as a branch of law administering the process of litigation---Sections and Rules framed in the C.P.C. are aimed at the advancement of justice as a body of general law---Any construction which renders the statute or any of its sections or components redundant should be avoided and must be so construed so as to make it effective and operative.

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

----O.VII, R. 13---Court-fees Act (VII of 1870), Ss. 4 & 6---Rejection of plaint due to non-payment of court fees---Fresh plaint, presentation of---Permissibility---Under Order VII, Rule 13, C.P.C., the rejection of a plaint on any of the grounds mentioned in Order VII shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action---Meaning thereby that, where the plaint is rejected due to non-payment of court fee and not for any other cause such as limitation, a pathway is open to the plaintiff to invoke the remedy provided under Order VII, Rule 13, C.P.C. by presenting fresh plaint within the prescribed period of limitation rather than wasting time or contesting the matter up to the Supreme Court.

Abdul Hamid and another v. Dilawar Hussain alias Bhalli and others 2007 SCMR 945; Muhammad Ali and others v. Province of Punjab and others 2009 SCMR 1079 and Mian Khan v. Aurang Zeb and 12 others 1989 SCMR 58 ref.

Mahmood Ashraf Khan, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Petitioner.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents, Not represented Respondent No. 2.

2024 S C M R 1071

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Sayyed Mazahar Ali Akbar Naqvi and

Syed Hasan Azhar Rizvi, JJ

MUHAMMAD ATIF---Petitioner

Versus

The STATE and another---Respondents

Crl.P. No. 298 of 2023, decided on 31st October, 2023.

(Against the order of Lahore High Court, Lahore, dated 16.03.2023, passed in Crl. Misc. No.3167-B of 2023).

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

----S. 497---Constitution of Pakistan, Articles 4, 9, 10A, 25 & 185(3)---Bail---Rule of consistency---Benchmark for applying the rule of consistency in granting bail to an accused stated.

The rule of consistency applied in bail matters is premised on the fundamental right to equality before the law guaranteed under Article 25 of the Constitution of Pakistan. This right to equality before the law ensures that persons similarly placed in similar circumstances are to be treated in the same manner. In other words, among equals the law should be equally administered; the like should be treated alike. Article 25 of the Constitution does not prohibit different treatment to persons who are not similarly placed or who are not in similar circumstances. To claim equality before the law an accused person must therefore show that he and his coaccused who has been granted bail are similarly placed in similar circumstances. In other words, he must show that the prosecution case, as a whole, against him is at par with that against his co-accused who has been granted bail, and not distinguishable in any substantial aspect. The rule of consistency is also pillared on Articles 4 and 10A of the Constitution ensuring that level playing field and fairness is maintained in adjudicating cases of co-accused. The right to liberty under Article 9 of the Constitution has to be extended fairly and without discrimination to an applicant seeking bail. The rule of consistency in bail matters is fundamental to ensuring fairness, reducing arbitrary decision-making, and maintaining public confidence in the criminal justice system. It's a key aspect of the rule of law, ensuring that all individuals are treated equally under the law.

Fida Hussain v. State PLD 2002 SC 46; Abdul Jalil v. N.W.F.P. Forest Development Corporation 2010 SCMR 1933 and Tariq Nawaz v. Government of Pakistan 2001 PLC (C.S.) 57 ref.

The rule of consistency in bail matters is attracted and applied after the grant of bail to a co-accused. Grant of bail by a court considers several factors like the contents of the FIR, the incriminating material collected by the police during investigation, the past history of the accused, etc. The grounds which form the basis for the grant of bail to a co-accused is thus the benchmark for grant of bail to the accused under the rule of consistency. The benchmark for applying the rule of consistency is not only the role attributed to the accused in the FIR but also the material collected in the investigation. Therefore, the court has to assess whether the role of the accused in the FIR, examined in the background of the material collected by the Police is the same as that of the co-accused, who has been granted bail. It is this congruence in the case of the co-accused and the accused that attracts the rule of consistency.

To decide upon the applicability of the rule of consistency for granting bail under Section 497(2), Cr.P.C., the courts have to examine the whole material available on the record of the case. Without doing so, it cannot be determined whether the accused who claims the benefit of this rule and his co-accused who has been granted bail are similarly placed in similar circumstances.

Shahid Farooq v. State 2011 SCMR 1619 ref.

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

----S. 497(1)---Constitution of Pakistan, Art. 185(3)---Bail---Offences falling within the prohibitory clause of Section 497(1), Cr.P.C.---In the offences that fall within the prohibitory clause of Section 497,(1), Cr.P.C., the post-arrest bail is granted on three grounds: (i) under the first proviso to Section 497(1), Cr.P.C., on the ground of the accused being a minor, or a woman, or a sick or infirm person; (ii) under the third proviso to Section 497(1), Cr.P.C., on the ground of delay in the conclusion of the trial beyond the period prescribed for no fault of the accused; and (iii) under Section 497(2), Cr.P.C., on the ground that there are no reasonable grounds for believing that the accused has committed the offence, but rather there are sufficient grounds for further inquiry into his guilt.

Raza Bukhari v. State PLD 2022 SC 743 ref.

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

----S. 497(1)---Constitution of Pakistan, Art. 185(3)---Bail---Whether or not there exist any "reasonable grounds" for believing that the accused has committed the alleged offence---For the determination of the question under Section 497(2), Cr.P.C., as to whether or not there exist any "reasonable grounds" for believing that the accused has committed the alleged offence, the courts have to appraise although tentatively the whole material available on the record of the case---This question cannot be determined by merely examining the contents of the FIR---Essentially, it is the tentative assessment of the evidence collected in the investigation both for and against the accused that is determinative of the said question.

Manzoor v. State PLD 1972 SC 81 and Khalid Gillani v. State PLD 1978 SC 256 ref.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Rule of consistency not applicable---Courts below have granted the post-arrest bail to the two co-accused persons under Section 497(2), Cr.P.C. after making a tentative assessment of the evidence collected in the investigation both for and against them---Tentative assessment of that evidence has led them to the finding that there are no reasonable grounds for believing that the said co-accused have committed the offence of murder of the complainant's son, but rather there are sufficient grounds for further inquiry into their guilt---Material collected in the investigation in the case of two co-accused shows that they were not present on the scene of the crime---This is not so in the case of the petitioner/accused---Therefore, material collected in the investigation against the present petitioner is different from that collected against them---Ground on which they have been granted bail is not available to the petitioner---Case against the petitioner is therefore not at par with that against those co-accused persons but rather is distinguishable in a substantial aspect---Allegation made against the petitioner of being present on the spot and having made fires on the deceased sons of the complainant by his firearm is not only supported by the statements of the eye-witnesses but also corroborated by the recovery of the weapon of offence effected from him in the investigation---There is, as such, sufficient incriminating material available on the record of the case to connect the petitioner with the commission of the alleged offence, and his case does not come within the scope of the provisions of Section 497(2), Cr.P.C., nor does the rule of consistency apply to him---High Court had righty refused post-arrest bail to the petitioner---Petition for leave to leave was dismissed, leave was refused and petitioner was refused bail.

Barrister Usman G. Rashid Cheema, Advocate Supreme Court for Petitioner.

Ch. Muhammad Sarwar Sidhu, APG, Punjab, along with Asghar Ali, Investigating Officer for the State.

Mudassar Khalid Abbasi, Advocate Supreme Court for the Complainant.

2024 S C M R 1078

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Athar Minallah, JJ

MUHAMMAD YOUSAF---Petitioner

Versus

HUMA SAEED and others---Respondents

Civil Petition No.2673 of 2022, decided on 6th April, 2023.

(Against the judgment dated 31.5.2022 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No.34 of 2017).

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

----S. 5 & Sched.---Dower (mehr), recovery of---Entry in column No.17 of the Nikahnama---Interpretation---Free consent and freedom of the bride to settle the terms of her Nikah Nama---Significance---Entitlement of divorced wife to immoveable property described in column 17 of the Nikah Nama---Form of Nikah Nama nor its headings are conclusive or sacrosanct---It is the intent of the parties which would be the determining factor---In the present case the description of the plot in column 17 of the Nikah Nama is explicit and not disputed---However, there is no condition stipulated in the column except the description of the plot---Petitioner (husband) had filed his written statement in response to the plaint and had expressly admitted the description of the property but he had taken the stance that the plot was meant for the construction of a house and the respondent (wife) was to live in it for as long as the marriage subsisted---However, a plain reading of the description of the property, as mentioned in column 17, does not indicate nor supports such a stance---If such an interpretation is accepted then the property would not form part of the dower separately mentioned in columns 13 to 16 of the Nikah Nama---Copy of the Nikah Nama showed that no condition has been stipulated in column 17 except describing the property---It is not the case of the petitioner (husband) that the columns were filled by the respondent (wife) or pursuant to meaningful consultation carried out with her before or at the time of execution of the Nikah Nama---No such evidence was brought on record---Onus was on the petitioner (husband) to establish that the property described in column No. 17 was not meant nor intended by the parties to be part of the dower---Ambiguity, if any, cannot be construed against the interests and rights of the respondent (wife) in the facts and circumstances of the present case---Moreover, accepting the stance of the petitioner (husband) would amount to reading in the Nikah Nama something not provided therein----Courts cannot construe the Nikah Nama and its entries as having the effect of applying a stipulation not expressly provided therein---High Court had correctly interpreted the columns of the Nikah Nama and declared the respondent (wife) entitled to the plot described in column 17 of the Nikah Nama---Petition was dismissed and leave was refused.

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

----S. 5 & Sched.---Dower (mehr)---Entries in columns of the Nikah Nama---Interpretation---Free consent of the bride and her freedom to settle the terms and conditions of the Nikah Nama---Significance---Courts, while interpreting the contents and terms and conditions of a Nikah Nama, also have to take into consideration the factor of free consent of the bride and her freedom to settle the terms and conditions as a person having an informed understanding of her rights---This is crucial in the context of the social and cultural norms generally prevalent in the society---If an ambiguity or doubt arises in relation to the terms and conditions of the Nikah Nama, an entry or column thereof, then the benefit ought to go in favor of the wife if there does not exist preponderance of evidence on record to establish that she had been informed of her rights, she understood each column of the Nikah Nama, and she had the freedom to negotiate and settle the terms and conditions out of free consent---In case the columns of the Nikah Nama have been filled by others without her meaningful consultation then a doubt or ambiguity cannot be interpreted against her rights or interests---It is implicit in the expression ''free consent'' that the wife, at the time of executing the Nikah Nama, had the freedom to settle the terms and conditions as an informed person competent to enter into a contract---Paternal tendencies of the society and dominance of the male members in relation to deciding the terms and conditions on behalf of the bride has generally been accepted as a cultural and social norm of the society---It places a bride in a disadvantageous position, inevitably adversely affecting her capacity to execute the contract with free consent---Weakness or creation of an ambiguity in a Nikah Nama cannot be interpreted against the interest and rights of a wife if it cannot be established that she had the freedom to settle the terms and conditions and had exercised her free will.

Haseen Ullah v. Mst. Naheed Beugm and others PLD 2022 SC 686 ref.

Khawaja Muhammad Imtiaz, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record for Petitioner.

Ms. Farhana Qamar, Advocate Supreme Court and Syed Rifaqat Hussian Shah, Advocate-on-Record for Respondent No.1.

Not represented other respondents.

2024 S C M R 1085

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

MUHAMMAD RAMZAN---Petitioner

Versus

KHIZAR HAYAT and another---Respondents

Criminal Petition No.887-L of 2013, decided on 17th April, 2024.

(Against judgment dated 04.07.2013 passed by the Lahore High Court, Lahore in Crl. Appeal No.613 of 2009 along with M.R. No. 193 of 2009).

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

----S. 302(b)---Qatl-i-amd---Re-appraisal of evidence---Petition for leave to appeal challenging acquittal of accused---Contradictions in evidence of witnesses---Interested witnesses---Presence of witnesses at place of occurrence not explained---Admittedly, the deceased was assaulted by a non-lethal weapon (sota); yet being his real brother, and sitting beside the deceased, the petitioner (complainant) sustained no injury, nor was he able to prevent the assault on the deceased---Contradictions and discrepancies in the ocular account of the eye-witnesses diluted the story of the prosecution, whose case rested on the statement of eye-witnesses, who all were closely related to the deceased---Ocular account of the prosecution's interested witnesses was uncorroborated by the available evidence---No one else was present at the place of occurrence---This creates doubt in their testimony, because both the petitioner and the other eye-witness, resided in different villages, that too, at a considerable distance and their joint arrival at the Dera of the deceased, on foot, in the early morning of the last week of December remained unexplained---Presence of these witnesses at the crime scene was highly doubtful and questionable---As to the other two eyewitnesses, they were also interested witnesses due to their close relationship with the deceased---Prosecution failed to prove the guilt of respondent beyond reasonable doubt---Petition was dismissed and leave was refused.

Nur Muhammad v. Falak Sher PLD 1976 SC 607 ref.

(b) Criminal trial---

----Interested witness, evidence of---Reliance---Testimony of an interested witness should be scrutinized with care and caution---Independent corroborating evidence is essential to test the validity and credibility of the testimonies of interested witnesses---Capital punishment cannot be given on the testimony of an interested witness uncorroborated by any independent evidence.

Ali Ahmed v. The State PLD 1962 SC 102; Dalmir v. The State 1970 SCMR 840; Muhammad Sharif v. Tahirur Rehman 1972 SCMR 144; Hazratullah v. The State 1969 PCr.LJ 138 and Nazir v. The State PLD 1962 SC 269 ref.

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

----S. 302(b)---Qatl-i-amd---Re-appraisal of evidence---Petition for leave to appeal challenging acquittal of accused---Recovery of weapon (sota)---Not consequential in absence of a forensics report---An important aspect of the prosecution's case was the recovery of the weapon (the sota). Respondent (accused) was arrested on 30.12.2007, whereas the said weapon was recovered on 01.01.2008 from his residence 6 days after the occurrence of the crime---According to the Investigating Officer (IO), the weapon was lying under a cot, and it was not stained with blood---Admittedly, the prosecution had not placed anything on the record to show whether the said weapon was sent to the forensic science laboratory for examination---Hence, no significance could be attributed to the recovery of the sota as it was not established as the murder weapon---It was the responsibility of the IO to have presented the sota for forensics to establish that the blows inflicted on the deceased were from the recovered sota, or if any blood or other evidence could have been found on the said weapon, that may have strengthened the story of prosecution---Prosecution failed to prove the guilt of respondent beyond reasonable doubt---Petition was dismissed and leave was refused.

Chamkaur Singh v. State of Punjab (20.02.2017 - PHHC): MANU/PH/0266/2017 ref.

(d) Criminal trial---

----Forensic science---Importance of forensic science in the criminal justice system stated.

Forensic deals with the application of scientific techniques to provide objective, circumstantial evidence. Forensic is a science of interest to the legal system, whose objective is to ascertain what happened in the recent past. Forensic science means nothing more than the science which is used in the courts of law for the purposes of detection and prosecution of crime. This science plays a significant role in the criminal justice system by providing data that can be used to assess the degree of guilt of a suspect. For the purposes of our criminal justice system, investigating agencies have to move towards scientific evidence to establish a crime, and proper care and caution must be taken to preserve and protect the crime scene. The tendency to rely on outdated investigative methods places a big question mark on the effectiveness of the criminal justice system. Crime scenes that are not managed well and do not rely on science will lead to poor-quality evidence and erroneous acquittal. Hence, the police force must make a concerted effort to shift its investigation techniques to include and rely on forensic science and accordingly, train specialized officers in this field.

H. J. WALLS, FORENSIC SCIENCE: AN INTRODUCTION TO SCIENTIFIC CRIME DETECTION (Sweet & Maxwell 2nd) (1974); DONALD A. WILSON, FORENSIC PROCEDURES FOR BOUNDARY AND TITLE INVESTIGATION (John Wiley & Sons, Inc.) (2008), 1-2; Mahmood Ahmed. Dr. Abdul Razzak and Imdad Khan, Implementation of Forensic Science in Pakistan's Legal Justice System: A Critical Legal Perspective: The Importance of Forensic Evidence and its Principal Function, 5 Pakistan Journal of International Affairs 3 (2022), 742-751 https://pjia.com.pk/index.php/pjia/article/view/785; Dharam Deo Yadav v. State of U.P. [(2014) 5 SCC 509] (Dharam Deo Yadav) and Ali Haider v. Jameel Hussain PLD 2021 SC 362 ref.

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

----S. 302(b)---Qatl-i-amd---Re-appraisal of evidence---Petition for leave to appeal challenging acquittal of accused---Motive for the crime not established---In relation to the motive of the crime, the impugned judgment of the High Court did not accept that respondent (accused) murdered the deceased because he suspected illicit liaison between the deceased and his wife---Record showed that respondent had already divorced his wife some two years ago---Prosecution had not established the motive given that there was no explanation of the delay---If the respondent did have motive to kill the deceased, then why didn't he do the same in the past when he had suspicions and why did he wait for two years---Thus, the view of the High Court was correct that in the absence of any other corroborating evidence, it did not appear to be a sound and reasonable motive as stated by the prosecution for the commission of the offense---Prosecution failed to prove the guilt of respondent beyond reasonable doubt---Petition was dismissed and leave was refused.

Malik Saleem Iqbal Awan, Advocate Supreme Court for Petitioner.

Khurram Khan, Additional Prosecutor General, Punjab for the State.

2024 S C M R 1096

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Irfan Saadat Khan and Naeem Akhtar Afghan, JJ

Mst. JEHAN BANO and others---Petitioners

Versus

MEHRABAN SHAH and others---Respondents

Civil Petition No.394-P of 2010, decided on 15th March, 2024.

(On appeal against the judgment dated 07.05.2010 of the Peshawar High Court, Peshawar in C.R. No. 456 of 2009 with C.M. No. 691 of 2009).

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 52---Land revenue record---Presumption of truth---Oral exchange of land---Proof---Inheritance mutation, legality of---According to section 52 of the West Pakistan Land Revenue Act 1967, presumption of truth is attached to the entries made in the periodical record of rights i.e. jamabandis/khasra girdawari until contrary is proved---In the present case the jamabandis of the years 1949-50, 1953-54, 1957-58, 1969-70 and 2001-02 as well as khasra girdawari reveal that the exchange of pieces of land by the predecessor of the parties was given effect in the periodical record of rights by entering their names in the column of cultivators---After death of their predecessor, the names of respondents Nos. 1 to 3 were also entered in the column of cultivators for the suit land in the jamabandis/khasra girdawari of different years which were not challenged by the predecessor of the petitioners in his lifetime as well as by the petitioners till filing of civil suit by the respondents in March 2005---Petitioners failed to rebut the presumption of truth attached with the long standing jamabandis/khasra girdawari for the suit land existing in the names of respondents Nos. 1 to 3 due to exchange transaction---On the contrary, apart from producing confidence inspiring oral evidence, the respondent Nos. 1 to 3 have also proved the exchange transaction through the exchange deed dated 01.10.1980 which bears thumb impressions of the predecessor of petitioners and his brother, the signatures of respondent No. 1, respondent No. 3 and thumb impression of respondent No. 2---Taking undue advantage of the existence of the name of their predecessor in the column of ownership for the suit land in the jamabandis, after his death, the petitioners managed impugned inheritance mutation dated 21.04.1991 in their names by concealing the factum of exchange of the suit land as well as long standing cultivating possession of the respondents over the suit land since the year 1945---Appellate Court and Revisional Court had rightly decreed the suit of the respondents and dismissed that of the petitioners---Petition was dismissed and leave to appeal was refused.

Abdul Ahad v. Roshan Din PLD 1979 SC 890; Hakim Khan v. Aurangzeb 1979 SCMR 625; Aurangzeb v. Muhammad Jaffar 2007 SCMR 236 and Muhammad Amir v. Mst. Beevi 2007 SCMR 614 ref.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Mutation entries---Scope---Mutation by itself does not create title and it carries a rebuttable presumption.

Ghulam Sarwar v. Ghulam Sakina 2019 SCMR 567; Fazal Ellahi v. Zainab Bi 2019 SCMR 1930 and Nasir Ali v. Muhammad Asghar 2022 SCMR 1054 ref.

Abdul Sattar Khan, Advocate Supreme Court and Zahoor Qureshi, Advocate-on-Record for the Petitioners (Through video link from Peshawar).

Ziaur Rehman Khan, Advocate Supreme Court for Respondents Nos. 1 to 3 (Through video link from Peshawar)

Nemo for Respondents Nos. 4 to 12.

2024 S C M R 1103

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

Syed SAKHAWAT HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 155 of 2024, decided on 21st March, 2024.

(Against the order dated 14.02.2024 passed by Lahore High Court, Lahore in Crl. Misc. No. 5258-B of 2023).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 34, 109, 406, 419, 420, 467, 468 & 471---Constitution of Pakistan, Art. 185(3)---Banking scam---Bail, grant of---Further inquiry---Accused was alleged to be one of the beneficiaries of a banking scam, who had received part of the misappropriated amount---Petitioner (accused) was not named in the list of 287 account holders who were nominated in the alleged unlawful transactions---Sole allegation against the petitioner was that his bank statements indicated receipt of a certain amount in his account as a beneficiary from an account holder of the bank---However, it was notable that the account holder in question from whom the amount was transferred to the petitioner was not implicated or nominated in the FIR---Furthermore, the alleged amount was not transferred to the petitioner's account at the bank where the scam occurred but was received allegedly in an account maintained by the petitioner at another bank, which was registered in the name of a business---Mere receipt of funds in a bank account could not be construed as proof of involvement in the scam at present stage as there was insufficient and incomplete material available on the record to establish any connection of the petitioner---Petitioner's criminal liability could only be determined after recording of evidence by the Trial Court---Mere nomination of the petitioner in the FIR without substantive material and without nominating the account holder by whom the amount was allegedly transferred in the bank account of the petitioner's company was insufficient to justify his further detention---Petitioner was behind the bars for more than nine months, and there was no likelihood of progress in the trial---Case of the petitioner was one of further inquiry---Petition was converted into an appeal and was allowed, and the petitioner was granted bail.

Syed Asim Ali Bukhari, Advocate Supreme Court for Petitioner.

Mughees Malik, Advocate Supreme Court for the Complainant.

Malik Javed Iqbal Wains, Additional Attorney General for Pakistan and M. Sheraz, I.O. FIA for the State.

2024 S C M R 1106

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Amin-ud-Din Khan Jamal Khan Mandokhail and Shahid Waheed, JJ

EJAZ AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, PASROOR and others---Respondents

Civil Petition No. 630-L of 2014, decided on 17th April, 2024.

(Against the order dated 27.02.2014 of the Lahore High Court, Multan Bench passed in Writ Petition No.6807 of 2012).

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S. 12(2)---Specific performance of oral agreement to sell---Suit decreed on the purported statement of the defendant's attorney---Legality---Suit seeking specific performance of the oral agreement was filed on 25 January 1996 and summons were issued to the defendant for 19 February 1996---But, on 29 January 1996, a person came forward stating that he was the attorney of the defendant and that he had no objection if the suit was decreed---Suit was accordingly decreed---Defendant on coming to know of the decree filed an application under section 12(2), Code of Civil Procedure, 1908 which was allowed by the trial Court, and such order was maintained upto the High Court---Validity---Suit filed by the plaintiff (petitioner) should never have been decreed---Suit was filed on 25 January 1996 and the return date for the summons issued to the defendant was 19 February 1996, however, only after four days, that is, on 29 January 1996, the suit was decreed---No application for ante-dating the date, that is, 19 February 1996, was submitted in the suit, and no order was passed ante-dating the date already fixed---Order of 29 January 1996 stated that the counsel for the defendant was in attendance, but it was not explained when service of summons was effected and who engaged the counsel to represent him, nor who had signed his vakalatnama---Suit was decreed on the statement of the purported attorney, therefore, it was incumbent upon the Judge to satisfy himself as to his identity, to ensure that he was the duly constituted attorney of the defendant and that the power of attorney authorized the attorney to agree to the suit being decreed, but none of these aspects were noted by the Judge---Stated power of attorney was also not exhibited, and, if it's photocopy was produced then the Judge had to see the original thereof and exhibit it, after comparing it with the original and noting that it was a true copy thereof---Since none of the aforesaid aspects were considered the judgment and decree dated 29 January 1996 was not sustainable---Application of defendant under section 12(2), C.P.C. was maintainable and was rightly allowed---Consequently, leave to appeal was declined and the petition was dismissed with costs imposed on the petitioner throughout.

Mian Shah Abbas, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2024 S C M R 1109

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

The INSPECTOR GENERAL OF POLICE, PUNJAB and others---Appellants

Versus

WARIS ALI (deceased) through LRs and others---Respondents

Civil Appeal No.3-L of 2016, decided on 17th April, 2024.

(Against order dated 04.03.2015 passed by the Punjab Service Tribunal, Lahore in Appeal No.39 of 2014).

Police Rules, 1934---

----R. 19.25---Police force---Proforma promotion---Litigation by police officials for promotion and other service-related benefits---Propriety---As per Rule 19.25 of the Police Rules, 1934, officers have to undergo various courses (A, B, C and D) to qualify for promotion---Training of upper subordinates, being Inspector, Sub-Inspector (SI) and Assistant Sub-Inspector (ASI), is a mandatory requirement of law for the purposes of promotion in terms of Rule 19.25 of the Rules---Focus of Rule 19.25 of the Rules is capacity building in order to develop knowledge, skill and the necessary traits required for the post and rank---Being a disciplined force, the tendency to focus on promotions of juniors is totally irrelevant within the police department, where the primary focus and emphasis for promotion purposes should be training and capacity building---Hence, for all intents and purposes, promotion from the date of the promotion of juniors is not possible for upper subordinates in terms of the clear provisions of Rule 19.25---An officer must complete the required course(s) before seeking promotion---Furthermore, ante-dated promotion upsets the training requirement---Institution of police cannot thrive if it is consistently consumed in litigation for promotion and other service-related benefits---Hence, it is imperative that officers should focus on building institutional credibility and trust in the eyes of the public and develop an effective system of governance on service-related matters so as to end the trend of litigation on such matters.

Syed Hammad Nabi v. Inspector General of Police 2023 SCMR 584; Muhammad Amjad v. The Director General, Quetta Development Authority 2022 SCMR 797; Kashif Aftab Ahmed Abbasi v. Federation of Pakistan 2022 SCMR 1618 and Naveed Ahmed v. Federation of Pakistan 2012 SCMR 1133 ref.

Barrister M. Mumtaz Malik, Additional Advocate General, Punjab with Ms. Rubina, D.S.P. for Appellants.

Zafar Hussain Ahmad, Advocate Supreme Court/Advocate-on-Record for L.Rs. of Respondent No.1.

2024 S C M R 1116

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan,JJ

SARDARAN BIBI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.412-L of 2014, decided on 18th April, 2024.

(Against the judgment dated 24.2.2014 passed by Lahore High Court, Lahore in Criminal Appeal No.1163 of 2010 with Murder Reference No. 284 of 2010).

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

----S. 302(b)---Qatl-i-amd---Re-appraisal of evidence---Petition for leave to appeal challenging acquittal of accused---High Court, while acquitting the accused persons, had rightly observed that there were marked improvements in the depositions of the witnesses which were not in conformity with the medical evidence and these evidences were neither reliable nor confidence aspiring---Statement recorded by the petitioner (complainant) under section 161, Cr.P.C. , and the ones made by her during the trial and her cross-examination were at variance with each other which put a dent in the case and cast a shadow of doubt about the veracity of the events---High Court had also noted that as per the FIR the incident took place in the early hours of the morning i.e. 05:00am, when there was hardly any light and that there was darkness with no source of light---Two female witnesses of the occurrence were never produced during the investigation---Moreover, the High Court rightly observed that if the enmity between the parties was with regard to murder of person "H", the elder brother of the petitioner, then why the respondents (accused persons) would murder person "I" i.e. the deceased and why not son of the deceased, who was stated to be nominated in the murder of person "H" and was on bail---Investigating Officer had recommended discharge of the respondents---Present case appeared to be fraught with many doubtful circumstances, benefit of which would naturally extend to the respondents---Impugned judgement of the High Court did not warrant any interference---Consequently, leave to appeal was refused and petition was accordingly dismissed.

(b) Criminal trial---

----Benefit of doubt---Principle---For giving benefit of doubt there may not be many circumstances, as a single doubt is enough to give benefit of the same to the accused.

Tariq Parvez v. The State 1995 SCMR 1345; Muhammad Akram v. The Sate 2009 SCMR 230; Muhammad Imran v. The State 2020 SCMR 857; Mst. Asia Bibi v. The State PLD 2019 SC 64; Ayub Masih v. The State PLD 2002 SC 1048; Abdul Jabbar v. The State 2019 SCMR 129 and Maqsood Alam v. The State 2024 SCMR 156 ref.

(c) Appeal against acquittal---

----Double presumption of innocence---Scope---Scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled---Courts are very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, is passed in gross violation of law, or suffers from the errors of grave misreading or non-reading of the evidence.

Mian Shah Abbas (via video link, Lahore) for Petitioner.

Khurram Khan, Addl. PG, Punjab for the State.

2024 S C M R 1123

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

Syed QAMBER ALI SHAH---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Criminal Petition No.99-K of 2018, decided on 2nd April, 2024.

(Against the order dated 20.7.2018 passed by High Court of Sindh, Karachi, Skkur Bench in Crl. M. As Nos.S-531/2016, 81, 29, 63 and 61 of 2017).

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

----S. 22-A---Justice of Peace - Powers and function---Under section 22-A, Cr.P.C, it is not the function of the Justice of Peace to punctiliously or assiduously scrutinize the case or to render any findings on merits but he has to ensure whether, from the facts narrated in the application, any cognizable case is made out or not; and if yes, then he can obviously issue directions that the statement of the complainant be recorded under Section 154, Cr.P.C.---Such powers of the Justice of Peace are limited to aid and assist in the administration of the criminal justice system---He has no right to assume the role of an investigating agency or a prosecutor but has been conferred with a role of vigilance to redress the grievance of those complainants who have been refused by the police officials to register their reports---If the Justice of Peace will assume and undertake a full-fledged investigation and enquiry before the registration of FIR, then every person will have to first approach the Justice of Peace for scrutiny of his complaint and only after clearance, his FIR will be registered, which is beyond the comprehension, prudence, and intention of the legislature---Minute examination of a case and conducting a fact-finding exercise is not included in the functions of a Justice of Peace but he is saddled with a sense of duty to redress the grievance of the complainant who is aggrieved by refusal of a Police Officer to register his report.

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

----Ss. 154, 155 & 200---Officer Incharge of a Police Station---Receipt of information about commission of an offence---Any time, an Officer Incharge of a Police Station receives some information about the commission of an offence, he is expected first to find out whether the offence disclosed fell into the category of cognizable offences or non-cognizable offences---There is no provision in any law, including Section 154 or 155 of the Cr.P.C., which authorizes an Officer Incharge of a Police Station to hold any enquiry to assess the correctness or falsity of the information before complying with the command of the said provisions---He is obligated to reduce the same into writing, notwithstanding the fact whether such information is true or otherwise---Condition precedent for recording an FIR is that it should convey the information of an offence and that too a cognizable one---Remedy of filing a direct complaint cannot measure or match up to the mechanism provided under section 154, Cr.P.C., in which the Officer Incharge of a Police Station is duty bound to record the statement and register the FIR if a cognizable offence is made out---If in each and every case it is presumed or assumed that instead of insisting or emphasizing the lodgment of an FIR, the party may file a direct complaint, then the purpose of recording an FIR, as envisaged under section 154, Cr.P.C., will become redundant and futile and it would be very easy for the police to refuse the registration of an FIR with the advice to file direct complaint---However, in some exceptional circumstances, the alternate remedy in the shape of direct complaint may be availed but not in every case.

Muhammad Bashir v. Station House Officer, Okara Cantt. PLD 2007 SC 539 ref.

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

----S. 156---Investigating Officer, duty of---Scope---Investigating Officer plays a crucial role in the administration of the criminal justice system and the constituent of investigation report and its worth keeps hold of plenteous value and repercussions on the outcome of any criminal case---Tainted investigations can become an acute obstacle in the administration of justice.

Sughra Bibi v. State PLD 2018 SC 595 and Babubhai v. State of Gujrat and others (2010) 12 SCC 254 ref.

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

----S. 561-A---Jurisdiction of High Court under Section 561-A, Cr.P.C.---Scope---Inherent jurisdiction conferred under Section 561-A, Cr.P.C., cannot be deemed to be an alternative jurisdiction or additional jurisdiction and cannot be exploited to disrupt or impede the procedural law on the basis of presumptive findings or hyper technicalities, but it is meant to protect and safeguard the interest of justice to redress grievances of aggrieved persons for which no other procedure or remedy is provided in the Cr.P.C.

Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 ref.

Mrs. Abida Parveen Channar, Advocate-on-Record along with Petitioner in person and Syed Salman (alleged abductee)

Hakim Ali Shah, Addl. A.G. Sagheer Abbasi, Addl A.G., Saleem Akhtar, Addl. P.G., K. A. Wahab, Advocate-on-Record, Dr. Sumair Noor, SSP Ghotki, Mushtaq Abbasi, AIG Legal and SIP Zaheer Hussain, SHO Police Station Ghotki for Official Respondents

Malik Naeem Iqbal, Advocate Supreme Court for Respondents Nos. 4, 5 and 8.

2024 S C M R 1133

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi, Musarrat Hilali and Naeem Akhtar Afghan, JJ

MUHAMMAD IQBAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1390-L of 2013, decided on 18th April, 2024.

(Against judgment dated 18.11.2013 passed by the Lahore High Court, Lahore in Criminal Appeal No. 159/09).

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Petition for leave to appeal challenging acquittal of accused---According to the prosecution story, seven persons had beaten up the deceased and this incident was seen by both the sons of the deceased---No firearm was used in the scuffle, except danda and sotas but strangely the sons of the deceased did not come forward to rescue their father and remained as spectators---Five acquitted co-accused persons were implicated for murder without any shred of evidence and it was for want of proof that they were acquitted by the Trial Court, thus, it appeared that noose was thrown much wider, implicating innocent persons falsely---Motive was set up by the prosecution that there was litigation pending inter se the parties and the deceased was pursuing the case, however no proof was brought on record that the deceased was a party to that litigation---Thus, the High Court had rightly disbelieved the motive---Striking feature of the case was that in the FIR complete photographic narration of the entire tragedy had been given, so much so that acquitted co-accused and the respondent (accused) were attributed specific injuries with danda and sotas etc.---With such degree of accuracy each and every detail of the incident was given---This doubt of reasonable nature and substance strongly suggested that the complainant and the other eye-witnesses were not present at the spot---Beside this, ocular testimony was not in line with the documentary evidence, especially the medical evidence---High Court had observed that the injury specifically attributed to the respondent on the body of the deceased was not declared as fatal by the medical officer---When witnesses were found to have falsely deposed with regard to the involvement of acquitted co-accused persons then, ordinarily, they could not be relied upon qua the respondent unless their testimony was sufficiently corroborated through strong corroboratory evidence coming from an unimpeachable source---However there was not a single iota of corroboratory evidence to substantiate the tainted evidence of the same set of witnesses with regard to the involvement of the respondent in the crime, hence recording conviction of the respondent on the same evidence was absolutely unjustified---Hence, the High Court had rightly acquitted the respondent and set aside the judgment of the Trial Court---Petition challenging acquittal of respondent was dismissed and leave was declined.

(b) Criminal trial---

----Conviction---Testimony of witnesses disbelieved with respect to co-accused---Reliance on such testimony to convict the accused---Principles---Whenever witnesses are found to have falsely deposed with regard to the involvement of one co-accused then, ordinarily, they cannot be relied upon qua the other co-accused unless their testimony is sufficiently corroborated through strong corroboratory evidence, coming from an unimpeachable source.

Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 and Munawar Ali v. The State PLD 1993 SC 251 ref.

Sh. Irfan Akram, Advocate Supreme Court for Petitioner (via video link Lahore).

S.M. Nazim, Advocate Supreme Court for Respondent No.2 (via video link Lahore).

Irfan Zia, Additional Prosecutor General, Punjab for the State.

2024 S C M R 1137

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Jamal Khan Mandokhail and Naeem Akhtar Afghan, JJ

NAIMATULLAH KHAN, ADVOCATE and others---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No.9/2010, Criminal Original Petition No.7-K/2017, C.M.A. No. 6206/2013, Criminal Original Petition No. 9-K/2021, C.M.As. Nos. 441-K, 1083-K, 1112-K, 774-K/2017, Crl.M.A. No. 59-K/ 2018, C.M.As. Nos. 1062-K, 1064-K/2021, 941-K/2020, 1114-K, 775-K, 698-K, 1000-K/2021, 74-K, 86-K, 711-K/2020, Civil Review Petition No. 57-K/2021, Criminal Original No. 8- K/2021, C.M.A. No. 391-K/ 2020, C.M.As. Nos. 424-K, 437-K, 438-K, 515-K/2021, Crl. M.A. No. 229-K/2018, C.M.As. Nos. 621-K/2021, 167-K, 367-K, 177-K/ 2020, C.M.As. Nos. 1004-K/2021, 770-K/2020, Crl.M.A. No. 52-K/ 2018, C.M.As. Nos. 631-K/2019, 78-K, 523-K, 83-K, 512-K, 594-K/ 2020, 617-K, 889-K/2019, Civil Review Petition No. 28-K/2020, C.M.As. Nos. 1087-K, 1095-K, 1129-K/2021, 940-K/2020, Crl.M.As. Nos. 121-K/ 2017, 38-K/2018, C.M.As. Nos. 423-K/2019, 179-K/2020, CPLA No. 422-K/2020, C.M.A. No. 767- K/ 2020, CPLAs Nos. 92-K, 93-K/ 2020, Criminal Original Petition No. 19-K/2017, Crl.M.As. Nos. 124-K, 132-K/2017, 111-K, 243-K, 8-K, 19-K, 20-K, 72-K/2018, C.M.As. No. 59-K, 349-K, 875-K, 933-K/2019, C.M. Appeal No. 139/ 2020, C.M.As. Nos. 202-K, 281-K/2020, Crl.MA Nos. 32-K/2018, 1-K/ 2019, 34-K/2020, C.M.As. Nos. 761-K, 808-K/2020, 782-K/2021, C.P.L.A. No.599-K/2021, C.M.As. Nos. 1014-K, 966-K, 1006-K, 1040-K, 971-K/ 2021, Criminal Original Petition No. 10-K/2021, C.M.As. Nos. 1097-K, 1164-K/2021, Crl.M.As. Nos. 71-K, 95-K, 214-K/2018, 2-K/2019, C.M.As. Nos. 521-K, 527-K/ 2019, 162-K, 193-K, 762-K/ 2020, 425-K/ 2019, Criminal Original Petition No. 5-K/2020, C.M.As. Nos. 809-K, 82-K, 336-K/2020, Criminal Original Petition No.1-K/ 2020, C.M.As. Nos. 510-K/2021, 300-K, 414-K/2020, Report No. 7-K, 76-K/2021, C.M.As. Nos. 1248-K, 1249-K, 1252-K, 1259-K, 1260-K, 1262-K/2021, 6-K, 12-K, 40-K, 83-K, 93-K, 94-K, 95-K/2022, Civil Review Petition No. 1-K/2022, C.M.As. Nos. 27-K, 112-K, 126-K/ 2022, Civil Review Petition No. 4-K/2022, C.M. Appeal No. 18/2022, C.M.As. Nos. 145-K, 141-K/2022, Criminal Original Petition No. 18-K/ 2021, Civil Review Petitions Nos. 13-K, 11-K/2022, C.M. Appeal No. 26/2022, Civil Review Petition No. 23-K/2022, C.M.As. Nos.395-K, 403-K, 452-K/2022, Criminal Original Petition No. 10-K/2022, C.M.A. No. 644-K/2022, Crl.M.A. No. 1-K/2022, C.M. Appeal No. 1-K/2022, Criminal Original Petition No. 11-K/2022, C.M.As. Nos. 790-K, 1085-K, 1108-K/2023, C.M. Appeal No. 2-K/2024 and C.M.A. No. 293-K/2024, decided on 25th April, 2024.

(a) Constitution of Pakistan---

----Art. 184(3)---Encroachment upon and blockade of public roads and pavements by Federal and Provincial Governments---Observations and directions given by the Supreme Court in relation to such encroachment stated.

Whilst encroachments by citizens are demolished it is unfortunately noted that encroachments on public roads and pavements are made by those paid out of the public exchequer. Occupants of properties also assume that the pavement running in front of their property is theirs, to do with it as they please. Generators are also installed thereon. Pavements are for the use of the public; access thereto and use thereof cannot be prevented or restricted. Everyone, including the provincial and Federal governments, and all those under them must abide by the law and cannot encroach upon public roads and pavements nor can block them which may stop or restrict public use thereof. Citizens must not be inconvenienced. Those paid out of the public exchequer serve the people, and not vice versa. The misplaced exceptionalism negates the Constitution and the rule of law.

Unfortunately, over the years an anti-people mentality has developed where those paid out of the public exchequer assume that the garden or open space within their premises should be preserved.

Shipping containers are brought to close roads and pavements to stop protestors from proceeding but then are left by the roadside and on pavements. After serving the purpose for which the containers were brought they must be removed from roads and pavements. Roads and pavements are for the use of the public and cannot be allowed to be permanently obstructed in this manner.

Therefore, all are directed, including all provincial and the Federal Governments, to clear public roads and pavements of all encroachments within three days, failing which the same should be demolished/removed by the relevant authority and the cost incurred thereon shall be recovered from those who encroached thereon. With regard to buildings in official use the amount shall be recovered from the pay of the senior most officer in occupation of the property/building in front of which runs the pavement on which barriers or other restrictions preventing public use thereof are placed.

The operation of present order, directing the removal of encroachments from public roads and pavements, is applicable throughout Pakistan. The government shall place advertisements in newspapers informing the public of present order and Pakistan Electronic Media Regulatory Authority ('PEMRA') shall direct their licensees to announce it as a free public service message in accordance with the stipulated terms of their licenses.

(b) Constitution of Pakistan---

----Art. 184(3)---Climate change---Plantation of trees on pavements---Significance---Effect of scorching heat in the summer months and pollution inhaled by pedestrians can be offset by taking care of existing trees, replacing dead ones and planting new ones on pavements---Unfortunately, this is not done---Trees are also invaluable in removing pollutants and producing oxygen, and are effective against climate change---If pavements are lined with trees it will undoubtedly encourage more people to use them---Local governments are in dereliction of this duty towards the public---Therefore, all local governments should immediately carry out a survey and proceed to plant threes on pavements and to take care of them.

Attendance:

Mukesh Kimar G. Karara, Advocate Supreme Court, Murtaza Ali, in-person, Kh. Shamsul Islam, Advocate Supreme Court, Javed Kumbo, Additional Secretary, Finance (in C.M.A. No. 941-K/2020, in C.M.A. No. 521-K/2019 in C.P. No. 9/2010).

Farhad Younus Memon, Intervenor in person (in C.M.A. No. 177-K/2020).

Abdul Basit Afridi, Advocate, Asim Iqbal, Advocate Supreme Court, Farmanullah Khan, Advocate Supreme Court, Shabbir Ahmed and Gul Khitab (in C.M.As. Nos. 1130-K and 1083-K/2021).

. Muhammad Raees, Abdul Haleem Siddiqui, Syed Dilshad Hussain Shah, Spl. Prosecutor, NAB (in Crl.M.A. No. 20-K/2018 in C.M.As. Nos. 767-K/2020 and 933-K/2019 in C.M.A. No. 1004-K/ 2021).

Mazhar Ali B. Chohan, Advocate-on-Record (in CRP No. 57-K/ 2021, Crl.M.As. Nos. 132-K/2017, 72-K/2018, 1-K/2019, C.M.As. Nos. 971-K and 510-K/2021).

M. Saleem Mangrio, Advocate Supreme Court, Shoa-un-Nabi, Advocate Supreme Court and Abida Parveen Channar, Advocate-on-Record (in C.M.A. No. 1087-K/2021 in C.M.A. No.32-K/2018 in C.M.As. Nos.933-K/2019, 767-K, 367-K, 391-K/2020, Crl.O.P. No.8-K, 10-K/ 2021, C.M.A. No. 782-K/2021 and 452-K/2022).

Obaidur Rehman, Advocate Supreme Court, Najamuddin Sehto, D.G., Malir Development Authority, Muhammad Irfan Baig, Director Legal Affairs, MDA and Zakir Hussain Khaskheli, Advocate Supreme Court (in C.M.A. No. 438-K/2021 in Crl.OP No. 7-K/2017).

Zakir Hussain Khaskheli, Advocate Supreme Court (in Crl.M.As. Nos. 132-K/2017 and 72-K/2018).

Syed Ashikue Raza, Advocate Supreme Court, M. Hasan Akbar, Advocate General, Sindh and Syed Mohsin Hussain Shah, A.A.G. (in C.M.A. No. 367-K/2022 in C.P. No. 9/2010).

Syed Ashikue Raza, Advocate Supreme Court (in Crl.M.As. Nos. 8-K, 16-K and 243-K/2018).

Syed Mehmood Akhtar Naqvi (in Crl.OP No. 1-K/2020 and C.M.A. No. 82-K/2020).

Ms. Nahid Naz, Advocate Supreme Court/Advocate-on-Record (in C.M.A. No. 1085-K/2023).

Murtaza Ali, in-person (in C.M.As. Nos. 521-K, 661-K/2019 and 36-K/2022).

Ch. Muhammad Iqbal, Advocate Supreme Court (in C.M.A. No. 1087-K/2021).

M. Imran Siraj, in-person (in C.M.A. No. 1095-K/2021).

Zeeshan Zaman, Legal Officer, Pakistan Rangers, Sindh (in C.P. No. 9/2010).

Muhammad Nasir Khalily, D.S. Pak. Railway, Imran Faisal, Dy. D.G. Pak. Railway Property and Land, Rao Moinuddin, A.D.L.A, Raja Qasit Nawaz Khan, Advocate Supreme Court and Afsheen Amar, Advocate Supreme Court (in C.P. No. 9/2010).

Mst. Sabiha Parveen, in-person (in Crl.OP No. 7-K/2017).

Waseem Shahid, Director Military Land, Muhammad Hayat, Cantt. E.O. Muhammad Zubair, Cantt. E.O. Syed Irfan Haider, Cantt. E.O. and Mansoor Alam Khan, M.E.O. (in C.M.A. No. 770-K/2020 in C.P. No. 9/2010).

Syed Hasan Naqvi, Commissioner Karachi and Khalid Maroof, A.C. Revenue (in C.P. No. 9/2010).

Syeda Maria Raza (in Crl.OP No. 9-K/2021).

M. Umer Riaz, Advocate Supreme Court, Lahore (in C.P. No. 9/2010).

Muhammad Afzal Awan, Advocate Supreme Court (in C.M.A. No. 1108-K/2023).

M. Yaqoob Khan, Curator and Naveed Sandal Khan, Technical Officer, National Museum Pakistan (in C.P. No. 9/2010).

Amir Mughal, G.M. and Shahab Sarki, Advocate Supreme Court (in C.M.A. No. 770-K/2021).

Syed Salahuddin Ahmed, M.D./CEO, KWSB (in C.P. No. 9/ 2010).

Syed Shujaat Hussain, D.G. KDA, Mirza Sarfraz Ahmed, Advocate Supreme Court and Syed Shabihul Hassan, D.G, LDA (in C.P. No. 9/2010).

Zulifqar Gul Memon, Chief Transport and Communication, Minister of P.D. and Spl. Initiative, Islamabad and Zia-ul-Haq Makhdoom, Additional Attorney-General for Pakistan (in C.P. No. 9/ 2010).

Obaidur Rehman Khan, Advocate Supreme Court and Faisal Siddiqui, Advocate Supreme Court (video link, Islamabad) (in C.M.A. No. 438-K/2021).

Munir Ahmed Malik, Sr. Advocate Supreme Court and K. A. Wahab, Advocate-on-Record (in C.M.A. 1062-K/21, C.M.A. No. 40-K/ 22 and C.M.A. No. 93-K/22).

Arshad M. Tayebaly, Advocate Supreme Court and K. A. Wahab, Advocate-on-Record (in C.M.A. No. 1064-K/21 and C.M.A. No. 94-K, 40-K/22).

Khalid Javed, Advocate Supreme Court and Mukesh Kumar G. Karara, Advocate Supreme Court (in C.M.A. No. 941-K/22).

Abid S. Zuberi, Advocate Supreme Court and Mirza Sarfaraz Ahmed, Advocate Supreme Court, K. A. Wahab, Advocate-on-Record and Ghulam Rasool Mangi, Advocate-on-Record (in C.M.A. No.86-K/ 2020).

Salahuddin Ahmed, Advocate Supreme Court (in C.M.A. No. 437-K/21 and C.M.A. No. 300-K/20).

Muhammad Umar Lakhani, Advocate Supreme Court and Murtaza Wahab, Mayor Karachi (in C.M.A. No. 1129-K/21).

Syed Haider Imam, Advocate Supreme Court (in C.M.A. No. 1014-K/21).

Ms. Razia Danish, Advocate Supreme Court (in C.M.A. No. 1062-K/20).

Muhammad Hassan Akbar, Advocate-General, Sindh and Sibtain Mehmood, Additional Advocate-General, Sindh (in C.R.P. No.23-K/22).

2024 S C M R 1146

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi, Musarrat Hilali and Naeem Akhtar Afghan, JJ

ABDUL QADEER---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 238 of 2008, decided on 20th April, 2024.

(On appeal against the judgment dated 04.06.2008 of the Lahore High Court, Lahore passed in Crl. A. No. 1743 of 2006).

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

----S. 7(e)---Kidnapping for ransom---Re-appraisal of evidence---No Call Data Record (CDR) produced---Delay in lodging FIR---Dishonest improvements by alleged abductee and complainant---Despite allegation of repeated contacts by the petitioner (accused) with the complainant and his son on cell phones as well as through a Public Call Office (PCO) number, no Call Data Record ('CDR') with regard to the alleged phone calls had been produced at the trial---Complainant had not furnished any explanation for inordinate delay of two days in registering the FIR---Alleged abductee as well as the complainant had fabricated/made improvements during investigation regarding items allegedly snatched from the alleged abductee---Possibility of foisting the above articles upon the petitioner to create incriminating circumstantial evidence could not be ruled out of consideration---Alleged abductee had not mentioned as to who was driving the car when he was put on the rear seat of the car after his hands were tied---Prosecution had failed to prove the charge against the petitioner beyond reasonable doubt---Petition was converted into appeal and allowed, and the accused was acquitted of the charge.

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

----S. 7(e)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Kidnapping for ransom---Reappraisal of evidence---Relevant witnesses not produced during trial by the prosecution---Effect---Adverse presumption against the prosecution---One of the prosecution witnesses was a business partner and nephew of the complainant---Version of said witness about narration of the occurrence by the alleged abductee to his father was lacking independent corroboration---Another witness, in whose presence the alleged abductee had narrated the details of the occurrence to the complainant, had not been produced by the prosecution at the trial---Son of the complainant who had allegedly received calls of the accused to arrange for the ransom at the earliest was neither associated during investigation nor produced at the trial as a prosecution witness---Under Article 129 (g) of the Qanun-e-Shahadat, 1984 the Court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it---Hence, adverse inference was drawn to the effect that had the above witnesses been produced at the trial, they would not have supported the prosecution case---Prosecution had failed to prove the charge against the petitioner beyond reasonable doubt---Petition was converted into appeal and allowed, and the accused was acquitted of the charge.

Muhammad Jabran v. The State 2020 SCMR 1493 and 2022 SCMR 1398 ref.

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

----S. 7(e)---Kidnapping for ransom---Reappraisal of evidence---Currency notes paid as ransom allegedly recovered on pointation of accused---Not proved---No bank record had been produced by the complainant at the trial to prove encashment of ransom amount i.e. rupees three million---Recovery of rupees two hundred and forty thousand from the house of the petitioner (accused) on his pointation in pursuance of his disclosure after more than twenty days of his arrest was lacking independent corroboration as no notable or inhabitant of the area was associated during the alleged recoveries---Allegedly recovered cash was identified by the complainant in the police station in absence of Special Judicial Magistrate---Complainant had failed to explain as to how he identified the currency notes---Prosecution had failed to prove the charge against the petitioner beyond reasonable doubt---Petition was converted into appeal and allowed, and the accused was acquitted of the charge.

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

----S. 7(e)---Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping for ransom---Reappraisal of evidence---Test identification parade---Infirmities---Role of accused not specified---Identification parade of the petitioner (accused) was held under supervision of Special Judicial Magistrate, wherein the alleged abductee identified the petitioner as the accused---During cross-examination Special Judicial Magistrate admitted that the petitioner had raised objection before the identification parade proceedings that he was shown to the abductee in the office of a police official---Contents of the identification parade memo reveal that during identification parade, the alleged abductee did not specify the role played by the petitioner in the alleged occurrence---Identification of an accused person without reference to the role allegedly played by him during the occurrence is shorn of any evidentiary value---Prosecution had failed to prove the charge against the petitioner beyond reasonable doubt---Petition was converted into appeal and allowed, and the accused was acquitted of the charge.

Sabir Ali alias Fauji v. The State 2011 SCMR 563; Shafqat Mehmood v. The State 2011 SCMR 537; Muhammad Fayyaz v. The State 2012 SCMR 522; Azhar Mehmood v. The State 2017 SCMR 135 and Kamal Din alias Kamala v. The State 2018 SCMR 577 ref.

(e) Criminal trial---

----Benefit of doubt---Scope---Even if a single circumstance creates reasonable doubt in a prudent mind about the guilt of an accused, he/she shall be entitled to such benefit not as a matter of grace and concession but as of right.

Tariq Pervaiz v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048; Abdul Jabbar v. The State 2019 SCMR 129; Sarfraz v. The State 2023 SCMR 670 and Barkhurdar v. The State 2023 SCMR 1791 ref.

Ms. Aisha Tasneem, Advocate Supreme Court for Petitioner.

Irfan Zia, Addl.P.G., Punjab for the State.

2024 S C M R 1155

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

GOVERNMENT OF BALOCHISTAN though Secretary Forest and Wildlife Department, Quetta and another---Petitioners

Versus

GHULAM RASOOL and others---Respondents

Civil Petitions Nos. 183-Q to 195-Q of 2023, decided on 15th April, 2024.

(Against the judgment dated 03.05.2023 passed by Balochistan Service Tribunal, Quetta in S.As. Nos. 475, 524, 564, 569, 570, 582, 587 of 2018, 101, 484 of 2019, 96-98 of 2020, 222 of 2021).

Civil service---

----Appointment orders, withdrawal of---Legality---Drastic action of withdrawing appointments letters and terminating service was carried out without issuing any show cause notice and without affording any opportunity of hearing to the terminated employees---In the present case, nothing was articulated to allege that the respondents (employees) by hook and crook managed their appointments or committed any misrepresentation or fraud or they were not eligible for the posts on which their appointment was recommended by the Departmental Recruitment Committee of five members where each case was considered diligently, and after a burdensome exercise, the names were recommended by the Departmental Recruitment Committee---Therefore, it cannot be construed that the respondents were appointed without fulfilling the codal formalities---Rather, due to their appointments with due process, some vested rights had been created in their favour which could not have been withdrawn in a perfunctory manner---Record reflected that the advertisement was published on 30.07.2016; the last date of submission of the application was 22.08.2016; the date of test/interviews was fixed on 19th and 20th September, 2016, and the applicants were again informed through a notice published in the newspaper on 27.08.2016, and a meeting of the Departmental Recruitment Committee was convened on 29.08.2016---If the process was allegedly initiated wrongly, then why were the concerned government departments under a deep slumber or ignorance?; why, at very initial stage, was the entire recruitment process not scraped?; why was the Departmental Recruitment Committee constituted?; why were appointment orders issued with postings?; and why were service books made?---All of these questions were shrouded in mystery and no logical justification was pleaded as to why the entire recruitment process was undone suddenly----Petitions filed by the recruiting department were dismissed and leave was declined.

Inspector General of Police, Quetta and another v. Fida Muhammad and others 2022 SCMR 1583 ref.

M. Ayaz Khan Swati, Addl. A.G., Balochistan for Petitioners.

Nemo for Respondents.

2024 S C M R 1160

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi, Musarrat Hilali and Naeem Akhtar Afghan, JJ

PROVINCE OF SINDH and others---Appellants

Versus

MUHAMMAD TAHIR KHAN CHANDIO and others---Respondents

Civil Appeal No. 928 of 2020 and C.M.A. No.500-K of 2023 in C.A. No.928 of 2020, decided on 15th April, 2024.

(Against Judgment dated 17.12.2019 passed by High Court of Sindh, Karachi in C.P. No. D-4329 of 2019).

Civil service---

----Technical Cadre and Executive Cadre of police department---IT cadre of police---Post of ASI (Computer)---Counsel for the respondents (police employees) stated that an advertisement was issued for the recruitment of candidates for the post of ASI (Computer) and pursuant thereto 113 individuals were appointed in the year 2004, however all the ASIs (Computer) were not assigned any computer related work, rather they served in the Executive Branch of the police; that the respondents underwent training of ASI courses, obtained practical training (A, B, C, D Courses), as was imparted to ASIs of Executive Police; that most of the ASIs had dealt with a number of criminal cases independently and out of 113 ASIs, presently 65 were in service; that some of them had even embraced martyrdom, and that the respondents should be treated at par with ASIs Executive Police keeping in view their experience of more than twenty (20) years while performing their duties as ASIs Executive---Validity---Supreme Court directed that the 65 ASls including the respondents who were appointed as ASI (Computer) in 2004 and filed the petition before the High Court shall continue to perform their service in the Executive Branch of the Police Department but this practice shall not be cited as a precedent in future---However, their seniority and promotion shall be dealt with strictly in accordance with law, rules and regulations---Appeal was disposed of accordingly.

Gul Hassan Jatoi and others v. Faqir Muhammad Jatoi and others 2016 SCMR 1254 ref.

Sibtain Mehmood, Additional Advocate General Sindh at Islamabad, Ghulam Rasool Mangi, Advocate-on-Record at Islamabad, Adil Memon, AIG Legal, Pir Muhammad Shah, DIG, Establishment (via video link from Karachi) for Appellants.

Malik Naeem Iqbal, Advocate Supreme Court for Respondents.

Abid Shahid Zuberi, Advocate Supreme Court (via video link from Karachi) for Applicants (in C.M.A. 500-K of 2023).

2024 S C M R 1164

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

CHIEF COMMISSIONER INLAND REVENUE, REGIONAL TAX OFFICE, BAHAWALPUR and others---Petitioners

Versus

BAQA MUHAMMAD LASHARI---Respondent

Civil Petition No. 4513 of 2023, decided on 15th April, 2024.

(Against judgment dated 18.10.2023 passed by the Federal Service Tribunal, Lahore Bench, Lahore in Appeal No. 289 (L) of 2022).

Civil service---

----Two advance increments, entitlement to---Acquiring or possessing higher qualification---Office Memorandum No.F.1(9)-Imp.II/91-Pt.(G) dated 04.10.1992 ('Office Memorandum of 1992') issued by the Government of Pakistan, Finance Division (Regulations Wing), interpretation of---Dispute revolved around the applicability of the Office Memorandum of 1992 which granted advance increments on higher qualification to those employees who possessed or acquired higher .qualification over and above that prescribed qualification for the post---By way of the subsequent clarifications issued in 2011 and 2019, the Finance Division clarified that those employees who were promoted on seniority-cum-fitness basis to a higher post who did not necessarily possess the higher qualification of that post but acquired it during this time were entitled to advance increments---There was no dispute to the fact that the respondent's qualification was that of matriculation and he acquired his intermediate on 27.12.1994 while he was working with the petitioner-department---Respondent was promoted on seniority-cum-fitness basis in 1989 first to the post of UDC and then in 1994 to the post of Supervisor---During this time, he acquired the educational qualification of intermediate (F.A) which was the prescribed qualification for the post of UDC as per SRO.657(I)/82 issued in pursuance of sub-rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (Rules) for the purposes of direct recruitment, hence, respondent's case squarely fell within the ambit of the Office Memorandum of 1992 read with clarifications of 2011 and 2019---Tribunal had rightly granted the two advance increments to the respondent vide the impugned judgment---Petition was dismissed and leave was refused.

Senior General Manager. Pakistan Railways v. Muhammad Pervaiz 2024 SCMR 581 distinginguished.

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

Nemo for Respondent.

2024 S C M R 1169

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

IMTIAZ LATIF and others---Petitioners

Versus

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

Criminal Petitions Nos. 1690-L and 1691-L of 2016, decided on 27th March, 2024.

(Against the judgment dated 16.11.2016, passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 1701 of 2015 and 1578 of 2015).

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

----S. 6---Terrorism, offence of---Pre-requisites---For an act to be classified as terrorism, it must have a political, religious, or ideological motivation aimed at destabilizing society as a whole---While heinous crimes may shock society, if they are driven by personal motives, they do not qualify as terrorism---Mere severity of an offence does not make it terrorism---In order to determine whether an offense falls within the scope of Section 6 of Anti-Terrorism Act, 1997 ('ATA'), it is imperative to have a glance over the allegations levelled in the FIR, the case record, and the surrounding circumstances---It is crucial to assess whether the elements of the alleged offence are connected to the objectives outlined in Sections 6, 7, and 8 ATA---Assessment of whether a specific act constitutes terrorism depends on examining its motivation, objective, design, or purpose---It is essential to ascertain whether the act in question has instilled a sense of fear and insecurity in the public, a specific community, or any sect.

Waris Ali and 5 others v. The State 2017 SCMR 1572; Ghulam Hussain's case PLD 2020 SC 61; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841 and Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others PLD 2007 SC 571 ref.

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

----S. 7(e)---Penal Code (XLV of 1860). Ss. 365-A, 392 & 148---Kidnapping for ransom---Reappraisal of evidence---Whether provisions of section 7(e) of the Anti-Terrorism Act, 1997 ("ATA") were attracted---Held, that it was evident from the record of present case that the accusation of kidnapping for ransom involved five individuals allegedly motivated solely by financial gain---Present incident was alleged to be a short term kidnapping for ransom that lasted only for 5 to 6 hours and the abductee was released allegedly upon receipt of the demanded ransom amount---Petitioners (accused persons) lacked a prior criminal history, therefore, this did not meet the criteria for terrorism as the two fold requirement of mens rea was missing---Moreover, the statement of one of the petitioners under Section 342, Cr.P.C., revealed that an enmity existed between the parties on account of agricultural lands and he also produced defence evidence in this regard, however, the Trial Court failed to appreciate the same---Hence, it had no connection with the act of terrorism---As the intention of the petitioners was not at all to create sense of insecurity or to destabilize the public at large or to advance any sectarian cause, the design or purpose of the present offence as contemplated by the provisions of Section 6 ATA was not attracted---Consequently Section 7(e) ATA became inapplicable---Prosecution had failed to prove its case beyond reasonable doubt against the petitioners---Petitions were converted into appeals and were allowed, and the accused persons were acquitted of the charge.

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

----Ss. 365-A, 392 & 148---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom---Reappraisal of evidence---There was no eye-witness to the abduction---First Information Report was registered after the recovery of abductee who had previous acquaintance with the petitioners (accused persons)---Despite such fact abductee did not disclose the names of accused persons rather he nominated them at a belated stage through a supplementary statement, which spoke volumes about the deliberations and consultations on the part of complainant and victim---Major contradictions were found in the statements of the abductee---Abductee claimed that injections were administered to him by the petitioners, however, no medical examination of the abductee was conducted to verify this fact---Moreover, no traces of said injections were recovered either from car of the abductee or from the possession of petitioners---Abductee in his testimony had admitted that his mobile phone which was used by petitioners for demanding ransom was recovered by the police however no recovery memo was available on record---Complainant deposed that the call for ransom was received by him on his phone number, however, he did not provide any Call detail Record (CDR) to substantiate his statement---Complainant went alone to the agreed location for delivering the demanded ransom amount to the petitioners, hence, the incident of delivery of ransom money was also not witnessed---Furthermore, the complainant did not mention any particulars, colour, model, etc., of the car in which the petitioners came to receive the ransom amount or the car in which he went to handover the ransom money---All the recovery witnesses were either police officials or complainant and his relatives---All prosecution witnesses were interested and no independent witness was associated to recovery proceedings---Recoveries of motorcycle, pistols and part of the ransom money at the instance of petitioners could not be safely relied upon---So far as motorcycle was concerned, no such detail was disclosed in the FIR - Recoveries of weapon was also not of much help to the prosecution as no particulars of said weapons were mentioned in the FIR rather it was only stated that all accused were duly armed with pistols---Giving of Rs.1,000,000/- (ten lacs) to the petitioners' side was not proved by the complainant as no denomination of currency notes was disclosed either in the FIR or before the Trial Court---When the fact of giving Rs.1,000,000/- (ten lacs) by the complainant for the release of abductee was not proved, the alleged recoveries of part of the ransom amount at the instance of the petitioners were inconsequential and could not be relied for maintaining the conviction and sentence of the petitioners---Prosecution had failed to prove its case beyond reasonable doubt against the petitioners---Petitions were converted into appeals and were allowed, and the accused persons were acquitted of the charge.

Muhammad Akram Qureshi, Advocate Supreme Court for Petitioners (in both cases) (via video link from Lahore).

Irfan Zia, D.P.G., Punjab for the State.

Sikandar Zulkarnain Saleem, Advocate Supreme Court for Respondent No.2 (in Crl.P.No.1690-L) (via video link from Lahore).

2024 S C M R 1184

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

SIRAJ NIZAM---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeal No. 56-K of 2021, decided on 2nd April, 2024.

(Against the judgment dated 02.10.2019, passed by Federal Service Tribunal Islamabad (Karachi Bench) in Appeal No. 410(K)/CS of 2015).

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

----R. 8-A---Promotion---Past service rendered in another government department, benefit of---Appellant remained in the employment of National Highways and Motorways Police as a Senior Patrolling Officer (BS 16) with effect from 26.11.2001 to 01.03.2011---Subsequnetly he applied for the post of Assistant Executive Engineer (BS-17) in Pakistan Public Works Department (PWD) through proper channel and pursuant to the recommendations of Federal Public Service Commission, the appellant was appointed in PWD on 02.03.2011---Bone of contention relates to the promotion from Assistant Executive Engineer BS-17 to Executive Engineer BS-18 in terms of the criteria of promotion as set out in SRO No. 897(I)184 dated 11.10.1984, which was subsequently amended vide SRO No.855(I)/91 dated 25.07.1991 in which basic condition for promotion from Assistant Executive Engineer BPS-17 to Executive Engineer (BPS-18) was requirement of 05 years' service experience in BPS-17 with the qualification of passing Departmental Examination as well as the application of Statutory Instruction (SI) No. 157 of Chapter 2 of ESTACODE (Volume 1) [Edition 2013]---According to the appellant, having been appointed in BPS-17, the petitioner was entitled to the one half of his service in BPS-16 for consideration towards his promotion in BPS-18 in terms of Rule 8-A of the Civil Service (Appointment, Promotion and Transfer) Rules, 1973 and Statutory Instruction No.157 issued thereunder---However, despite attaining the sufficient years for consideration for promotion to BPS-18, the petitioner was not considered---Therefore, he submitted a representation, which was not answered, which compelled him to approach the Federal Service Tribunal ("Tribunal")---Tribunal held, through the impugned judgment, that service in another department cannot be taken into consideration---Contentions of the appellant were that the stated observation of the Tribunal was not contained in Statutory Instruction No. 157 and as such the Tribunal had erred in law; that though the petitioner was subsequently promoted in Grade 18 (without being granted the benefit of Statutory Instruction No.157) but the issue remains alive because he would be denied the benefit of Statutory Instruction No. 157 when he is considered for promotion to Grade 19 in view of the said determination in the impugned decision---Validity---Present case related to the appellate jurisdiction of the Tribunal which being an ultimate fact-finding forum was constituted to redress the lawful grievances of civil servants and ventilate their sufferings---So for all intent and purposes, the Tribunal had exclusive jurisdiction in the matter relating to the terms and conditions of service of the Civil Servants and could go into all the facts of the case and the relevant law for just and proper decision---Appeal was allowed, the impugned judgment was set aside and the matter was remanded to the Tribunal to decide the appeal afresh strictly in accordance with law preferably within a period of three months.

(b) Appeal---

----Scope---Appellate Court, jurisdiction of---Appeal is a continuation of the original proceedings---Under appellate jurisdiction the court is always obligated to delve into not only the questions of law but also questions of facts---Whole case reopens in the appellate jurisdiction to explore and consider all questions of fact and law, whether the same were rightly adjudicated by the lower fora or not---Therefore, the verdict of the appellate court either allowing or dismissing the appeal or modifying the order of lower fora, ought to bring to light conscious and proper application of mind.

Dr. Shah Nawaz, Advocate Supreme Court and Mrs. Abida Parveen Channar, Advocate-on-Record for Appellant.

Ziaul Haq Makhdoom, Additional Attorney General for Respondents Nos. 1 and 2.

Nemo for Respondents Nos. 3 to 5.

2024 S C M R 1191

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

MUHAMMAD IMTIAZ BAIG and another---Petitioners

Versus

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

Criminal Petitions Nos. 1288-L and 1354-L of 2017, decided on 29th March, 2024.

(Against the judgment dated 11.09.2017, passed by the Lahore High Court, Lahore in Murder Reference No. 198 of 2014 and Criminal Appeal No.967 of 2014).

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Occurrence was reported to the Police on the same day just one and half hours of its happening on the basis whereof formal FIR was chalked out---Complainant and eye-witnesses corroborated one another on all material aspects of the case and their evidence was straightforward, trustworthy, and confidence-inspiring---All of them had established their presence at the spot at the time of occurrence---Prosecution successfully proved its case against the petitioner beyond a reasonable doubt---High Court had already taken a lenient view and converted the death sentence awarded to the accused into life imprisonment---Petition challenging conviction was dismissed.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Admittedly, all the eye-witnesses were related inter se and no independent witness from the locality came forward to substantiate their version even though the incident, as per the version of the prosecution, took place in the street---Complainant and other witnesses did not allege any motive, previous enmity or grudge against the petitioner (accused) for the murder of the deceased---Petitioner was probably included in the story because he was the brother of the main accused---Possibility of the complainant throwing a wider net to implicate the petitioner could not be ruled out---During investigation nothing had been recovered from the petitioner---Weapon of offence/pistol was allegedly recovered on the pointation of the co-accused while he was on physical remand---Report of the Punjab Forensic Science Laboratory ("PFSL") disclosed that parcel of crime empties, which was taken into custody by the Investigating officer from the place of occurrence on 28.05.2012 vide the recovery memo, was received in the office of PFSL on 31.07.2012 for comparison after the recovery of alleged weapon of offence i.e. pistol---Such delayed submission of crime empties, especially after the recovery of the weapon of offense, was not warranted under the law---Evidence presented for establishing motive was rightly not believed by the appellate court for valid reasons---Prosecution case against the petitioner was doubtful---Petition was converted into appeal and allowed, and petitioner was acquitted of the charge.

(c) Criminal trial---

----Witnesses closely related to the deceased, evidence of---Reliance---Testimony of witnesses who are not only closely related to the deceased but also have a strong motive to falsely implicate the accused has to be appreciated carefully.

Muhammad Zaman v. The State and others 2014 SCMR 749 and Abdul Ghafoor v. The State 2022 SCMR 1527 ref.

(d) Criminal trial---

----Benefit of doubt---Principle---Once a single loophole/lacuna is observed in the case presented by the prosecution, the benefit of the same automatically goes in favour of an accused.

Daniel Boyd (Muslim Name Saifullah) and another v. The State 1992 SCMR 196; Gul Dast Khan v. The State 2009 SCMR 431; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Abdul Jabbar and another v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State and others PLD 2019 SC 64 and Muhammad Imran v. The State 2020 SCMR 857 ref.

(e) Criminal trial---

----Defence plea---Scope---All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the questions viz. is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case?---If the answer is in the affirmative, then the Court must accept the plea of the accused and act accordingly---If the answer to the question is negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of the defence plea/version being true---If the Court finds that although the accused has failed to establish his (defence) plea/version to the satisfaction of the Court but the plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly.

Faiz and others v. The State 1983 SCMR 76; Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879; Sultan Khan v. Sher Khan and others PLD 1991 SC 520; Muhammad Asghar v. Muzammal Khan and 2 others 2004 SCMR 747; Muhammad Ashraf v. The State 2006 SCMR 1815; Sabir Ali v. The State 2011 SCMR 629; Ahmad Nawaz and another v. The State 2011 SCMR 593 and Ali Ahmad and another v. The State and others PLD 2020 SC 201 ref.

Muhammad Aurangzeb Khan, Advocate Supreme Court for Petitioners (in Crl. P. No. 1288-L of 2017).

Majid Hussain, Advocate Supreme Court for Petitioners (in Crl. P. No. 1354-L of 2017) (via video link from Lahore)

Mirza Abid Majeed, DPG, Punjab for the State.

Majid Hussain, Advocate Supreme Court for Respondents. (in Crl.P.No.1288-L of 2017) (via video link from Lahore).

2024 S C M R 1202

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Irfan Saadat Khan, JJ

Malik AHMAD USMAN NAWAZ---Petitioner

Versus

The APPELLATE TRIBUNAL (ELECTIONS ACT, 2017) for PP-254

(Bahawalpur-X), Bahawalpur and others---Respondents

C.P.L.A. No. 244 of 2024, decided on 30th January, 2024.

(Against judgment dated 12.01.2024 passed by the Lahore High Court, Lahore in W.P. No. 2435 of 2024.).

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

----S. 62---Election for seat of Provincial Assembly---Nomination papers, acceptance of---Proclaimed offender---Fugitive from law---Right to contest elections---Disadvantage, if any, for being a proclaimed offender ordinarily relates only to the case in which a person has been so proclaimed, and not to the other cases or matters which have no nexus to that case---For instance, a proclaimed offender is not disentitled to institute or defend a civil suit, or an appeal arising therefrom, regarding his civil rights and obligations---Same is the position with the civil right of a person to contest an election; in the absence of any contrary provision in the Constitution or the Elections Act 2017 ("Act"), his status of being a proclaimed offender in a criminal case does not affect his said right.

Tahir Sadiq v. Faisal Ali and others 2024 SCMR 775 ref.

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

----Ss. 62(9)(c) & 62(9)(d)---Election for seat of Provincial Assembly---Nomination papers, acceptance of---Mismatching of signatures---Returning officer rejected the nomination paper of the petitioner (candidate) for the reason that his signature on the paper did not match that on his CNIC---Validity---Petitioner had appeared throughout in the proceedings regarding his nomination, up to the Supreme Court, and had owned the nomination paper as filed---At no stage did he disown or repudiate the same or the signature thereon---Returning officer had the jurisdiction to reject a nomination paper in terms of section 62(9) of the Elections Act, 2017 ('Act') after a summary enquiry---Clause (d) of subsection (9) allows for rejection if the returning officer is satisfied that the signatures of either the proposer or the seconder are "not genuine"---Clause (d) (which deals specifically with the issue of signatures) does not at all speak of the candidate---Rejection of the petitioner's nomination paper for an alleged mismatch between his signatures as on the nomination paper and on his CNIC was therefore not possible in terms of this clause---Candidate does sign the nomination paper, which has to be in the form as set out in Annex A to the Act---As presently relevant, Form A relates to section 60(2)---Clause (c) of subsection (9) of section 62 allows for the rejection of the nomination paper if the returning officer is satisfied that "any provision of section 60 or section 61 has not been complied with or the candidate has submitted a declaration or statement which is false or incorrect in any material particular"---Thus, the matter of the alleged mismatch could, if at all, have been considered only in terms of this provision---Said provision was, however, not attracted in the facts and circumstances of the present case---First part thereof, namely that any provision of section 60 had not been complied with, was clearly not attracted: the nomination paper was signed by the petitioner who had never repudiated or disowned the same---Latter part, namely that any declaration or statement had been made which was false or incorrect in any material particular, was also not applicable---Firstly, the candidate's signature is neither a "declaration" nor a "statement" within the meaning of either this provision or section 60---Secondly, and more importantly, the falsity or incorrectness has to be "material"---It is a mandatory legal obligation for the returning officer to apply his mind to the test of materiality and record appropriate reasons in this regard---Order in the present case showed no such thing---Furthermore, the alleged mismatch in signatures was in any case not material---This conclusion is bolstered by a reference to para (ii) of the proviso to section 62(9)---Clearly, any mismatch in signatures could be "remedied forthwith" within the meaning thereof, and anything capable of being so dealt with (regardless of whether or not it is actually so rectified) cannot be "material" within the meaning of clause (c)---Thus, on any view of the matter, the objection ought to have been overruled by the returning officer instead of being sustained---Petitioner was entitled to participate in the general election to the Punjab Assembly as a candidate for PP 254---Leave petition was converted into an appeal and allowed; impugned judgment of the High Court as well as the orders of the fora below were set aside with the result that the nomination papers of the petitioner/appellant for PP-254 were deemed accepted and his name was deemed included in the final list of candidates for the General Elections of 2024.

Umair Majeed Malik, Advocate Supreme Court assisted by Abdullah Sajid, Advocate and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Khurram Shehzad, Addl. D.G. Law and Falak Sher, Legal Consultant for Respondents.

2024 S C M R 1208

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi, Musarrat Hilali and Naeem Akhtar Afghan, JJ

KHIZAR HAYAT---Petitioner

Versus

Malik AKHTAR MEHMOOD---Respondent

Civil Petition No.760 of 2024, decided on 15th April, 2024.

(Against judgment dated 18.01.2024 passed by the Lahore High Court in R.F.A. No. 66727 of 2020).

Civil Procedure Code (V of 1908)---

----O.XXXVII, R. 2---Suit for recovery on the basis of a pro-note---Record revealed that execution of pro-note was admitted by the petitioner (defendant)---In the agreement between the parties, the petitioner unequivocally confirmed the execution of the pro-note and also undertook that if arbitrators decided the matter against him, he would have no objection---This clearly indicated that pro-note was executed against due consideration by the petitioner voluntarily---It appears that cheque along with the pro-note was given to arbitrators for redetermination and reconsideration of amount due and once the Arbitrators confirmed the amount of Rs. 6,000,000/- as due to the respondent (plaintiff) from the petitioner, the pro-note was handed over back the respondent along with a cheque executed by the petitioner---Petitioner had neither challenged the decision of the arbitrators nor the agreement for appointment of arbitrators or execution of cheque and pro-note---Moreover, perusal of the testimony of the petitioner in his examination in chief clearly indicated that he himself admitted the liability to pay and voluntarily issued the pro-note and cheque---Suit for recovery was rightly decreed in favour of the respondent---Petition was dismissed and leave was refused.

Malik Matee Ullah, Advocate Supreme Court for Petitioner.

N.R. for Respondent

2024 S C M R 1210

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

ATTAULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Petition No.35-K of 2024, decided on 4th April, 2024.

(Against the judgment dated 14.3.2024 passed by High Court of Sindh, Karachi in Spl. Cr. Bail Appeal No.17 of 2024).

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

----S. 497(2)---Customs Act (IV of 1969), Ss. 2(s), 16, 157(1) & 178---Constitution of Pakistan, Art. 185(3)---Pilferage and stealing of Petroleum, Oil and Lubricants (POL) through a concealed pipeline---Bail, grant of---Further inquiry---Petitioner (accused) had been assigned the role of a pilot to a vehicle in which the stolen POL was stored for transporting it to some other destination---Admittedly the High Court granted bail to four co-accused persons---Petitioner was a low paid employee like the said co-accused persons who had been granted bail by the High Court---First Information Report indicated the case of joint recovery of stolen POL from several persons including the petitioner and four other persons who had already been extended the benefit of bail by the High Court---It was not the case of the prosecution at present stage that the petitioner was found stealing or pilfering the POL but he was attributed the role of a pilot---Whether he was involved directly or vicariously or with the group of persons with common intention to commit the crime of alleged smuggling was something that could not be decided without recording evidence to prove his guilt, and required further inquiry---Petition was converted into appeal and allowed; and the petitioner was granted bail.

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

----S. 497(2)---Constitution of Pakistan, Art. 185(3)---Bail---Further inquiry---Principles---Case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of the accused in the crime whereas the expression "reasonable grounds" refers to grounds which may be legally tenable, admissible in evidence, and appealing to a reasonable judicial mind as opposed to being whimsical, arbitrary, or presumptuous---Prosecution has to demonstrate that it is in possession of sufficient material/evidence, constituting 'reasonable grounds' that accused had committed an offence falling within the prohibitory limb of Section 497 of the Code of Criminal Procedure, 1898, while for attaining bail, the accused has to show that the evidence/material collected by the prosecution and/or the defence plea taken by him created reasonable doubt/suspicion in the prosecution case and he is entitled to the benefit of bail---For all intents and purposes, the doctrine of 'further inquiry' denotes a notional and exploratory assessment that may create doubt regarding the involvement of the accused in the crime.

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

----S. 497(2)---Constitution of Pakistan, Art. 185(3)---Bail---Rule of consistency---Scope---Rule of consistency, or in other words, the doctrine of parity in criminal cases, including bail matters, encapsulates that where the incriminated and ascribed role 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 the 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.

Nisar Ahmed Bhanbhro, Advocate Supreme Court for Petitioner.

Khaleeque Ahmed, D.A.G. for the State.

2024 S C M R 1215

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Jamal Khan Mandokhail and Naeem Akhtar Afghan, JJ

CITY DISTRICT GOVERNMENT, KARACHI---Appellant

Versus

AKRAM NABI and others---Respondents

Civil Appeal No. 231-K of 2010, decided on 26th April, 2024.

(Against the judgment dated 13.01.2009 of the High Court of Sindh Karachi passed in C.P. No. D-1153 of 2005).

Karachi Development Authority Order (V of 1957)---

----Art. 52-A & Preamble---Amenity plot---Matter pertaining to illegal allotment of plots in land earmarked and designated as a public park (Bagh-e-Ibn-Qasim)---When Karachi Development Authority (KDA) realized that the allotment orders were illegal and had been issued in respect of a park, and were issued by changing the designated land use to commercial use, the same were cancelled after issuance of requisite show cause notices---Some of the allotees filed constitutional petitions before the High Court, which ordered that the allottees be compensated 'by offering alternate property in their respective favour without any further delay, in order to maintain balance and to do complete justice'---Legality---Allottees were granted relief by the High Court which they had not even asked for---Karachi Development Authority Order, 1957 in its Preamble specifically mentioned the protection of public amenities like parks, gardens and playgrounds, etc.---Article 52-A of the Karachi Development Authority Order, 1957, which whilst undergoing changes, does and always did prohibit the conversion of amenity plots and to change their designated use---Amenity plots cannot be changed to commercial use---What was reserved for the public could also not have been converted for private benefit, nor could the park be used for commercial use---Private use and/or profit cannot negate or undermine public use and benefit---Relief granted by the High Court was beyond what had been asked for, and it could not have been granted to do complete justice---On the contrary, the relief which was granted was in violation of the Master Plan of the City and the applicable law---Before any lease had been executed by KDA the illegality which had been committed was realized and KDA cancelled the allotment orders, after show cause notices were issued to the allottees---KDA had also not elected to retain/forfeit amounts paid by the allottees rather it had offered to refund the same---Impugned judgment of the High Court was not sustainable, and was accordingly set-aside---Appeal was allowed accordingly.

Mirza Sarfraz, Advocate Supreme Court, Ms. Abida Parveen Channar, Advocate-on-Record and Syed Shujat Hussain, D.G. K.D.A. for Appellant.

Muhammad Iqbal Chaudhry, Advocate-on-Record for Respondents.

Sibtain Mehmood, Addl. Advocate General on Court's Notice.

2024 S C M R 1218

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi, Musarrat Hilali and Naeem Akhtar Afghan, JJ

TARIQ ZUBAIR KHAN---Petitioner

Versus

Mst. TABASSUM KHAN and others---Respondents

Civil Petition No. 4194 of 2023, decided on 19th April, 2024.

(Against the order dated 27.09.2023 passed by Islamabad High Court, Islamabad, in F.A.O. No. 104 of 2023).

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

----O. XXI., Rr. 84 & 90---Suit for possession through partition---Execution of decree---Auction proceedings---Objection petition---Pursuant to preliminary decree, the Trial Court appointed a Court Auctioneer to conduct an auction of the subject house---Petitioner (one of the legal heirs) filed objections on the report submitted by the Court Auctioneer, but the same was dismissed on account of petitioner's failure to deposit the 20% (twenty percent) of the sum realized at the sale---Petitioner preferred an appeal against the said order before the High Court which also met the fate of dismissal---Plea of petitioner was that his objection application was made under Order XXI, Rule 84 of the Code of Civil Procedure, 1908 ("C.P.C.") but it was decided within the limits of Order XXI, Rule 90---Validity---Such plea of petitioner was not tenable in eyes of law---It is clear from a bare reading of Order XXI, Rule 84, C.P.C. that the purchaser is required by law to immediately pay twenty-five percent of purchase money and there is no word that suggests objections to auction proceedings may be filed by the owner/legal heirs of the owner of the subject property under this rule---Moreover, petitioner in this case, was not a purchaser but his predecessors in interest were the owner of the subject property, hence, he could not have invoked Order XXI, Rule 84, C.P.C.---Trial Court deemed the objections filed by petitioner as an application under Order XXI, Rule 90, C.P.C.---Trial Court directed the petitioner to deposit twenty percent of the sale proceeds but he failed to do so---Neither he made any application for an extension of time nor showed any willingness to deposit such an amount---Trial Court has rightly observed that there had been an inordinate delay in the execution of the decree and six years had already elapsed---Petition was dismissed and leave to appeal was refused.

Muhammad Attique v. Jami Limited and others PLD 2010 SC 993 ref.

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

----O. XXI., R. 90---Execution of decree---Auction proceedings---Objection petition---Conditions required to be satisfied under Order XXI, Rule 90 of the Code of Civil Procedure, 1908 ("C.P.C.")---Sale may be set aside on the grounds of material irregularity or fraud under Order XXI, Rule 90, C.P.C. wherein the applicant has to establish substantial injury sustained by him owing to such material irregularity or fraud in the sale by public auction---Additionally, applicant has to comply with the second proviso to this rule by depositing twenty percent of the sum realized at the sale---Rationale behind the second proviso is to discourage frivolous objections frustrating the execution of the decree.

Mst. Samrana Nawaz and others v. MCB Bank Ltd and others PLD 2021 SC 581 ref.

Muhammad Ikram Chaudhry, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2024 S C M R 1224

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi, Musarrat Hilali and Naeem Akhtar Afghan, JJ

RIASAT ALI and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No.708-L of 2018, decided on 16th April, 2024.

(On appeal against the judgment dated 21.05.2018 passed by the Lahore High Court, Lahore, in Crl. Appeal No. 1591 of 2014 and M.R. No.315 of 2014)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Ocular account presented by witnesses not proved---Unnatural conduct of witnesses---According to the version of prosecution witnesses they along with the deceased came out in the street from a Haveli, belonging to the deceased, and were proceeding towards horse stable of deceased when they were fired upon in the street by the petitioner (accused)---Site map produced by the prosecution at the trial did not mention the point/place where the horse stable of deceased was situated nor it mentioned the distance between the Haveli of deceased and his stable---Site map did not mention about the Haveli of deceased---In the site map Haveli of person "MA" had been shown in occupation of deceased---Neither the prosecution witnesses had stated that deceased was residing in Haveli of "MA" nor the prosecution had produced "MA" at the trial to prove that deceased was residing in his Haveli and if so, in what capacity---From the testimony of prosecution witnesses and contents of the post mortem regarding time of death of deceased persons, it was clear that the first deceased remained lying injured at the place of occurrence for half an hour and the second deceased remained lying injured at the place of occurrence for one hour but prosecution witnesses, claiming to be the eye-witnesses, made no efforts to immediately shift both the injured to hospital---Had prosecution witnesses been present at the place of occurrence with the deceased, being close relatives of one of the deceased, they would have immediately taken both the injured to the hospital to save their lives--- Unnatural conduct of prosecution witnesses created serious doubts about their presence at the place of occurrence with the deceased---Prosecution witnesses had not explained as to how they escaped firearm injuries despite indiscriminate firing by five accused persons from a close range---Said aspect also created doubt about presence of the alleged witnesses at the place of occurrence---It was not believable that by killing a person in presence of his close relatives, the petitioner (accused) would not attempt to cause any injury to the prosecution witnesses leaving them for giving evidence against him---Prosecution had failed to prove the charge against the petitioner of committing murder of the deceased beyond reasonable doubt---Petition was converted into appeal and allowed, and petitioner was acquitted of the charge under section 302(b), P.P.C.

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

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Medical evidence---Nature of injuries---Postmortem report in conflict with prosecution version---Prosecution witnesses had failed to furnish any explanation as to if the deceased was fired upon by a rifle of 222 bore from a distance of 5.5 feet, how his entrance wound was surrounded by blackened and burnt area---Prosecution had failed to prove the charge against the petitioner of committing murder of the deceased beyond reasonable doubt---Petition was converted into appeal and allowed, and petitioner was acquitted of the charge under section 302(b), P.P.C.

Modi's Medical Jurisprudence and Toxicology (21 Edition) at page 354; Mir Muhammad v. The State 1995 SCMR 610; Amin Ali v. the State 2011 SCMR 323 and Muhammad Zaman v. The State 2014 SCMR 749 ref.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Crime empties, recovery of---Infirmities in the site plan---In the site map it had been mentioned that seven crime empties were recovered from point 'I' of the place of occurrence but the site map did not mention any point 'I'---Admittedly no crime empty was recovered from near point 'E' i.e. wherefrom the petitioner (accused) had allegedly fired upon the deceased---According to the version of the prosecution witnesses and site map, the seven crime empties should have been recovered from six different places/points from the place of occurrence but surprisingly the prosecution witnesses had mentioned about recovery of seven crime empties from one place i.e. point 'I' (which had not been mentioned in the site plan)---Prosecution witnesses including Investigating Officer had not furnished any explanation in such regard---In his report, the firearm expert of Punjab Forensic Science Agency had identified two crime empties having been fired from 222 caliber rifle---About the third crime empty, the firearm expert had not given any definite opinion---Remaining three crime empties had been held not suitable for comparison by the firearm expert---Prosecution had failed to prove the charge against the petitioner of committing murder of the deceased beyond reasonable doubt---Petition was converted into appeal and allowed, and petitioner was acquitted of the charge under section 302(b), P.P.C.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Reappraisal of evidence---Alleged eye-witness to the occurrence not produced during trial---Adverse presumption---Prosecution had not produced witness "MN" at the trial who was allegedly accompanying other alleged witnesses and deceased at the time of occurrence---Under Article 129(g) of the Qanun-e-Shahadat, 1984 adverse inference was to be drawn to the effect that had he been produced by the prosecution at trial, he would not have supported the prosecution case---Prosecution had failed to prove the charge against the petitioner of committing murder of the deceased beyond reasonable doubt---Petition was converted into appeal and allowed, and petitioner was acquitted of the charge under section 302(b), P.P.C.

Salman Safdar, Advocate Supreme Court for Petitioners.

Irfan Zia, Addl. P.G. Punjab for the State.

Muhammad Afzal (in person)

2024 S C M R 1233

[Supreme Court of Pakistan]

Present: Munib Akhtar, Shahid Waheed and Irfan Saadat Khan, JJ

Mst. IQBAL BIBI and others---Appellants

Versus

KAREEM HUSSAIN SHAH and others---Respondents

Civil Appeal No.1229 of 2018, decided on 1st February, 2024.

(Against the judgment dated 18.5.2016 passed by Peshawar High Court, Abbottabad Bench in Civil Revision No.222-A of 2005).

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

----Arts. 95 & 119---Power of Attorney, authenticity of---Burden of proof---Presumption as to Power of Attorney---Since entirety of the case of the respondents (plaintiffs) hinged on the fact that the allegedly fraudulent Power of Attorney was the root cause of the present lis, thus, the burden to prove such fraud, laid upon them---However, they failed to prove the same, rather the veracity of the Power of Attorney was not even challenged at the evidence stage---Power of Attorney was duly testified by the Consulate General of Pakistan in Malaysia and was then registered in Pakistan, therefore it qualified for the presumption of execution and authentication available as per Article 95 of the Qanun-e-Shahadat, 1984---Therefore, the Power of Attorney in favour of the appellants (defendants) enfolded a presumption of truth and genuineness and its admissibility could not be doubted as there existed no proof on record pointing towards it being forged---Appeal was allowed.

Ziauddin Siddiqui v. Mrs. Rana Sultana 1990 CLC 645; Iqbal Ahmad Sabri v. Fayyaz Ahmad 2007 CLC 1089 and Shahnaz Akhtar v. Syed Ehsan ur Rehman 2022 SCMR 1398 ref.

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

----S. 42---Limitation Act (IX of 1908), S. 3 & First Sched., Art. 120---Suit for declaration---Limitation---Respondents (plaintiffs) questioned transactions made in 1990 by their father after a period of almost 13 years, 7 months, and 6 days; when admittedly the respondents, who reside in Malaysia, had visited Pakistan after 1990 a number of times---Thus, reliance of the respondents on the Power of Attorney given by them to one "IH" in 1998 when the mutation entries in the name of the present appellants (defendants) had already been made in the revenue records in the year 1990, in accordance with the Power of Attorney given by the respondents to "GS" ( the late father of the appellants), appeared to be wholly unwarranted and misconceived---It was also an undeniable position that "GS" passed away in the year 1993 whereas the mutation entries were made in the year 1990 and no effort was made by the late "GS"to challenge the mutation entries in his life time---Moreover, the statement of "IH" that he came to know about the mutation entries in the year 2004 also appeared to be misconceived as admittedly the Power of Attorney was given to him by the respondents, who live abroad, in the year 1998; and it was quite strange that ever since then he made no effort to verify the mutation entries and only came to know about the same in the year 2004 when he examined the revenue record---It was also beyond comprehension that for over a decade the respondents were not aware of an alleged fabricated Power of Attorney and then sought a declaration as owners of the subject Khasras---Hence, keeping in mind such aspects, the action taken by the respondents was hit by limitation, and no lease in this regard could be given to them and thus the matter was hopelessly time barred---Appellants were declared to be the owners of the subject Khasras---Appeal was allowed and the impugned judgement and decree was set aside.

Muhammad Bashir v. Mst. Sattar Bibi PLD 1995 Lah. 321; Kala v. Kamo Begum 2013 SCMR 1558 and Hajid Muhammad Younis (Deceased) v. Farukh Sultan 2022 SCMR 1282 ref.

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

Junaid Akhtar, Advocate Supreme Court for Respondents.

2024 S C M R 1250

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

ABDULLAH CHANNAH---Petitioner

Versus

The ADMINISTRATIVE COMMITTEE and others---Respondents

Civil Appeal No. 653-K of 2022, decided on 8th April, 2024.

(Against the order dated 05.03.2022 passed by Sindh Subordinate Judicial Service Tribunal, High Court of Sindh, Karachi, in S.A. No.15 of 2003).

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

----S. 3-B---Judicial officers of subordinate judiciary---Service appeal filed by judicial officer before the (Sindh) Subordinate Judiciary Service Tribunal against order of Administrative Committee of the (Sindh) High Court---Maintainability---When any issue crops up in respect of the terms and conditions of service of members of the subordinate judiciary including grievance against dismissal from service, compulsory retirement, wrong fixation of seniority, or grievance against any minor or major penalty, then recourse is to be made to the Subordinate Judiciary Service Tribunal, which is the ultimate fact-finding forum available and they are not supposed to file civil suits in the Civil Court or the writ petitions in the High Court to challenge the adverse departmental or disciplinary actions against them---Judicial officers who file Service appeals before the (Sindh) Subordinate Judiciary Service Tribunal against orders of Administrative Committee of the (Sindh) High Court cannot be non-suited on the ground of maintainability.

Gul Taiz Khan Marwat v. Registrar Peshawar High Court PLD 2021 SC 391 and Bashir Ahmed Badini, D&SJ and others v. Hon'ble Chairman and Member of Administration Committee and Promotion Committee of Hon'ble High Court of Balochistan 2022 SCMR 448 = 2022 PLC (C.S.) 610 ref.

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

----S. 3-B---Judicial officers of subordinate judiciary---Service appeals filed by judicial officers before the (Sindh) Subordinate Judiciary Service Tribunal---Appeals kept pending for many years---Adverse consequences---As a result of long pendency and no decision on the appeals, certain developments are made by the efflux of time which makes the entire purpose of filing of appeals infructuous and worthless---If appeals against minor and major penalties will remain pending for an indefinite period during the service tenure, it will also become a cause of mental stress and exasperation---Another possibility that cannot be ruled out is that when the matter is taken up for hearing for a final decision, though after several years, the appellant (judicial officer) may not be in judicial service anymore or may not be actively pursuing the case or may have passed away---In such eventuality, the second phase of litigation for impleading the legal heirs will be triggered keeping in mind the nitty-gritties of service appeal to decide the question of, firstly, whether the right to sue survives to the legal heirs or not?---With an eye to overcome and resolve this distressing and disquieting situation, it would be most advantageous and strategic if the Chief Justice, Sindh High Court, and the Chairman of the Tribunal, formulate any Standing Instructions to settle down a reasonable timeline for making decisions of pending service appeals before the Tribunal according to ageing from the date of institution.

Amer Raza Naqvi, Advocate Supreme Court for Petitioner.

Sibtain Mehmood, Addl. A.G. Sindh and Asim Majeed, Acting Registrar, SHC for Respondents.

2024 S C M R 1258

[Supreme Court of Pakistan]

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

ABDULLAH JUMANI and others---Appellants

Versus

PROVINCE OF SINDH and others---Respondents

Civil Appeals Nos. 26-K to 38-K of 2021, C.M.As. Nos. 7436 and 3498 of 2021 in C.P.L.A. No. Nil of 2021 decided on 29th December, 2023.

(Against the judgment dated 08.04.2021 passed by High Court of Sindh, Karachi in Constitutional Petitions Nos. D-6241, D-6229, D-2732, D-4271 of 2017, D-5995, D-9016 of 2018, D-4107, D-7376 of 2019, D-4292 and D-4902 of 2020).

(a) Constitution of Pakistan---

----Art. 199---Suo motu jurisdiction---High Court does not possess any suo motu jurisdiction under Article 199 of the Constitution.

Dr. Imran Khattak v. Ms. Sofia Waqar Khattak, PSO to the Chief Justice 2014 SCMR 122; Jahanzaib Malik v. Balochistan Public Procurement Regulatory Authority through Chairman Board of Directors and others 2018 SCMR 414; Mian Muhammad Nawaz Sharif and others v. Muhammad Habib Wahab Al-Khairi and others 2000 SCMR 1046; Raja Muhammad Nadeem v. The State and another PLD 2020 SC 282; Mian Irfan Bashir v. The Deputy Commissioner, Lahore and others PLD 2021 SC 571 and Messrs Sadiq Poultry (Pvt.) Ltd. v. Government of Khyber Pakhtunkhwa through Chief Secretary and others PLD 2023 SC 236 ref.

(b) Constitution of Pakistan---

----Art. 199---Vires of law---Judicial review---Scope---If the constitutionality of any law is challenged in the High Court, the Court can scrutinize and survey such law and also strike it down if it is found to be offending the Constitution for absenteeism of law-making and jurisdictive competence or is in violation of fundamental rights---Where the vires of a law are challenged, the burden always rests upon the person making such challenge to show that the same was violative of any pf the fundamental rights or the provisions of the Constitution and where more than one interpretation is possible, the Court must prefer the interpretation which favours the validity without attributing mala fide to the legislature.

Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 ref.

(c) Sindh (Regularization of Ad-hoc and Contract Employees) Act (XXV of 2013)---

----S. 3---Constitution of Pakistan, Arts. 10-A & 199---Deputy District Attorneys, posts of---Regularization in service---High Court exercised suo motu powers under Article 199 of the Constitution to declare the Sindh (Regularization of Ad-hoc and Contract Employees) Act, 2013 ('the 2013 Act')to be ultra vires---Constitutionality---Case record showed that neither the petitioners (contract employees) approached the High Court to challenge the vires of the 2013 Act nor did any other person challenge it---On the contrary, the 2013 Act was in field since 2013 and under the same law, various cases of numerous contractual or ad-hoc employees must have been dealt with by the government---In order to examine the competency and antecedents of the contractual employees, Scrutiny Committees were also constituted---It was also not disputed by the Government that the petitioners in the High Court claimed to have been performing their contractual obligations since 2009 regularly---Petitioners approached the High Court for regularization on the backing of the 2013 Act, therefore, the observation of the High Court deducing the relationship of master and servant is not the correct exposition of law---When a notice under Order XXVII-A, C.P.C., was issued to the Advocate General, Sindh, on the issue of maintainability, he allegedly argued that the 2013 Act is ultra vires despite knowing the fact that it is not a new law but is in field since 2013 and various employees have acquired the benefit of this law---High Court by striking down the 2013 Act in its suo motu jurisdiction has, in fact, passed a judgment in rem which literally binds the world as opposed to affecting only the rights and judgments inter parties---Importantly, High Court under Article 199 could not assume suomotu jurisdiction---Case before the High Court was to consider whether the petitioners are entitled for regularization of their services and obviously, if no case was made out, the petitions could have been dismissed---However, not only were the petitions dismissed but the law was also declared ultra vires which disturbed and traumatized a long chain of employees who are regularized or were being regularized since 2013 by the Government of Sindh in its different departments/ministries under the same law---Impugned judgment has deprived a long chain of employees and virtually made them jobless without providing any right of audience to them which was a grave violation of Article 10-A of the Constitution and also amounts to the contravention of the principle of natural justice and due process of law---Impugned judgment of the High Court was set aside and the matter was remanded to the High Court for deciding the Constitution Petitions afresh after providing opportunity of hearing to all the parties---Appeals were allowed.

(d) Jurisdiction---

----Judicial overreach---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---Courts commit judicial overreach when they exercise powers beyond the compass of powers and jurisdiction entrusted to the courts through the law and the Constitution.

Abid S. Zuberi, Advocate Supreme Court, Abdul Salam Memon, Advocate Supreme Court, Malik Naeem Iqbal, Advocate Supreme Court, Muhammad Shoaib Shaheen, Advocate Supreme Court Muhammad Iqbal Chaudhry, Advocate-on-Record, K. A. Wahab, Advocate-on-Record, Anjum Badar and Saba Wakeel, in-person for Appellants.

Soulat Rizvi, Addl. A.G. Sindh, Shafiq Ahmed, Advocate Supreme Court, Bhuromal, LO (Focal Person), Abdul Razzaq, Dy. Secretary, Abdul Samih, Dy. Dir. (L), Ahmed Ali, SO and Ms. Tehmina Rahman, F.P. (WDD) for Respondents.

2024 S C M R 1271

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

Mst. NAZEERAN and others---Appellants

Versus

ALI BUX and others---Respondents

Civil Appeal No.81-K of 2022, decided on 5th December, 2023.

(Against the judgment dated 02.06.2022 passed by the High Court of Sindh, bench at Sukkur in Civil Revision No.S-42 of 2012).

(a) Evidence---

----Civil proceedings---Burden of proof---Principles and scope---In civil proceedings, an issue is to be decided by preponderance of evidence and in the case where there is a word against a word; it is the party (beneficiary) on whom the burden must fail---Question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion---Where the whole of the evidence is before the Court and it has no difficulty in arriving at a conclusion , it becomes unnecessary to enter upon a discussion of the question of placing of burden on the parties.

Allah Din v. Habib PLD 1982 SC 465; Mst. Surraya Begum and others v. Mst. Susan Begum and others 1992 SCMR 652; Muhammad Amir v. Khan Bahadur and another PLD 1996 SC 267 and Mst. Khatun v. Malla 1974 SCMR 341 ref.

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

----Art. 117---Existence of any fact---Burden of proof---Principles---As per Article 117 of the Qanun-e-Shahadat, 1984, when a person is bound to prove the existence of any fact, the burden of proof lies on that person----Said Article is based on the rule, ei incumbit probation qui dicit, non qui negat, which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it because a negative is usually incapable of proof---Burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case---Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden---However, the above rule is subject to the general principle that things admitted need not be proved.

(c) Evidence---

----Burden of proof---'Legal burden' and 'evidential burden'---Distinction---Phrase 'burden of proof' has two meanings - one the burden of proof as a matter of law and pleading, that is 'legal burden' and the other, the burden of establishing a case, that is 'evidential burden'---Former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour---Thus, the legal burden would always remain on the plaintiffs and the evidential burden would shift to the defendants if they (plaintiffs) discharged their initial burden---Evidence required to shift the evidential burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by the opposite party,it may comprise of circumstantial evidence or presumptions of law or fact.

Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another PLD 2020 SC 146 ref.

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

----Arts. 85(5) & 129(e)---Registered document---Proof---'Standard of evidence' and 'burden of proof'---Scope---Standard of evidence is not uniform when challenging a registered document as compared to challenging an unregistered document---In disputes relating to registered documents, a common misconception may arise when an executant attempts to dispute the validity of the document through mere denial---Act of registration is not a perfunctory formality but rather a deliberate and legally binding process---When a document is registered, it becomes an official record available to the public---This adds credibility to the authenticity and legal purpose of the transaction---On the other hand, unregistered documents lack the same level of legal endorsement---While they may carry evidentiary weight, their value is inherently lessor as compared to the registered document---Absence of registration renders unregistered documents vulnerable to challenges regarding their authenticity and enforceability---Moreover, a document duly registered by the Registration Authority in accordance with the law becomes a legal document that carries a presumption as to the genuineness and correctness under Articles 85(5) and 129(e) of the Qanun-e-Shahadat, 1984 and which cannot be dispelled by an oral assertion that is insufficient to rebut the said presumption---Mere denial by the executant of a registered sale deed is insufficient to shift the burden onto the beneficiary of the registered document---Executant must establish his assertion of fraud or forgery, etc. by producing some evidence other than his denial to shift the burden onto the beneficiary to prove the valid execution of the registered document---This legal principle reflects the recognition of the high evidentiary value attached to registered documents as compared to unregistered documents.

(e) Fraud---

----Fraud vitiates all actions and no Court can uphold a right on fraud.

(f) Fraud---

----Proof---It is very easy to assert fraud but it is difficult to prove the same----No law provides a special quantum of evidence for the establishment of fraud---While it is true that the Courts should be careful in coming to a finding of fraud and should normally satisfy themselves that the finding is based on reliable evidence, it cannot be said that any special number of witnesses or any special nature of evidence is needed to establish fraud---It is for the Court which is to decide this question to be satisfied that the evidence adduced before it is such that it can believe it---Nonetheless, when a party alleges fraud it becomes its duty to prove the same and generalized allegations or for that matter, mere bald assertions without evidence cannot shift the initial burden.

Ghulam Ghous v. Muhammad Yasin and another 2009 SCMR 70 and Mst. Bhano and another v. Mian A.M. Saeed and others 1969 SCMR 299 ref.

(g) Islamic law---

----Guardian of a minor---Immoveable property---Well-established principle of Muslim Law is that a de facto guardian of a minor has no power to transfer any right to or interest in the immovable property of the minor---Even the principle of estoppel is inapplicable in the case of a minor.

Principles of Muhammadan Law by Mulla, 17th Edition at p.299; Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311; Mehr Manzoor Hussain and others v. Muhammad Nawaz and another 2010 SCMR 1042; Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837 and Yar Muhammad Khan and others v. Sajjad Abbas and others 2021 SCMR 1401 ref.

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

----Art. 84---Trial Court---Power to visually compare signatures on property documents---Scope---Court in certain eventualities, enjoins plenary powers to itself compare the signature along with other relevant material to effectively resolve the main controversy---Thus, a visual comparison of signatures on sale deeds conducted by the trial court is in consonance with the law.

Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Ahmed Hassan Khan v. Naveed Abbas and another 1998 SCMR 346 and Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others 1999 SCMR 85 ref.

Mukesh Kumar G. Karara, Advocate Supreme Court for Appellants.

Mirza Sarfaraz Ahmed, Advocate Supreme Court for Respondent Nos. 1-3.

Respondents Nos.4-7: Ex-parte.

2024 S C M R 1284

[Supreme Court of Pakistan]

Present: Sardar Tariq Masood, ACJ, Syed Mansoor Ali Shah and Athar Minallah, JJ

IMRAN AHMED KHAN NIAZI and another---Petitioners

Versus

The STATE and another---Respondents

Crl. Ps. Nos. 1276 and 1320 of 2023, decided on 22nd December, 2023.

(Against the orders of Islamabad High Court, Islamabad, dated 27.10.2023 passed in Crl. Misc. No. 1354-B of 2023 and dated 08.11.2023 passed in Crl. Misc. No. 1664-B of 2023).

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail petition before the Supreme Court---Material available on record, appraisal of---Scope---At bail stage Court cannot indulge in the exercise of a deeper appraisal of the material available on record of the case but is to determine it only tentatively by looking at such material.

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

----S. 497(2)---Official Secrets Act (XIX of 1923), Ss. 5 & 9---Penal Code (XLV of 1860), S. 34---Constitution of Pakistan, Art. 185(3)---Communicating information contained in a secret classified Cypher Telegram received from Pakistan's Ambassador to a foreign country to unauthorized persons, common intention---Bail, grant of---Further inquiry---Right of bail for political leaders and political workers during elections period---Scope---[Per Syed Mansoor Ali Shah, J: There was no sufficient incriminating material available, at present stage, which could show that the petitioner (former Prime Minister) communicated the information contained in the Cypher Telegram to the public at large with the intention or calculation, directly or indirectly, in the interest or for the benefit of a foreign power nor the disclosed information related to any of the defence installations or affairs, nor did he disclose any secret official code to the public at large---There were no reasonable grounds for believing, at present stage, that the petitioners (former Prime Minister and Foreign Minister) committed the offence punishable under clause (b) of Section 5(3) of the Official Secrets Act, 1923 ('Act') but rather that there were sufficient grounds for further inquiry into their guilt of the said offence, which was to be finally decided by the Trial Court after recording of the evidence of the parties]---[Per Athar Minallah, J: Incarceration of a political competitor during the period of elections, except when it is necessary due to exceptional circumstances, gravely affects the fundamental rights of the voters and prejudices the genuineness and integrity of the elections---As far as the question as to why political leaders and political workers should be extended preferential treatment, the answer is that there is a higher and greater interest of the people at large involved which is always given preference over other interests---There cannot be a greater public interest than ensuring genuine elections and if the incarcerated person intends to contest elections or the standing of a political party is dependent upon the latter then this ought to be considered a ground for the grant of bail during the election period---Concession of bail in such an eventuality should be considered favorably as a rule and declined in exceptional circumstances---Pakistan's unflattering electoral history and oppressive treatment of political dissidents during the period of elections necessitates considering the grant of bail favorably as a rule---In the present case the petitioners were alleged to be involved in an offence which does not fall under the category of offences that threaten the society such as rape, child abuse, homicide etc.---Investigation has been completed and trial is in progress---Trial is entirely dependent on documentary evidence---Incarceration of the petitioners will not serve any useful purpose----Moreover, their release on bail during the period of elections would ensure 'genuine elections' and thus enable the people to exercise the right to express their will effectively and meaningfully---There were no exceptional circumstances to decline the concession of bail ]---Petitions were converted into appeals and allowed, and bail applications of the petitioners were accepted.

For the Petitioners:

Hamid Khan, Sr. Advocate Supreme Court (Through V.L. Lahore Registry)

Salman Safdar, Advocate Supreme Court.

Syed Mohammad Ali Bokhari, Advocate Supreme Court.

Niazullah Khan Niazi, Advocate Supreme Court, Qamar Inayat Raja, Advocate Supreme Court, Barrister Tamur, Advocate.

Barrister Faiza, Advocate.

Syed Rifaqat Hussain Shah, Advocate-on-Record.

For the Respondents:

Javaid Iqbal Wains, Addl.AGP.

Raja Rizwan Abbasi, Advocate Supreme Court.

Mudassar Hussain Malik, Advocate Supreme Court and Syed Zulifqar Abbas Naqvi, Advocate Supreme Court.

Shah Khawar, Advocate Supreme Court.

Mian Sabir, I.O.

2024 S C M R 1292

[Supreme Court of Pakistan]

Present: Yahya Afridi, Amin-ud-Din Khan and Ayesha A. Malik, JJ

SHAHZAD AMIR FARID---Petitioner

Versus

Mst. SOBIA AMIR FARID and others---Respondents

Civil Petition No.3155-L of 2023, decided on 30th April, 2024.

(Against the order dated 11.09.2023 passed by the Lahore High Court, Lahore in W.P. No.47965 of 2023).

Family Courts Act (XXXV of 1964)---

----S. 17A---Interim maintenance---Father failing to comply with order for payment of maintenance to the minors---Contumacious conduct---Costs, imposition of---Family Court, in accordance with Section 17-A of the Family Courts Act, 1964, had the lawful authority to strike off the defence of the petitioner (father) and decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case, once the petitioner failed to pay the interim maintenance allowance by fourteenth day of each month during the pendency of proceedings---Petitioner was also put to notice by the Family Court to clear the arrears of interim maintenance allowance otherwise the provisions of Section 17-A of the Act would be invoked, which the petitioner failed to comply with---Moreover, the determination of the amount of maintenance by the Family Court was neither arbitrary nor capricious---Hence, the High Court had rightly declined to interfere with the findings of the Family Court with regard to the quantum of maintenance allowance---In view of the callous disregard of the petitioner for the court order to pay interim maintenance and his attempts to delay the payment of decreed maintenance allowance for his minor children, the Supreme Court imposed costs on the petitioner in the sum of Rs. 1,00,000/- (Rupees one hundred thousand only) to deter such conduct in the future with the direction that the costs shall be recovered by the executing court as part of the decree for maintenance---Petition was accordingly dismissed.

Aftab Mustafa, Advocate Supreme Court for Petitioner (via video link from Lahore).

Nemo for Respondents.

2024 S C M R 1295

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Irfan Saadat Khan and Naeem Akhtar Afghan, JJ

Khawaja ADNAN ZAFAR---Petitioner

Versus

HINA BASHIR and others---Respondents

Civil Petitions Nos.1708-L, 3435-L of 2022, 2672-L, 3152-L of 2023, 219-L and 303-L of 2024, decided on 27th March, 2024.

(On appeal against the orders dated 04.03.2022 in W.P. No.67705/2021, 31.08.2022 in W.P. No. 46078/2022, 16.05.2023 in I.C.A. No.31988/2023, 23.05.2023 in W.P. No.27299/2023, 23.10.2023 in W.P. No.69300/2023 and 05.12.2023 in W.P. No.52736/2023, respectively, passed by the Lahore High Court, Lahore).

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

----Ss. 12 & 25---Constitution of Pakistan, Art. 199---Custody of minors, issue of---Interim orders passed by Guardian Court and upheld by the High Court challenged before the Supreme Court---Maintainability---Application of the petitioner (father) under section 25 of the Guardians and Wards Act, 1890 for permanent custody of minors was still pending decision before the Guardian Judge---Orders of the Courts below assailed by the petitioner in the instant petitions were interim in nature---Ordinarily interim orders passed by the High Court are not interfered with by the Supreme Court under Article 185(3) of the Constitution and such intervention is warranted only in exceptional circumstances involving flagrant violation of law, wrongful exercise of jurisdiction or manifest grave injustice---All the present petitions arising out of interim orders passed by the Courts below were, thus, not maintainable---Moreover, the impugned interim orders passed by the Courts below were in accordance with law and had not caused any injustice to the petitioner or prejudice to the application of the petitioner for permanent custody of minors which was pending decision before the Guardian Judge---Leave to appeal was refused and all petitions were dismissed.

(b) Constitution of Pakistan---

----Arts. 185(3) & 199---Interim orders passed by the High Court challenged before the Supreme Court---Maintainability---According to the established practice, settled principles of law and policy of the Supreme Court, ordinarily interim orders passed by the High Court are not interfered with by the Supreme Court under Article 185(3) of the Constitution and such intervention is warranted only in exceptional circumstances involving flagrant violation of law, wrongful exercise of jurisdiction or manifest grave injustice.

Multan Development Authority v. Muhammad Ramzan PLD 1989 SC 629; Salah-ud-Din v. Zia Farhat 1996 SCMR 1528; Dossani Travels Pvt. Ltd. v. Travels Shop (Pvt.) Ltd. PLD 2014 SC 1; Federation of Pakistan v. Shafiq ul Hassan 2020 SCMR 2119; Abdul Baqi v. Khan Muhammad PLD 2022 SC 546; Province of Sindh v. Sartaj Hyder 2023 SCMR 459 and Attiq ur Rehman v. Tahir Mehmood 2023 SCMR 501 ref.

Petitioner in person.

Nemo for Respondents.

2024 S C M R 1303

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J. and Musarrat Hilali, J

MUBARIK AHMAD SANI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petitions Nos. 1054-L and 1344-L of 2023, decided on 6th February, 2024.

(Against the orders dated 16.10.2023 and 27.11.2023 respectively of the Lahore High Court, Lahore passed in Crl. Revision No. 68011 of 2023 and Crl. Misc. No. 41772-B of 2023).

(a) Punjab Holy Quran (Printing and Recording) Act (XIII of 2011) [as amended by the Punjab Holy Quran (Printing and Recording) (Amendment) Act, 2021]---

----Ss. 7 & 9---Penal Code (XLV of 1860) Ss. 295-B & 298-C---Constitution of Pakistan, Art. 12(1)---Charges, deletion of----Distributing/disseminating a proscribed book, defiling, etc., of Holy Quran, person of Qadiani group calling himself a Muslim or preaching or propagating his faith---Counsel for petitioner (accused) submitted that distributing/disseminating a proscribed book was made an offence by the Punjab Holy Quran (Printing and Recording) (Amendment) Act, 2021 in the year 2021 whereas the FIR alleged that the petitioner had committed the alleged act in 2019---Validity---Contention of the counsel that the said offence was incorporated into the law in 2021 was correct---Article 12(1) of the Constitution stipulates that a person cannot be charged for something which was not an offence when it was done---Therefore, since in the year 2019 the distribution/dissemination of a proscribed book was not an offence, the petitioner could not have been charged for it---Furthermore, counsel representing the complainant read out the FIR, but nothing was stated therein to constitute the offences under sections 298-C and 295-B of the P.P.C.---Challan was also silent in this regard---Charge framed by the Additional Sessions Judge to the extent of charging the petitioner for the offences under sections 298-C and 295-B of the P.P.C. did not accord with the provisions of Chapter XIX of the Code of Criminal Procedure, 1898 ('the Code'), which pertain to charge---Present case was also not one wherein the charge could be altered or where the petitioner could have been convicted of a lesser offence to those under sections 298-C and 295-B of the P.P.C.---Holy Quran requires that all matters of significance should be pondered over and reflected upon---All those concerned with the present case should have done so, instead they were eager to demonstrate that the Holy Quran was desecrated and that God's Last Messenger (peace and blessings of Almighty Allah be upon him) was denigrated---If only the functionaries of the State had heeded the Holy Quran, considered the Constitution and examined the law then the FIR would not have been registered in respect of the abovementioned offences---Petition for leave to appeal was converted into an appeal and allowed by setting aside the impugned order and by deleting section 7 read with section 9 of the Punjab Holy Quran (Printing and Recording) Act, 2011 and sections 298-C and 295-B of the P.P.C. from the charge framed against the petitioner.

Surah An-Nahl (Chapter 16), verse 44; Surah Yunus (Chapter 10), verse 24 and verse 9 of Surah al-Hijr (Chapter 15) ref.

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

----S. 497---Criminal Law Amendment Act (XXIII of 1932), S. 5---Constitution of Pakistan, Arts. 4, 9, 10A & 185(3)---Dissemination of contents of proscribed document---Bail, grant of---Accused remaining in jail for a period longer than the sentence prescribed for the offence he is charged with---Violation of his Fundamental Rights---Petitioner (accused) remained incarcerated for thirteen months, which was more than double the permissible punishment under section 5 of the Criminal Law Amendment Act, 1932---Trials in respect of offences where the maximum sentence of imprisonment was relatively short must be conducted promptly or the accused should be granted bail---However, bail was declined to the petitioner by the Additional Sessions Judge without considering that the petitioner had already served out the maximum prescribed imprisonment for the said offence---High Court also dismissed the petitioner's bail application, through the impugned order by overlooking this crucially important aspect of the case---Therefore, since the petitioner had already served out the maximum imprisonment of six months prescribed for the offence if he was found to be guilty of having committed it, keeping him incarcerated would violate a number of his Fundamental Rights, including Articles 4, 9 & 10A of the Constitution---Petition for leave to appeal was converted into an appeal and allowed by setting aside the impugned orders and it was ordered that the petitioner be immediately released upon provision of a personal bond in the sum of five thousand rupees in respect of the case arising out of the FIR.

Sh. Usman Karim-ud-Din, Advocate Supreme Court for Petitioner (in both cases).

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab along with Shabraiz, DSP for the State (in both cases).

M. Shahid Tasawar Rao, Advocate Supreme Court for the Complainant (in both cases).

2024 S C M R 1310

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi, Musarrat Hilali and Naeem Akhtar Afghan, JJ

Mst. SAIMA NOREEN and another---Petitioners

Versus

The STATE---Respondent

Jail Petition No. 181 of 2016 along with Criminal Petition No. 154-L of 2016, decided on 14th May, 2024.

(On appeal against the judgment dated 02.12.2015 of the Lahore High Court, Lahore passed in Crl. A. No. 150-J of 2014 along with M.R. No. 497 of 2011).

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---According to the statements of alleged eye-witnesses recorded at the trial, they both did not inform the police about the occurrence---None of the prosecution witness had disclosed at the trial as to who had informed the police about the occurrence or how the police reached at the place of occurrence when neither any relative of deceased nor any inhabitant of the area had informed the police about the occurrence---Time of taking the dead body to the hospital as claimed by a prosecution witness was contradicted by the Medical Officer---Site map mentioned only one door of the room of deceased but alleged eye-witnesses had stated that the room of deceased had two doors---Statements of alleged eye-witnesses and other prosecution witnesses contained material contradictions and discrepancies which shook veracity of their testimony---Alleged eye-witnesses failed to furnish any convincing reason for stay of two such witnesses in a room adjacent to that of the deceased on the night of the occurrence---Alleged eye-witnesses claimed that they saw the deceased being strangled to death but they put no resistance against the accused nor took any step to save the life of deceased---Plea of alleged eye-witnesses that they did not put up resistance as the accused persons threatened them with firearms lacked corroboration as during investigation no firearms were recovered from the accused and acquitted accused---Unnatural conduct of alleged eye-witnesses revealed that they were not present in the house of deceased at the time of occurrence---Dishonest improvements made by alleged eye-witnesses in their statements at the trial had rendered their testimony unworthy of reliance---Occurrence of the death of deceased by strangulation was unwitnessed; the conduct of investigating officer was not fair and impartial; fabrication had been made during investigation by an alleged eye-witness with the connivance of the investigating officer to falsely implicate the accused persons by planting himself and others as eye-witnesses of the occurrence---Prosecution had failed to prove the charge against both the accused beyond reasonable doubt---Petitions were converted into appeals and allowed, and both the accused persons were acquitted of the charge under sections 302(b) & 34, P.P.C.

(b) Criminal trial---

----Witness, statement of---Dishonest improvements---Dishonest improve-ments made by a witness in his statement to strengthen the prosecution case casts serious doubt about veracity of his statement and makes the same untrustworthy and unreliable.

Sardar Bibi v. Munir Ahmed 2017 SCMR 344; Muhammad Arif v. The State 2019 SCMR 631 and Naveed Asghar v. The State PLD 2021 SC 600 ref.

Mian Liaquat Ali, Advocate Supreme Court for Petitioners (in J.P. No. 181 of 2016).

Ch. Nisar Ahmed Kausar, Advocate Supreme Court (Through video link from Lahore) (in Crl. P. No. 154-L/2016).

Complainant in person.

Irfan Zia, Addl.P.G., Punjab for the State.

2024 S C M R 1319

[Supreme Court of Pakistan]

Present: Yahya Afridi, Amin-ud-Din Khan and Ayesha A. Malik, JJ

SHAH MADAR KHAN---Petitioner

Versus

TARIQ DAUD and others---Respondents

Civil Petition No.3877 of 2023, decided on 9th May, 2024.

(Against the judgment dated 25.09.2023 passed by the Peshawar High Court, Peshawar in C.R.No.1153-P of 2019).

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

----S. 42---Suit for declaration---Failure to establish that power of attorney was a forged document---Suit for declaration was filed by respondent/plaintiff claiming that he be declared owner of the suit plot, as the plaintiff never appointed defendants as his attorney nor he transferred the suit property in their favour through any document---Validity---Plaintiff/respondent had not specifically challenged the execution and registration of power of attorney in his pleadings when his case was that he had seen the said document in the office of City Development and Municipal Department---Further plaintiff himself produced the copy of said document as an exhibit and failed to discharge initial onus of negation of the registration of the document---It was very easy and simple for the plaintiff to get his signatures and thumb impression upon the impugned document compared with his sample signatures and thumb impressions but he had not opted to initiate this legal process---In these circumstances, when plaintiff failed to discharge initial onus, no question of shifting of onus upon the vendee/defendant or attorney arose, who had fully supported that he being validly constituted attorney of the plaintiff, sold the plot to defendant No. 3, who was initially not made party to the suit and was subsequently made party and further that defendant No. 3 sold the plot to defendant No. 1, i.e. the present petitioner---Plaintiff also failed to plead and produce evidence that why he had not raised any objection with regard to construction of house by the petitioner/defendant No.1 upon the suit plot---Trial Court had rightly dismissed the suit for declaration filed by the plaintiff/respondent---Petition was converted into an appeal and allowed, impugned judgments of revisional court as well as first appellate court were set-aside and that of Trial Court dismissing the suit was restored.

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

----Ss. 39 & 42---Suit for declaration---Scope---Power of attorney challenged as being a forged document---When registered power of attorney by plaintiff in favour of defendant stood proved, the plaintiff should have challenged such document through filing a suit for cancellation of document under section 39 of the Specific Relief Act, 1877 and not a suit for declaration filed under section 42 of the Act---Petition was converted into an appeal and allowed.

Afnan Karim Kundi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Jahanzeb Mahsud, Advocate Supreme Court for Respondent No.1.

Naseer ud Din, Advocate Supreme Court via video link from Peshawar on behalf of Respondent Nos. 2-5.

Nemo for Respondent No. 6.

2024 S C M R 1323

[Supreme Court of Pakistan]

Present: Yahya Afridi, Jamal Khan Mandokhail and Athar Minallah, JJ

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Defence, Rawalpindi Military Estates Officer, Hazara Circle, Abbottabad and another (in all cases)---Appellants

Versus

Mst. AYESHA BIBI (WIDOW) and others---Respondents

Civil Appeals Nos. 1980 to 2012 of 2023 and C.M.As. Nos.12660, 12662, 12664, 12666, 12668, 12670, 12672, 12674, 12676, 12678, 12680, 12682, 12684, 12686, 12688, 12690, 12692, 12694, 12696, 12698, 12700, 12702, 12704, 12706, 12708, 12710, 12712, 12714, 12716, 12718, 12720, 12722, 12724 of 2023, decided on 8th April, 2024.

(Against the judgment dated 25.09.2023 passed by the Peshawar High Court, Abbottabad Bench in Regular First Appeal No. 161-A/2023 with C.M. No.353-A/2023, C.M. No.228-A/2023 and C.M. No.372-A/ 2023).

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

----Ss. 9 & 25---Land acquisition---Compensation, quantum of---Referee Court, powers of---Only when the requirements of issuing notice under Section 9 of the Land Acquisition Act, 1894 ('the Act') are validly complied with, the penal, stringent, and restrictive provisions of Section 25 of the Act, limiting the amount of compensation to be awarded to the landowners become applicable---Therefore, it is imperative to fulfill the preceding requirements; otherwise, invoking or enforcing Section 25 to constrain the Referee Court, within the amount of compensation claimed before the Collector, as provided under Section 25(1) or within the amount of compensation awarded by the Collector as provided under Section 25(2) of the Act would be inappropriate.

Hyderabad Development Authority v. Karam Khan Shoro 1985 SCMR 45 and Land Acquisition Collector, National Highway Authority, Lahore v. Javed Malik 2009 SCMR 634 ref.

Malik Nasim Ahmad Aheer v. WAPDA PLD 2004 SC 897 and Land Acquisition Officer, Hyderabad v. Gul Muhammad PLD 2005 SC 311 distinguished.

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

----Ss. 9, 18, 23 & 25---Land acquisition---Compensation, quantum of---Power of the Referee Court to enhance the rate of compensation beyond the amount claimed by the landowner in the reference application filed before the Referee Court---Referee Court, while determining the rate of compensation has to consider: firstly, that the provisions of the Land Acquisition Act, 1894 ('the Act'), and in particular, those that provide the landowners to assert their objections to the acquisition of their property and the fair value thereof have been strictly followed; and in cases, where there is a failure of strict compliance of the said provisions of the Act, and in particular Sections 9 and 25, then the Referee Court may proceed to adjudge the compensation for the acquired property beyond the amount claimed by the landowners in the reference applications, if the evidence produced by the parties justifies such enhancement in accordance with Section 23 of the Act.

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

----S. 23---Land acquisition---Compensation, quantum of---Future potential/value of the acquired land---In the present case the Referee Court, after confirming the report of a local commission, enhanced the amount of compensation for acquired land to Rs. 7,000,000 per kanal along with 15% compulsory acquisition charges and 6% simple interest per annum on enhanced amount of compensation from the date of taking possession of the land---High Court maintained the order passed by the Referee Court---Validity---Award determined by the Collector not only acknowledged the high value of the land, but also recorded that the land under acquisition could serve both residential and agricultural purposes---And yet, the sole reliance of the Collector on a one-year average price to determine the amount of compensation overlooked the distinctive attributes and future potential of the acquired property---While the one-year average price may be a factor in determining the market value of the land, it cannot be the sole determinant---In assessing compensation, the Collector must consider not only the current market value of the land but also its potential value---Market value is to be taken up as one existing on the date of taking possession of the land (in case of Province of Khyber Pakhtunkhwa), while the potential value is the value to which similar lands could be put to any use in future---Thus, in determining the quantum of compensation, the exercise may not be restricted to the time of taking possession of the land, but its future value shall also be taken into account---This crucial aspect was strikingly lacking in the award determined by the Collector in the present case---Determination of the value of the acquired property by the local commission was not arbitrary but was supported by reliable material, making it a credible basis for assessment of compensation---Local commission meticulously examined the site, considering factors like location, accessibility, and potential land use---Referee Court exercised its discretion prudently in arriving at a fair compensation award, and thus, the High Court had rightly declined to interfere in it---Appeals were dismissed.

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

----S. 23(1)---Land acquisition---Compensation, quantum of---Future potential/utility of acquired land---Matters to be considered in determining compensation---Several factors are to be considered, while determining the amount of compensation to be paid to the landowners for the acquisition of their land: the value of similar land nearby is considered; additionally, any increases in land value during the acquisition process may be factored in; and most importantly, the future utility of the acquired land, keeping in view the availability of facilities for its said utilization, are considered to assess its potential value---There is no single formula for the determination of the compensation due to the landowners for the compulsory acquisition of their land---Instead, different factors relevant to each situation are used together to determine the market value as defined in Section 23(1) of the Land Acquisition Act, 1894---Courts are increasingly recognizing the potential for future development when determining fair compensation for acquired land, reflecting a more holistic approach.

Sarhad Development Authority v. Nawab Ali Khan 2020 SCMR 265 ref.

Malik Javid Iqbal Wains, Addl. Attorney General, Brig (R) Falak Naz, Legal Advisor, Ministry of Defense and Sharafat Hussain, Law Officer, assisted by Muhammad Ilyas Sheikh, Advocate Supreme Court for Applicants/Appellants

Muhammad Ayub, Advocate Supreme Court (in C.M.A. No. 12660/23 in C.A. No. 1980/2023).

Tariq Aziz Advocate-on-Record, Advocate Supreme Court for Respondents (in C.M.A. No. 12664/23 in C.A. No.1982/2023 and C.M.A. No. 12688/23 in C.A. No. 1994/23).

Nasrullah Khan, Advocate Supreme Court for Respondents Nos. 1-8, 25-40 in C.M.A. No. 12672/23 in C.A. No. 1986/23 in C.M.A. No. 12678/23 in 1989/23, C.M.A. No. 12680/23 in C.A. No. 1990/23 in C.M.A. No. 12682/23 in C.A. No. 1991/23 in C.M.A. No. 12692/23 in C.A. No. 1996/23 in C.M.A. No. 12694/23 in C.A. No. 1997/23 in C.M.A. No. 12706/23 in C.A. No. 2003/23 in C.M.A. No. 12708/23 in C.A. No. 2004/23 in C.M.A. No. 12712/23 in C.A. No. 2006/23 and C.M.A. 12720/23 in C.A. No. 2010 of 2023).

Qazi Ghulam Rauf, Advocate Supreme Court and Junaid Ammar, Advocate Supreme Court for Respondents (in C.M.A. No. 12702/23 in C.A. No. 2001/23).

2024 S C M R 1338

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Irfan Saadat Khan and Naeem Akhtar Afghan, JJ

IN RE: CRIMINAL ORIGINAL PETITION NO. 06 of 2024

Criminal Original Petition No.06 of 2024, decided on 17th May, 2024.

(Contempt proceedings against Senator Faisal Vawda on account of his press conference in the National Press Club, Islamabad on 15.05.2024).

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

----S. 3---Constitution of Pakistan, Arts. 19 & 204---Press conferences by a Senator and a Member of the National Assembly ("MNA")---Malicious allegations against the Judiciary---Comments on the Judges of the superior courts---Speaking about sub judice cases---Contempt proceedings against the Senator and MNA---Issuance of show cause notices---Press conferences in question were streamed on the internet and social media forums and extracts from them were published in different newspapers---Article 19 of the Constitution grants to every citizen the right to freedom of speech and expression but places restrictions, amongst others, with regard to contempt of Court---Prima facie what was said by the Senator and the MNA appeared to be contempt of Court---Supreme Court issued show cause notices to both of them and granted them an opportunity to submit their explanation/ reply within two weeks of the receipt of the show cause notice---Supreme Court directed that television channels and all those who broadcast, re-broadcast and/or publish material constituting contempt of Court may also be committing contempt of Court, therefore, they should desist from doing so, failing which they may also be proceeded against for contempt of Court.

Ch. Aamir Rehman, Addl. Attorney General and Raja Muhammad Shafqat Abbasi, D.A.G. (On Court Notice).

Ch. M. Younas, Member Executive, Asim Ali Bokahri, Member Executive Committee and Rifaqat Islam Awan, Finance Secretary (On behalf of SCBA).

2024 S C M R 1341

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

NASEEM KHAN and others---Petitioners

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Khyber Pakhtunkhwa, Peshawar and others---Respondents

Civil Petitions Nos. 2074 to 2082 of 2023, decided on 17th April, 2024.

(Against the judgment dated 20-1-2023 passed by Khyber Pakhtunkhwa Service Tribunal, Peshawar in Service Appeals Nos. 534, 535, 538, 539, 540, 541, 542, 543 and 544 of 2020).

(a) Civil service---

----Appointment and promotion---Criteria and qualifications, setting of---Discretion and decision of the employer/appointing authority---Non-interference by Courts---Scope---Required qualifications for appointment to any post is the sole discretion and decision of the employer and it is in its realm to prescribe criteria and the preference for appointment of a candidate who is best suited to its requirements in which the court has no sphere of influence to arbitrate or set down the course of action or put forward the conditions of eligibility or fitness for appointment or promotion until and unless the relevant laws and rules prescribing the well-defined and straightforward benchmark of appointment or promotion seems to have been violated.

(b) Judicial review---

----Scope---No doubt, it is within the dominion of the Court to exercise its power of judicial review to evaluate and weigh upon the legislative and executive actions in order to maintain and sustain the rule of law, to check and balance and render null and void an unlawful action or decision, and with the same spirit and frame of mind, the Court may also invalidate and strike down laws, acts, and governmental actions if found unlawful and beyond the scope of power and jurisdiction---Judicial review can be sought if the decision maker was misdirected in terms of the law, exercised a power wrongly, or improperly purported to exercise a power that it did not have, which is known as acting ultra vires.

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

----S. 9---Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, R. 3(2)---Promotion quota, amendment of---Discretion of employer/appointing authority---Non-interference by Courts---Scope---Petitioners were appointed as Soil Conservation Assistants (BPS-17)---Through the impugned notification, the 100% promotion quota reserved for the petitioners was reduced to 75% and the remaining 25% quota was allocated to the cadre of "Field Assistants" which allegedly affected seniority and promotion of the petitioners---Petitioners filed a Departmental Appeal but no response was received, hence they filed appeals before the Tribunal which were dismissed by means of the impugned judgment---Validity---Policy decision made up by dint of the impugned notification of reducing 25% promotion quota and allocating it for the progression of Field Assistants according to the exigency, was not ultra vires to the Khyber Pakhtunkhwa Civil Servants Act, 1973 or the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, but seemingly, with the aim of harmonizing the promotion criteria and path of progression, the department allocated a quota for accommodating the Field Assistants---Impugned notification did not infringe or contravene the fundamental rights nor was it against the public interest or the law---Neither the impugned notification was ex facie discriminatory nor was it capable of being administered in any discriminatory manner---It was also not unjust or oppressive---On the contrary, the competent authority was empowered to establish the yardsticks for determination of eligibility and fitness which was sine qua non for promotion, and devising and structuring the recruitment policy fell within its exclusive line of work and adeptness and in case of exigency and expediency, it may enact and amend the relevant rules---There was no illegality or perversity in the impugned judgment of the Tribunal which may warrant any interference---Petitions were dismissed and leave to appeal was refused.

Government of Punjab v. Muhammad Awais Shahid 1991 SCMR 696; Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad PLD 1995 SC 701; Maula Bux Shaikh v. Chief Minister Sindh 2018 SCMR 2098; Government of Khyber Pakhtunkhwa v. Hayat Hussain 2016 SCMR 1021; Government of Khyber Pakhtunkhwa v. Muhammad Javed 2015 PLC (C.S.) 962; Zafar Iqbal v. Director Secondary Education 2006 SCMR 1427 and Federal Public Service Commission through Chairman, Islamabad and another v. Shiraz Manzoor and others 2024 PLC (C.S.) 18 ref.

(d) Civil service---

----Promotion---Scope---Though consideration for promotion is a right, yet promotion itself cannot be claimed as of right---There is no vested right in promotion or rules determining the eligibility for promotion.

Noor Muhammad Khattak, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2024 S C M R 1347

[Supreme Court of Pakistan]

Present: Yahya Afridi, Amin-ud-Din Khan and Ayesha A. Malik, JJ

Messrs TAJ WOOD BOARD MILLS (PVT.) LIMITED and 2 others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Federal Secretary Finance and Revenue Division, Islamabad and others---Respondents

Civil Petitions Nos. 1896, 1897 and 1900 of 2022, decided on 17th May, 2024.

(Against the judgment dated 09.02.2022 passed by the Peshawar High Court, Peshawar in Writ Petition No. 5184-P of 2021).

Sales Tax Act (VII of 1990)---

----Sixth Sched., Entry No. 152---Constitution of Pakistan, Art. 25---Customs General Order No. 08 of 2021 dated 31.08.2021 ("CGO No. 8 of 2021"), paras. (a) & (b)---Sales tax, exemption from---Manufacturing units in the erstwhile Federally Administered Tribal Areas ("FATA") and Provincially Administered Tribal Areas ("PATA")---Discriminatory treatment---Petitioners (manufacturing units) challenged discriminatory provisions in "CGO No. 8 of 2021", by which the petitioners were denied the beneficial mode of clearance and transshipment granted only to bulk importing edible oil manufacturers---Held, that impugned provisions of "CGO No. 8 of 2021" primarily offered preferential treatment in clearance and transshipment of imported goods to manufacturers of edible oil only in the erstwhile "FATA" and "PATA" which were merged as different districts ("Merged Districts") in the province of Khyber Pakhtunkhwa and, that too, to those who engaged in bulk imports, as compared to other business concerns therefrom---Such preferential treatment was not justifiable for edible oil manufacturers importing in bulk, particularly when compared to other businesses in the region, or for that matter manufacturers of edible oil not importing in bulk, who were not given such concession---Four-Member Bench of the Supreme Court in the case titled Messrs AK Tariq Foundry etc. v. Government of Pakistan through Federal Secretary Finance and Revenue Division, Islamabad, etc. (Civil Petitions Nos. 159 to 178 of 2023, etc.) has already adjudged a statutory provision, creating a sub-class within those carrying on businesses in the Merged Districts, and thereby executing a category of businesses being refused exemption from the fiscal and tax regime as enjoyed by other businesses in the Merged Districts, as discriminatory, offending Article 25 of the Constitution---Said pronouncement of the Supreme Court left little room for the present three-Member Bench to hold otherwise---Petitions were converted into appeals and allowed accordingly.

Messrs AK Tariq Foundry and others v. Government of Pakistan through Federal Secretary Finance and Revenue Division, Islamabad and others (Civil Petitions Nos. 159 to 178 of 2023, etc.) followed.

Isaac Ali Qazi, Advocate Supreme Court for Petitioners.

Dr. Farhat Zafar, Advocate Supreme Court for Respondent No. 4.

Ghulam Shoaib Jally, Advocate Supreme Court for Respondent No. 10.

Syed Fazle Samad, FBR, Najeeb Arjumand, D.C. Customs, Fahad, A.C. FBR and Sharif Ullah, Asst. Director, R.T.O. for Departments

2024 S C M R 1354

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

KARACHI PROPERTIES INVESTMENT COMPANY (PVT.) LTD.---Petitioner

Versus

HABIB CARPETS (PVT.) LIMITED---Respondent

Civil Appeal No. 90-K of 2023, decided on 3rd April, 2024.

(Against the judgment dated 16.02.2022 passed by the High Court of Sindh, Karachi in Const. P. No. S-999 of 2020).

Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 2(i)---Expressions 'rent' and 'such other charges which are payable by the tenant' used in section 2(i) of the Sindh Rented Premises Ordinance, 1979---Scope---Monthly maintenance charges not mentioned in the lease deed---In the present case there was no express or implied covenant incorporated in the agreement which may impose any obligation on the tenant/respondent for the payment of the alleged monthly maintenance charges---Counsel for the landlord company/ appellant could not satisfy as to how, without an express condition in the tenancy lease or agreement, the appellant could assert the default on account of non-payment of maintenance charges---No doubt, the definition of rent includes water charges, electricity charges, and such other charges which are payable by the tenant but are unpaid---But in the present case the foundation of the appellant's ejectment case was on account of default in the payment of maintenance charges taking into consideration the residue fragment of the definition of rent i.e., "and such other charges which are payable by the tenant but are unpaid"---Before invoking any default in the aforesaid residuary segment, there must be something agreed in writing between the landlord and tenant---Had the condition of making payment for any monthly maintenance charges been jotted down and agreed between the parties, then of course, that could be considered a binding agreement and the tenant/ respondent could not get rid of it without payment and obviously, in the event of default, that cause of action would have been available to the appellant to seek ejectment on the ground of default including the non-payment of maintenance charges; but in the present case the situation was altogether different as no such condition was ever pressed nor incorporated in any lease/tenancy agreement---Expression "such other charges which are payable by the tenant" would not come into field automatically or mechanically to rescue the landlord unless and until the condition of making payment for such charges was itemized in the agreement with proper details---High Court rightly dismissed the ejectment petition---Appeal was dismissed.

Hakim Ali v. Muhammad Salim and another 1992 SCMR 46 and Mst. Fakhra Begum and others v. Mst. Sadia Ashraf and others 2012 SCMR 1931 ref.

Salahuddin Ahmed, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellant.

Zain-ul-Abedin Jatoi, Advocate Supreme Court and Muhammad Younus, Advocate-on-Record for Respondent.

2024 S C M R 1361

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Jamal Khan Mandokhail and Naeem Akhtar Afghan, JJ

Messrs KANPUR OLD BOYS ASSOCIATION---Appellant

Versus

Messrs KARACHI METROPOLITAN CORPORATION and another ---Respondents

Civil Appeal No. 182-K of 2015, decided on 23rd April, 2024.

(Against the judgment dated 15.05.2014 of the High Court of Sindh, Karachi passed in C.P. No. D-262 of 2009).

Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991 (I of 1992)---

----Ss. 2(2), 9 & 10(3)---Civil Procedure Code (V of 1908), S. 9---Provincial Ombudsperson, jurisdiction of---Mal-administration---Matter relating to allocation of an amenity plot to a charitable institution---After issuance of show cause notice by Karachi Development Authority (KDA) the allocation of the plot was cancelled by KDA---Appellant (charitable institution) submitted a complaint to the Provincial Ombudsman under the Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991 ('the Act')---Ombudsman decided that KDA in not issuing the allotment letter/order to the appellant and not putting the appellant into possession of the plot constituted maladministration, and directed KDA to do the needful---Decision of the Ombudsman was assailed before the Governor who dismissed the representation filed by KDA---High Court set aside the decision of the Ombudsman and that of the Governor---Legality---Ombudsman did not have jurisdiction and the appellant's complaint was not maintainable, as what was complained of did not constitute maladministration---Appellant had asserted purported transgression or nonfulfilment of its contractual rights which the appellant could only do by the filing of a suit---However, the Ombudsman assumed the powers, which vest in civil court, under section 9 of the Code of Civil Procedure, 1908---Ombudsman did what the law neither envisaged nor permitted---This aspect was not considered by the Ombudsman, and the Governor dismissed KDA's representation on technicalities---Moreover, the complaint was submitted to the Ombudsman seventeen years after KDA had issued its (offer) letter to the appellant for the allocation of amenity plot, whereas section 10(3) of the Act stipulates a period of three months within which a complaint may be preferred---There was also nothing on the record to show that the appellant had accepted KDA's offer letter, let alone that it did so within the period of one week mentioned therein---Requisite payment was also not made within the stipulated period, and only half of the occupancy value was ever paid---Ombudsman did not have jurisdiction and his decision was coram non judice---Governor should have set aside the illegal decision of the Ombudsman, but instead dismissed KDA's representation on technicalities---Therefore, it was left to the High Court to set aside the decision of the Ombudsman and that of the Governor---No illegality was found with regard to the impugned judgment of the High Court---Appeal was dismissed.

Dr. Muhammad Farough Naseem; Advocate Supreme Court and Muhammad lqbal Chaudhry, Advocate-on-Record for Appellant.

Muhammad Umer Lakhani, Advocate Supreme Court Mrs. Abida Parveen Channar, Advocate-on-Record for Respondents.

Sibtain Mehmood, Addl. A.G. (R-2)

2024 S C M R 1365

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

ABDUL HAMEED and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petitions Nos.194 and 29-K of 2024, decided on 27th May, 2024.

(Against the judgment dated 26.02.2024, passed by the High Court of Sindh at Karachi in Criminal Appeals Nos. 638, 620 and 631 of 2022).

Penal Code (XLV of 1860)---

----Ss. 409 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, common intention, criminal misconduct---Reappraisal of evidence---According to the prosecution version, an accused was granted post arrest bail subject to furnishing surety in the sum of Rs.100,000/-; that the surety (acquitted by the Appellate Court) furnished bail bond for the accused which was accompanied with two Defence Saving Certificates ('DSCs') amounting to Rs.50,000/- each; that subsequently the petitioner "KSA" along with the surety availed both DSCs from petitioner "AH" (junior clerk in the Court of Additional District and Sessions Judge) on the pretext of getting photocopies of the same but did not return; and that the two DSCs were encashed by the surety---Held, that the beneficiary of encashing the two DSCs i.e. the surety had been acquitted of the charge by the Appellate Court and his acquittal had not been challenged by the State---Record transpired that neither the bail bond of surety was forfeited by the Court nor fresh surety bond was availed by Court from the accused---As per record, after getting released on bail on the basis of surety bond submitted by the surety and despite encashing the two DSCs by the surety, the accused did not jump bail and after conclusion of trial proceedings, he was acquitted of the charge by the Court---Evidence available on record reveals that the accused had facilitated the surety for getting the two DSCs encashed but surprisingly accused was not arrayed as an accused/put on trial in present FIR---Record did not reveal any mens rea of the petitioner "AH" nor it revealed of any illegal consideration having been received by him from the petitioner "KSA"or from the acquitted surety---There was nothing on record to show that the petitioner "AH" as well as petitioner "KSA" had dishonestly misappropriated the two DSCs or had converted the same for their own use---Hence no case for criminal breach of trust punishable under sections 409/34, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 was made out against both the petitioners---Conviction and sentence of both the petitioners under sections 409/34, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947, could not be sustained---Petitions were converted into appeals and allowed, and petitioners were acquitted of the charge.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioners (in Crl. P. No.194 of 2024).

Muhammad Nadeem Khan, Advocate Supreme Court for Petitioners (in Crl. P. No. 29-K of 2024).

Saleem Akhtar Buriro, Additional Prosecutor General, Sindh for the State.

2024 S C M R 1369

[Supreme Court of Pakistan]

Present: Yahya Afridi, Amin-ud-Din Khan and Ayesha A. Malik, JJ

MUHAMMAD ARSHAD (deceased) through L.Rs.---Appellants

Versus

BASHIR AHMAD (deceased) through L.Rs. and others---Respondents

Civil Appeals Nos. 138-L and 139-L of 2010, decided on 8th May, 2024.

(Against the judgment dated 21.02.2007 passed by the Lahore High Court, Lahore in W.P. No. 18465 of 2005 and W.P. No. 18466 of 2005).

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

----S. 24---Suit for possession through pre-emption---Plaintiff to deposit in Court 1/3rd of the sale price of the property---Period of thirty days for depositing, commencement of---Plaintiff/pre-emptor is required to deposit the 1/3rd amount within 30 days from the date of filing/ institution of suit.

Malik Tariq Mahmood and others v. Ghulam Ahmed and others PLD 2017 SC 674; Hasnain Nawaz Khan v. Ghulam Akbar and another PLD 2013 SC 489 and Hafiz Muhammad Ramzan v. Muhammad Bakhsh PLD 2012 SC 764 ref.

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

Tariq Ahmed Mian, Advocate Supreme Court via video link from Lahore for Respondents.

2024 S C M R 1372

[Supreme Court of Pakistan]

Present: Amin-Ud-Din Khan, Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

Nawab JANGAIZ KHAN MARRI---Appellant

Versus

Mir NASEEBULLAH KHAN and others---Respondents

Civil Appeal No.292 of 2024 along with C.M.A. No. 3467 of 2024, decided on 22nd April, 2024.

(Against the order dated 01.04.2024 passed by the Election Commission of Pakistan in Case No. 7(502) of 2024 LAW-III (GE).

Elections Act (XXXIII of 2017)---

----S. 9---Election for seat of Provincial Assembly---Re-polling on some polling stations---Abnormally high voter turnout---Election Commission of Pakistan (ECP) ordered re-polling on 4 polling stations due to an abnormal turnout---Validity---According to the consolidation of the results by the Returning Officer for the constituency in question issued by dint of Form-48, for the polling stations which are the subject matter of the present controversy, it is revealed that out of the total 1234 registered voters in first polling station, 1089 votes were cast which makes total turnout of 88%---Similarly, in the second polling station, the total registered voters were 1524, with 1214 total votes cast, which makes a total turnout of 79%, while in the third polling station, out of 1746 registered voters, 1340 votes were cast, making a 76% turnout; whereas, in the fourth polling station, the total registered voters were 1304, out of which 1286 votes were cast showing a turnout of 99%---After considering the entire record and the report of the Returning Officer and hearing the concerned parties, the ECP reached the conclusion that turnout at said four (4) polling stations was unnatural due to some illegalities and irregularities which have ultimately affected the final results, and in exercise of powers conferred under sections 4, 8(c) and 9(1), (3) & (4) of the Elections Act, 2017 ('Act'), it ordered for re-poll at the four polling stations---Present case is predominantly focused on an abnormal or unrealistic turnout of votes at 04 polling stations which does not commensurate with or is not in consonance with the overall turnout behavior of voters in the entire constituency---Counsel for the appellant-candidate did not deny the inflated or outlandish turnout of votes---There was no illegality or perversity in the impugned order of re-polling on 4 polling stations passed by the ECP---Appeal was dismissed.

Khalid Hussain Magsi v. Mir Abdul Rahim Rind and others 2016 SCMR 900 and Ali Asjad Malhi v. Ms. Syeda Nosheen Iftikhar and others PLD 2023 SC 1 ref.

Zulfikar Khalid Maluka, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record for Appellant.

Kamran Murtaza, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 1.

Ch. Aamir Rehman, Additional Attorney General for Pakistan on behalf of ECP.

2024 S C M R 1381

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Irfan Saadat Khan and Naeem Akhtar Afghan, JJ

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman and others ---Petitioners

Versus

M. SAJID PIRZADA---Respondent

Civil Petition No.993 of 2014, C.M.As. Nos. 7061 of 2016, 1850 of 2015 and 3500 of 2014 in C.P.L.A. No. 993 of 2014), decided on 13th May, 2024.

(Against the order dated 30.4.2014 passed by Islamabad High Court in W.P. No. 4191 of 2013).

Civil Petition No.1117 of 2014 and C.M.A. No. 3678 of 2014 in C.P.L.A. No. 1117 of 2014

(Against the judgment dated 27,5.2014 passed by Islamabad High Court in I.C.A. No.249 of 2014).

Allotment---

----Legality---Master Plan---Land designated on the Master Plan for "Future Use"---Connotation---Writ petitions were filed before the High Court alleging that the Capital Development had illegally and unlawfully changed the Master Plan and created certain new plots in a closed end street, which the CDA could not do so and that it be restrained from approving the building plans in respect of the said plots and be directed to adhere to the Master Plan---High Court allowed the said petitions, cancelled the said plots, and further directed CDA to initiate departmental action against those who had violated the Master Plan---Validity---Counsel for respondents (petitioners before the High Court) was not able to point out any legal restriction preventing the plots in question from being allotted, particularly when the said land was designated on the Master Plan for Future Use---Master Plan, the layout plans and Google map data which had been filed showed the location of the said plots, and there was no question of obstruction of light and air with respect to the plots of the respondents---Counsel for respondents could not show what particular rights of theirs had been violated in allotting the said plots nor did he refer to any law which prevented CDA from utilizing, for the benefit of earlier allottees, land designated for 'Future Use'---Term 'Future Use' did not mean that the land was to be left open nor did it mean that it was to be used for amenity purposes, which may, have prohibited their allotment---Petitions were converted into appeals and allowed, impugned judgments of the High Court were set-aside and the cancelled allotments were restored.

Muhammad Nazir Jawwad, Advocate Supreme Court for Petitioners (in C.P. No. 993 of 2014).

Muhammad Munir Paracha, Advocate Supreme Court for Petitioners (in C.P. No. 1117 of 2014).

Malik Nasrullah Awan, Advocate Supreme Court for Respondents Nos.1 to 8 along with Ms. Mehnaz Nadeem, Respondent No. 4 and Syed Shozab Zamir son of Respondent No.7 (in C.P. No. 993 of 2014)

Malik Nasrullah Awan, Advocate Supreme Court for Respondents Nos.2 to 9 (in C.P. No. 1117 of 2014).

Nemo for Applicants (in C.M.A. No. 7061 of 2016).

2024 S C M R 1385

[Supreme Court of Pakistan]

Present: Yahya Afridi, Amin-ud-Din Khan and Ayesha A. Malik, JJ

RASHID BAIG and others---Petitioners

Versus

MUHAMMAD MANSHA and others---Respondents

Civil Petition No.925-L of 2018, decided on 29th April, 2024.

(Against the order dated, 30.01.2018 passed by the Lahore High Court in W.P. No. 40075 of 2015).

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

----S. 115---Constitution of Pakistan, Art. 199---Interim order challenged in revisional jurisdiction or constitutional jurisdiction of the High Court---Scope---When a party challenges any interim order during the pendency of a suit under revisional jurisdiction or constitutional jurisdiction vested in the revisional court or the High Court, the court has to exercise the jurisdiction keeping in view that it is an interim order, as every interim order need not be challenged at that stage because it is now settled that when a suit is finally decided by the trial court, all the interim orders become open in appeal; if there is a defect in the interim order that is open to scrutiny at the stage of final appeal, as the first appeal is continuation of a trial and first appellate court is a court of fact and law---But, if a party to the suit opts to challenge an interim order when it is passed through appellate jurisdiction, revisional jurisdiction or constitutional jurisdiction, while exercising such jurisdiction the scope of jurisdiction vested in the Court must be in the view of the party challenging the same and while dealing with the interim order the court must also keep in view the scope of jurisdiction to scrutinize the interim orders.

(b) Constitution of Pakistan---

----Art. 199---Interim order challenged in constitutional jurisdiction of the High Court---Scope---Petitioners-defendants moved applications for summoning revenue officers etc as witness, but same were dismissed by the Trial Court, which was challenged through revision petition and revision also met with the same fate---Petitioners challenged the said two orders of the Trial Court and the revisional court through constitutional jurisdiction of the High Court under Article 199 of the Constitution, however, the writ petition was also dismissed---Validity---Suit was filed on 27.05.2004 which was still pending and due to the petitioners-defendants matter was being delayed---Counsel for the petitioners was unable to state whether the witnesses i.e. Patwari who entered the mutation in the year 1956 challenged through the suit were alive or not---In these circumstances, the High Court had rightly dismissed the writ petition when there was no jurisdictional defect in the orders passed by the fora below---Leave was refused and petition was dismissed.

(c) Supreme Court Rules, 1980---

----O.XX, R. 1---Petition for leave to appeal or an appeal filed before the Supreme Court---Proceedings pending before the Trial Court---Effect---Execution proceedings as well as the proceedings before the Trial Court do not automatically get stayed when a petition is filed before the Supreme Court unless an injunctive order is granted by the Supreme Court---It is observed that when an injunctive order is not granted by the Supreme Court the parties to the proceedings apply for stay of the proceedings or execution without any injunctive order from the Supreme Court and in some eventualities after refusal of injunctive order from the Supreme Court the parties to the proceedings before the trial court apply for stay of execution or proceedings in the suit which is not only a clear cut abuse of process of law but also contempt of court---If this practice is carried on by the parties or even the Trial Court i.e. sine die adjourning the proceedings or staying the proceedings of the suit without any injunctive order, they will face the consequences of such an illegal order.

Syed Muhammad Kalim Ahmad Khurshid, Senior Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2024 S C M R 1390

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Irfan Saadat Khan and Naeem Akhtar Afghan, JJ

MUHAMMAD ASLAM (deceased) through L.Rs. and another---Appellants

Versus

Molvi MUHAMMAD ISHAQ (deceased) through L.Rs. and others---Respondents

Civil Appeals Nos. 1429 to 1433 of 2014, decided on 3rd June, 2024.

(Against the judgment dated 27.3.2014 passed by the Peshawar High Court, Abbottabad Bench in C. Rs. Nos. 342-A, 341-A of 2009 and C.M. Petition No.234-A of 2014).

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

----Art. 91---Judicial proceedings---Presumption as to documents produced as record of evidence---Scope---Possession of land delivered after parties entering into a compromise before the High Court---Compromise, legitimacy of---Assertion of attorney of the (late) defendant that he had neither entered into a compromise nor had appeared before a Court of law was nothing but an after thought on his part---Said attorney had admitted that it was he who had been hiring the counsel right from the Trial Court to the Supreme Court, as an attorney on behalf of the defendant, but stated that he had never asked from those counsel, appointed by him, about the fate of those matters, which appeared to be an unbelievable story---When the attorney was asked by the Trial Court regarding the whereabouts of the original Power of Attorney, he stated that he had no knowledge about the same but strangely enough submitted that the signatures on the photocopy of the Power of Attorney, produced as secondary evidence before the trial Court, were not his, which, created heavy doubts about the veracity of the statements made by him---It was also strange to note that the defendant passed away in the year 1988, whereas the compromise was entered in the year 1979, and he never uttered a single word during his lifetime either with regard to the veracity of the compromise entered by his attorney before the Court or with regard to the genuineness of the Power of Attorney given by him in his lifetime to the attorney and it was only after his death that his legal heirs filed the applications under section 12(2), C.P.C. questioning the compromise or lesser payment of Zar-e-Shufa by agitating that the decree obtained by the (late) appellant/plaintiff was by way of fraud or misrepresentation---It was also strange on the part of the legal heirs of the defendant or for that matter his brother, that they kept mum for a number of years i.e. 1979 to 1987 and, thereafter, agitated the matter either by filing of a suit for possession or through applications under section 12(2), C.P.C. claiming possession over suit land without realizing that the matter with regard to possession and ownership of the land comprising part of the suit land had already been laid to rest in an earlier round of litigation---Appellants were successful in showing that the findings arrived at by the fora below were erroneous, especially in view of the sanctity attached to the compromise entered before a Judge of the High Court---Appeals were allowed and respondents were restrained from interfering and dispossessing the appellants from the suit land or any building constructed by them on such land.

Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336; Fayyaz Hussain v. Akbar Hussain 2004 SCMR 964; Waqar Jalal Ansari v. National Bank of Pakistan 2008 SCMR 1611 and Abdul Aziz v. Abdul Hameed 2022 SCMR 482 ref.

(b) Appeal---

----If an Order of the lower Court merges in the order of the higher Court, the order of the lower Court is to be deemed as an order of the higher Court.

Sahabzadi Maharunisa v. Ghulam Sughran PLD 2016 SC 358 and Bashir Ahmed Badini v. Chairman and Member of Administration Committee and Promotion Committee of High Court of Balochistan 2022 SCMR 448 ref.

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

----S. 12(2)---Limitation Act (IX of 1908), First Sched., Art. 181---Application under section 12(2), C.P.C., filing of---Limitation---In the present case applications under section 12(2), C.P.C. were filed in the year 1990, i.e. after almost 11 years of the compromise between the parties before the Court---Though it was averred that these applications were filed after the entries of jamabandi made in 1987 and hence were in time, but it was equally true that in those applications the main question agitated on behalf of the respondents was with regard to the entering into the compromise in a defective manner and thereafter, obtaining the decree by way of fraud or misrepresentation by the present appellants---Under the provisions of the Limitation Act, 1908 no specific time has been prescribed for filing of application under section 12(2), C.P.C., therefore, Article 181 of Limitation Act, 1908 being residuary will govern such proceedings according to which maximum period of three years has been prescribed for filing the application under section 12(2), C.P.C.---Therefore, even in a hypothetical sense, if one were to count the period of limitation from the year 1987, the applications under section 12(2), C.P.C. were time-barred---In the instant matter, the respondents were fully aware about the date and facts of the compromise entered between the parties in 1979 but filed the applications under section 12(2), C.P.C. only in the year 1990---Appeals were allowed and the applications under section 12(2), C.P.C. against the appellants were found to be bereft of any merits.

Sarfraz v. Muhammad Aslam Khan 2001 SCMR 1062 and Bashir Ahmed v. Muhammad Hussain PLD 2019 SC 504 ref.

(d) Administration of justice---

----No one should suffer on account of a lapse on the part of a Court.

Abid Jan v. Ministry of Defence 2023 SCMR 1451; General Retd. Pervez Musharraf v. Federation of Pakistan 2024 SCMR 60 and Faqir Muhammad v. Khursheed Bibi 2024 SCMR 107 ref.

(e) Constitution of Pakistan---

----Art. 185---Appeal before the Supreme Court---Concurrent findings of lower courts, interference in---Scope---Usually concurrent findings of the lower Courts are not to be disturbed and interfered with, but in cases where such findings are found to be erroneous and perverse, they are liable to be struck down if based on misreading or non-reading of the material available on the record or the evidence and are a result of miscarriage of justice.

Sardar Ali Khan v. State Bank of Pakistan 2022 SCMR 1454; Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293; Abdul Sattar v. Mst. Anar Bibi 2007 SC 609; United Bank Limited v. Tamil Ahmed 2024 SCMR 164; Brig. R Sher Afghan v. Mst. Sheeren Tahira 2010 SCMR 786; Nabi Bakhsh v. Fazal Hussain 2008 SCMR 1454 and Mst. Kulsoom Bibi v. Muhammad Arif 2005 SCMR 135 ref.

Saad Umar Buttar, Advocate Supreme Court and Sh. Mahmood Ahmad, Advocate-on-Record for Appellants (in all cases)

Barrister Umer Aslam Khan, Advocate Supreme Court for Respondents (in all cases).

2024 S C M R 1408

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and

Naeem Akhtar Afghan, JJ

ASIF ALI and another---Petitioner

Versus

The STATE through Prosecutor General Punjab---Respondent

Criminal Petition No. 1602 of 2023, decided on 31st May, 2024.

(On appeal against the judgment dated 29.11.2023 of the Lahore High Court, Rawalpindi Bench passed in Crl.A. No. 159 of 2023).

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

----S. 9---Possession of narcotic---Safe custody and transmission of samples---Significance---In the cases under Control of Narcotic Substances Act, 1997, it is the 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---This chain has to be established by the prosecution and if any link is missing, the benefit of the same has to be extended to the accused---Prosecution is under a bounded responsibility to drive home the charge against an accused by proving each limb of its case that essentially includes production of the witness tasked with the responsibility of transmitting the samples to the office of Chemical Examiner and failure to do the same can cast away the entire prosecution case.

Javed Iqbal v. The State 2023 SCMR 139; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Qaiser Khan v. The State 2021 SCMR 363; Abdul Ghafoor v. The State 2022 SCMR 819; Muhammad Shoaib v. The State 2022 SCMR 1006; Khair ul Bashar v. The State 2019 SCMR 930; The State v. Imran Bakhsh 2018 SCMR 2039; Taimoor Khan v. The State 2016 SCMR 621; Ikram Ullah v. The State 2015 SCMR 1002 and Amjad Ali v. The State 2012 SCMR 577 ref.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules 2001, R. 4(2)---Police Rules, 1934, R. 22.70---Possession and transportation of charas---Reappraisal of evidence---Safe custody and transmission of the samples to the Forensic Laboratory not established---In the instant case, statements of a Head Constable and Investigating Officer revealed that the seven sample parcels of the charas allegedly recovered on 27.05.2021 were handed over to a Sub-Inspector for transmission to office of the lab on 31.05.2021 i.e. much beyond the seventy two hours of the seizure in violation of Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules 2001 ('Rules of 2001') for which no plausible explanation had been offered by the prosecution---According to statement of the Head Constable, he handed over the seven sample parcels to the Sub-Inspector for onward transmission to office of the Lab on 31.05.2021---In order to prove safe transmission of the sample parcels to office of the Lab, the prosecution had not produced said Sub-Inspector before the Trial Court for recording his statement and in this regard no explanation had been offered by the prosecution---During his cross-examination, Head Constable was confronted by the defence counsel with Form 22.70 of Register No.XIX maintained as per Rule 22.70 of the Police Rules, 1934 wherein admittedly no date, month and year had been mentioned in the relevant column No.3 pertaining to the case property/sample parcels of the instant case and in this regard as well no explanation had been offered by the Head Constable or by the Investigating Officer---Prosecution had failed to prove the charge against the petitioners beyond reasonable doubt---Conviction and sentence awarded to the petitioners by the Trial Court and maintained by the Appellate Court was result of misreading and mis-appreciation of the evidence available on record---Petition was converted into an appeal and was allowed, the judgments of the Trial Court and the High Court respectively were set aside, and the appellants were acquitted of the charge.

Muhammad Nawaz Khan, Advocate Supreme Court for Petitioners.

Irfan Zia, A.P.G., Punjab for the State.

2024 S C M R 1413

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

CHANZEB AKHTAR and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos.548 and 602 of 2020, decided on 21st May, 2024.

(Against the judgment dated 15.04.2020 passed by the Islamabad High Court, Islamabad passed in Criminal Appeal No.125 of 2018, Jail Appeal No.130 of 2018 and Murder Reference No.8 of 2018)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---After lodging the FIR promptly, the police party started its investigation---On the day after the incident, the Investigating Officer arrested the petitioner who himself surrendered in the police station and during the course of investigation the petitioner disclosed about the weapon of offence, .30 bore pistol, concealed in an under construction garage in the haveli near to his house and on his pointation said pistol along with magazine was taken into possession---Investigating Officer received a sworn affidavit by the brother of the petitioner qua the alleged incident---Investigating Officer also dispatched two firearm empties of .30 bore pistol, three lead bullets from the dead body and .30 bore pistol to the Forensic Science Laboratory---As per report of Forensic Science Laboratory, two crime cartridges collected by the Investigating Officer from the place of occurrence were found wedded with the pistol recovered on the pointation of the petitioner---Petitioner was last seen by brother of the deceased fleeing away from the place of occurrence after commission of offence as said witness was residing in a house adjacent to the petitioner's house and the said incident was also notified by the petitioner's brother through an affidavit---There was nothing on record in favour of the petitioner as his own brother through an affidavit had submitted that he had seen the petitioner fleeing away from the place of occurrence after commission of an offence and thereafter informed the complainant of the case about the incident---Prosecution had established its case against the petitioner beyond any shadow of doubt---Petition was dismissed and leave was refused.

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

----S. 302(b)--- Qatl-i-amd--- Sentence, quantum of--- Mitigating circumstances---Motive not proved---In the absence of premeditation to commit murder where motive is not proved by the prosecution, the same may be considered as a mitigating factor in order to reduce the quantum of sentence in cases involving capital punishment.

Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Zeeshan Afzal alias Shani and another v. The State and others 2013 SCMR 1602 and Muhammad Yasin and another v. The State and others 2024 SCMR 128 ref.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court (in Cr.P. No.548 of 2020) and Ch. Naseer Ahmed Tahir, Advocate Supreme Court (in Cr. P. No.602 of 2020) for Petitioners.

Fauzi Zafar, Advocate Supreme Court/State counsel.

2024 S C M R 1419

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi, Musarrat Hillani and Naeem Akhtar Afghan, JJ

KAMRAN---Petitioner

Versus

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

Criminal Petition for Leave to Appeal No. 199 of 2024, decided on 19th April, 2024.

(Against the order dated 19.02.2024 passed by the Peshawar High Court, Peshawar in Criminal Miscellaneous Bail Application No. 286-P of 2024).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 392---Constitution of Pakistan, Art. 185(3)---Robbery---Bail, refusal of---In the FIR, allegation against the petitioner was that he inflicted chhuri/ dagger blows at the abdomen of the deceased/complainant, which proved fatal and the complainant succumbed to injuries on the following day---Through a supplementary statement of the deceased/ complainant, which was recorded by the police on the day of occurrence while the complainant was admitted in the hospital, he nominated the present petitioner to be the unknown culprit who committed the offence---Father of the deceased/ complainant and a prosecution witness after having seen the CCTV video of the occurrence showing petitioner stabbing the deceased/complainant, charged the petitioner for murder of the deceased in their statements recorded under section 164, Cr.P.C.---In the forensic video analysis made by the Punjab Forensic Science Agency of the CCTV video of the occurrence, no editing features were observed, hence the question of false implication did not arise in the instant matter---Cause of death, as recorded in the post-mortem report, was injuries to liver and major vessel of the abdomen---Recovered chhuri/ dagger, as per FSL report, was found to be stained with the human blood---In this way, the medical evidence and the recovery of crime weapon fully supported the prosecution case by connecting the petitioner with the commission of crime, which entailed capital punishment and fell within the prohibitory clause of section 497, Cr.P.C.---Mere fact that the petitioner was a juvenile did not entitle him to the concession of bail as he was charged for a heinous offence, the punishment for which was death or imprisonment for life or imprisonment for more than seven years---Petitioner was not entitled to the concession of bail---Bail application was, therefore, dismissed and leave was declined.

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

Nemo for the Complainant.

Nemo for the State.

2024 S C M R 1421

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

MUHAMMAD SAEED and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Petition No.968 of 2017 and Criminal Petition No.891 of 2017, decided on 20th May, 2024.

(0n appeal against the judgment dated 19.06.2017 passed by the Islamabad High Court, Islamabad, in Criminal Appeal No.154/2015, Jail Appeal No.153/2015, Crl. Revision No.23/2016 and M.R. No. 14 of 2015)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Un-natural death of deceased lady during the nigh in her house due to stab wound on her abdomen had not been disputed/denied by the defence---Statement of two prosecution witnesses confirmed that they both had immediately responded to the hue and cry of the deceased, then injured, who told them about churri (knife) blows inflicted by the petitioner/convict---Postmortem report of the deceased also confirmed that the deceased had sustained stab wound on her abdomen which had resulted into her death---According to the postmortem report, time between injury and death of the deceased was one hour and 35 minutes approximately, which confirmed that the deceased remained alive for a considerable period before reaching the hospital---Petition was dismissed, leave to appeal was refused, and conviction and sentence of imprisonment for life awarded to the accused by the High Court was maintained.

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

----Art.46---Dying declaration---Scope---Dying declaration is a question of fact which has to be determined on the facts of each case---To find out truth or falsity of a dying declaration, a case is generally to be considered in all its physical environment and circumstances---Dying declaration can be made before a private person but it should be free from any influence and the person before whom it is made has to be examined---It is necessary to ascertain that the dying declaration was made honestly, its maker was in a fit state of mind to make the statement, its maker was free from outside influence, its maker was fearing death and had made a truthful statement.

Farmanullah v. Qadeem Khan 2001 SCMR 1474 and Majeed v. The State 2010 SCMR 55 ref.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd---Reappraisal of evidence---Case based on dying declaration of deceased---In the instant case, the dying declaration made by deceased before three prosecution witnesses implicating the petitioner/convict was supported/ corroborated by the inquest report, the Medico Legal Certificate (MLC), the postmortem report, the report of the chemical expert with regard to the blood stained clothes of the deceased and the surrounding circumstances---Petition was dismissed, leave to appeal was refused, and conviction and sentence of imprisonment for life awarded to the accused by the High Court was maintained.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Sentence, reduction in---Mitigating circumstances---Recovery of weapon of offence disbelieved---Absence of motive---Single stab wound---Appellate Court/High Court had (rightly) disbelieved the recovery of Churri (knife) on the pointation of the petitioner/convict from an open place---Furthermore, absence of motive in the FIR, non-proving of the motive introduced by the prosecution witnesses at the trial about the desire of the petitioner/convict to marry the deceased prior to her marriage with a prosecution witness, and single stab wound on the abdomen of deceased had rightly been considered as mitigating circumstances by the High Court to award lessor sentence of imprisonment for life to the petitioner---Petition was dismissed, leave to appeal was refused, and conviction and sentence of imprisonment for life awarded to the accused by the High Court was maintained.

Raja Khalid Mehmood Khan, Advocate Supreme Court for Petitioner (in Crl. P. No. 968 of 2017).

Talat Mahmood Zaidi, Advocate Supreme Court for Petitioner (in Crl. P. No.891 of 2017).

Fauzi Zafar Iqbal, Advocate Supreme Court for the State (As State Counsel)

2024 S C M R 1427

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

MUHAMMAD HASSAN and another---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 120 of 2017 and Cr. Petition No.305-L of 2017, decided on 16th May, 2024.

(Against the judgment dated 17.01.2017 of the Lahore High Court, Multan Bench passed in Cr.A. No.652-J of 2016 and M.R. No. 147 of 2013).

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Delay in lodging of FIR---Consequential---Formal FIR was registered at 8:10 a.m., approximately more than sixteen hours after the incident, despite the police station being only 16 km away from the scene of the occurrence---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---Prosecution case against the petitioner was doubtful---Jail petition was converted into an appeal and allowed, and accused was acquitted of the charge.

Amir Muhammad Khan v. The State 2023 SCMR 566 ref.

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

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Chance witnesses---Reason for presence of eye-witnesses at the spot and time of incident not established---Combined effect of the statements of the alleged eye-witnesses was that their presence at the scene at the relevant time was not natural---Therefore, it was mandatory for the said witnesses to justify their presence at the place of occurrence at the relevant time with some cogent reasons---In order to justify their presence, two of the witnesses asserted that they were employees of person "AH", a resident of the village where the alleged occurrence took place, but they did not produce any independent oral or documentary evidence to support this claim---Similarly, the complainant also did not justify his presence at the place of occurrence which was more than 100 kms away from his residence, especially when he admitted that he had no relation with the deceased---In light of the aforementioned facts, the alleged eye-witnesses could not justify their reasons for being at the place of occurrence at the relevant time---Therefore, they were chance witnesses, and their evidence was not free from doubt---Prosecution case against the petitioner was doubtful---Jail petition was converted into an appeal and allowed, and accused was acquitted of the charge.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142 and Sufyan Nawaz and another v. The State and others 2020 SCMR 192 ref.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Sequence of events not appealing to reason---All the eye-witnesses uniformly stated that all ten accused persons, who were armed with deadly weapons, kept making indiscriminate firing, but they escaped by seeking cover behind the nearby trees---This sequence of events did not appeal to reason---Furthermore, the allegation of indiscriminate firing was also negated by the recovery memo, whereby only eleven empty cartridges were secured by the Investigating Officer from the place of the alleged occurrence---Prosecution case against the petitioner was doubtful---Jail petition was converted into an appeal and allowed, and accused was acquitted of the charge.

(d) Criminal trial---

----Corroboratory evidence---Scope---Corroboratory evidence does not convert an unreliable witness, or evidence, into a reliable one.

Salamat Mansha Masih v. The State and another PLD 2022 SC 751 ref.

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

----S. 302(b)---Qatl-i-amd---Medical evidence---Scope---Where direct evidence is found to be unreliable or untrustworthy, a conviction cannot be sustained solely on the basis of medical evidence.

Hayatullah v. The State 2018 SCMR 2092; Aman Ullah and another v. The State and others 2023 SCMR 723 and Muhammad Hanif v. The State 2023 SCMR 2016 ref.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Motive not proved---Regarding motive prosecution submitted before High Court that the present petitioner was not an accused in a previous murder case involving the maternal uncle of the complainant---This fact was also confirmed by the complainant during his cross-examination before the Trial Court---Motive was a double-edged weapon, which could be used either way and by either side i.e. for real or false involvement---So, the motive asserted by the prosecution indicated that there was an enmity of murder between the parties and the said motive, being double edge, could be the reason for the false implication of the petitioner---Admittedly, the complainant had no relation with the deceased of the present case, yet he was vigilantly pursuing the case by filing a private complaint even after the petitioner was found innocent by the local police---Ordinarily, an individual with no direct relation to the victim might report a crime if witnessed, but would not usually remain actively involved beyond that initial action. Fact that the complainant was so invested in this case, despite having no apparent reason to be, raised questions about the motives behind his actions and, by extension, casted doubt over the prosecution's case---Evidence of motive was rightly not believed by the High Court for valid reasons which were not open to any exception---Prosecution case against the petitioner was doubtful---Jail petition was converted into an appeal and allowed, and accused was acquitted of the charge.

Noor Elah v. Zafarul Haque PLD 1976 SC 557; Allah Bakhsh v. The State PLD 1978 SC 171; Khadim Hussain v. The State 2010 SCMR 1090; Tahir Khan v. The State 2011 SCMR 646; Tariq v. The State 2017 SCMR 1672 and Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 ref.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Recovery of weapon on pointation of accused---Absence of forensic report of firearm---So far as the recovery of a single barrel gun on the pointation of the petitioner was concerned, the High Court had rightly disbelieved the same in the absence of any positive report of the firearm expert---Even otherwise, it was highly unsafe to rely on the evidence of recovery, which even otherwise was a corroborative piece of evidence and relevant only when the primary evidence i.e. ocular account inspired confidence, whereas in the present case the ocular account was doubtful---Prosecution case against the petitioner was doubtful---Jail petition was converted into an appeal and allowed, and accused was acquitted of the charge.

Nasir Javaid and another v. The State 2016 SCMR 1144; Muhammad Nawaz and others v. The State and others 2016 SCMR 267 and Hayatullah v. The State 2018 SCMR 2092 ref.

(h) Criminal trial---

----Benefit of doubt---Once a single loophole/lacuna is observed in a case presented by the prosecution, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused.

Daniel Boyd (Muslim Name Saifullah) and another v. The State 1992 SCMR 196; Gul Dast Khan v. The State 2009 SCMR 431; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Abdul Jabbar and another v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State and others PLD 2019 SC 64 and Muhammad Imran v. The State 2020 SCMR 857 ref.

Maqbool Ahmed Bhatti, Advocate Supreme Court for Petitioner (in J.P. No. 120 of 2017).

Nemo for Petitioner (in Cr.P. No.305-L of 2017).

Nemo for the Complainant (in J.P. No. 120 of 2017).

Mirza Abdul Majeed, Deputy Prosecutor General, Punjab for the State

2024 S C M R 1437

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

JAVED IQBAL and others---Petitioners

Versus

The STATE---Respondent

J.Ps. Nos.233 and 234 of 2015, J.Ps. Nos.620 and 621 of 2019 and J.Ps. Nos.408 and 409 of 2021, decided on 26th March, 2024.

(Against the judgment dated 13.09.2012 passed by the Lahore High Court, Lahore in Crl.As. Nos. 106, 221-J and 222-J of 2007 and C.S.R. No. 45-T of 2007 and judgment dated 13.09.2012 in Crl.As. Nos.847, 848, 948 of 2005 and M.R. No. 15-T of 2005).

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

----S. 6---Terrorism---Scope---To constitute an offence of a terrorism, it is necessary that; firstly, the action must fall within the ambit of sub-section (2) of section 6 of the Anti-Terrorism Act, 1997 ('ATA of 1997'); and secondly, the intent, motivation, object, design and purpose behind the said act has any nexus with the ingredients of clauses (b) and (c) of section 6(1) of the ATA of 1997---To formulate an opinion whether or not such offence is an act of terrorism, the allegations made in the FIR, material collected during the investigation and the evidence available on the record have to be considered on the touchstone of section 6 of the ATA of 1997, as a whole---In the absence of any of the ingredients of section 6 of the ATA of 1997, any action, irrespective of its heinousness, causing terror or creating sense of fear and insecurity in the society, does not fall within the ambit of terrorism.

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

----S. 13 & Third Sched.---Anti-Terrorism Court (ATC), jurisdiction of---Scope---Heinous offences---Section 13 of the Anti-Terrorism Act, 1997 ('ATA of 1997')provides dual power to the ATC i.e., to try the offences falling under the ATA of 1997 and try heinous offences, which otherwise do not fall within the definition of a terrorism, but are included in the Third Schedule to the ATA of 1997 by the government.

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

----Ss. 6(1), 6(2)(e) & 7(e)---Penal Code (XLV of 1860), S. 365-A---Kidnapping for ransom---Whether an act of terrorism---Action involving kidnapping for ransom, hostage-taking or hijacking is an offence under clause (e) of subsection (2) of section 6 of the Anti-Terrorism Act, 1997 ('ATA of 1997'), if it is established that such action falls within the meaning of subsection (1) of section (6) of the ATA of 1997---If kidnapping for ransom, hostage-taking or hijacking is done with intent, design, purpose, or object of terrorism, the same shall fall within the meaning of subsection (1) of section 6 and is an offence under subsection (2)(e) of section 6 of the ATA of 1997, triable exclusively by the Anti-Terrorism Court (ATC) and punishable under section 7(e) of the ATA of 1997---If there is no intent, object, purpose or design of terrorism in committing an act of abduction or kidnapping for ransom, it shall not be an act of a terrorism within the meaning of subsection (1) of section 6 of the ATA of 1997---Thus, in absence of an element of a terrorism, an act of abduction or kidnapping for ransom for personal vendetta shall constitute an offence under section 365-A, P.P.C.---However, in view of heinousness of such act, it is exclusively triable by the ATC, only for the purpose of its speedy trial, but the accused shall be charged under the relevant provision of law, instead of charging him under any of the provisions of the ATA of 1997.

Ghulam Hussain's case PLD 2020 SC 61 ref.

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

----Ss. 6(1), 6(2)(e) & 7(e)---Penal Code (XLV of 1860), S. 365-A---Kidnapping for ransom---Reappraisal of evidence---Offence committed for personal vendetta---Not an act of terrorism---In the case in hand, the complainant in the FIR and in his statement recorded on oath before the Trial Court, had simply alleged that his son was abducted for ransom---Record reflected that there was merely a demand of a ransom---Neither the complainant nor the prosecution witnesses had taken a stance that the action of the petitioners was with the intent, object, purpose or design of a terrorism---There was nothing on the record, connecting the petitioners in any manner with terrorist activities or having any link or nexus with any terrorist organization in order to bring such act of the petitioners within the ambit of terrorism, as defined in section 6(1) of the Anti-Terrorism Act, 1997 ('ATA of 1997')---Record made it clear that the act of the petitioners was for their personal vendetta, hence, it was an ordinary case of abduction or kidnapping for ransom, which fell within the ambit of section 365-A, P.P.C.---However, because of its heinousness and after its inclusion in the Third Schedule to the ATA of 1997, it was triable by the Anti-Terrorism Court (ATC), to the exclusion of any other court---Fora below were wrong in convicting and sentencing the petitioners under section 7(e) of the ATA of 1997, instead of convicting and sentencing them under section 365-A, P.P.C.---Since, punishment for both the offences was same, therefore, no prejudice would be caused to either of the parties, if the charge was altered---Jail petitions were dismissed with the modification that the charge framed against the petitioners under the provisions of the ATA of 1997 was altered to that of section 365-A, P.P.C.---As the prosecution had succeeded in proving its case against the petitioners for committing an ordinary offence of kidnapping for ransom, therefore, their convictions under section 7(e) of the ATA of 1997 were converted into section 365-A, P.P.C., and they were sentenced to suffer imprisonment for life each with the benefit of section 382-B, Cr.P.C.

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

----Ss. 6(1), 7(a), 7(b) & 7(h)---Penal Code (XLV of 1860), Ss. 302(b), 324 & 34---Kidnapping for ransom---Reappraisal of evidence---Murder of police officials who were part of a raiding party---Not an act of terrorism---Admittedly, the incident occurred on account of a raid upon a house which at the relevant time was in possession of the petitioners---Purpose of the raiding party was to recover an abductee from the clutches of the petitioners---Facts and circumstances of the case did not establish the intent, object, design or purpose of the petitioners to do an act of terrorism---Reaction shown by the petitioners was to avoid their arrest, hence, in retaliation, they started firing---Though, such act of firing was illegal, but there was no intention or preparation to commit murder, in order to overawe or intimidate the police officials, who were the members of the raiding party---Besides, the occurrence took place in a house and there was no evidence to prove the presence of general public, therefore, the element of sense of fear or insecurity in the society was also lacking---Thus, the action of the petitioners by committing murder of the police officials, in the given circumstances, did not fall within the ambit of provision of section 6(1) of the Anti-Terrorism Act, 1997 ('ATA of 1997')---In absence of any ingredient of terrorism, the petitioners could not have been convicted and sentenced under the provisions of the ATA of 1997---Since the prosecution had succeeded in proving the commission of qatl-i-amd against the petitioners, therefore, their action fell within the provisions of section 302, P.P.C.---Jail petitions were dismissed with the modification that the convictions and sentences awarded to the three petitioners by the High Court and the Trial Court under sections 7(a), 7(b) & 7(h) of the Anti-Terrorism Act, 1997 were set aside and they were acquitted of the charge to that extent---However convictions and sentences of two of the petitioners under sections 302(b), 34 and 324, P.P.C., awarded by the fora below were maintained.

Sikandar Zulqarnain Saleem, Advocate Supreme Court (via video link from Lahore) for Petitioner (in J.Ps. Nos. 233 and 234 of 2015).

Nemo for Petitioner (in J.Ps. Nos. 620 and 621 of 2019).

Salman Safdar, Advocate Supreme Court for Petitioner (in J.Ps. Nos. 408 and 409 of 2021).

Asad Mehmood son of complainant for the Complainant (in J.Ps. Nos. 233 of 2015 and in J.P. No. 409 of 2021).

Father and brother of Abdul Rehman-deceased (in J.Ps. Nos.408 and 409 of 2021)

Irfan Zia, D.P.G. Punjab for the State.

2024 S C M R 1449

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

IFTIKHAR HUSSAIN alias KHAROO ---Petitioner

Versus

The STATE---Respondent

Jail Petition No.195 of 2017, decided on 8th May, 2024.

(Against the order dated 02.02.2017 passed by the Lahore High Court, Rawalpindi Bench passed in Cr.A. No.440 of 2013 and M.R. No.59 of 2013).

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Motive not proved---It was the case of the prosecution that the petitioner (accused) committed murder of deceased on the grudge that he defeated the petitioner in an Akhara (wrestling place)---As far as motive was concerned, same stood disproved---Since, no evidence was produced by the prosecution to substantiate the motive of the accused to commit the murder of the deceased, specifically in light of the fact that, petitioner/accused had no previous enmity with the complainant party, therefore motive set up by the prosecution in the FIR was disbelieved by the High Court---Prosecution had failed to prove its case beyond any reasonable doubt---Petition was converted into an appeal and was allowed; impugned judgment was set aside, and the petitioner was acquitted of the charge.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Recovery of crime weapon---Inconsequential---As far as recovery of crime weapon i.e. churri, was concerned, the same was held to be inconsequential by the Courts below because it was recovered after 4 years of the alleged occurrence and was not sent to the Forensic Science Laboratory---Prosecution had failed to prove its case beyond any reasonable doubt---Petition was converted into an appeal and was allowed; impugned judgment was set aside, and the petitioner was acquitted of the charge.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Presence of alleged eye-witnesses at the scene of occurrence doubtful---Delay in sending body for the post mortem was reflective of the absence of witnesses at the place of occurrence---Had they been present at the place of occurrence, they would have strived to save the life of deceased and immediately shifted him to the hospital---However, in the present case, contrary to normal reaction, father and brother of deceased, neither shifted the deceased to hospital nor accompanied him when he was sent to hospital by the police---Such behaviour alone created sufficient doubt about their presence at the place of occurrence---This fact also found corroboration from the fact that perusal of post-mortem report and inquest report revealed that dead body was brought to hospital by the police and was identified by two persons, who were not the alleged eye-witnesses of the occurrence---Thus, alleged eye-witnesses were also not the ones who had identified the dead body of the deceased at the time of the post-mortem report---In absence of physical proof qua presence of the witnesses at the crime scene, the same could not be relied upon---In view of the material contradictions in the statements of eye-witnesses and the fact that they did not accompany the deceased in the hospital and that their names were neither mentioned in inquest report nor in post-mortem report as the identifiers of the dead body spoke volumes about their absence at the place of occurrence---Hence, their testimonies were unreliable---Prosecution had failed to prove its case beyond any reasonable doubt---Petition was converted into an appeal and was allowed; impugned judgment was set aside, and the petitioner was acquitted of the charge.

Muhammad Rafiq alias Feeqa v. The State 2019 SCMR 1068 and Muhammad Rafiq v. State 2014 SCMR 1698 ref.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence by its nature and character, cannot recognize a culprit in case of an un-witnessed incident---When eye-witness account relied upon by the prosecution is unreliable and untrustworthy, conviction cannot sustain on the basis of medical evidence alone.

Hashim Qasim and another v. The State 2017 SCMR 986 ref.

(e) Criminal trial---

----Absconsion of the accused---Effect---Fact of abscondence of an accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive pieces of evidence---Abscondence itself has no value in the absence of any other evidence---Abscondence of the accused can never remedy the defects in the prosecution case---Conviction due to abscondence alone cannot be sustained.

Asadullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632; Muhammad Khan v. The State 1999 SCMR 1220; Gul Khan v. The State 1999 SCMR 304; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. The State 1985 SCMR 2070; Amir Gul v. The State 1981 SCMR 182; Muhammad Farooq and another v. The State 2006 SCMR 1707 and Rohtas Khan v. The State 2010 SCMR 566 ref.

Haider Mehmood Mirza, Advocate Supreme Court along with Petitioner in person (Through video link Lahore).

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

Muhammad Shafi for the Complainant.

2024 S C M R 1458

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

The GENERAL MANAGER, PUNJAB PROVINCIAL COOPERATIVE BANK, LTD. and others---Appellants

Versus

GHULAM MUSTAFA and others---Respondents

Civil Appeal No.795-L of 2012 and

(Against the judgment dated 16.12.2011 passed by Lahore High Court Lahore in W.P. No.3812 of 2005)

Civil Appeal No. 123-L of 2013 and

(Against the judgment dated 13.06.2012 passed by Lahore High Court Lahore in W.P. No.29117 of 2011).

Civil Petition No.2508-L of 2017

(Against the judgment dated 26.09.2017 passed by Lahore High Court Lahore in W.P. No.16193 of 2011).

Civil Appeals Nos. 795 of 2012, 123-L of 2013 and Civil Petition No. 2508-L of 2017, decided on 15th April, 2024.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition filed by employees of Punjab Provincial Cooperative Bank---Maintainability---Master and servant relationship---Punjab Cooperative Bank Limited Staff Service Rules (2010) ["Rules"] were meant for internal consumption, but it was lucidly specified in the said Rules that the relationship between the Bank and its employees shall be that of a master and servant---Survey of the Bank's corporate structure or substratum of the Bank unambiguously connoted that the terms and conditions of the employees were not governed by any statutory rules of service but they were governed and regulated under the relationship of a "master and servant"---In absence of statutory rules of service, the aggrieved employee cannot invoke the writ jurisdiction of the High Court---Under the relationship of master and servant, the only available or applicable remedy is the filing of a civil suit in the civil court against actions detrimental to the interest of any such employee---In the present case writ petitions filed by the employees before the High Court were not maintainable owing to the relationship of master and servant and the absence of statutory rules of service.

PIAC v. Tanweer-ur-Rehman PLD 2010 SC 676; PIAC v. Syed Suleman Alam Rizvi 2015 SCMR 1545; Abdul Wahab v. HBL 2013 SCMR 1383; Pakistan Defence Officers' Housing Authority v. Lt.Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Syed Nazir Gilani v. Pakistan Red Crescent Society 2014 SCMR 982 ref.

(b) Master and servant---

----Fundamental rights of the employee---Scope---Relationship of master and servant cannot be construed as so sagacious that the master i.e. the management of a statutory corporation or the corporation and/or company under the control of government having no statutory rules of service or the private sector may exercise the powers at their own aspiration and discretion in contravention or infringement of fundamental rights envisioned under the Constitution---Therefore, in all fairness, even under the relationship of master and servant, fundamental rights should be respected and followed, as the same are an integral part of due process.

President, Zarai Taraqiati Bank Limited, Head Office, Islamabad v. Kishwar Khan and others 2022 SCMR 1598 ref.

(c) Master and servant---

----Remedies for employees under a master servant relationship---Proposal to establish special tribunals/courts to expeditiously decide cases of employees under the relationship of master and servant---According to the master's mindset, the employee can be dismissed or terminated outrightly with good, bad, or no reason at all, without providing any opportunity of fair hearing on the justification of having no statutory rules to regulate such employment---On account of no expeditious remedy or forum to challenge the adverse actions, such employees have to file civil suits and wait for a number of years for their decision, but if they are allowed a fast-track remedy under some legislation ensuring that some lawful justification for termination of contracts of employment is provided, and if such legislation also creates some rights and obligations for employers and employees with the formation of special courts or tribunals, then their cases will also be decided at a speedy pace, just as the cases of civil servants and workman/workers are decided by the Service Tribunal, NIRC, and labour courts within lesser time than the time normally consumed in civil courts---If any such tribunal or special court is constituted under some special law, it will not only ensure checks and balances but ardently and fervently ease and alleviate the sufferings of the aforesaid category of employees who presently have to go through the miseries and turmoil of the rigors and rigidities of procedure, and the backlog of cases, for a long time---It is expedient and pragmatic to plan some legislation and establish a special tribunal/court under a special law to approach the cases of employees under the relationship of master and servant, which would not only uphold the basic human values which are vital to our social and economic lives but would virtually be a milestone by the government in safeguarding the fundamental rights of an extremely large category of employees who are deprived of expeditious access to justice as a consequence of no backing of statutory rules of service in various statutory organizations, corporations, autonomous bodies and, in particular, the persons employed in private, industrial and commercial establishments who are excluded from the definition of worker or workman under the labour laws due to the nature of their job.

Salman Mansoor, Advocate Supreme Court, Hafiz M. Tariq Nasim, Advocate Supreme Court and Muhammad Raheel, Deputy Head (HR) PPCBL for Appellants (in C.As. Nos. 795-L of 2012, 123-L of 2013 and C.P. 2508-L of 2017).

Mian Ahmad Mahmood, Advocate Supreme Court, Talat Farooq Sheikh, Advocate Supreme Court and Junaid Jabbar Khan, Advocate Supreme Court for Respondents (in C.As. Nos. 795-L of 2012, 123-L of 2013 and C.P. No. 2508-L of 2017).

2024 S C M R 1471

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

HAIDER MEHAR---Petitioner

Versus

The STATE---Respondent

Criminal Petition No.474-L of 2024, decided on 24th May, 2024.

(Against the judgment dated 26.03.2024 passed by the Lahore High Court, Lahore in Criminal Appeal No.80476 of 2023).

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

----Ss. 9(1)3(a) & 9(1)6(a)---Possession of 2300 grams of charas and 700 grams of heroin---Reappraisal of evidence---All the prosecution witnesses in their statements had unanimously given details qua raid, arrest of the petitioner, search, recovery of the contraband, preparation of samples, their safe transmission to the police station, safe custody and the delivery thereof to the Punjab Forensic Science Agency (PFSA)---During cross-examination, the prosecution witnesses remained consistent---Report of the PFSA confirmed the nature of the contraband recovered from the possession of the petitioner---Nothing had been brought on the record by the prosecution to falsely implicate the petitioner in the commission of an offence---Petition was dismissed and leave was declined.

Sardar Khurram Latif Khosa, Advocate Supreme Court (via video-link Lahore) for Petitioner.

Irfan Zia, Additional Prosecutor General, Punjab for the State.

2024 S C M R 1474

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

KHALID---Petitioner

Versus

The STATE through PG Sindh---Respondent

Criminal Petition No.668 of 2019, decided on 5th June, 2024.

(On appeal against the judgment dated 30.04.2019 passed by the High Court of Sindh, Larkana Bench, in Crl. Jail Appeal No.D-35 of 2018).

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Unshaken testimony of two witnesses, being eye-witnesses of the occurrence and close relatives of the deceased was fully supported/corroborated by the medico legal evidence, recovery of four crime empties of .30 bore and blood stains from the place of occurrence, blood stained clothes of the deceased, report of the chemical expert, recovery of crime weapon (.30 bore pistol) from the house of the petitioner (convict) on his pointation and positive report of the firearm expert---Record did not reveal of any animus of the two eye-witnesses for false implication of the petitioner---There was no inordinate or unexplained delay in lodging the FIR---Prosecution had proved the charge against the petitioner beyond reasonable doubt---Petition was converted into an appeal and was partly allowed, and conviction awarded to the petitioner/appellant under section 302(b), P.P.C. was maintained.

(b) Criminal trial---

----Related witnesses, evidence of---Reliance---In absence of any ulterior motive/animus for false implication of an accused, the confidence inspiring testimony of an eye-witness, whose presence with the deceased at the time and place of occurrence is established, cannot be discarded merely due to his relationship with the deceased.

Aman Ullah v. The State 2023 SCMR 723 and Imran Mehmood v. The State 2023 SCMR 795 ref.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Sentence, reduction in---Mitigating circumstances---Motive nor proved---In the instant case, though the motive of the occurrence was alleged to be the previous enmity due to land dispute as well as matrimonial relations but the prosecution had failed to prove the same---Failure to prove the motive alleged by the prosecution can be considered as a mitigating circumstance for reducing the quantum of sentence awarded to an accused---Petition was converted into an appeal and was partly allowed, and conviction awarded to the petitioner/appellant under section 302(b), P.P.C. was maintained, however his sentence of death was converted into imprisonment for life on the basis of the mitigating circumstances.

Zeeshan Afzal alias Shani v. The State 2013 SCMR 1602; Amjad Shah v. The State PLD 2017 SC 152 and Muhammad Yasin v. The State 2024 SCMR 128 ref.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Sentence, reduction in---'Expectancy of life', principle of---Period of incarceration equal to or more than a full term of imprisonment for life---In a case where a convict sentenced to death undergoes period of custody equal to or more than a full term of imprisonment for life during the pendency of his judicial remedy against his conviction and sentence of death, the principle of 'expectancy of life' may be considered as a relevant factor along with other circumstances for reducing his sentence of death to imprisonment for life---In the present case the petitioner (convict) had been in the death cell for 16 years awaiting the fate of his juridical remedies---Inordinate delay in disposal of case was not attributable to the petitioner as the trial proceedings were twice remanded by the Appellate Court to the Trial Court; firstly, due to defective charge and non-examining the second investigating officer, and secondly, due to defective 342, Cr.P.C. statement of the petitioner---Petition was converted into an appeal and was partly allowed, and conviction awarded to the petitioner/appellant under section 302(b), P.P.C. was maintained, however his sentence of death was converted into imprisonment for life on the basis of the mitigating circumstances.

Hassan v. The State PLD 2013 SC 793 and Sikandar Hayat v. The State PLD 2020 SC 559 ref.

Shahab Sarki, Advocate Supreme Court for Petitioner.

Saleem Akhtar Buriro, Addl. PG Sindh for the State.

Inayatullah Morio, Advocate Supreme Court, Ms. Perveen Chachar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Complainant.

2024 S C M R 1479

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

ADNAN SHAFAI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.239 of 2024, decided on 5th June, 2024.

(Against the order dated 04.03.2024, passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.69212-B of 2023).

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

----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss. 161, 162, 109 & 409---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan, Art. 185(3)---Public servant taking gratification by corrupt or illegal means, abetment, criminal breach of trust by public servant, criminal misconduct---Bail, grant of---Statutory ground of delay in conclusion of trial---Present case did not involve any crime punishable by death---Petitioner (accused) was arrested on 05.08.2022 and was behind the bars since then---Charge in the case was framed on 12.06.2023 and yet the trial had not been concluded---Grant of bail on the statutory ground of delay in the conclusion of trial was a right of accused unless such delay had been occasioned as a result of his own conduct---Only ground on the basis of which the petitioner's application for bail was dismissed was that petitioner moved an application under Section 265-K, Cr.P.C---However, the same did not reflect any design, pattern, or concerted effort by the petitioner to delay the conclusion of trial---An application for the protection of the accused's rights and for fair trial guaranteed under Article 10-A of the Constitution did not amount to any design, pattern, or concerted effort by the accused to delay the trial---Thus, merely moving an application under Section 265-K, Cr.P.C does not amount to deliberate delay on the part of the accused in conclusion of trial---In the present case only one application was moved and after that no adjournment was sought by the counsel for the accused on the relevant date of hearing---In such view a case of statutory ground of delay in the conclusion of trial was prima facie made out within the remit of Section 497, Cr.P.C.---Petition was converted into an appeal and allowed, and the petitioner was granted post-arrest bail.

Shakeel Shah v. State and others 2022 SCMR 1 ref.

Major (R) Muhammad Iftikhar Khan v. The State and another 2022 SCMR 885 distinguished.

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

----S. 497(1), third proviso---Constitution of Pakistan, Art. 185(3)---Bail---Statutory ground of delay in conclusion of trial---Scope---If any accused deliberately causes delay in the conclusion of trial by moving irrelevant repetitive applications, then he is not entitled for bail on the statutory ground of delay in conclusion of trial.

Mrs. Zill-e-Huma, Advocate Supreme Court for Petitioner.

Rashdeen Nawaz Kasuri, Additional Attorney General for Pakistan, Irfan Zia, Additional Prosecutor General, Punjab, Naeem Sajid, Inspector, FIA, Lahore and Ms. Huma Noreen Hassan, Legal Consultant Pak Railways for the State.

Mian Sohail Anwar, Advocate Supreme Court for the Complainant.

2024 S C M R 1484

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Ayesha A. Malik and Irfan Saadat Khan, JJ

POSTMASTER GENERAL BALOCHISTAN---Appellant

Versus

AMANAT ALI and others---Respondents

Civil Appeal No. 2384 of 2016 and C.M.A. No. 3858 in C.A. No. 2384 of 2016 and Civil Appeal No. 2385 of 2016 and C.M.A. No. 3859 of 2016 in C.A. No. 2385 of 2016, decided on 17th April, 2024.

(Against the judgment dated 21.03.2016 and 24.3.2016 passed by Federal Service Tribunal Islamabad (Karachi Bench) in Appeals Nos.27(K) CS and 44(K) CS of 2011).

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

----R. 4(1)(b)(i)---Employees of Post Office---Allegation of defalcation and embezzlement---Dismissal from service---Service Tribunal converted major penalty of 'dismissal from service' imposed by the competent authority converted into reduction in time scale by two stages for a period of two years in terms of Rule 4(1)(b)(i) of the Government Servants (Efficiency and Discipline) Rules, 1973---Legality---Inquiry report showed that proper opportunity was afforded to the respondents (employees) to defend the charges---Allegations were mostly based on documentary evidence and the performance of duties by the respondents in accordance with the relevant rules and circulars encompassing their nature of duties---Findings and recommendations jotted down in the enquiry reports were properly considered by the competent authority with the proper application of mind and since the charges were found to be proved, the punishment was imposed in accordance with law, keeping in mind all attending circumstances, including the gravity and severity of the proven charges---Tribunal while converting the major punishment into minor punishment failed to evaluate both the inquiry reports wherein the allegations were proved, and without appreciating the reports, the Tribunal treated the cases of both the respondents in the appeal as a mere case of inefficiency and negligence which was without any rationale---Tribunal also failed to highlight any serious defect in the inquiry reports or procedure which became the cause of modifying or setting aside the original punishment of dismissal from service awarded by the competent authority---Where public money and its embezzlement is involved or at stake, the responsible persons cannot be let free or exonerated with only a minor penalty, so while converting the major penalty of removal from service into any minor penalty, it is an onerous obligation of the Service Tribunal to exercise its jurisdiction of conversion of punishment with proper application of mind which obviously connotes and necessitates that the quantum of punishment be proportionate and complementary to the charge of misconduct even for a minor act of negligence and inefficiency committed by the delinquent in his duties; so the punishment, even in the minor category as well, should also be of such kind that it may create at least some deterrence for the delinquent and other employees to be more vigilant and attentive to their duties in the future, rather than performing the tasks with callous attitude, which is highly prejudicial and detrimental to the effective functioning and performance of the department---Appeals were allowed, the impugned judgments passed by the Service Tribunal were set aside and the penalty (of dismissal from service) awarded by the department to the respondents was restored.

(b) Civil service---

----Punishment, award of---Interference by Tribunals/Courts in punishment awarded by the competent authority---Scope---Award of appropriate punishment under the law is primarily the function of the concerned administrative authority and the role of the Tribunal/Court is secondary---Court ordinarily would not substitute its own finding with that of the said authority unless the latter's opinion is unreasonable or is based on irrelevant or extraneous considerations or is against the law declared.

Postmaster General Sindh Province, Karachi v. Syed Farhan 2022 SCMR 1154; Government of Khyber Pakhtunkhwa v. Nargis Jamal 2022 SCMR 2114 and Divisional Superintendent, Postal Services, D.G. Khan v. Nadeem Raza 2023 SCMR 803 ref.

Ch. Aamir Rehman Addl. AGP (In both cases) along with Hamid-ul-Haseeb, AD (Legal) for Appellant.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court (In both cases) along with Amanat Ali and Muhammad Azam for Respondent No.1

2024 S C M R 1490

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

KHIAL MUHAMMAD---Petitioner

Versus

The STATE---Respondent

Cr. A. No.36 of 2023 and Cr.P. No.5-Q of 2021, decided on 23rd May, 2024.

(Against the judgment dated 28.12.2020 passed by the High Court of Balochistan, Quetta in Cr.A. No.299 of 2017 and Murder Reference No.8 of 2017 and Criminal Jail Appeal No.300 of 2017).

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Delay of more than fifteen hours in lodging FIR not explained---Consequential---Matter was reported to the police by the complainant approximately more than fifteen hours after the incident, despite the police station being only one furlong away from the place of occurrence---In the entire evidence, the prosecution had not explained the reason for such a delay in reporting the matter to the police---Such delayed FIR on the part of the complainant showed dishonesty and that it was lodged with deliberation and consultation---Prosecution had failed to prove its case beyond any reasonable doubt---Appeal was allowed; the judgments passed by the Trial Court as well as the High Court, respectively, were set aside and the appellant was acquitted of the charge levelled against him.

Amir Muhammad Khan v. The State 2023 SCMR 566 ref.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Name of star eye-witnesses not mentioned in the FIR and belated recording of their statements---Consequential---Both the alleged eye-witnesses claimed that they were present at the time of incident but their names were not mentioned in the FIR---Moreover, despite their presence at the place of incident their statements under section 161 Cr.P.C were recorded by the police with a delay of 16 hours---Recording the statement of witnesses under section 161 Cr.P.C at a belated stage casted serious doubts on the version of prosecution---No plausible explanation was rendered by the prosecution as to why statements of star witnesses were recorded after such a delay and why their names were not mentioned in the FIR---Prosecution had failed to prove its case beyond any reasonable doubt---Appeal was allowed; the judgments passed by the Trial Court as well as the High Court, respectively, were set aside and the appellant was acquitted of the charge levelled against him.

Muhammad Khan v. Maula Baksh and another 1998 SCMR 570 ref.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Sixteen hours delay in sending recovered weapon and ammunition for forensic analysis---Consequential---Accused as per the record was arrested red handed and from his possession one TT Pistol of 0.30 bore along with 28 live cartridges were recovered meanwhile six crime empty shells of .30 bore pistol were also recovered by the police from the place of occurrence---Sealed parcels of such weapon/ammunition were sent for the forensic report after an unexplained delay of more than 19 days---Prosecution had failed to prove its case beyond any reasonable doubt---Appeal was allowed; the judgments passed by the Trial Court as well as the High Court, respectively, were set aside and the appellant was acquitted of the charge levelled against him.

(d) Criminal trial---

----Conviction---Heinousness of the offence---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---Principle---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---Any doubt arising in prosecution case is to be resolved in favour of the accused.

Mst. Asia Bibi v. The State PLD 2019 SC 64; Tariq Pervez v. The State 1995 SCMR 1345 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

(f) Criminal trial---

----Single loophole in the prosecution case---Benefit of doubt---Principle---Once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused.

Abdul Jabbar v. State 2019 SCMR 129 ref.

Kamran Murtaza, Advocate Supreme Court for the Appellant/ Petitioner.

Syed Pervez Bukhari, Advocate Supreme Court (appeared as a State Counsel) for the State (in both cases).

2024 S C M R 1496

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

MEER GUL---Appellant

Versus

Raja ZAFAR MEHMOOD through legal heirs and others---Respondents

Civil Appeal No.51-K of 2021, decided on 4th April, 2024.

(Against the judgment dated 22.02.2021 passed by High Court of Sindh, Circuit Bench, Hyderabad, in Second Appeal No.07 of 2020).

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

----S. 54---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of an agreement to sell immoveable property---Balance sale consideration---Depositing in Court---Scope---There is no mandatory provision under the Specific Relief Act, 1877 wherein, come what may, the plaintiff (buyer) has to tender the outstanding sale consideration in Court at the time of instituting or presenting the plaint or even at the time of admission of the suit by the Court before issuing summons to the defendant or defendants---So for all practical purposes, the deposit of the sale consideration or balance sale consideration in the Court is not an automatic or precondition by fiction of law but there must be an order of the Court for deposit with certain timeline with repercussions for non-compliance.

Initial burden lies on the plaintiff (vendee) to show his willingness and readiness unequivocally, and while asserting for any injunctive relief or otherwise, during the pending adjudication, the plaintiff may offer to deposit the balance amount in Court and at the same, the Court has to consider bona fide of the plaintiff i.e., whether he is ready and willing to perform his part of the contract, if the plaintiff does not offer to deposit the balance sale consideration in Court, even then, the Court in order to determine and find out the seriousness or unseriousness or bona fide or mala fide of the plaintiff who lodged the claim of specific performance of contract, may pass an order for depositing the amount in Court to protect the interest of the defendant as a check and balance with a certain timeline for compliance of such order with adverse consequence on account of non-compliance within the stipulated time.

Messrs DW Pakistan (Private) Limited v. Begum Anisa Fazl-i-Mahmood 2023 SCMR 555 ref.

The primary wisdom of the courts in directing the plaintiff in a suit for specific performance to deposit the sale consideration in Court in fact conveys that the plaintiff/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 which is a condition precedent for claiming relief of specific performance, but there is no mandatory provision under the Specific Relief Act, 1877 wherein, come what may, the plaintiff has to tender the outstanding sale consideration in Court at the time of instituting or presenting the plaint or even at the time of admission of the suit by the Court before issuing summons to the defendant or defendants. So for all intent and practical purposes, the deposit of the sale consideration or balance sale consideration in the Court is not an automatic or precondition by fiction of law but there must be an order of the Court for deposit with certain timeline with repercussions of non-compliance, and in case of genuine and satisfactory grounds pleaded for non-compliance within the stipulated time, the Court, in exercise of powers conferred under Section 148, C.P.C., may extend and accord some reasonable time for compliance, with or without cost, if a justifiable and satisfactory case for extension is made out.

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

----S. 100 & O.XLI, R. 31---Second Appeal---Scope---High Court under the sphere of Section 100, C.P.C., can take cognizance of a substantial question of law rather than triggering interference on a pure question of fact---Court should also formulate the question of law to meet the requirements of Order XLI, Rule 31, C.P.C.---In a 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 relatively delineated to the questions of law which is sine qua non for exercising the jurisdiction under Section 100, C.P.C.

Naeem Suleman, Advocate Supreme Court for Appellant.

Muhammad Suleman Unar, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for LRs of Respondent No.1.

Ex-parte Respondents Nos.2 to 6.

2024 S C M R 1507

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

MUHAMMAD IJAZ alias BILLA and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 169 of 2023 and Crl.M.A. No.228 of 2024 along with Crl. Appeal No. 170 of 2023, decided on 22nd May, 2024.

(On appeal against the judgment dated 19.09.2017 passed by the Lahore High Court, Multan Bench, Multan in Crl. Appeal No.272 of 2012, M.R. No. 31 of 2012, Crl. A. No. 266 of 2012 and Crl. Revision No.72 of 2012).

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Reappraisal of evidence---Contradictions in evidence of eye-witnesses---Motive not proved---Independent eye-witness withheld---Probability of false implication---There were material inconsistencies and contradictions in the statements of both the alleged eye-witnesses of the occurrence---Alleged motive for the murder of deceased was illicit relations between his wife (appellant "N") and appellant "M"---One of the alleged eye-witnesses did not support the allegation of an illicit relationship between the appellants, nor did he utter a single word regarding this during his examination as a witness---More importantly, during his lifetime, the deceased did not file any complaint with the police against the appellant "M" or take any action against his wife (appellant "N"), for having an illicit relationship with appellant "M"---Nor did appellant "N" file any suit for dissolution of marriage against the deceased, which would be a natural outcome in such a situation---Thus, the allegation of an illicit relationship between the appellants, as levelled by the prosecution, was without merit---Prosecution had an independent eye-witness, however, it did not produce him---Prosecution withheld the best evidence, which undermined the credibility of its account---Furthermore, the alleged occurrence took place in daylight in a populated area; however, no one from the locality came forward to support the story of the prosecution---Star witness of the prosecution acknowledged that the complainant had not given the deceased his share of the inheritance from the property left by their father---Additionally, it was revealed that the deceased's wife i.e. appellant "N" used to pressure her deceased husband to demand his rightful share of the inheritance from the complainant---In this view of the matter, the possibility of false implication of appellants could not be ruled out---Fact that the deceased was being urged by his wife to assert his inheritance rights suggests a potential motive for the complainant to falsely implicate the appellants---Appellant "N" and the deceased had four children, and the elder daughter was 10 to 12 years of age at the time of the occurrence---She was alleged by the appellant "N" to be present at the time of the occurrence---She would have been able to give rational answers to questions posed to her; however, she was not interrogated by the investigating officer in respect of the occurrence---Appeals were allowed, and both the appellants were acquitted of the charge.

(b) Criminal trial---

----Motive---False implication---Motive is a double-edged weapon, which can be used either way and by either side i.e. for real or false involvement in a case. [p. 1515] F

Noor Elah v. Zafar ul Haque PLD 1976 SC 557; Allah Bakhsh v. The State PLD 1978 SC 171; Khadim Hussain v. The State 2010 SCMR 1090; Tahir Khan v. The State 2011 SCMR 646; Tariq v. The State 2017 SCMR 1672 and Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 ref.

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

----S. 302(b)--- Qatl-i-amd---Reappraisal of evidence--- Recovery of electric wire and pistol---Inconsequential---So far as the recoveries were concerned, the prosecution had shown recoveries of electric wire and pistol, the alleged weapon of offence, but it did not support the case of the prosecution for the reason that these recoveries were corroborative pieces of evidence and were relevant only when the primary evidence, i.e., the ocular account, inspired confidence---However, the ocular account in this case was full of contradictions and did not inspire confidence---Appeals were allowed, and both the appellants were acquitted of the charge.

Nasir Javaid and another v. The State 2016 SCMR 1144; Muhammad Nawaz and others v. The State and others 2016 SCMR 267 and Hayatullah v. The State 2018 SCMR 2092 ref.

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

----S. 302(b)---Qatl-i-amd--- Reappraisal of evidence--- Delay in carrying out postmortem of deceased---Effect---Post-mortem of the body of the deceased was conducted seventeen hours after the alleged occurrence---Prosecution and counsel for the complainant were unable to point out any justifiable reason to explain the marked delay in carrying out the post-mortem of deceased---Such unexplained delay in the post-mortem put a prudent mind on guard to very cautiously assess and scrutinize the prosecution's evidence---In such circumstances, the most natural inference would be that the delay so caused was for preliminary investigation and prior consultation to nominate the accused and plant eye-witnesses of the crime---Appeals were allowed, and both the appellants were acquitted of the charge.

Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Irshad Ahmad v. The State 2011 SCMR 1190; Ulfat Husain v. The State 2018 SCMR 313; Muhammad Yaseen v. Muhammad Afzal and another 2018 SCMR 1549; Muhammad Rafique v. The State 2014 SCMR 1698; Muhammad Ashraf v. The State 2012 SCMR 419 and Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 ref.

(e) Criminal trial---

----Medical jurisprudence---Death by hanging---Death by strangulation---Distinction---Distinguishing characteristics and marks on the dead body of deceased caused due to death by hanging and death by strangulation listed.

Modi in Medical Jurisprudence and Toxicology, 26th Edition ref.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Medical evidence not pointing towards death by strangulation---Medical officer during cross-examination, stated that there were no scratches or any marks of injury on any part of the body of the deceased, which were commonly found in a case of death by strangulation---Considering the conclusion in the post-mortem report and the evidence of the medical officer, and analyzing them in light of the principles laid down in Modi's Medical Jurisprudence and Toxicology, the prosecution's claim that the death of the deceased was caused by throttling was doubtful---Appeals were allowed, and both the appellants were acquitted of the charge.

(g) Criminal trial---

----Benefit of doubt---Principle---To extend the benefit of the doubt it is not necessary that there should be so many circumstances---If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evidence to procure conviction then the Court can come forward for the rescue of the accused persons.

Daniel Boyd (Muslim Name Saifullah) and another v. The State 1992 SCMR 196; Gul Dast Khan v. The State 2009 SCMR 431; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Abdul Jabbar and another v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State and others PLD 2019 SC 64 and Muhammad Imran v. The State 2020 SCMR 857 ref.

Sagheer Ahmed Qadri, Advocate Supreme Court for the Appellant (in Crl.A. No. 169 of 2023).

Rehan Iftikhar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Appellant (in Crl.A. No. 170 of 2023).

Irfan Zia, A.P.G. Punjab for the State.

Masood-ul-Hasan Chishti, Advocate Supreme Court (via video link from Lahore) for the Complainant.

2024 S C M R 1520

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

Mst. UZMA MUKHTAR---Petitioner

Versus

The STATE through Deputy Attorney General and another---Respondents

Criminal Petition No.128 of 2024, decided on 11th June, 2024.

(On appeal against the order dated 04.12.2023 passed by the Islamabad High Court, Islamabad, in Criminal Revision No.163 of 2023).

Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 20, 21, 24 & 54---Electronic Transactions Ordinance (LI of 2002), Ss. 36 & 37---Penal Code (XLV of 1860), Ss. 500, 506 & 509---Constitution of Pakistan, Art. 12---Harassing, threatening and blackmailing a female by sending her personal pictures on her cell phone through social media---Non-applicability of Prevention of Electronic Crimes Act, 2016, and the Electronic Transactions Ordinance, 2002---After trial proceedings commenced before the Judge, Prevention of Electronic Crimes Court (PECC), the Judge concluded that sections 36 and 37 of Electronic Transactions Ordinance, 2002 ("ETO 2002") were not attracted to the facts of the instant case; the proceedings could not be continued under section 54 of Prevention of Electronic Crimes Act, 2016 ('PECA 2016') as the provisions of PECA 2016 were also not attracted for the reason that at the time of commission of alleged offences i.e. one year prior to the petitioner's (complainant's) application dated 03.08.2016 submitted by the petitioner to FIA for registration of FIR, PECA 2016 was not in field as it came into force on 18.08.2016---In view of the above conclusions, after deletion of sections 36 and 37 of ETO 2002, Judge PECC ordered to place the case file before Sessions Judge for its further entrustment to the court of competent jurisdiction---High Court maintained the order of the Judge PECC---Validity---Assent of the President of Pakistan was received on 18.08.2016 for promulgation of PECA 2016 and notification dated 19.08.2016 was published in the Gazette of Pakistan on 22.08.2016---Offences mentioned by the petitioner in her application dated 03.08.2016 were allegedly committed by respondent (accused) much prior to promulgation of PECA 2016---While providing protection against retrospective punishment, Article 12 of the Constitution lays down that no law shall authorize the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission---Therefore, both the Courts below had not committed any illegality in rejecting the application of the petitioner for altering the charge/reading over the charge to respondent under sections 20, 21 and 24 of PECA 2016---Furthermore, allegations levelled by the petitioner against respondent in her application and the incriminating material collected during investigation did not attract sections 36 and 37 of ETO 2002 as respondent had neither attempted nor gained access to any information system with or without intent to acquire the information contained therein; he had neither attempted nor done any act with intent to alter, modify, delete, remove, generate, transmit, or store any information through or in any information system being not authorised to do so; he had neither attempted nor done any act to impair the operation of any information system; he had neither attempted nor done any act to prevent or hinder access to any information contained in any information system---Thus, both the Courts below had not committed any illegality in concluding that sections 36 and 37 of ETO 2002 were not attracted to the facts and circumstances of the instant case---Petition was dismissed and leave to appeal was refused.

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

Irfan Zia, Addl. PG Pb. for the State.

2024 S C M R 1525

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

AHMAD NAWAZ and another---Petitioners

Versus

The STATE and another---Respondents

Crl. P.L.As. Nos. 458 and 459 of 2024, decided on 31st May, 2024.

(Against the order dated 08.05.2024 passed by the Lahore High Court, Lahore passed in Crl. Misc No. 16559-B of 2024 and Crl. Misc. No.16616-B of 2024).

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Constitution of Pakistan, Art. 185(3)---Cheating, fraud and forgery---Bail, grant of---Further inquiry---In the present case, FIR had been lodged with a delay of approximately five months of alleged forgery and fabrication of documents and such delay had not been sufficiently explained by the counsel for the complainant---Secondly, there was a status quo (stay order) in the field granted by the Additional District and Sessions Judge---Therefore, the instant case fell within the parameter of further inquiry and allegations were to be decided by the trial court after recording evidence---Petitions were converted into appeals and were allowed, and petitioners (accused persons) were admitted to bail.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail, grant of---Principle---It is better to err in granting bail than to err in refusal because ultimate conviction and sentence can repair the wrong resulting from a mistaken relief of bail.

Chairman NAB's case PLD 2022 SC 475 ref.

Malik Saleem Iqbal Awan, Advocate Supreme Court for Petitioners along with both petitioners present in court.

Irfan Zia, Additional Prosecutor General, Punjab, Zafar Abbas, ASI and Sajjad, DSP Chiniot for the State.

Sheikh Irfan Akram, Advocate Supreme Court for the Complainant.

2024 S C M R 1528

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Athar Minallah, JJ

Mst. ISHRAT BIBI---Petitioner

Versus

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

Criminal Petition No.243 of 2024, decided on 22nd May, 2024.

(Against the order dated 06.03.2024 of the Lahore High Court, Lahore passed in Crl. Misc. No.84180-B of 2023).

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

----S. 497(1), first proviso---Bail---Female accused with children---Often many women implicated in cognizable offenses are found poverty-stricken and illiterate and in some cases, they have to take care of children, including suckling children---There are also many examples where the children are to live in prisons with the mothers---This ground reality is also ought to be considered which would not only involve the interest of such accused women, but also the children who are not supposed to be exposed to prisons, where there shall always be a severe risk and peril of inheriting not only poverty but also criminality, during the incarceration of their mother---The first proviso to section 497(1), Cr.P.C. facilitates the Court to conditionally release on bail an accused if he is under the age of 16 years or is a woman or is sick or infirm under the doctrine of welfare legislation, reinforced by way of the said proviso which requires a purposive interpretation for extending the benefit of bail to the taxonomy of persons mentioned in it, and the same is to be taken into consideration constructively and auspiciously depending upon the set of circumstances in each case, among other factors, including the satisfaction of the Court that the bail petitioner does not have any criminal record or is not a habitual offender.

Tahira Batool v. State PLD 2022 SC 764; Asiya v. State 2023 SCMR 383; Ghazala v. State 2023 SCMR 887 and Munawar Bibi v. State 2023 SCMR 1729 ref.

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

----Ss.497(1), first proviso & 497(2)---Penal Code (XLV of 1860), Ss. 302, 34, 118, 120-B, 109 & 506---Murderous assault, conspiracy to commit murder---Bail, grant of---Female accused with suckling children---Further inquiry, case of---Rule of consistency, applicability of---FIR was lodged against some unknown persons, without even disclosing their identity or features---From time to time the complainant recorded her supplementary statements to implicate different accused persons---Present petitioner (female accused) was implicated vide a supplementary statement---Three further supplementary statements were also recorded by the complainant, and in the last supplementary statement, she implicated an accused who was attributed the role of making fire on the right leg below the abdomen of the deceased, but he was granted bail by the Supreme Court---Even in view of such supplementary statements, nothing was produced at present stage to show that the petitioner was mastermind of the murder---Record showed that except the petitioner, all other co-accused persons had been granted bail either by the Trial Court or the Supreme Court---All the accused persons who were part of the criminal conspiracy, including the main accused who fired upon the deceased, had been granted bail, therefore at present stage, there appeared no reasonable grounds for believing that the petitioner was guilty for the offence jotted down in the FIR---Petitioner had not only made out a case of further inquiry but she was also entitled to be enlarged on bail in view of the rule of consistency coupled with the benefit of the first proviso to Section 497(1), Cr.P.C.---Petition was converted into an appeal and allowed, and the petitioner was enlarged on bail.

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

----S. 497---Bail---Rule of consistency---Doctrine of parity---Scope---Rule of consistency, or in other words, the doctrine of parity in criminal cases, including bail matters, recapitulates that where the role ascribed to the accused is one and the same as that of the co-accused, then the benefit extended to the co-accused should be extended to the 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 the 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.

Mrs. Bushra Qamar, Advocate Supreme Court for Petitioner.

. Khurram Khan, Additional Prosecutor General, Punjab for the State.

Khalid Masood Sandhu, Advocate Supreme Court for the Complainant.

2024 S C M R 1536

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

FAHEEM ANWAR MEMON and others---Petitioners

Versus

The STATE through Prosecutor General, Sindh and others---Respondents

Criminal Petitions Nos. 351-352, 438, 50-K, 76-77-K, 92-K and 94-K of 2022, decided on 11th June, 2024.

(Against the judgment dated 25.03.2022 of the High Court of Sindh, Karachi passed in ATAs Nos. 297, 296, 291, 282, 294, 288, 304 of 2019).

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

----Ss. 223 & 225-A---Police officials accused of facilitating escape of under trial prisoners from a court---Reappraisal of evidence---Evidence available on record revealed that with the active connivance of three accused police officials, the escapee Under Trial Prisoners (UTPs) managed their escape after cutting the iron bars/grill of lockup of Anti-Terrorism Court situated on the first floor of the Judicial Complex and after shaving their beard and cutting their hair in the washroom of the Court---Overwhelming incriminating evidence proved sharing of common intention and active connivance of three accused with the escapee UTPs in managing and facilitating their escape from confinement---Conviction of accused persons under sections 223 & 225-A, P.P.C. was maintained---Petitions for leave to appeal were dismissed.

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

----Ss. 223 & 225-A---Prison officials accused of facilitating escape of under trial prisoners from a court---Reappraisal of evidence---Record did not reveal any connivance or sharing of common intention by the five accused prison officials with the three convicted police officials and the two escapee Under Trial Prisoners (UTPs) in managing and facilitating their escape---No question arose of negligence or lack of supervision by the prison officials under Pakistan Prisons Rules, 1978---Prosecution had failed to produce definite and concrete evidence to prove the negligence of the prison officials---Petitions were converted into appeal and allowed, and the conviction and sentences recorded against the five accused prison officials were set-aside.

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

----Ss. 223 & 225-A---Negligence of prison officials leading to escape of under trial prisoners---Negligence---Proof---According to settled principles, the factum of negligence can be taken into consideration on the basis of presumption or surrounding circumstances while taking disciplinary action against a public servant but to bring home charge in criminal proceedings against a public servant under sections 223 and 225-A, P.P.C., definite and concrete evidence is required to prove the factum of negligence.

Muhammad Yaqoob v. The State PLD 2001 SC 378 ref.

Muhammad Farooq, Advocate Supreme Court for Petitioners along with petitioners in person (via video link from Karachi) (in Crl. Ps. Nos. 351-352 of 2022).

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioners along with petitioner in person (in Crl. P. No. 438 of 2022).

Amir Mansoob Qureshi, Advocate Supreme Court for Petitioners along with petitioner in person (in Crl. P. No.50-K of 2022).

Muhammad Naeem Memon, Advocate Supreme Court for Petitioners along with petitioners in person (via video link from Karachi) (in Crl. Ps. Nos. 76-77-K of 2022).

Ghulam Rasool Mangi, Advocate-on-Record/Advocate Supreme Court for Petitioners along with Petitioner in person (via video link from Karachi) (in Crl. P. No.92-K of 2022).

Mazhar Ali B. Chohan, Advocate-on-Record, M. Ashraf Samoo, Advocate Supreme Court for Petitioners along with petitioner in person (in Crl. P. No. 94-K of 2022) (via video link from Karachi).

Saleem Akhtar Buriro, Addl.P.G., Sindh for the State.

2024 S C M R 1543

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

ADNAN SHAFAI---Petitioner

Versus

The STATE and another---Respondents

Crl. P.L.A. No.238 of 2024, decided on 5th June, 2024.

(Against the order dated 04.03.2024 passed by the Lahore High Court, Lahore passed in Crl. Misc No. 68511-B of 2023).

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss. 409 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Criminal breach of trust by public servant, abetment, criminal misconduct, money laundering---Bail, grant of---Statutory ground of delay in conclusion of trial---In the present case, the petitioner (accused) was arrested on 05.08.2022 and the charge against him was framed on 27.06.2023; he made an application for his post-arrest bail on statutory ground on 07.08.2023---Order sheets of the period commencing from the date of arrest, date of framing of charge till the date of his filing the application for bail did not reflect any design, pattern, or concerted effort on the part of the petitioner to delay the conclusion of the trial---During this period, he made two formal applications namely an application under section 265-K, Cr.P.C. and an application for excluding a person from the proceedings of this case---Perusal of these applications did not reflect any design, pattern, or concerted effort by the petitioner to delay the conclusion of the trial---An application for the protection of the accused's rights and just for fair trial guaranteed under Article 10-A of the Constitution does not amount to any design, pattern, or concerted effort by the accused to delay the trial---Furthermore, tentative assessment of the material placed before the Court showed that petitioner was not a hardened, desperate, or dangerous criminal; he was a government employee working in Pakistan Railways who was not likely to cause any injury to others---Case of statutory ground of delay in the conclusion of trial was prima facie made out within the remit of Section 497, Cr.P.C.---Petition was converted into an appeal and allowed, and the petitioner was granted post-arrest bail.

Shakeel Shah v. State and others 2022 SCMR 1 ref.

Zill-e-Huma, Advocate Supreme Court and Muhammad Amir Malik, Advocate-on-Record for Petitioner.

Rashdeen Nawaz Kasuri, Additional Attorney General for Pakistan, Irfan Zia, Additional Prosecutor General, Punjab, Naeem Sajid, Inspector, FIA, Lahore and Ms. Huma Noreen Hassan, Legal Consultant Pak Railways for the State.

Mian Sohail Anwar, Advocate Supreme Court for the Complainant.

2024 S C M R 1548

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

IFFCO PAKISTAN (PRIVATE) LIMITED---Petitioner

Versus

GHULAM MURTAZA and others---Respondents

Civil Petitions Nos. 525-K to 541-K of 2023, decided on 4th April, 2024.

(Against the order dated 14.02.2023 passed by the High Court of Sindh Karachi in Const. Petitions Nos. D-7068, 7069, 7070 to 7084 of 2021).

Industrial Relations Act (X of 2012)---

----S. 2(xxxiii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 2(i)---Worker/workman---Scope---Workers employed through an independent contractor---Yardstick to decide the controversy between a direct employee of a company and an employee employed through an independent contractor rests on the extent of control and supervision on human resource, ongoing control of independent contractor, if any, financial risks and obligations, as well as the provision of plant, machinery, and premises, and finally supply of raw material and allied set-up---There is no bar to contract out the whole job or parts of it to an outsource contractor, including human resource within its own premises or through toll manufacturing agreements, but what is crucial is that the outsourcing should not be used as a weapon of circumvention of labour laws or to deprive the workers of legitimate rights envisaged under the labour laws by means of sham agreements---In the case in hand, it was established that the respondent-employees were under the direct supervision and control of petitioner-company and were working within its premises and involved directly or indirectly in the manufacturing process and were also performing their duties for the past many years---Respondent-employees, during evidence, produced various attendance and RPL requisition sheets issued by petitioner-company to prove the direct relationship of employment with petitioner and that the employees were performing duties in its establishment on regular basis against jobs of permanent nature where the entire raw material was provided by the petitioner's management and they were also controlled and supervised by the said management---No such document produced by the employees before the NIRC was rebutted by the management of petitioner---Respondents were being paid from the account of the petitioner-company---It was also significant that the alleged contractors who provided labour/employees to the petitioner never came forward to rescue the petitioner---Fora below had rightly held the respondents to be employees/workmen of petitioner-company---Petitions were dismissed and leave to appeal was refused.

Faufi Fertilizer Company Ltd. v. National Industrial Relations Commission and others 2013 SCMR 1253 = 2014 PLC 10; Abdul Ghafoor and others v. The President National Bank of Pakistan and others 2018 SCMR 157; Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181; Messrs Sui Southern Gas Company Limited v. Registrar of Trade Unions and others 2020 PLC 153 and Nilgiri Coop. Mkt. Society Ltd. v. State of T.N. [(AIR 2004 SC 1639) = (2004) 3 SCC 514 ref.

Muhammad Ali, Advocate Supreme Court and Dr. Raana Khan, Advocate-on-Record for Petitioner.

Ghulam Murtaza and M. Ishtiaque in person for Respondents Nos. 1 to 9.

Nemo for other Respondents.

2024 S C M R 1560

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

ASHFAQ HUSSAIN and another---Petitioners

Versus

GHULAM NABI and another---Respondents

Civil Petition No.917-K of 2022, decided on 12th June, 2024.

(Against the Judgment dated 07.03.2022, passed by the High Court of Sindh Karachi in Constitutional Petition No. S-931 of 2021).

Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 15 & 18---Eviction petition---Death of original tenant---No intimation of such death to the landlord---Subletting without consent of landlord---Respondent (current occupant of subject premises) had admitted that he never informed the landlords/petitioners about the death of his grandfather, who was the original tenant inducted by the petitioners---Moreover, the respondent had himself admitted in his cross-examination that some doctors had been running a clinic in the subject premises/shop; he also admitted that he entered into a partnership in respect of the subject premises/shop with three doctors---Respondent had also admitted that the petitioners/landlords were not aware about the registration of said clinic and he never informed them about it---Section 15 of the Sindh Rented Premises Ordinance, 1979 (SRPO, 1979) envisages the various grounds on the basis of which the landlord may seek eviction of the tenant including the ground of default in payment of rent and subletting of any rented premises without the written consent of the landlord---It appeared from the record of the present case that the evidence of the parties adduced before the Rent Controller had not been properly appreciated and discussed in the impugned judgment of the High Court---Impugned judgment was, therefore, set aside and the case was remanded to the High Court to decide it afresh after providing an opportunity of hearing to both the parties and after evaluating the evidence available on the record.

Naeem Suleman, Advocate Supreme Court for Petitioners.

Aamir Asher Azeem, Advocate High Court and K.A Wahab, Advocate-on-Record for Respondent No.1.

2024 S C M R 1563

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Jamal Khan Mandokhail and Naeem Akhtar Afghan, JJ

The MONAL GROUP OF COMPANIES, ISLAMABAD and others--Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through its Chairman and others ---Respondents

Civil Petition No. 304 of 2022 and C.M.A. No. 891 of 2022, Civil Petition No. 305 of 2022 and C.M.A. No. 892 of 2022, Civil Misc. Application Nos. 887 and 888 of 2022 in C.P. NIL of 2022 and Constitution Petition No. 3 of 2024, decided on 11th June, 2024.

Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979)---

----S. 21 & Preamble---Margalla Hills National Park---Preservation, conservation and permissible use of the Margalla Hills National Park ('the National Park')---Any lease, license, allotment or permission granted by Capital Development Authority (CDA), or by the Remount, Veterinary and Farms Directorate ('the Directorate') or any other department/authority to operate restaurants in the National Park was contrary to the provisions of the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979---Therefore, the same were declared to be of no legal effect and set aside---Observations and directions recorded by the Supreme Court in the matter stated.

Any lease, license, allotment or permission granted by the Capital Development Authority (CDA), or by the Remount, Veterinary and Farms Directorate ('the Directorate') or any other department/ authority to operate restaurants in the Margalla Hills National Park ('the National Park')was contrary to the provisions of the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979. Therefore, the same are declared to be of no legal effect and set aside.

Accordingly, three months' time is granted to all the restaurants on and around the Pir Sohawa Road in the National Park to vacate them. Small kiosks situated on or around the Pir Sohawa Road in the National Park may continue to operate provided they are licensed by the Islamabad Wildlife Management Board ('the Wildlife Management Board') and strictly abide by their terms of license, which must include collecting of all garbage generated by each and their respective customers and disposing it outside the precincts of the National Park and, if they are permitted to have a stove then they must also have a fire extinguisher. [p. 1566] A

For the proper management of the National Park, CDA shall assist the Wildlife Management Board whenever required. If an officer of CDA well conversant with conservation and environment is not already a member of the Wildlife Management Board, it would be appropriate that one is appointed as a member of the Wildlife Management Board. Moreover, since the World Wildlife Foundation Pakistan ('WWF') came forward to facilitate the preservation and protection of the National Park the Government may also consider nominating it on the Wildlife Management Board.

Salman Akram Raja, Advocate Supreme Court for Petitioner (in C.P. No. 304 of 2022).

Saad Mumtaz Hashmi, Advocate Supreme Court along with Luqman Ali Afzal, owner of Petitioner Monal Group of Companies (in C.P. No. 305 of 2022).

Umar Ijaz Gilani, Advocate Supreme Court for Petitioner (in Const. P. No. 3 of 2024).

Hafiz Arfat Ahmed Ch., Advocate Supreme Court, Muhammad Ali Randhawa, Chairman CDA, Naeem Dar, DG Law, Irfan Azeem, Dy. DG (Environment), Kamran, Director, Law and Raja Abdul Ghafoor, Advocate-on-Record for CDA.

Mrs. Misbah Gulnar Sharif, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for MCI.

Malik Javed Iqbal Wains, Addl. A.G., Brig. (R), Falak Naz, Legal Advisor, Col. Faran Tariq, Dy. Director Military Forms, Lt. Col. Irfan Asghar, Asstt. Director (legal) and Zafar Mehmood, MEO for Ministry of Defence.

Muhammad Naqi Khan, DG/CEO (via video link from Lahore) for WWF Pakistan.

Muhammad Aqib, Dy. Director for Survey of Pakistan.

On Courts Notice

Nabeel Rehman, Advocate Supreme Court for Capital View Restaurant.

Sikandar Bashir Mohmand, Advocate Supreme Court for Margalla Motel.

Tariq Mehmood Sajid Awan, Advocate Supreme Court for Trendy Amusement.

Khurram Mehmood Qureshi, Advocate Supreme Court for Lok Virsa.

Rizwan Shabbir Kiyani, Advocate Supreme Court for Jumper Castle in Lake View Park.

Maqbool Ahmed Chaudhry, Manager Admn for Islamabad Club.

Taimoor Aslam Khan, Advocate Supreme Court for Des Pardis.

Ms. Parveen Ejaz, Dy. Director for Ministry of Climate Change.

2024 S C M R 1567

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

MUHAMMAD ANWAR---Petitioner

Versus

The STATE and another---Respondents

Crl. P.L.A. No.340 of 2024, decided on 3rd June, 2024.

(Against the order dated 29.01.2024 passed by the Lahore High Court, Lahore passed in Crl. Misc No. 82102/B of 2024).

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

----S. 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---Cheque given as a guarantee---Every transaction where a cheque is dishonoured may not constitute an offense---Foundational elements to constitute an offense under section 489-F, P.P.C. are the issuance of the cheque with dishonest intent; the cheque should be towards repayment of loan or fulfillment of an obligation; and lastly that the cheque is dishonoured---In the present case the agreement in question was executed between petitioner (accused) and person "MA" regarding a plot---Perusal of said agreement indicated that the cheque in question was issued as "Guarantee" from the petitioner to "MA"---Complainant had failed to produce any receipt issued by the petitioner while receiving cash amount of 2,00,000/-.---Tentative assessment of the record showed that the cheque was not towards the fulfillment of any obligation but rather it was given as security---Prima facie, it did not attract the elements of section 489-F, P.P.C.---Petition was converted into an appeal and allowed, and the petitioner was admitted to pre-arrest bail.

Mian Allah Ditta v. The State and others 2013 SCMR 51 ref.

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

----Ss. 497 & 498---Constitution of Pakistan, Art.185(3)---Bail, grant of---Principles---It is better to err in granting bail than to err in refusal because ultimate conviction and sentence can repair the wrong resulting from a mistaken relief of bail.

Chairman NAB's case PLD 2022 SC 475 ref.

Muhammad Amir Malik, Advocate-on-Record along with petitioner for Petitioner.

Irfan Zia, Additional Prosecutor General, Punjab, Abdul Sami, SDPO Sargodha and M. Sami Jan, I.O for the State.

Shahid Tabassum, Advocate Supreme Court amd Syed Rifaqat Hussain Shah, Advocate-on-Record for the Complainant.

2024 S C M R 1571

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

SARFRAZ AHMED---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 130-Q of 2021, decided on 22nd May, 2024.

(On appeal against the judgment dated 30.11.2021 passed by the High Court of Balochistan, Quetta in Crl. A. No.04/2021).

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

----S. 9(c)---Possession and transportation of 146.20 kilograms of charas---Reappraisal of evidence---Separate samples sealed in one parcel---Effect---Instead of separately sealing the 150 pieces of the separated samples (total weighing 1.350 Kgs) in 150 separate parcels, the same were sealed in one parcel i.e. parcel No. 1 in flagrant violation of the dictum laid down by the Supreme Court in the case of Muhammad Hashim v. The State (PLD 2004 SC 856)---Prosecution had failed to prove the charge against the petitioner (accused) beyond reasonable doubt---Petition was converted into appeal and allowed, and the petitioner was acquitted of the charge.

Muhammad Hashim v. The State PLD 2004 SC 856 ref.

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

----S. 9(c)---Possession and transportation of 146.20 kilograms of charas---Reappraisal of evidence---Safe custody of the parcels of the contraband not proved---In order to prove the safe custody of the parcels of the contraband, Moharrar of the relevant police station had not been produced at the trial by the prosecution---Due to non-appearance of the Moharrar at the trial, the safe custody of the parcel of the contraband as well as the sample parcel had not been established by the prosecution---Prosecution had failed to prove the charge against the petitioner (accused) beyond reasonable doubt---Petition was converted into appeal and allowed, and the petitioner was acquitted of the charge.

Said Wazir v. The State 2023 SCMR 1144; Muhammad Shoaib v. The State 2022 SCMR 1006; Ishaq v. The State 2022 SCMR 1422 and Zahir Shah v. The State 2019 SCMR 2004 ref.

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

----S. 9(c)---Possession and transportation of 146.20 kilograms of charas---Reappraisal of evidence---Seized vehicle not produced during trial---Ownership of vehicle not established---To prove the existence of secret cavities in the floor of the vehicle and for corroborating the statements of the prosecution witnesses about recovery of 150 pieces of contraband therefrom, the seized vehicle was not produced at the trial by the prosecution and in this regard no explanation had been offered by the prosecution---No driving license was recovered from the petitioner (accused)---Ownership of the petitioner with regard to the seized vehicle had also not been proved by the prosecution---No probe was made during investigation about the ownership of the vehicle with reference to its registration number---Prosecution had failed to prove the charge against the petitioner (accused) beyond reasonable doubt---Petition was converted into appeal and allowed, and the petitioner was acquitted of the charge.

Manzoor Ahmed Rahmani, Advocate Supreme Court (via video link from Quetta) for Petitioner.

Ms. Rubina Butt, Advocate Supreme Court as State counsel

(on behalf of Govt. of Balochistan), Habibullah, SI/S.H.O. for the

State.

2024 S C M R 1576

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

ITBAR MUHAMMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition for Leave to Appeal No.220 of 2024, decided on 7th June, 2024.

(Against the order dated 02.02.2024 passed by the Peshawar High Court, Mingora Bench in B.A. No.30-M of 2024).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, refusal of---In the present case one person had lost his life and one person had sustained injuries at the hands of accused persons---Furthermore, the petitioner (accused) along with another accused was nominated in the FIR and specific role of firing at the deceased and injured person was attributed to petitioner specifically---Prosecution witnesses in their statements had supported the version of the complainant given by him in the FIR---Medical evidence also corroborated the ocular account---Record further reflected that the version of complainant was corroborated by the recovery of empties from the place of incident and recovery of pistol at the pointation of the petitioner, therefore, there appeared reasonable grounds to believe that petitioner/accused had committed the offence which was punishable with death or imprisonment for life, hence the case of petitioner fell within the prohibitory clause of section 497, Cr.P.C.---Tentative assessment of material available on record prima facie connected the petitioner with the commission of the offence which fell within the ambit of the prohibitory clause of section 497, Cr.P.C.---Petition was dismissed, leave was declined, and petitioner was refused bail.

Sher Muhammad v. The State 2008 SCMR 1451 and Shoukat Ilahi v. Javed Iqbal and others 2010 SCMR 966 ref.

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

Syed Kosar Ali Shah, Additional Advocate General KPK, Sher Hayat, SI/IO and Bakht Rehman, DSP Timergara for the State.

Zulfiqar Khalid Maluka, Advocate Supreme Court, along with Complainant for the Complainant.

2024 S C M R 1579

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

RAFAQAT ALI alias FOJI and another---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No.234 of 2017 and Criminal Petition No.596-L of 2017, decided on 27th May, 2024.

(0n appeal against the judgment dated 08.03.2017 passed by the Lahore High Court, Lahore in Crl. Appeal No.84-J of 2016 and M.R. No.389 of 2012).

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Failure to collect blood stained earth---Consequential---Admittedly no blood stained earth was collected from the alleged place of occurrence during investigation and in this regard no explanation had been offered by any prosecution witness including the Investigating Officer---This created serious doubt about the place of the occurrence as narrated by the prosecution witnesses---Prosecution had failed to prove the charge against the convict beyond reasonable doubt---Jail petition was converted into appeal and was allowed, and the petitioner was acquitted of the charge.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---No crime empties recovered from place of occurrence---Consequential---No crime empty or pellets were recovered from the place of occurrence---In this regard one of the witnesses had furnished contradictory explanation in his cross-examination by stating that one crime empty was collected from the spot and that the empty cartridge was taken away by the convict in his gun---Report of the firearm expert confirming that 12 bore rifle (allegedly recovered on the disclosure and pointation of the convict from his house) was in working condition, had already been held inconsequential by the Appellate Court and as such, same could not be considered as incriminating/corroborative piece of evidence against the convict/petitioner---Prosecution had failed to prove the charge against the convict beyond reasonable doubt---Jail petition was converted into appeal and was allowed, and the petitioner was acquitted of the charge.

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

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Dishonest improvements by witnesses---Possibility of false implication---Both witnesses claimed that they were accompanying the deceased at the time of occurrence but surprisingly they did not receive any firearm injury---It was not believable that by killing a person in presence of his close relatives accused/petitioner would not attempt to cause any injury to the prosecution witnesses leaving evidence to be hanged---Both said witnesses had also made dishonest improvements in their statements at the trial---Ocular testimony of both witnesses was lacking corroboration in material aspects---In view of all this, false implication of the convict/petitioner by the witnesses due to previous enmity could not be ruled out of consideration---Prosecution had failed to prove the charge against the convict beyond reasonable doubt---Jail petition was converted into appeal and was allowed, and the petitioner was acquitted of the charge.

(d) Criminal trial---

----Absconsion---Principles---Conviction---Mere absconsion is not conclusive proof of guilt of an accused---It is only a suspicious circumstance which cannot take place of proof---Value of absconsion, therefore, depends on the fact of each case---Mere absconsion of an accused cannot be made basis of conviction---Absconsion of an accused, being a relevant fact, can be used as a corroborative piece of evidence but cannot be read in isolation and has to be read along with the substantive pieces of evidence---Abscondence can never remedy the defects in the prosecution case as it is not necessarily indicative of guilt---Moreover, abscondence is never sufficient by itself to prove the guilt.

Rohtas Khan v. The State 2010 SCMR 566; Haji Paio Khan v. Sher Biaz 2009 SCMR 803; Muhammad Khan v. The State 1999 SCMR 1220 and Shafgat Abbas v. The State 2007 SCMR 162 ref.

Sardar Akbar Ali Dogar, Advocate Supreme Court for Petitioner (in J.P. No. 234 of 2017).

Mian Pervaz Hussain, Advocate Supreme Court for Petitioner (in Crl. P. No. 596-L of 2017)

Irfan Zia, Addl. PG. Pb. for the State

2024 S C M R 1584

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

MUHAMMAD ALI MAHAR and another---Petitioners

Versus

The STATE---Respondent

Criminal Petition No.201-K of 2023, decided on 11th June, 2024.

(Against the order dated 20.11.2023 passed by High Court of Sindh, Circuit Court, Hyderabad, in Crl.B.A. No.S-1019 of 2023).

(a) Words and phrases---

----"Sui juris"---Meaning.

Black's Law Dictionary (Sixth Edition) ref.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 34, 201 & 109---Constitution of Pakistan, Art. 185(3)---Honour killing---Pre-arrest bail, recalling of---According to the complainant he had contracted marriage with the deceased lady, which annoyed her family and relatives, due to which the accused persons murdered her on account of honour---Whereas the accused side claimed that the deceased lady had committed suicide---Parents or other family members of the deceased never lodged any FIR but the FIR was lodged by the complainant after the murder of his wife---In all conscience, had it been a case of suicide, even then, the matter should have been reported to the police by the family to investigate whether it was really a case of suicide or murder without branding the incident as suicide at first glance, which was not done and raised many questions and apprehensions on the conduct of the petitioners (accused persons) and other family members arrayed in the case by the prosecution---No specific details of mala fide intention on part of the complainant or the prosecution were shown by the accused side---In fact, no plausible reasons were shown as to why the FIR was not lodged by the parents and other family members---Moreover, the medical evidence indicated a dearth of blackening at the locale of the injury, which suggested that it was not a case of suicide----Certain material was available which demonstrated that the accused persons strived to wipe out the messages exchanged between the complainant and the deceased which were recovered by the forensics lab---Said messages provided significant insight into the relationship dynamics between the deceased and her husband which clearly indicated that the couple shared a harmonious and affectionate relationship---Their light-hearted and humorous conversations further substantiated that there was no animosity or distress in their marriage hence it contradicted any assertion of suicide and instead pointed towards it being a murder motivated by honour, as alleged---Petition was dismissed, leave was refused, and as a consequence the ad-interim pre-arrest bail granted to the petitioners was recalled.

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

----S. 302---Constitution of Pakistan, Art. 9---Honour killing of females---"Fasad-fil-arz"---Karo-kari, custom of---Notorious act of honour killing is branded as karo-kari which menace is cancerous and tumorous to our society, humanity, and the populace---In fact, this is an act of murder in which a person is killed for his or her actual or perceived immoral deeds and comportments---Without doubt, the father and other family members of a female might be annoyed or exasperated on knowing about her marriage of choice, but it no way allows them to take the law in their hands---This genre of gender-based violence is not only destructive for humanity and social order but it is regarded as "fasad-fil-arz" which is not only against the norms of civilized culture in the society, but is also a violation of fundamental rights enshrined under the Constitution, and most importantly, it is also a serious defilement and disrespect to the teachings and injunctions of Islam---Neither the law of the land nor religion permits so-called honour killing which amounts to murder simpliciter---Such iniquitous and vile act is violative of Article 9 of the Constitution.

Muhammad Akram Khan v. State PLD 2001 SC 96 ref.

Raja Jawad Ali Saahar, Advocate Supreme Court, Ghulam Rasool Mangi, Advocate-on-Record along with Petitioners for Petitioners.

Meer Ahmad, Advocate Supreme Court for the Complainant.

Zafar Ahmad Khan, Addl.P.G., Sindh, Mehboob, SHO and Ayaz, I. O. for the State.

2024 S C M R 1596

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

ALI ANWAR PARACHA---Petitioner

Versus

The STATE and another---Respondents

Crl.P.L.A No.240 of 2024, decided on 4th June, 2024.

(Against the order dated 29.02.2024 passed by the Islamabad High Court, Islamabad in Criminal Miscellaneous No. 277-B of 2024).

(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---Complainant failed to provide specific details about the alleged business transaction with the petitioner (accused)---Additionally, the complainant was unable to provide any receipt for the cash amount allegedly received by the petitioner---Question whether the cheque was issued towards fulfilment of an obligation within the meaning of section 489-F P.P.C. was a question, which would be resolved by the Trial Court after recording of evidence---Petitioner was behind bars since his arrest---Maximum punishment provided under the statute for the offence under section 489- F, 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 his guilt---Petition was converted into an appeal and allowed, and the petitioner was admitted to post-arrest bail.

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

----S. 489-F---Dishonestly issuing a cheque, offence of---Scope---Foundational elements to constitute an offence under Section 489-F, P.P.C are the issuance of the cheque with dishonest intent; the cheque should be towards repayment of loan or fulfillment of an obligation, and lastly that the cheque is dishonoured.

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

----S. 497---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.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

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

----S. 497---Bail---Registration of other criminal cases---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.

Khurram Masood Kiani, Advocate Supreme Court and Sh. Mehmood Ahmed, Advocate-on-Record for Petitioner.

Fauzi Zafar, Advocate Supreme Court as State Counsel for the State.

Raja Rizwan Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Complainant.

2024 S C M R 1600

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

LIAQAT HUSSAIN---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 269 of 2017, decided on 24th May, 2024.

(On appeal against the judgment dated 20.03.2017 of the Lahore High Court, Rawalpindi Bench passed in Crl.A. No. 28-J of 2014 and M.R. No. 37 of 2014).

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

----Ss. 302(b), 324, 337-D & 337-F(iii)---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, ghayr-jaifah-mutalahimah---Reappraisal of evidence---FIR of the occurrence was promptly lodged---Record did not reveal of any motive on the part of eye-witnesses of the occurrence to falsely implicate the convict---Unshaken and confidence inspiring testimony of eye witnesses and unshaken testimony of injured witness duly corroborated by the medico legal evidence; recovery of crime empties from the place of occurrence; blood stained clothes of the deceased and injured; blood stains collected from the place of occurrence; reports of the chemical expert/serologist; and recovery of crime weapon on the pointation of the convict supported by positive report of the firearm expert of the Punjab Forensic Science Agency proved the charge against the convict beyond reasonable doubt---Conviction of accused under sections 302(b), 324, 337-D & 337-F(iii), P.P.C was maintained---Petition was converted into an appeal and was partially allowed.

(b) Criminal trial---

----Sentence, quantum of---Single mitigating circumstance---Single mitigating circumstance, available in a particular case, would be sufficient to put a Judge on guard for not awarding the penalty of death but imprisonment for life.

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

----Ss. 302(b), 324, 337-D & 337-F(iii)---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, ghayr-jaifah-mutalahimah---Reappraisal of evidence---Sentence, reduction in---Compromise between parties---In the instant case though the complainant and legal heirs of the deceased had not filed compromise documents (in court) but the complainant had made a statement before the Supreme Court that the legal heirs of both the deceased had pardoned the convict and they were not interested to further pursue the matter---Such circumstance coupled with motive of the occurrence and altercation of the convict with the deceased prior to the occurrence were considered as mitigating circumstances to reduce the sentence of death of the convict under section 302(b), P.P.C. as Ta'zir to imprisonment for life---Petition was converted into an appeal and was partly allowed, the conviction awarded to the petitioner under section 302(b). P.P.C was maintained, however his sentence of death on two counts was converted to that of imprisonment for life.

Agha Muhammad Ali, Advocate Supreme Court for Petitioner.

Irfan Zia, APG., Punjab for the State.

2024 S C M R 1605

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

KHIZAR HAYAT---Petitioner

Versus

The STATE and others---Respondents

Crl.P.L.A No. 1345-L of 2023, decided on 30th May, 2024.

(Against the order dated 13.11.2023 passed by the Lahore High Court, Lahore in Crl.Misc.No. 33619/B of 2023).

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

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss. 448, 440, 511, 427, 148 & 149---Constitution of Pakistan, Art. 185(3)---House-trespass, forcibly entering a premises and making indiscriminate firing---Pre-arrest bail, grant of---Further inquiry---Case of cross-versions---Parties were related to each other and were involved in a conflict/dispute over a housing society launched by the petitioner's (accused's) late father---Hence, possibility of false implication and mala fide intention (of complainant) could not be ruled out---Apart from this, it was a case of cross-version---Petitioner in his cross-version had alleged that complainant party was the aggressor because petitioner's side had right to enter into the housing society being the owners of same---Moreover, in the FIR it was alleged that one passerby was injured due to firing of the accused persons however police had conducted no investigation into his injury which also made the case of petitioner as one of further inquiry within the ambit of section 497(2), Cr.P.C---Petition was converted into an appeal and allowed, and the petitioner was admitted to pre-arrest bail.

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

----Ss. 497(2) & 498---Constitution of Pakistan, Art. 185(3)---Bail---Case of cross-versions---In cases of counter versions arising from the same incident, one given by the complainant in the FIR and the other given by the opposite party, bail is granted as a rule on the ground of further inquiry for the reason that the question as to which version is correct is to be decided after recording of pro and contra evidence during the trial and also to ascertain which party was the aggressor or was aggressed upon---Refusal of bail in such cases is an exception.

Fazal Muhammad's case 1976 SCMR 391; Shafiqan's case 1972 SCMR 682 and Khalid Mahmood's case 2013 SCMR 1415 ref.

Ms. Sabahat Rizvi, Advocate Supreme Court along with petitioner via video link from Lahore for Petitioner.

Irfan Zia, Additional Prosecutor General Punjab and Asif Ihsan, S.I/IO, Lahore for the State.

Syed Rifaqat Hussain Shah, Advocate-on-Record along with complainant for the Complainant.

2024 S C M R 1608

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

ABID HUSSAIN and another---Petitioners

Versus

The STATE and others---Respondents

Crl. Appeal No. 46-L of 2020 and Crl. Petition No. 906-L of 2014, decided on 26th March, 2024.

(On appeal from the judgment of the Lahore High Court, Lahore dated 14.07.2014 passed in Crl. Appeal No. 2293 of 2010 and M.R. No. 589 of 2010).

Per Jamal Khan Mandokhail, J.; Musarrat Hilali, J. agreeing; Syed Hasan Azhar Rizvi, J. dissenting. [Majority view]

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---First Information Report not registered promptly---Probability of deliberations and consultations before registering the FIR---Complainant in his statement before the Court stated that after the occurrence, he went to the petition writer and got recorded his complaint---Subsequently, he went to the police station for the registration of an FIR, but the Moharrar referred the complainant to the Incharge, therefore, he returned back---Complainant stated that he did not inform the Moharrar about the incident---Complainant further stated that he came back to the place of the occurrence, where the police officials were already present---According to the investigating officer (I.O.), he along with other police officials reached at the place of the occurrence upon receiving an information regarding the incident---That was the first information, which he did not enter into a register maintained in the police station, nor had disclosed the source of his information---Complainant contended that he made an oral statement before the I.O. at the place of the occurrence, who reduced it into writing and obtained his signatures thereon, but no FIR was registered upon his statement, nor was it produced in the court---Thus, the initial stance of the complainant had not come on the record---Besides, nephew of the complainant, claimed to have witnessed the occurrence, and he in reply to a question, stated that the I.O. recorded his statement and fifteen minutes thereafter, the complainant reached at the scene of the occurrence, but surprisingly, his statement was also not taken as a first information---Admittedly, the FIR was subsequently registered upon a written complaint of the complainant, drafted by a petition writer---Facts and circumstances led to the conclusion that the FIR was not registered promptly, rather, the matter was reported belatedly to the police, after deliberation and consultation, therefore, false involvement of the appellant (convict) could not be ruled out---Appeal was allowed and appellant was acquitted of the charge.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence--- Recovery of weapon on pointation of accused---Inconsequential---Pistol allegedly recovered on pointation of accused was sent to the ballistic expert for examination, wherefrom, a negative report was received, therefore, the High Court declared the recovery of pistol from the appellant (convict) to be inconsequential---Keeping in view the observation of the doctor regarding shape and size of the injuries on the person of the deceased, it was evident that the injuries were caused by a pistol, other than the one recovered from the appellant---Appeal was allowed and appellant was acquitted of the charge.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Accused having no nexus with the motive for the crime---In the FIR and in his court statement, the complainant alleged that a day before the occurrence, there was altercation between appellant "M" and his deceased son, as a result whereof, the occurrence had taken place---If the contention of the complainant was believed to be true, then there was no occasion for present appellant "A" to take such an extreme step for no whim and reason----Motive was assigned to appellant "M", with which appellant "A" had no nexus, therefore, his involvement in the case was an afterthought---Since, one of the convicts was acquitted by the Appellate Court on the basis of a compromise and the other i.e. appellant "M" had died during the pendency of the appeal, therefore, their roles towards the incident remained undecided---Under such circumstances, it was unsafe to hold the present appellant "A" alone responsible for the commission of the offence---Appeal was allowed and appellant "A" was acquitted of the charge.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Unnatural conduct of complainant and alleged eye-witness---Presence of complainant and alleged eye-witness at the place of occurrence doubtful---It was not acceptable to a prudent mind that when the son of the complainant received bullet injuries, he and the eye-witness being his nephew did not take the injured to a hospital, in order to save his life---Instead, the complainant opted to go to the police station for registration of an FIR, leaving behind two witnesses---Record reflected that the dead body remained lying at the place of the occurrence for about two and half hours---According to the doctor the dead body was brought to the hospital by the police officials and there was no evidence to prove that the complainant and a witness went along the dead body to the hospital, which was why, the dead body was identified by others, who were not produced as witnesses---Manner in which the complainant and alleged eye-witness narrated the story did not appear to be trustworthy---In the facts and circumstances of the case, their presence at the place of occurrence at the relevant time was not established, therefore, the prosecution case against the appellant was doubtful---Appeal was allowed and appellant was acquitted of the charge.

Per Syed Hasan Azhar Rizvi, J.; dissenting with Jamal Khan Mandokhail, J. [Minority view]

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---FIR lodged promptly---Occurrence took place on 08.04.2009 at 01:00 pm, which was reported through a written application by the complainant at 02:40 pm and the FIR was registered at 03:20 pm---Father of the deceased (i.e. the complainant) strived hard to approach the Police Station to report the incident, and he went on a bus therefore there was a delay of two and half hours in the lodging of FIR---Such delay was not fatal to the prosecution case---Considering that the police station was located 13 miles away from the scene of the incident, along with the explanation provided by the complainant, it could be concluded that the report was made promptly---If delay in lodging FIR is well explained then same is not fatal for the prosecution's case---Even otherwise in the absence of previous enmity the delay in lodging the FIR would not matter much---Ocular account was fully supported by the medical evidence and corroborated by the circumstances of the case---Prosecution had produced sufficient incriminating material against the appellant---High Court had rightly converted the death sentence of the appellant to life imprisonment---Impugned judgment of the High Court was well reasoned and needed no interference---Appeal was dismissed.

Nasrullah and others v. The State 1996 SCMR 1926 ref.

(f) Criminal trial---

----Motive not proved---Effect---Mere failure to prove alleged motive has no adverse effect on the prosecution's case, if prosecution has proved its case by reliable evidence.

Hameed Khan alias Hameedai v. Ashraf Shah and another 2002 SCMR 1155; Saeed Akhtar v. The State 2002 SCMR 383 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

(g) Criminal trial---

----Witnesses related to the deceased, testimony of---Reliability---Mere close relationship of the deceased with witnesses is not a criteria to believe or disbelieve their evidence.

Muhammad Ahmed and another v. The State 2010 SCMR 660; IJaz Ahmed v. The State 2009 SCMR 99; Saeed Akhtar v. The State 2002 SCMR 383 and Abid Ali v. The State 2011 SCMR 208 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Witnesses related to the deceased---Inconsequential---Mere relationship of the deceased with witnesses is not a criteria to disbelieve their evidence---Typically, most people in the community are hesitant to get involved as witnesses in serious murder cases unless they have some kind of personal connection to either the victim or the accused---This reluctance stems from various factors such as fear of retaliation, concerns about their safety/security and a lack of trust in the legal system---It is common for individuals to feel more compelled to come forward if they have a relationship, whether it's familial, social, or otherwise, with one of the parties involved---In the present case, eye-witnesses had given very reliable reason for their presence on the spot at the time of occurrence which could not be discredited---They had no axe of their own to grind and it could not be shown that they substituted the appellants (convicts) for any ulterior motive---Complainant undoubtedly was a witness of the occurrence which took place in broad daylight with no possibility of mistaken identity---Being the father of the deceased, he would not allow the real culprit to escape by implicating an innocent person---Prosecution had produced sufficient incriminating material against the appellant---High Court had rightly converted the death sentence of the appellant to life imprisonment---Impugned judgment of the High Court was well reasoned and needed no interference---Appeal was dismissed.

Muhammad Ahmed and another v. The State 2010 SCMR 660; Ijaz Ahmed v. The State 2009 SCMR 99; Saeed Akhtar v. The State 2002 SCMR 383; Abid Ali v. The State 2011 SCMR 208; Muhammad Ahmed and another v. The State 1997 SCMR 89 and Sajid Mehmood v. The State 2022 SCMR 1882 ref.

Ms. Najma Parveen, Advocate Supreme Court for Appellant (Via video Link Lahore).

Mian Shah Abbas, Advocate Supreme Court for Petitioner (Via video Link Lahore).

Irfan Zia, D.P.G., Punjab for the State.

2024 S C M R 1622

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Malik Shahzad Ahmad Khan, JJ

Syed FIDA HUSSAIN SHAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 134 of 2024, decided on 4th July, 2024.

(Against Order dated 17.01.2024 passed by Islamabad High Court, Islamabad in Crl. Rev. No.35 of 2023).

Per Malik Shahzad Ahmad Khan, J; Jamal Khan Mandokhail, J. agreeing; Ayesha A. Malik, J. dissenting. [Majority view]

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

----Ss. 279, 427 & 320---Rash driving or riding on a public way, mischief causing damage to the amount of fifty rupees, qatl-i-khata by rash or negligent driving---Reappraisal of evidence---First Report Information lodged with a delay of five days---Name of witnesses not mentioned in the FIR---No identification parade held---Occurrence in this case took place on 30.11.2014 at 6.30 pm, but the FIR was lodged on 04.12.2014 at 6.30 pm and as such there was delay of five (05) days in reporting the matter to the Police---No plausible explanation had been given by the complainant for the gross delay in lodging the FIR, therefore, sanctity of truth could not be attached to the said delayed FIR---Although the FIR was lodged with the delay of five (05) days from the occurrence but even then the name of any eye-witness was not mentioned therein---Admittedly the complainant was not an eye-witness of the occurrence---Prosecution subsequently two persons as eye-witnesses in this case but the names of said eye-witnesses were not mentioned in the contents of the delayed FIR---Even the name of any accused or his description or features were not mentioned in the delayed FIR---Admittedly, no identification parade of the petitioner (accused) had been held in this case---Prosecution failed to prove that it was the petitioner who was driving the vehicle in question---Prosecution had also not proved through any cogent evidence that it was driver of the said vehicle, who was responsible for rash and negligent driving---As such the prosecution failed to discharge its initial burden to prove the case against the petitioner beyond the shadow of doubt---Petition was converted into appeal and allowed, and the accused was acquitted of the charges while extending him the benefit of doubt.

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

----Ss. 279, 427 & 320---Rash driving or riding on a public way, mischief causing damage to the amount of fifty rupees, qatl-i-khata by rash or negligent driving---Reappraisal of evidence---Eye-witnesses not naming the accused as the driver of the vehicle---Consequential---First alleged eye-witness of the occurrence in his statement before the Trial Court, had not mentioned the registration number of the vehicle which hit the vehicle of the deceased---He even did not name the petitioner (accused) in his above referred statement---He did not state that it was the petitioner who was driving the vehicle which hit the car of the deceased---He further stated that he could not tell the colours of the vehicles of the deceased or the accused---He also stated that he could not tell that from which direction the vehicle of the accused came at the spot---He further stated that he did not know the accused or the deceased of this case---Likewise the other alleged eye-witness was also not mentioned in the contents of the delayed FIR---He had also not stated before the Trial Court that the vehicle was driven by the petitioner---He had not named the petitioner in his examination-in-chief or during his cross-examination---He had categorically conceded during his cross-examination that he had not seen the occurrence though he reached at the spot within few seconds from the occurrence---He further conceded that he had not given any statement at the spot that the occurrence took place due to rash and negligent driving---He had further conceded that the driver of vehicle had already fled away from the spot when he reached there and no driver was present inside the vehicle---It was, therefore, evident that both the alleged eye-witnesses of the occurrence produced by the prosecution had not named the petitioner in this case or alleged that the petitioner was driving the vehicle in question which hit the deceased---Prosecution failed to prove that it was the petitioner who was driving the vehicle in question---Prosecution had also not proved through any cogent evidence that it was driver of the said vehicle, who was responsible for rash and negligent driving---As such the prosecution failed to discharge its initial burden to prove the case against the petitioner beyond the shadow of doubt---Petition was converted into appeal and allowed, and the accused was acquitted of the charges while extending him the benefit of doubt.

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

----Ss.279, 427 & 320---Criminal Procedure Code (V of 1898), S. 342---Rash driving or riding on a public way, mischief causing damage to the amount of fifty rupees, qatl-i-khata by rash or negligent driving---Reappraisal of evidence---Proper site plan not prepared---Evidence relating to a traffic signal on the highway not specifically put to the accused in his statement recorded under section 342, Cr.P.C---No site plan of the place of occurrence had been prepared in this case on the pointation of any eye-witness of the case---Traffic inspector/prosecution witness stated before the Trial Court that he prepared a site plan of the place of occurrence (Exh:PW-4-A) but perusal of the said document showed that the same was not a site plan rather it was written on the said document that the same was a report regarding a traffic accident---Said witness had conceded that he was not an eye-witness of the occurrence, and the name of any eye-witness on whose pointation the site plan was prepared had not been mentioned in Exh:PW-4-A---It was the case of the prosecution that in fact the car of the deceased persons was parked at a signal of a highway when a vehicle hit the said car, therefore, it should be presumed that the occurrence took place on account of rash and negligent driving of the driver of the said vehicle---In this respect, no traffic signal had been shown in Exhibit PW-4-A---As no traffic signal had been shown in Exhibit PW-4-A, therefore, it could not be held that car of the deceased was parked on the highway due to said traffic signal, waiting for opening of the same, when the vehicle of the accused hit the said car---It was not put to the petitioner (accused) in his statement recorded under Section 342, Cr.P.C. in clear terms that the car of the deceased was standing on the highway as traffic signal on the said road was closed and at that time the vehicle of the accused hit their vehicle---Under the circumstances, when a piece of prosecution evidence had not been specifically put to the accused/petitioner in his statement recorded under Section 342 Cr.P.C. then the said piece of evidence could not be used against him---Counsel for the complainant further argued that it was so mentioned in Exh:PW-4-A that there were marks of friction/rubbing of tyres at the spot which were sixty feet long and it showed that the vehicle was driven by the accused rashly and negligently, but the traffic inspector/prosecution witness has not stated before the Trial Court that he was carrying any tool of measurement at the time of preparation of Exhibit PW-4-A to measure the length of marks of friction/rubbing of tyres on the road---Moreover, admittedly he was performing his duties as a traffic inspector at the time and day of occurrence and he was not an investigating officer in this case, therefore, it was not his duty to carry a tool of measurement with him and prepare a site plan of the place of occurrence, rather the same was the duty of investigating officer, but surprisingly he had not prepared any site plan of the place of occurrence---Prosecution failed to prove that it was the petitioner who was driving the vehicle in question---Prosecution had also not proved through any cogent evidence that it was driver of the said vehicle, who was responsible for rash and negligent driving---As such the prosecution failed to discharge its initial burden to prove the case against the petitioner beyond the shadow of doubt---Petition was converted into appeal and allowed, and the accused was acquitted of the charges while extending him the benefit of doubt.

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

----Ss. 279, 427 & 320---Rash driving or riding on a public way, mischief causing damage to the amount of fifty rupees, qatl-i-khata by rash or negligent driving---Reappraisal of evidence---Rash and negligent driving---Not proved---No prosecution witness had stated that what was the prescribed speed limit of the vehicles on the highway in question and what was the approximate speed of the vehicle at the time of occurrence which statedly hit the car of the deceased persons---Under the circumstances it was not determinable in this case as to whether the accident took place due to any fault of the driver of the vehicle or the same took place on account of any mistake of the deceased persons---Merely driving a vehicle at a high speed on the highway is not an offence, unless it is proved that the driving of the accused was above the prescribed speed limit and the same was also rash and negligent---Furthermore, if the injured or the deceased were themselves responsible of any rash or negligent act then the ingredients of above mentioned offences were not attracted against the driver of the other vehicle---Prosecution failed to prove that it was the petitioner who was driving the vehicle in question---Prosecution had also not proved through any cogent evidence that it was driver of the said vehicle, who was responsible for rash and negligent driving---As such the prosecution failed to discharge its initial burden to prove the case against the petitioner beyond the shadow of doubt---Petition was converted into appeal and allowed, and the accused was acquitted of the charges while extending him the benefit of doubt.

Israr Khan v. The State and another 2018 YLR Note 236; Muzaffar Ali alias Nannah v. The State 1999 MLD 567; Muhammad Ashiq v. The State 2018 YLR 2589; Mushtaq v. The State 1998 PCr.LJ 158; Muhammad Rafique v. The State 2020 PCr.LJ 688 and Yasir Arafat v. The State 2012 MLD 611 ref.

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

----Ss. 279, 427 & 320---Criminal Procedure Code (V of 1898), S.342---Rash driving or riding on a public way, mischief causing damage to the amount of fifty rupees, qatl-i-khata by rash or negligent driving---Reappraisal of evidence---Examination/statement of accused under section 342, Cr.P.C---Scope---When the prosecution evidence is disbelieved then the statement of an accused is to be accepted or rejected in toto---In such situation, it is legally not permissible to accept the inculpatory part of the statement of an accused and reject the ex-culpatory part of the same statement---In the present case the petitioner (accused) in his Section 342 Cr.P.C. statement categorically stated that he was innocent and he never committed the alleged occurrence---Petitioner had also stated categorically that he had never driven the vehicle rashly or negligently and he took utmost care and caution on his part while driving the vehicle---Although in the last sentence of his statement under Section 342 Cr.P.C, the petitioner had stated that the accident happened beyond his control despite utmost care and caution on his part, but even from this part of the statement of the petitioner, the ingredients of offences of rash and negligent driving were not made or proved---If the above mentioned statement of the petitioner was accepted in toto then no offence of rash and negligent driving on the part of the petitioner was made out in this case---It could not be held that the petitioner admitted that the occurrence took place due to his rash and negligent driving---Prosecution failed to prove that it was the petitioner who was driving the vehicle in question---Prosecution had also not proved through any cogent evidence that it was driver of the said vehicle, who was responsible for rash and negligent driving---As such the prosecution failed to discharge its initial burden to prove the case against the petitioner beyond the shadow of doubt---Petition was converted into appeal and allowed, and the accused was acquitted of the charges while extending him the benefit of doubt.

Muhammad Rafique v. The State 2020 PCr.LJ 688; Muhammad Asghar v. The State PLD 2008 SC 513; Ghulam Qadir v. Esab Khan 1991 SCMR 61 and Sultan Khan v. Sher Khan PLD 1991 SC 520 ref.

Per Ayesha A. Malik, J.; dissenting with Malik Shahzad Ahmad Khan, J. [Minority view]

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

----Ss. 279, 427 & 320---Criminal Procedure Code (V of 1898), S.342---Rash driving or riding on a public way, mischief causing damage to the amount of fifty rupees, qatl-i-khata by rash or negligent driving---Reappraisal of evidence---Inculpatory statement of accused---Conviction, basis of---Prosecution's evidence was put to the petitioner (accused) during his examination under Section 342 of the Criminal Procedure Code, 1898 (Cr.P.C.)---He did not deny driving the vehicle nor the accident---He stated that he was driving the vehicle and that there was an accident but, according to him, that accident was beyond his control despite his utmost care and caution---From this statement, three crucial facts were established; firstly, the presence of the petitioner at the scene of the accident was established; secondly, that he was driving the said vehicle; and most importantly, that the accident happened as the vehicle was beyond the petitioner's control resulting in the death of two people---This was clearly an inculpatory statement, which could form the basis of his conviction---In the absence of any other evidence, the statement of the accused must either be accepted or rejected as a whole meaning thereby that if the prosecution's case rested solely on the Section 342, Cr.P.C. statement then it must be taken in its entirety---Where other evidence (including witnesses' testimonies, police documents, etc.) corroborated with the statement under Section 342, Cr.P.C. that the petitioner was responsible for the death of the deceased, it became a strong case for relying upon his inculpatory statement of Section 342, Cr.P.C.---All three lower fora had concurrently considered this statement of petitioner under Section 342, Cr.P.C. as an essential factor for his conviction along with the other corroborative evidence---Furthermore, the record showed that the petitioner had clearly admitted that he was driving at a fast speed because he harshly applied the emergency brake and left long tire marks on the road---Hence, he himself admitted to the accident and the fast speed of his vehicle---Moreover, the petitioner neither opted to appear as his own witness under Section 340(2), Cr.P.C. nor produced any evidence in his defence to show what the unavoidable circumstances were---Judgments rendered by all three lower fora, convicting and sentencing the petitioner, were well reasoned and did not call for interference---Petition was dismissed and leave was refused.

Ali Ahmad v. The State PLD 2020 SC 201 and Sultan Khan v. Sher Khan PLD 1991 SC 520 ref.

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

----Ss. 279, 427 & 320---Rash driving or riding on a public way, mischief causing damage to the amount of fifty rupees, qatl-i-khata by rash or negligent driving---Reappraisal of evidence---Rash and negligent driving---Proof---Essentially, the prosecution had to establish that the vehicle should have been at a slower speed on account of the traffic requirements to bring it in the ambit of rash and negligent driving---To establish rash or negligent driving, the prosecution relied on the statements of an independent eye-witness to the accident and a Traffic Sergeant---Independent eye-witness was present at the red signal in his own vehicle on the right side of vehicle of the deceased persons; he heard the noise of the petitioner's (accused's) vehicle hitting the vehicle of deceased persons---So he testified to the fact of the signal (red light) and the fact that the vehicle of the deceased was waiting at the signal---Similarly, the Traffic Sergeant was on duty at an intersection (chowk), which was close to the signal where the accident took place; he arrived at the scene of the accident on hearing the noise of the accident---According to him, the accident took place as the vehicles were standing at the traffic signal which was red---From this ocular account, it was established that the vehicle of the deceased was standing at the traffic signal along with other cars; the petitioner's vehicle was speeding, hence, he crashed into the vehicle of the deceased---Given that there was a traffic signal and cars were standing at the signal, the petitioner should have slowed down the speed of his vehicle but he failed to do so---Police report prepared by Traffic Sergeant also contained a site plan, which depicted that tyre marks of the petitioner's vehicle left approximately 60 feet long traces which established that he was speeding despite the fact that the traffic signal was red and cars were standing at the signal---Hence, the petitioner clearly violated the traffic rules as he should have slowed down the speed of his vehicle as he headed towards the traffic signal---Furthermore, he was driving at a speed which was not justified given the traffic signal and the fact that several cars were standing at the signal---This meant that the petitioner ignored the conditions of the traffic and the road and persisted with his speed with no regard for the prevailing traffic conditions---This was rash and negligent driving which was established from the record---Judgments rendered by all three lower fora, convicting and sentencing the petitioner, were well reasoned and did not call for interference---Petition was dismissed and leave was refused.

Muhammad Jawad Zafar, Advocate Supreme Court for Petitioner.

Junaid Iftikhar Mirza, Advocate Supreme Court for the Complainant.

Fauuzi Zafar, Advocate Supreme Court as State Counsel, Islamabad and Inamullah, ASI/IO, PS, Ramna, Islamabad for the State.

2024 S C M R 1642

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

MUHAMMAD SHAMIM ALI---Petitioner

Versus

Mst. ASMA BEGUM and others---Respondents

Civil Petition No.263-K of 2024, decided on 15th July, 2024.

(Against the Order dated 28.2.2024 passed by High Court of Sindh, Karachi in Const. Petition No.S-395 of 2023).

(a) Constitution of Pakistan---

----Art. 185(3)---Appellate jurisdiction of the Supreme Court---Scope---Supreme Court is not a fact-finding Court---In its jurisdiction under Article 185 (3) of the Constitution, the Supreme Court cannot go behind concurrent findings of fact unless it can be shown that the findings on the face of it were against the evidence, or were so patently improbable or perverse that to accept it would amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of the principle relating to appreciation of evidence, or the finding could be demonstrated to be physically impossible.

Sardar Ali Khan v. State Bank of Pakistan 2022 SCMR 1454 ref.

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

----S. 5---Constitution of Pakistan, Art. 199---Family dispute---Judgment/order passed by Family Court--- Interference by High Court in its Constitutional jurisdiction---Since the legislature has conferred exclusive jurisdiction upon the Family Courts, by virtue of section 5 of the Family Courts Act, 1964 to expedite family cases and tried to cordon off family litigation to the extent of a single family appeal, it would not reflect well on a Constitutional Court to interfere with the exclusive jurisdiction of the Family Courts under the writ jurisdiction as provided under Article 199 of the Constitution, unless the jurisdiction exercised by the Family Court is contrary to law and/or findings reached in exercise of said jurisdiction are perverse and without proper appreciation of evidence in that non-interference would lead to a grave miscarriage of justice or for that matter injustice.

Arif Fareed v. Bibi Sara 2023 SCMR 413 ref.

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

----S. 5 & Sched.---Constitution of Pakistan, Arts. 185(3) & 199---Suit for recovery/return of dowry articles---Claim of dowry receipts being fake and fabricated---Factual controversy---Non-interference by High Court and Supreme Court---Petitioner's (husband's) assertions about supposedly fake and fabricated receipts of dowry articles was a factual inquiry, which was undertaken by the Family Court and the Appellate Court and could not have been done by the High Court in its jurisdiction under Article 199 of the Constitution, or the Supreme Court under its jurisdiction under Article 185 (3) of the Constitution---Therefore, the High Court, in the impugned judgment rightly declined to interfere in the findings of the two fora below---Petition was dismissed and leave to appeal was refused.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Ambit of a writ petition is not that of a forum of appeal nor does it automatically become such a forum in instances where no further appeal is provided, and it is restricted inter alia to appreciate whether any manifest illegality is apparent from the order impugned.

Gul Taiz Khan Marwat v. Registrar Peshawar High Court PLD 2021 SC 391 and M. Hammad Hassan v. Mst. Isma Bukhari 2023 SCMR 1434 ref.

Dr. Raana Khan, Advocate-on-Record/Advocate Supreme Court along with Petitioner for Petitioner.

Nemo for the Respondents.

2024 S C M R 1649

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

AAMIR AFZAL and another---Appellants

Versus

S. AKMAL (deceased) through L.Rs. and 2 others---Respondents

Civil Appeal No.648 of 2022 and C.M.A. No. 5213 of 2022, decided on 17th January, 2024.

(Appeal against judgment and decree dated 06.05.2022 of the Lahore High Court, Lahore passed in Civil Revision No.224476 of 2018).

(a) Gift---

----Oral gift---Fraud---Proof---Respondents (plaintiffs) had sought a declaration regarding the Memorandum of oral gift and its cancellation was also prayed for---It was pleaded in the plaint that respondents were in possession of the property and that they had been dispossessed; that after the filing of the suit for partition, the Memorandum was fraudulently prepared so as to deprive the appellants of their hereditary rights; and that the Memorandum was fabricated---Validity---Plain reading of the plaint showed that the assertion of fraud was of a general nature and the particulars thereof had not been stated---Initial burden to prove that the Memorandum of gift was forged and fabricated was on the respondents---During the trial, the initial burden of proving the factum of fraud or fabrication could not be discharged by the respondents---There was no reference in the plaint to the oral gift made in the year 1962 and, therefore, an issue in this regard had not been framed---Respondents were also not able to establish that at any time during or after the lifetime of the predecessor-in-interest they had remained in possession of the property let alone having been dispossessed---It was not disputed that the transfer of shares by the Housing Society in the name of the appellants (defendats) was not challenged by the respondents---It was also not disputed that the appellants were minors when the oral gift was made in their favour by the predecessor-in-interest in 1962---Furthermore the respondents had made a reference to the property having been gifted in favour of the appellants in their earlier suit filed for seeking partition---Appeal was allowed, impugned judgment of the High Court was set-aside, with the consequence that suit filed by respondents was dismissed.

Fareed and others v. Muhammad Tufail and another 2018 SCMR 139 distinguished.

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

----O.VI, R. 4---Pleadings---Fraud, particulars of---Proof---Rule 4 of Order VI of the C.P.C. explicitly provides that in all cases in which the party pleading relies, inter alia, on fraud, it shall state in the pleadings particulars with dates and items if necessary---Ingredients of fraud have to be narrated and stated by giving particulars thereof---Fraud must be specifically alleged and its particulars unequivocally stated---General allegations, however strong the words may be, are insufficient to constitute an assertion of fraud and vague allegations in a plaint are not enough.

Mst. Sahib Noor v. Haji Ahmed 1988 SCMR 1703; Muhammad Umar v. Muqarab Khan and another 1968 SCMR 983; Ghulam Shabbir v. Mst. Nur Begum and others PLD 1977 SC 75 and Tom Boevey Barrett v. African Products, Ltd. AIR 1928 PC 261 ref.

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

----S. 115---Revisional jurisdiction of the High Court---Principles and scope of revisional jurisdiction of the High Court stated.

While exercising jurisdiction under Article 115 of the C.P.C. the High Court has to first satisfy itself: (i) that the order of the subordinate court is within its jurisdiction, (ii) that the case is one in which the court ought to exercise jurisdiction; and that in exercising jurisdiction that court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. Section 115 applies only to cases in which no appeal lies, and where the legislature has provided no right of appeal. The manifest intention of the legislature is that the order of the trial court, right or wrong, shall be final, except in specific circumstances. It is, therefore, obvious that unless the case is not covered under Section 115 of the C.P.C. and the High Court was satisfied in this regard, then in such a case no power could be exercised to interfere simply because it differs, however profoundly, with the conclusions of the subordinate court regarding questions of law and facts.

Kanwal Nain and others v. Fateh Khan and others PLD 1983 SC 53 and Umar Dad Khan and another v. Tila Muhammad Khan and others PLD 1970 SC 288 ref.

The scope of jurisdiction of the High Court under Section 115 of the C.P.C. is limited in relation to concurrent findings of the competent courts. The exceptions to this rule are when the findings are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, patent errors of law, consideration of inadmissible evidence, abuse of jurisdiction, and when the conclusions drawn are perverse and based on conjectural presumptions. The erroneous decisions of fact are ordinarily not revisable and the mere fact that the High Court may differ on a question of fact or mixed question of law and fact is not a valid ground for interfering with concurrent findings. Moreover, the concurrent findings recorded on the basis of evidence are not susceptible to further review to justify interference by the High Court in revisional jurisdiction. The interference by a High Court in such jurisdiction would not be justified on the ground that reappraisal of evidence might suggest another view of the matter unless there has been a gross misreading of evidence and material evidence was ignored.

Mai Rashid Beg v. Rehmat Ullah Khan and others PLD 2001 SC 443; Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67; Suleman v. Mst. Zeenat Jan and others PLD 2003 SC 362; Imam Din and others v. Bashir Ahmed and others PLD 2005 SC 418; Asmatullah v. Amanat Ullah thr. LRs. PLD 2008 SC 155; Atiq ur Rehman and another v. Muhammad Amin PLD 2006 SC 309; Ahmed Nawaz Khan v. Muhammad Jaffar Khan and another 2010 SCMR 984; Administrator Thal Development and others v. Ali Muhammad 2012 SCMR 730 and Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373 ref.

Uzair Karamat Bhandari, Advocate Supreme Court for Appellants.

Zulfiqar Abbas Naqvi, Advocate Supreme Court, Muhammad Ejaz Jamal, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondents.

2024 S C M R 1656

[Supreme Court of Pakistan]

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

SHAHTAJ SUGAR MILLS LTD. and others---Appellants

Versus

GOVERNMENT OF PAKISTAN through Secretary Finance and others--Respondents

Civil Appeals Nos.749 to 758 of 2013, 900 of 2014, 918, 943 to 946 of 2018 and 1022 of 2019, decided on 25th July, 2024.

(Against the judgments dated 27.06.2011 of the Lahore High Court, Lahore passed in I.C.A. No.288/2011, dated 22.02.2013 of the High Court of Sindh, Karachi passed in C.Ps. Nos.D-2123, D-2124, D-2126, D-2156, D-2127, D-2128, D-2129, D-2130 and D-2131 of 2011, dated 23.12.2013 of the High Court of Sindh, Karachi passed in C.Ps. Nos.D-4011 of 2013, dated 11.08.2015 of the High Court of Sindh Karachi passed in D-1116 of 2014, dated 2.10.2017 of the High Court of Sindh, Karachi passed in Exc. Ref. Appl. No. 17 of 2013, Fed. Exc. Duty Spl. Ref. No.29 of 2013, Spl.F.E.R.A. No. 156 of 2013 and dated 25.10.2018 of the High Court of Sindh, Karachi passed in C.P. No. D-1094 of 2015)

Per Athar Minallah, J; Qazi Faez Isa, CJ and Amin-ud-Din Khan, J agreeing

(a) Constitution of Pakistan---

----Art. 77---Levy of taxes---Delegation of powers---Scope---Legislature merely delegates power to Federal Government so as to enable it to work out certain details and exercise its discretion in order to achieve object of the statute---Legislature, by no stretch of imagination, abdicates its power and authority expressly provided under Article 77 of the Constitution.

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

----S. 3-A [as inserted by Finance Act, 2007]---Constitution of Pakistan, Art. 77---Special excise duty on goods, imposing of---Jurisdiction of Federal Government---Delegated powers---Principle---Doctrine of impermissible excessive legislative authority---Applicability---Dispute was with regard to imposing of special excise duty on goods by Federal Government---Held, that legislature delegated essential legislative functions to Federal Government and had merely delegated ancillary and incidental functions to Federal Government---Legislature empowered Federal Government to determine goods for the purposes of collection of special excise duty---Provision of section 3A of Federal Excise Act, 2005 did not delegate unfettered power in absence of standards set out by the Legislature prescribing intelligible guiding principles to be applied while exercising delegated authority---High Court based its reasoning on presumptions, rather on the apprehension, that the power vested in Federal Government could be abused---Such ground was in violation of the principles enunciated in the context of striking down a law promulgated by the Legislature---Legislature did not abdicate its essential legislative functions, rather, incidental and ancillary functions were delegated to Federal Government---Doctrine of impermissible excessive legislative authority was not attracted---Supreme Court set aside order passed by High Court whereby provision of section 3A of Federal Excise Act, 2005 was wrongly struck down---Claimants/taxpayers were not entitled to refund if the Authority had failed to discharge onus that burden of duty was not transferred to consumer---High Court was not justified nor competent to order refund of special excise duty collected under section 3A of Federal Excise Act, 2005, despite having struck down the provision---Even in such eventuality the only remedy available to claimants was to have filed an application for refund under the Federal Excise Act, 2005---Appeal was allowed.

Shakarganj Sugar Mills and others v. Government of Pakistan and others PTCL 2012 CL 604 ref.

(c) Judicial review---

----Scope---Organs of State---Object, purpose and scope---Constitution has clearly set out limits for each organ of the State---Crossing such limits amounts to encroaching upon domain of the other and consequently breaching provisions of supreme law---Making law falls exclusively within the domain of the Legislature---Judicial branch has no jurisdiction to promulgate laws---Stringent rules and principles have been laid down in such context of exercise of power of judicial review, relating to examining vires of law promulgated by Legislature---Foundational rule of interpretation is a presumption in favour of constitutionality---Burden to prove that promulgated law is invalid is on the person who challenges its vires---Law should be saved rather than destroyed and the Courts must lean in favour of upholding constitutionality of legislation---Function of Legislation is exclusive prerogative of the Legislature---Wisdom of the Legislature to promulgate a law and to achieve a particular object and purpose cannot be questioned---It is presumed that laws have been legally, validly and Constitutionally promulgated on the basis of its competence---Courts have no jurisdiction or power to rewrite laws and the Constitution---Promulgated laws or its provisions cannot be struck down lightly and it is duty of Courts to make every possible effort to reconcile statute to the Constitution and to strike it down when it becomes impossible to do so---Courts are not empowered to strike down a law or its provision on higher ethical notions or on the basis of philosophical concepts and no mala fide can be attributed to the Legislature---It is duty of Courts to give effect to the scheme of representative governance of the State which is the foundation and edifice of the Constitution is built on it---Supreme Court has laid down stringent and narrow grounds in the context of striking down a law or a provision while exercising power of judicial review.

Elahi Cotton Ltd. v. Federation of Pakistan and others PLD 1997 SC 582; Pakistan Lawyers Forum and others v. Federation of Pakistan and others PLD 2005 SC 719 and Lahore Development Authority and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 rel.

(d) Constitution of Pakistan---

----Art. 50---Majilis-e-Shoora (Parliament)---Powers and limitations---Delegation of powers---Principle---Majilis-e-Shoora (Parliament) is a creation of the Constitution, therefore, it cannot exceed boundaries expressly set out therein---Power to exercise legislative authority expressly provided under the Constitution cannot be abdicated by the Legislature by way of delegation---Essential legislative functions cannot be delegated beyond reasonable limits because doing so would be in violation of the Constitution---Legislature being the creation of the Constitution, does not inherently possess absolute legislative power but the same can only be exercised in conformity with the powers granted by the Constitution---Legislature determines legislative policies and sets out principles and standards for guidance of delegated authority---Fundamental legislative responsibility cannot be delegated---Delegation must adhere to certain constraints---General principles set out for exercising power of legislation are met by Majlis-e-Shoora (Parliament) and once that has been done, delegation of authority is confined to making subordinate legislation or to attend to other matters of administration and details---Primary functions expressly stated in the Constitution have to be fulfilled by the Legislature itself while the latter may delegate ancillary and incidental functions to an outside agency or authority.

Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Zaibtun Textile Mills Ltd. v. Central Board of Revenue PLD 1983 SC 358; Wayman v. Southard, 23 U.S. 1 (1825); The Province of East Pakistan and others v. Sirajul Haq Patwari and others PLD 1966 SC 854 and Mehran Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 rel.

Per Qazi Faez Isa, CJ; Amin-ud-Din Khan, J, agreeing

(e) Constitution of Pakistan---

----Arts. 1, 189 & 201---Federating units---Judgments of Supreme Court and High Court---Word "other" used in Article 189 of the Constitution---Binding effect of judgment passed by one High Court upon other High Court---Scope---Decisions of Supreme Court are binding on all other Courts, which includes all High Courts, but not the Supreme Court itself since the word "other" is used in Article 189 of the Constitution---Provision of Article 201 of the Constitution commences with the words "subject to Article 189" which removes all doubts (if at all there could be any) that decisions of High Court are only binding on all Courts subordinate to it, which are those within its territorial jurisdiction---Decision of a High Court is persuasive and may be followed by another High Court but it is not binding on it---Another High Court may make a different decision---Pakistan, as per Article 1 of the Constitution is a Federal Republic and 'territories of Pakistan' have been mentioned therein---High Court of each Federating Unit is independent, and a fortiori that it acts independently---Independence of Federating Units can only be curtailed to the extent that the Constitution itself may do so---There is no Constitutional provision which supports binding effect of judgment of one High Court upon the other as provision of Article 201 of the Constitution states so, which is iterated by Article 189 of the Constitution.

Hussain Raza v. Lahore High Court PLD 2022 SC 7 rel.

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

----O. XX, R. 1(2)---Pronouncing of judgment---Reasonable time---Maxim 'justice delayed is justice denied'---Injunction of Islam---Scope---Law and good practice require that judgments be written soon after the hearing has concluded---Indispensable component of dispensing justice is to deliver judgments within a reasonable time---'To no one will we refuse or delay, right or justice' may be the first articulation of the oft quoted legal maxim - 'justice delayed is justice denied.'---As such the maxim has for hundreds of years been used in various forms, all of which signify the same thing.

MFMY Industries Ltd. v. Federation of Pakistan 2015 SCMR 1550; Magna Carta, 1215, clause 40; Fancis Bacon, Lord Chancellor of England, 1617; William Peny, 1693, Some Fruits of Solitude; William Ewart Gladstone, 1868, British Parliament; Warren E. Burger, Chief Justice of the United States Supreme Court, 1970; Marten Luther King, 1963, Letter from Birmingham Jail; 9 610-632; Al-Imran (3) verse 108; Al-Araaf (7) verse 181 and 12 Qazi Abu Yusuf, the first Chief Justice - Qazi al-Quzaat in Muslim history, Kitab al-Kharaj 795 rel.

For Appellant(s):

Rana Munir Hussain, Advocate Supreme Court (in C.A. No. 749 of 2013).

Irfan Mir Helepota, Advocate Supreme Court (in C.As. Nos. 750 to 758 of 2013, 900 of 2014, 943 and 946 of 2018 and 1022 of 2019).

Dr. Shah Nawaz, Advocate Supreme Court along with Usman Azam Bhatti, Dy. Commissioner, Abid Rasool, Addl. Commissioner. Abdul Wahid Shar, Addl. Commissioner (in C.As. Nos. 918 and 945 of 2018).

Ch.Muhammad Zafar Iqbal, Advocate Supreme Court (in C.A. No. 944 of 2018)

For the Federation:

Rana Asadullah Khan, Addl. Attorney General (in C.A. No.749 of 2013).

For respondent No.1:

Tariq Bilal, Advocate Supreme Court (in C.A. No. 900 of 2014).

Khalid Javed Khan, Advocate Supreme Court (in C.A. No. 918 of 2018) (via video link, Karachi).

Iqbal Salman Pasha, Advocate Supreme Court (in C.As. Nos.943 and 946 of 2018).

Arshad Shahzad, Advocate Supreme Court (in C.A. No. 945 of 2018) (via video link, Karachi).

Khalid Mahmood Siddiqui, Advocate Supreme Court (in C.A. No. 1022 of 2019)

2024 S C M R 1675

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi and Aqeel Ahmed Abbasi, JJ

MUMTAZ UDDIN SHAIKH---Petitioner

Versus

CHIEF POST MASTER, GPO, HYDERABAD and others---Respondents

Civil Petition No.516-K of 2022, decided on 19th July, 2024.

(Against the Judgment dated 09.02.2022 passed by Federal Service Tribunal Islamabad (Karachi Bench) in Appeal No.75(K)(CS) of 2020).

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

----S. 4---Limitation Act (IX of 1908), S. 3---Constitution of Pakistan, Art. 212(3)---Civil service---Dismissal from service---Departmental and criminal proceedings---Acquittal in criminal case---Effect---Delay in approaching Service Tribunal---Petitioner/civil servant was dismissed from service on the allegations of misconduct, inefficiency and corruption---Petitioner/civil servant sought his reinstatement in service on the plea of his acquittal in criminal case---Validity---Criminal proceedings address allegations of criminal conduct and determine legal culpability, while departmental proceedings are connected with matters of service discipline and conduct---Results of a criminal case do not necessarily impact issues related to departmental responsibilities and discipline---Delay in invoking lawful remedy by person or entity that was sleeping over their rights may be denied---Appeal of petitioner/civil servant, after his acquittal in criminal case was barred by time and he failed to justify such delay---Service Tribunal was correct in dismissing appeal of petitioner/civil servant on both grounds of limitation as well as merits, as his conduct throughout the proceedings had been questionable---Supreme Court declined to interfere in judgment passed by Service Tribunal, as it was well-reasoned and had considered all legal and factual aspects of the matter---Petition for leave to appeal was dismissed and leave was refused.

Dawood Ali v. Superintendent of Police and others 2005 SCMR 948; Khaliq Dad v. Inspector General of Police and others 2004 SCMR 192; Muhammad Ashraf Khan v. Director Food, Punjab Lahore and another 2004 SCMR 1472; Dr. Sohail Hassan Khan v. Director General (Research), Livestock and Dairy Development Department, Punjab, Lahore and others 2020 SCMR 1708; The District Police Officer, Mianwali and others v. Amir Abdul Majid 2021 SCMR 420; Muhammad Iqbal v. District Police Officer, Sahiwal and another 2011 SCMR 534; Province of Punjab v. Khadim Hussain Abbasi 2021 SCMR 1419 and Usman Ghani v. The Chief Post Master, GPO Karachi and others 2022 SCMR 745 rel.

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

----S. 3---Limitation---Determination---Principle---It is inherent duty of Court, under section 3 of Limitation Act, 1908 to delve into question of limitation, regardless of whether it is raised or not.

Petitioner in person

Asif Sahito, Assistant Superintendent, GPO, Hyderabad for Respondents Nos. 1-2.

2024 S C M R 1683

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi and Aqeel Ahmed Abbasi, JJ

Syed PERVAIZ HUSSAIN and another---Petitioners

Versus

ZIKR-UR-REHMAN and others---Respondents

Civil Petition No 520-K of 2024, decided on 15th July, 2024.

(Against the judgment dated 02.05.2024 of the High Court of Sindh at Karachi in IInd Appeal No. 179 of 2021).

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

----S. 54---Registration Act (XVI of 1908), S. 49---Qanun-e-Shahadat (10 of 1984), Art. 79---Specific Relief Act (I of 1877), Ss. 42 & 54---Un-registered power of attorney---Presumption of correctness---Document, proof of---Principle---Concurrent findings of facts by the Courts below---Predecessor-in-interest of respondents/plaintiffs claimed to be owner of suit plot in question and had denied execution of any power-of-attorney in favour of predecessor-in-interest of petitioners/ defendants---Judgment and decree passed by Trial Court in favour of respondents/plaintiffs were maintained by Lower Appellate Court as well as by High Court---Plea raised by petitioners/defendants was that power-of-attorney in question was duly notarized---Validity---There was no registered power-of-attorney, therefore, presumption of correctness could not be attached in terms of section 49 of Registration Act, 1908---In absence of any registered document, whose registration was compulsory, no immovable property could be transferred on the basis of purported unregistered general power-of-attorney---Predecessor-in-interest of petitioners/ defendants did not produce or exhibit power-of-attorney in question, in terms of Article 79 of Qanun-e-Shahadat, 1984, as neither alleged attorney/sub-attorney nor Notary Public and attesting witnesses were produced by predecessor-in-interest of petitioners/defendants---Basic document which was alleged to be a general power-of-attorney dated 19-02-1977 was not registered and was held to be a forged document by three Courts below through concurrent findings recorded to such effect---Burden shifted upon the beneficiary of such alleged power-of-attorney, which could not be discharged by predecessor-in-interest of petitioners/defendants---Petition for leave to appeal was dismissed and leave was refused.

Dr. Muhammad Javed Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; Allah Bakhsh and others v. Bakhsha and others 2003 SCMR 1011 and Syed Khursheed Ali Jaffery v. Jamiluddin Siddiqui 1993 CLC 2511 ref.

Badar Alam, Advocate Supreme Court and Mrs. Abida Parveen Channar, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2024 S C M R 1689

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

MUHAMMAD YOUSAF---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Civil Petition No. 982-K of 2021, decided on 12th June, 2024.

(Appeal against the order dated 19.04.2023 passed by the High Court of Sindh Bench at Sukkur in C.P. No. D-1289 of 2022).

(a) Constitution of Pakistan---

----Art. 10A---Due process and fair trial---Object, purpose and scope---Due process is a prerequisite that needs to be respected in all stratums---Right to fair trial is a fundamental right in case of stringency and rigidity in affording such right---It is the function, rather a responsibility of Court to protect such right, so that no injustice and unfairness is done to anybody---Concept of natural justice is intended to restrain arbitrary actions within the bounds of upholding and protecting supremacy of law---Such fundamental principle is consistently and squarely applicable to proceedings, whether judicial quasi-judicial or administrative, except where law specifically and unambiguously excludes its application in peculiar facts and circumstances of a case---Solitary pragmatic importance of rule of natural justice is to prevent injustice and miscarriage of justice and ensure that justice is not only done, but it is also manifestly and undoubtedly seen to be done.

(b) West Pakistan Civil Services Pension Rules, 1963---

----Rr. 1.8(a) & 2.11(c)---Pension---Object, purpose and scope---Withholding of benefits---Absent without leave---Petitioner/civil servant was aggrieved of order passed by authorities withholding pensionary benefits on the ground of his absence from duty without leave---Order of the authorities was maintained by High Court---Validity---Pension articulates payment of fixed amount, according to scheme of pension in accordance with law, rules and regulations, or pension scheme in vogue, which is recompensed on regular basis to a person on his superannuation---Foremost and predominant strength of mind is to afford and safeguard economic refuge and shelter and recuperate old age security---In general phenomena, superannuation or stepping down is considered a second innings in which a retired person aspires to live up to his highly anticipated imaginings or dreams and devote time to his kith and kin and friends---After retirement, timely payment of pension is considered as main source of income or livelihood---Despite serving for a long time with sheer commitment, if pensionary benefits are delayed or denied without any lawful justification or without assigning any reason or providing any opportunity of hearing, it would be a very sorry state of affairs, rather an appalling and deplorable situation for a person who performed his duties with utmost dedication and enthusiasm throughout his career but at the eve of his retirement, he was treated inhumanly, coldheartedly and gets nothing on the pretext of totally misconceived interpretation of some rule---Pension could not have been denied to petitioner/civil servant without issuing show cause notice and providing opportunity of hearing---Petitioner/civil servant was deprived of his pensionary benefits despite serving the department for at least 24 years, 05 months and 15 days without adjustment of his earned leaves---Payment of pensionary benefits are protected under the law, rules and regulations, even in private sector, where scheme of pension in vogue is according to the organizational/management policy---Where pension is payable, it is a vested right and not charity, alms or donation by the employer, but a compensation of services rendered assiduously by giving blood, sweat, toil and tears---Supreme Court set aside order passed by High Court and the authorities ensured payment of pension to petitioner/civil servant---Petition for leave to appeal was converted into appeal and allowed.

Shahla Zia v. WAPDA PLD 1994 SC 693 and Haji Muhammad Ismail Memon's case PLD 2007 SC 35 rel.

Petitioner in person.

Sagheer Abbasi, A.A.G., Hakim Ali Shaikh, A.A.G. along with Ghulam Muhammad, Accountant Local Government, Sukkur, Khursheed Ahmed, Section Officer, Finance Department and Sikandar Hassan, Chief Law Officer for the Respondents.

2024 S C M R 1697

[Supreme Court of Pakistan]

Present: Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

RAZA KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.368 of 2024, decided on 23rd July, 2024.

(On appeal against the judgment dated 14.03.2024 of the Peshawar High Court, Bannu Bench passed in Crl. Misc. (B.A.) No. 76-B of 2024).

Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Elimination of Custom of Ghag Act (II of 2013), Ss. 4 & 5---Telegraph Act (XIII of 1885), S. 25---Prohibition of Ghag and damaging or tampering with telegraphs---Bail, refusal of---Petitioner was alleged to have compelled the complainant to marry his daughter with one of petitioner's sons who was also co-accused---Petitioner along with his son and others restrained prosecution witness from engagement of his son with daughter of complainant, threatened the prosecution witness of dire consequences and demanded cancelling the engagement function, which function was consequently cancelled---As per Jirga proceedings son of petitioner did not agree with decision of Jirga members which was in favour of complainant, while complainant agreed with the same---Jirga members were unable to make any settlement/resolve dispute between the parties---On the basis of tentative assessment of material available on record, petitioner was prima-facie involved in commission of non-bailable offences under the provisions of Khyber Pakhtunkhwa Elimination of Custom of Ghag Act, 2013---Petitioner accused was not entitled for discretionary relief of post-arrest bail---Petition for leave to appeal was dismissed and leave was refused.

Khush Amir Khattak, Advocate Supreme Court for Petitioner.

Shah Faisal Ilyas, Addl. A.G., KPK, Madad Khan, D.S.P. (Investigation) and Farid Khan, SI for the State.

Complainant in person.

2024 S C M R 1701

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi and Aqeel Ahmed Abbasi, JJ

WAHEED GUL KHAN and another---Petitioners

Versus

PROVINCE OF SINDH and others---Respondents

Civil Petitions Nos.154-K of 2022 and 166-K of 2022, decided on 26th July, 2024.

(Against the Order dated 15.12.2021 passed by the High Court of Sindh in C.P.No.D-756 of 2013 and C.P. No. D-3575 of 2013).

(a) Civil service---

----Advertised post---Qualifying for the interview---Merely qualifying for the interview (after passing the written test) does not create any vested right for appointment to a specific post in favour of the candidates.

Secretary Finance and others v. Ghulam Safdar 2005 SCMR 534 ref.

(b) Constitution of Pakistan---

----Art. 199---Civil service---Advertised post---Interview process following the written test---Challenging the interview process in Constitutional jurisdiction of the High Court---Permissibility---Written test measures a candidate's knowledge and expression skills but does not evaluate important personality traits like communication skills, leadership qualities, and decision-making abilities---These traits are assessed during the interview---Interview process allows evaluators to see how candidates interact and respond in real-time, offering a complete picture of their suitability for the job---An interview is inherently a subjective evaluation, and a Court of law does not have jurisdiction to substitute its opinion with that of the Interview Board to provide relief to anyone---Role of the Interview Board is to evaluate candidates based on a variety of subjective criteria, which may include interpersonal skills, presentation, and other intangible qualities that are difficult to measure objectively---These assessments are inherently qualitative and depend on the opinion of interviewers, who are appointed for their expertise and ability to make such evaluations---However, this does not mean that the decisions of the Interview Board are beyond scrutiny---If there are any indications of mala fides, bias, or significant errors in the opinion (of the Interview Board) that are apparent from the record, the Court would certainly be compelled to intervene---But where the candidates fail to pass the interview examination for not meeting the necessary standards in the interview, the Constitutional jurisdiction of the High Court cannot be invoked for challenging the interview process.

Muhammad Ashraf Sangri v. Federation of Pakistan 2014 SCMR 157 ref.

Qaim Ali, Advocate Supreme Court for Petitioners (in both cases).

Sibtain Mehmood, Additional Advocate General Sindh, Ms. Lubna Parvez, Advocate-on-Record along with Maqsood Ahmed Kalhoro, Additional Secretary Food Department and Nisar Ahmed Memon, SEO for Respondents Nos.1-3. (in both cases)

2024 S C M R 1705

[Supreme Court of Pakistan]

Present: Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

ABDUL QUDOOS---Petitioner

Versus

Hafiz ISRAR AHMED and another---Respondents

Criminal Petition No.660 of 2024, decided on 26th July, 2024.

(On appeal against the order dated 24.05.2024 of the High Court of Balochistan, Quetta passed in Crl. B. C.A. No.37 of 2024).

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302, 324 & 427---Qatl-i-amd---Ad interim pre-arrest bail, confirmation of---Cancellation of bail---Principles---Dying declaration---Scope---Accused was admitted to pre-arrest bail by Trial Court but High Court cancelled the same---Validity---Statement under section 161, Cr.P.C. recorded in injured condition of deceased, one day prior to his death, was rightly not considered as a dying declaration by Trial Court as death occurred on the next day---Investigation was completed to the extent of petitioner accused---After submission of challan, trial had also commenced---Trial Court, after tentative assessment of material available on record granted pre-arrest bail to petitioner accused but the same was wrongly cancelled by High Court without appreciating that no grounds for cancellation of pre-arrest bail of petitioner accused were available to complainant---While cancelling pre-arrest bail of petitioner accused, High Court also failed to appreciate that there was nothing on record to show that petitioner accused ever abused or misused concession of pre-arrest bail---On the basis of tentative assessment of material available on record, apprehension of petitioner accused for his arrest by police at the behest of complainant with mala fide and ulterior motives, could not held as vague or baseless---Grant of pre-arrest bail to petitioner accused by Trial Court was not "granted in wrong exercise of discretion"---Supreme Court set aside order passed by High Court and restored that of Trial Court---Petition for leave to appeal was converted into appeal and bail was allowed.

Muhammad Faisal v. The State 2020 SCMR 971 rel.

Kamran Murtaza, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (through video link from Quetta).

Ms. Robina Butt, Advocate Supreme Court for the State (as state counsel) and Mohsin Asad, I.O. (through video link from Quetta).

2024 S C M R 1709

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi and Aqeel Ahmed Abbasi, JJ

Hafiz Qari ABDUL FATEH through L.Rs---Petitioner

Versus

Ms. UROOJ FATIMA and others---Respondents

Civil Petition No.174-K of 2022, decided on 24th July, 2024.

(Against the judgment dated 29.11.2021 passed by the High Court of Sindh in Civil Revision No.S-107 of 2006).

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

----S. 54---Specific Relief Act (I of 1877), S. 12---Oral agreement to sell---Proof---An oral agreement by which the parties intended to be bound is valid and enforceable; however, it requires to be proved through clearest and most satisfactory evidence---Law relating to oral agreement is quite clear, the terms and conditions which were orally agreed have to be stated in detail in the pleadings and have to be established through independent evidence---When a party seeks a decree of specific performance for the sale of immovable property based solely on an oral agreement, the onus is on that party to demonstrate that there was a mutual agreement and consensus between both parties regarding the terms of the oral contract---Party claiming the existence of an oral agreement must clearly specify the date, time, place, and names of witnesses in their pleadings, such as the plaint or written statement---These requirements are sine qua non to prove an oral agreement to sell---This is because suits involving sales based on oral agreements are more prone to dishonest improvements made by parties in the evidence and pleadings in order to succeed.

Maqbool Ahmad v. Suleman Ali PLD 2003 SC 31; Muhammad Riaz and others v. Mst. Badshah Begum and others 2021 SCMR 605 and Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74 ref.

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

----O.VI, Rr. 1 & 7---No amount of evidence can be considered on a plea of fact which was not raised in the pleadings i.e. plaint or written statement by the parties.

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

(c) Constitution of Pakistan---

----Art. 185(3)---Appellate jurisdiction of the Supreme Court---Scope---While exercising jurisdiction under Article 185(3) of the Constitution, the Supreme Court does not normally go beyond the findings of the High Court unless it can be shown that such findings are on the face of it against the evidence or are perverse.

Sadaruddin Burriro, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2024 S C M R 1714

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

ASMA HALEEM---Petitioner

Versus

ABDUL HASEEB CHAUDHRY and others---Respondents

C.P.L.A. No. 3300 of 2024, decided on 30th July, 2024.

(Against the judgment of Islamabad High Court, Islamabad dated 02.07.2024 passed in C.R. No. 111 of 2023).

Partition Act (IV of 1893)---

----S.4---Supreme Court Rules, 1980, O. XXVIII, R.3---Specific Relief Act (I of 1877), Ss. 8 & 54---Constitution of Pakistan, Art. 185 (3)---Joint dwelling housing, partition of---Frivolous and vexatious cases---Imposing of costs---Petitioner/plaintiff filed suit for partition of suit house and Trial Court after passing preliminary decree appointed Court auctioneer to auction the property---Petitioner/plaintiff objected to auction report submitted by Court auctioneer, which objections were turned down by Trial Court but Lower Appellate Court allowed the same---High Court in exercise of revisional jurisdiction set aside the order passed by Lower Appellate Court---Validity---Petition filed by petitioner/plaintiff before Supreme Court was frivolous and vexatious and process of Court was abused by petitioner/plaintiff just to pressurize the other side and delay the matter on one pretext or the other, depriving her siblings and mother from lawful auction of such property---Supreme Court declined to interfere in judgment passed by High Court and to curb practice of instituting frivolous and vexatious cases imposed costs under Order XXVII, Rule 3 of Supreme Court Rules, 1980, which had laid down foundation for expeditious justice and to promote smart legal system, enhancing access to justice by entertaining genuine claims---Petition for leave to appeal was dismissed and leave was refused.

Qazi Naveed ul Islam v. District Judge, Gujrat PLD 2023 SC 298 rel.

Abdul Wahid Qureshi and Tariq Aziz, Advocate-on-Record for Petitioner.

Respondents not represented.

2024 S C M R 1716

[Supreme Court of Pakistan]

Present: Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

ZEESHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.556 of 2024, decided on 26th July, 2024.

(On appeal against the judgment dated 06.05.2024 passed by the Peshawar High Court, Peshawar in Crl. M.B.A. No. 1612-P of 2024).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324 & 427---Qatl-i-amd, attempt to qatl-i-amd and causing damage to property---Bail, grant of---Further inquiry---Rule of consistency---Trial, commencement of---Absconsion---Weapon not recovered---Petitioner accused was arrested for committing qatl-i-amd after remaining absconder for seven months---Neither injury statement of alleged injured was prepared nor there was any medical report about his alleged firearm injury---No recovery of firearm was effected from petitioner/accused during investigation---Investigation was complete, challan had been submitted and trial had commenced---Charge was read over to accused persons by Trial Court but so far statements of prosecution witnesses had not been recorded at trial---Co-accused had already been granted post-arrest bail by the Supreme Court---On tentative assessment of material available on record case against petitioner/accused fell within the ambit of further inquiry---On the basis of rule of consistency petitioner accused was also entitled for grant of post-arrest bail---Mere absconsion of petitioner accused for almost seven months could not be made a basis to refuse him post-arrest bail---Petition for leave to appeal was converted into appeal and bail was allowed.

Astaghfirullah, Advocate Supreme Court for Petitioner.

Noroz Khan, Addl.A.G., KPK for the State.

Hussain Ali, Advocate Supreme Court for the Complainant.

2024 S C M R 1719

[Supreme Court of Pakistan]

Present: Yahya Afridi, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

AZHAR PERVAIZ BUKHARI---Petitioner

Versus

The STATE and another---Respondents

Crl. P.L.A No.619-L of 2024, decided on 1st July, 2024.

(Against the order dated 04.03.2024 passed by Lahore High Court, Lahore in Crl. Misc. No. 4681-B of 2024).

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185 (3)---Dishonoring of cheque---Pre-arrest bail, refusal of---Prima facie case---Fulfilment of obligation---Determination---Stolen cheque---Proof---Petitioner/accused sought pre-arrest bail on the plea that cheque in question was stolen and FIR was registered by his brother---Validity---Question whether cheque was issued towards fulfilment of obligation within the meaning of section 489-F, P.P.C. was a question, which was to be determined by Trial Court after recording of evidence---Bail before arrest was an extraordinary relief which could not be granted unless person seeking it satisfied conditions specified under section 497(2), Cr.P.C. and had established existence of reasonable grounds leading to believe that there were in fact sufficient grounds warranting further inquiry---First Information Report was not found to be false after investigation---There was sufficient incriminating material available on record which prima facie connected petitioner/accused with alleged offence, disentitling him from extra-ordinary relief of pre-arrest bail---Supreme Court declined to interfere in order passed by High Court as the same had considered all aspects of the case, both legal and factual and was well-reasoned---Petitioner/accused approached Supreme Court with a delay of 35 days and application seeking condonation of delay did not disclose any cogent reason for such delay---Petition for leave to appeal was dismissed, leave was refused and consequently petitioner was refused pre-arrest bail.

Muhammad Sadiq and others v. The State 2015 SCMR

1394 and Gulshan Ali Solangi and others v. The State 2020 SCMR 249 rel.

Amjad Farouk Bismil Rajput, Advocate Supreme Court along with Petitioner for Petitioner.

Khurram Khan, Additional Prosecutor General Punjab for the State.

2024 S C M R 1722

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

SAKHIB ZAR---Petitioner

Versus

Messrs K-ELECTRIC LIMITED and others---Respondents

Civil Petition No. 307-K of 2023, decided on 10th June, 2024.

(Against the judgment dated 22.11.22 passed by High Court of Sindh at Karachi, in C.P. No. D-255 of 2022).

(a) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----S.O. 15---Punishments---Quantum---Scope---As soon as act of misconduct is established and employee is found guilty after due process of law, it is the prerogative of employer to decide quantum of punishment, out of various penalties provided in law.

(b) Administration of justice---

----Arbitrary relief---Court, jurisdiction of---Scope---No Court has any jurisdiction to grant arbitrary relief without support of any power granted by the Constitution or law.

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

----Ss. 48 & 58---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15---Constitution of Pakistan, Art. 185(3)---Termination from service---Ten days' absence without leave---Misconduct---Awarding of punishment---Object, purpose and scope---Petitioner/workman was terminated from service for absent being from duty without leave for a period of more than ten days---Trial forum did not consider absence for such period as misconduct therefore, reinstated the petitioner/workman in service---Lower Appellate Forum set aside order of reinstatement and High Court maintained that order---Validity---National Industrial Relation Commission (Trial forum) in its original order overturned the law and ordered reinstatement but it did not keep in mind doctrine of proportionality and reasonableness and modified act of misconduct from 10 days' absence to 15 days' absence---Full Bench of National Industrial Relation Commission (Lower Appellate Forum) rightly set aside such order in appeal which was affirmed by High Court---Addressing of misconduct aids, keeps an eye on and protects wellbeing of the organization and its employees in order to make sure that the workplace is in a trouble free environment---It is prerogative and inherent right of employer to trigger disciplinary proceedings in accordance with law to address misconduct, if committed by any employee but course of action for encountering any act of misconduct should stick to the principle of natural justice and the set of guidelines provided to ensure due process of law---Wrong handling of misconduct cases results in bad impact on industrial relations and also adversely affects trust level between management and workers---It is also essential for employer to maintain transparency, uniformity and egalitarianism, which insinuates compliance of all legal requirements with equal treatment to employees without any discrimination or favoritism---Supreme Court declined to interfere in order passed by High Court and Lower Appellate Forum---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Iqbal Chaudhary, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Nemo for Respondents

2024 S C M R 1731

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

MUHAMMAD NAWAZ and another---Petitioners

Versus

The STATE and others---Respondents

Crl. Petitions Nos. 522-L of 2018, 1008-L of 2014, 599-L and 557-L of 2018, decided on 25th September, 2023.

(On appeal from the judgment of the Lahore High Court, Lahore dated 26.02.2018 passed in M.R. No. 264 of 2013, Crl. A. No.1717 of 2013, Crl. A. No. 1171 of 2013, Crl. A. No. 1377 of 2013 and Crl. Revision No. 677 of 2013).

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Delay in lodging FIR not plausibly explained---Probability of false implication---Co-accused persons acquitted on the same set of evidence---Rule of consistency, applicability of---Complainant did not explain the delay in taking the dead body from the scene of the occurrence to the hospital---Besides, the time of death mentioned by the complainant in the FIR is 7.30 a.m., but the FIR was registered after a delay of more than two hours, without any explanation in this behalf, therefore, there was a probability of consultation and deliberations before reporting the matter to the police by the complainant---Under such circumstances, false involvement of the petitioner in the case could not be ruled out---Besides, in the postmortem report, the doctor opined that the cause of death was excessive loss of blood and haemorrhagic shock as a result of four injuries---These injuries were assigned by the complainant jointly to all the accused persons---It was a fact that except the petitioner, rest of the accused were acquitted of the charge by the High Court and one of them by the Trial Court on the same set of evidence---Complainant has ascribed injuries jointly to all the accused and did not single out the petitioner---Under such circumstances, it would not be safe to hold him alone responsible for causing death of the deceased---Role of the petitioner was similar to that of the other co-accused, therefore, he was also entitled for equal treatment, hence, deserved the benefit of doubt---There were also a number of flaws and contradictions in the statements of witnesses, which created doubts in the prosecution story---Petition for leave to appeal was converted into and appeal and allowed, and the conviction and sentence awarded to the petitioner was set-aside.

(b) Criminal trial---

----Benefit of doubt---Scope---While extending a benefit of doubt to an accused, it is not necessary that there must be multiple infirmities and doubts in the prosecution case---Single or slightest doubt in the prosecution case would be sufficient to extend its benefit in favour of an accused.

Ahmad Ali's case 2023 SCMR 781 ref.

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

----Ss. 200 & 417(2)---Appeal against acquittal, filing of---Pre-requisites---Conviction in a private complaint---Under section 417(2) of the Cr.P.C., appeal against acquittal in a case instituted upon a (private) complaint, can only be filed upon grant of special leave to appeal by a High Court---Thus, seeking special leave to appeal is a condition precedent for challenging an order of acquittal passed by any court, other than a High Court.

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

----Ss. 302(b), 309 & 310---Qatl-i-amd---Waiver and compounding of qisas in qatl-i-amd-----Locus standi of deceased's brother to challenge judgment of acquittal in circumstances where legal heirs of deceased entered into a compromise with the accused---Estoppel---Scope---Accused was convicted and sentenced to death by the Trial Court---During the pendency of his appeal before the High Court, legal heirs of the deceased (widow and a minor) entered into a compromise with the accused, on the basis whereof, he was acquitted of the charge through the impugned judgment---Validity---Under the injunctions of Quran and Sunnah, and under section 309 PPC, only an adult sane Wali (legal heirs) may at any time waive their right of Qisas without any compensation or may compound his/their right of Qisas on accepting badal-i-Sulh (compensation) as provided by section 310 PPC.---No doubt, the petitioner (complainant) who was brother of the deceased, informant of the FIR as well as a complainant in the private complaint, could challenge the impugned judgment of acquittal being an aggrieved person, but the legal heirs of the deceased did not want to pursue the matter further against the respondent---If the legal heirs of the deceased did not wish to pursue the matter, the petitioner had no authority to undermine their right guaranteed by law---Permitting the petitioner to pursue the matter would amount to promoting frivolous litigation---Petitioner had not been able to show that the right of compounding the offence exercised by the legal heirs was a result of coercion, duress or undue pressure---Thus, under such circumstances, the petitioner was estopped under the law to challenge the impugned judgment (of acquittal) before the Supreme Court---Petition for leave to appeal was dismissed.

Zaheer Zulfiqar, Advocate Supreme Court (in Crl. P. No.1008-L of 2014), Zahid Aslam Malik, Advocate Supreme Court (in Crl. P. No. 522-L of 2018) and M. Irfan Malik, Advocate Supreme Court (in Crl. Ps. Nos. 557-L and 599-L of 2018) for Petitioners (All through video link from Lahore).

Mirza Abid Majeed, D.P.G., Punjab for the State.

2024 S C M R 1738

[Supreme Court of Pakistan]

Present: Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

YAR MUHAMMAD KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.271 of 2024, decided on 25th July, 2024.

(On appeal against the judgment dated 15.03.2024 of the Peshawar High Court, Peshawar passed in Crl. Misc. (B.A.) No.372-P/ 2024).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 337-F (v) & 337-A(i)---Constitution of Pakistan, Art. 185 (3)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah hashimah and shajjah-i-khafifah---Bail, refusal of---Double murder---Cross version---Positive report of Forensic Science Laboratory---Petitioner (accused) was alleged to have committed murder of two persons and made murderous assault upon complainant---Petitioner accused sought his bail on the plea that it was a case of cross version---Validity---Seven crime empties of 7.62 bore and three crime empties of .30 bore were recovered from place of occurrence by investigating officer in cross-version case---Petitioner accused was arrested and during investigation, on his pointing a Kalashnikov (crime weapon) was recovered from house of his relative---There was positive report of firearm expert and incriminating material available on record---Petitioner accused was prima-facie involved in commission of heinous non-bailable offences for committing murder of two persons and making murderous assault upon complainant and his family members, therefore, he was not entitled for concession of post-arrest bail---Mere registration of counter version of occurrence by petitioner accused in Roznamcha (Daily Book) could not be made a basis to grant him post-arrest bail---Petition for leave to appeal was dismissed, leave was refused and bail was denied.

Hussain Ali, Advocate Supreme Court for Petitioner (through video link from Peshawar).

Noroz Khan, Addl.A.G., KPK, Fazil Khan, D.S.P. and Ma'azullah, S.I. for the State.

Irfanullah (Brother of complainant) for the Complainant.

2024 S C M R 1741

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

MUHAMMAD JAHANGIR and another---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No. 514 of 2016 and Crl. P. 1011-L of 2016, decided on 6th May, 2024.

(Against the judgment dated 22.06.2016 passed by the Lahore High Court, Bahawalpur Bench passed in Crl. Appeal No. 313-J of 2012).

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Belateldy lodged FIR---Presence of eye-witnesses at scene of occurrence doubtful---Motive not proved---First Information Report was lodged after an unexplainable delay of 3 hours despite the fact that the distance of the police station from the place of occurrence was 5 km---Complainant had a bike that he used to go to the police station, but despite this the delay in lodging the FIR was not plausibly explained by the prosecution---Prosecution witnesses were unable to provide a justification for their overnight stay at their deceased sister's house---They were posed specific questions regarding their purpose of stay and whether there was any family function---However, no plausible justification was given by them in this regard, which made their presence at the spot highly doubtful---Material facts relating to the place of occurrence were also missing in the FIR and were added through a supplementary statement---It showed that prosecution witnesses improved their version later on---It was hard to believe that sole accused could succeed in fleeing away in front of three persons and that too in cotton crops having 3/4 feet height---As far as motive was concerned, the Trial Court through its judgment had conceded that the prosecution had failed to prove the motive in the case at hand---As far as recovery of the deceased's ear-rings was concerned, it was not proved by the prosecution during the trial, and the Trial Court disbelieved it---Injuries on the deceased's ear were not mentioned by the witnesses---There were major contradictions in the prosecution's case that were overlooked by the courts below---Prosecution had failed to prove its case beyond any reasonable doubt---Consequently jail petition was converted into an appeal and was allowed,the impugned judgment was set aside, and the petitioner was acquitted of the charge.

(b) Criminal trial -

----Witness, evidence of---Improvements made in witness statement---Effect---Where a witness makes dishonest improvements in his statement then it loses its significance in the eyes of law.

Sardar Bibi and another v. Munir Ahmad and others 2017 SCMR 344; Amir Zeman v. Mahboob and others 1985 SCMR 685; Akhtar Ali and others v. The State 2008 SCMR 6; Khalid Javed and another v. The State 2003 SCMR 1419; Mohammad Shafiqe Ahmad v. The State PLD 1981 SC 472; Syed Saeed Mohammad Shah and another v. The State 1993 SCMR 550; Mohammad Saleem v. Mohammad Azam 2011 SCMR 474 and Muhammad Mansha v. The State 2018 SCMR 772 ref.

(c) Criminal trial---

----Unwitnessed incident---Medical evidence---Scope---Medical evidence by its nature and character cannot recognize a culprit in case of an un-witnessed incident---Where the eyewitness account relied upon by the prosecution is unreliable and untrustworthy, the accused's conviction cannot sustain on the basis of medical evidence alone.

Hashim Qasim and another v. The State 2017 SCMR 986 ref.

Ch. Abdul Ghaffar, Advocate Supreme Court (in J.P. No. 514 of 2016) (through video link Lahore) for Petitioner.

Nemo for Petitioner (in Crl. P. No. 1011-L of 2016).

Irfan Zia, Deputy Prosecutor General, Punjab for the State.

Nemo for the Complainant.

2024 S C M R 1749

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

BILAL HAQUE---Petitioner

Versus

KAMRAN ALI AFZAL, SECRETARY, CABINET DIVISION, ISLAMABAD and others---Respondents

Criminal Original Petitions Nos. 19 and 20 of 2024, decided on 17th August, 2024.

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

----S. 3---Constitution of Pakistan, Art. 204---Contempt of Court---Show cause notice, issuance of---Illegally running a restaurant in protected area of Margalla Hills National Park ('the National Park')---Alleged contemnor had voluntarily agreed to vacate the premises where he was running an illegal restaurant, however, instead of abiding by his statement, which was recorded in an earlier order of the Supreme Court, he initiated a media propaganda campaign against the Supreme Court projecting that it was the Supreme Court which was responsible for causing the suffering of all those employed by him in the restaurant by leaving them un-employed and that the absence of his restaurant would be a great loss to all his customers---Alleged contemnor propagated this by suppressing the fact that he was running the restaurant in violation of the law and by destroying the protected National Park---Alleged contemnor prima facie had disobeyed/ disregarded the earlier order of the Supreme Court and appeared to have committed a wilful breach of the valid undertaking given to the Supreme Court by him and had acted to bring the authority of the Supreme Court and the administration of law into disrespect and disrepute, and to lower the authority of the Supreme Court and scandalizing the judges of the Court in relation to their official work---Supreme Court issued show cause notice to the alleged contemnor to show cause why contempt proceedings should not be initiated against him with the directions that he should state whether he had reached out to his brother, who was the Cabinet Secretary, and had sought the issuance of the Notification regarding removal of the Chairperson of the Islamabad Wildlife Management Board and for the placement of the Wildlife Board under the Ministry of Interior/Interior Division, by removing it from the Ministry of Climate Change and Environmental Coordination.

(b) Rules of Business, 1973---

----Rr. 3(3), 10(1)(b) & Sched. II---Islamabad Wildlife Management Board('Wildlife Board') transferred from the Ministry of Climate Change and Environmental Coordination to the Ministry of Interior/ Interior Division---Legality---Rule 3 of the Rules of Business, 1973 ('the Rules') vests power in the Prime Minister to allocate business of the Federal Government amongst the different Divisions mentioned in Schedule II of the Rules---However, the business which is allocated amongst the Divisions must have some nexus with the work of the Division and serve the public interest---Schedule II of the Rules, is enacted pursuant to R. 3(3) of the Rules and it lists the different Divisions, including the Establishment Division---Amongst the functions of the Establishment Division is the 'Review of organizations, functions and procedures of the Divisions' and that this be done 'with the objective of improving their efficiency'---Rule 10(1)(b) of the Rules states that 'a change in the allocation of business between various divisions of a Ministry' must not be done 'without previous consultation with the Cabinet Division'---In the present case two Divisions were rearranged without the involvement/approval of the Establishment Division and without consulting the Cabinet Division---Interior Division has many responsibilities, as set out in Schedule II of the Rules---To handover the Wildlife Board and the Margalla Hills National Park ('National Park') to the Ministry of Interior/Interior Division was not done with the objective of improving their efficiency---Wildlife Board and the National Park did not have the remotest concern with the workings of the Ministry of Interior/Interior Division, nor did it have any expertise or competence in attending to their affairs---Attorney General stated before the Supreme Court that the Memorandum dated 6 August 2024, through which the Wildlife Board was transferred from the Ministry of Climate Change and Environmental Coordination to the Ministry of Interior/Interior Division, has been withdrawn by issuing Memorandum dated 9 August 2024 and that the Wildlife Board shall continue to function under the Ministry of Climate Change and Environmental Coordination (and not under the Ministry of Interior/Interior Division)---Supreme Court after appreciating the fact that the Prime Minister had decided to withdraw the Memorandum gave directions that part of the Margalla Hills was in the province of the Khyber Pakhtunkhwa, therefore, the Provincial Government shall file concise statement under the signatures of the Chief Secretary, Secretary Forest and Director-General, Galiyat Development Authority, stating/disclosing the construction and projects which were being raised therein.

Umar Ijaz Gillani, Advocate Supreme Court for Petitioners (in both cases).

Hafiz Arfat Ahmed, Advocate Supreme Court, M. Ali Randhawa, Chairman CDA, Talat Mehmood Gondal, Member Environment, CDA and Naeem Dar, Director-General (Law), CDA for CDA.

Qasim Ali Chowhan, Advocate Supreme Court for MCI.

Shah Faisal Ilyas, Additional Advocate-General, KP. and Shahrukh Ali, D.G., Galiyat for Government of Khyber Pakhtunkhwa.

Shah Khawar, Advocate Supreme Court along with Saddique Anwar, CEO for Pine City.

On Court's notice:

Mansoor Usman Awan, Attorney-General for Pakistan.

Malik Javed Iqbal, Additional Attorney-General for Pakistan.

Anis Muhammad Shahzad, Advocate-on-Record.

Kamran Ali Afzal, Secretary Cabinet Division, Islamabad (respondent No. 1 in Crl. Org. P. No. 19/2024)

Eazaz A. Dar, Secretary, Ministry of Climate Change and Environmental Coordination, Islamabad (respondent No. 1 in Crl. Org. P. No.20/2024)

2024 S C M R 1757

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

GHULAM MURTAZA SHEIKH and another---Petitioners

Versus

The CHIEF MINISTER, SINDH and others---Respondents

Civil Petitions Nos. 646-K to 647-K of 2021, decided on 9th August, 2024.

(Appeal against the judgment dated 30.03.2021 passed by the Sindh Service Tribunal at Karachi in Appeals Nos. 867 and 823 of 2018).

(a) Civil service---

----Inquiry proceedings---No opportunity provided to accused official to cross-examine witnesses---Effect---Violation of principles of natural justice and due process of law---Senior Superintendent Prison and Deputy Superintendent Jail ('the petitioners')---Penalty of reduction to lower post for 5 years and dismissal from service respectively---Legality---In the case in hand, admittedly 20 witnesses were examined who deposed against the petitioners but the inquiry officer failed to provide any opportunity to the petitioners to conduct cross-examination of such witnesses to discredit their statement or testimony---Neither the inquiry report depicted that the statements of the alleged 20 witnesses were recorded in presence of petitioners nor any right of cross-examination was provided to them---No evidence which is accusatorial to the opposite party would be admissible unless such party is afforded an evenhanded opportunity of skimming its exactitudes by cross-examination---Right of proper defence and cross-examination of witnesses by the accused is a vested right---In the present case role of inquiry officer was to sift the grain from the chaff and actually establish that the petitioners violated their assigned duties which could only be proved through evidence and if the opportunity of cross-examination was afforded to the petitioners as their defence to disprove the allegations raised against them---Inquiry officer in the present case did not adhere to the principle of natural justice and due process of law, which destroyed the whole substratum of inquiry and the case of misconduct made out by the department against the petitioners---Petitions were converted into appeals and allowed, consequently the penalty of reduction to lower post awarded to Senior Superintendent Prison by the Original and Appellate Authority, and enhanced by the Tribunal from 3 years to 5 years was set aside, and he was restored to his original position with back benefits; whereas the punishment awarded to Deputy Superintendent Jail by the Original and Appellate Authority and conversion of his compulsory retirement into dismissal from service by the Tribunal was also set aside and he was reinstated in service with back benefits.

Federation of Pakistan through Chairman Federal Board of Revenue FBR, House, Islamabad and others v. Zahid Malik 2023 SCMR 603; Raja Muhammad Shahid v. The Inspector General of Police 2023 SCMR 1135 and Usman Ghani v. The Chief Post Master, GPO, Karachi 2022 SCMR 745 ref.

(b) Civil service---

----Departmental inquiry and criminal proceedings stemming from the same offence---Standard of proof---Standard of proof required in a departmental inquiry is not analogous to the standard of proof which is considered necessary in the criminal trial---Departmental inquiry stems from the charges of misconduct where the standard of proof depends on the balance of probabilities or preponderance of evidence but not a proof beyond reasonable doubt, which is a strict proof required in criminal trials.

(c) Civil service---

----Concurrent departmental inquiry and criminal proceedings stemming from the same offence---Acquittal in criminal proceedings---Effect---Where the accused official is acquitted by the Court in criminal proceedings and his conviction is set aside, it does not mean that he could not be called upon to face disciplinary proceedings on account of misconduct or dereliction of his duties.

M.M. Aqil Awan, Senior Advocate Supreme Court, assisted by Muhammad Arshad Khan Tanoli, Advocate Supreme Court and Danish Rashid Khan for Petitioners (in both cases).

Hakim Ali Shakh, Additional A.G., Sindh, Sagheer Ahmed Abbasi, Additional A.G., Sindh, Ms. Shazia Qazi, Special Secretary Prisons, Sindh, Muhammad Nasir Khan, D.I.G., Prisons, Sindh and Muhammad Channa, S.O., Prison-I for Respondents.

2024 S C M R 1767

[Supreme Court of Pakistan]

Present: Syed Hasan Azhar Rizvi and Aqeel Ahmed Abbasi, JJ

MUHAMMAD AIN-UL-HAQ---Petitioner

Versus

ABDUL ALI and another---Respondents

Civil Petition No. 662-K of 2024, decided on 25th July, 2024.

(Against the order dated 13.05.2024 passed by the High Court of Sindh, Karachi in C.P. No. S-524 of 2024).

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

---S. 15---Eviction of tenant---Execution proceedings---Scope---Tenant challenging only the execution proceedings rather than the original eviction order---Effect---In the present case tenant (petitioner) had only challenged the execution proceedings rather than the original eviction order passed by the Rent Controller---As the eviction order itself had not been challenged, it remained legally valid and enforceable unless it had been set aside by any competent court of law---Hence, the Supreme Court cannot address the grievances of the tenant (petitioner) pertaining to the issue that eviction order passed by Rent Controller was illegal---In the impugned order the High Court had solely prescribed a timeframe for vacating the demised premises---Within the framework of execution proceedings, the courts are precluded from deliberating on the merits of the underlying case---Execution proceedings are confined to the implementation of judicial decisions and do not extend to an examination of the substantive issues that may have been previously adjudicated---Accordingly, the Rent Controller was duty bound to act solely in accordance with the law and to enforce the eviction order, without the latitude to scrutinize, question, or revisit the merits thereof---Similarly, the High Court was bound by the same constraints---Thus, the decisions rendered by the Rent Controller and the High Court in the execution proceedings were justified and legally apt---Petition filed by tenant was dismissed and leave was refused.

(b) Constitution of Pakistan---

----Art. 185(3)---Appellate jurisdiction of the Supreme Court---Scope---While exercising jurisdiction under Article 185(3) of the Constitution, the Supreme Court does not normally go beyond the findings of the High Court unless it can be shown that such finding is, on the face of it, perverse or against the evidence.

Dr. Raana Khan, Advocate Supreme Court with the Petitioner for Petitioner.

Nemo for Respondents.

2024 S C M R 1770

[Supreme Court of Pakistan]

Present: Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

MUHAMMAD SALEEM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE---Respondent

Civil Petition No.3601-L of 2022, decided on 23rd July, 2024.

(On appeal against the order dated 28.10.2022 of the Lahore High Court, Lahore passed in W.P. No. 65452 of 2022).

Family Courts Act (XXXV of 1964)---

----S. 5---Recovery of decretal amount---Misconduct---Concealment of facts---Costs imposition of---During execution proceedings, High Court imposed fine upon petitioner/judgment debtor for filing second Constitutional petition suppressing the fact of dismissal of earlier petition on the same subject---Validity---While dismissing Constitutional petition High Court made serious observations about misconduct of petitioner/judgment debtor who by concealment of relevant facts from lawyers and Courts, managed to file miscellaneous application as well as second Constitutional petition after dismissal of his appeal on merits by Lower Appellate Court and after withdrawal of his earlier Constitutional petition from the High Court by making false accusations against lawyers without any substance---Petitioner/ judgment debtor did not deserve any leniency nor there were convincing reasons to waive off the cost imposed by High Court---Supreme Court declined to entertain request for satisfaction of judgment and decree in instalments, as no such application was filed by petitioner/judgment debtor before Executing Court---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Tanveer Chaudhry, Advocate Supreme Court for Petitioner.

Respondent not represented.

2024 S C M R 1773

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

ZAFAR ALI ABBASI and another---Appellants/Petitioners

Versus

ZAFAR ALI ABBASI and others---Respondents

Criminal Appeal No. 577 of 2019 and Crl. P. No. 596 of 2016, decided on 13th May, 2024.

(Against the judgment dated 17.03.2016 of the Lahore High Court, Rawalpindi Bench passed in Crl. Appeal No.198 of 2012).

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Unnatural conduct of complainant and eye-witness---Admittedly, the appellant (accused) was alone, whereas, the complainant, witness and the deceased were three in numbers---Taking the words of the complainant that he and the eye-witness were 20 paces away from the appellant, they could have easily reached the appellant and overpowered him within few seconds, but no attempt was made by them to avert the attack---It was hard to believe that life of the brother and uncle of complainant and eye-witness respectively, was in danger, but they did not react immediately---Had the complainant and the eye-witness been present at the time and place of the occurrence, the appellant could have been apprehended before causing any dagger injuries to the deceased---Despite the fact that the complainant and his companion were 20 paces away from the appellant, they did not make any attempt to catch hold of him, even after he caused dagger injuries to the deceased---Prosecution had failed to establish its case against the appellant beyond a reasonable doubt---Appeal was allowed, and appellant was acquitted of the charges.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Presence of complainant and eye-witness at the time and place of occurrence doubtful---Witnesses alleged that after the occurrence, they boarded the injured in their jeep to take him to a hospital for treatment and on the way, the injured was shifted into the van of the rescue service for taking him to THQ Hospital---Natural reaction of the complainant (brother of deceased) ought to have been to reach the hospital immediately in order to save the life of the injured, but the needful was not done---There was no justification in shifting the injured from the jeep to the rescue van---To substantiate the contention of the complainant, the statements of the driver of the rescue van was of utmost importance, but the Investigating Officer did not record statement of any of the members of the van---Besides, for the sake of arguments, if it was believed that the complainant and eye-witness boarded the injured in the jeep, then the jeep and clothes of the complainant and the witness must have been stained with blood---Admittedly, no blood was collected from the jeep nor the blood stained clothes of the witnesses were taken into possession by the Investigation Officer ('IO') and no explanation in this behalf had been advanced by the prosecution---Stance of the complainant and the eye-witness was not only improbable, but also got no support from the record---Prosecution had failed to prove the presence of the complainant and the eye-witness at the time and place of the occurrence---Prosecution had failed to establish its case against the appellant beyond a reasonable doubt---Appeal was allowed, and appellant was acquitted of the charges.

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

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Medical evidence---Rigor mortis, development of---Postmortem report and opinion of doctor negating version of the complainant---In the present case the doctor who conducted the postmortem of the deceased, while appearing as a witness before the Trial Court, submitted that rigor mortis was developed and eyes of the deceased were semi opened---Considering the contention of the complainant that the injured was immediately taken to the hospital for treatment in his jeep, question arose as to how rigor mortis was developed and why eyes of the deceased were not closed---Postmortem report, the statement of the doctor and his opinion did not support the contention of the complainant regarding immediate shifting of the injured to the hospital---Had the complainant and eye-witness been present at the place and time of the occurrence, the injured could have been taken to the hospital, without loss of time and thereby, rigor mortis could not have developed---Doctor explained that the injuries were lunar shaped, which meant that probably, the injuries were caused through lunar shaped weapon---On the contrary, the complainant and the eye-witnesses alleged that the appellant (accused) inflicted dagger blows on the deceased---Their statements regarding nature of the injuries sustained by the deceased and the weapon used contradicted the postmortem report and the statement of the doctor---Presence of the witnesses at the time of the crime was doubtful, as such the occurrence seemed to be unseen---Prosecution had failed to establish its case against the appellant beyond a reasonable doubt---Appeal was allowed, and appellant was acquitted of the charges.

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

----Art. 40---Information received by police from the accused---Proof---In order to bring the case within the ambit of Article 40 of the Qanun-e-Shahadat, 1984, the prosecution must prove that a person accused of any offence, in custody of police officer, has conveyed an information or made a statement to the police, leading to discover of new fact concerning the offence, which is not in the prior knowledge of the police---Such information or statement should be in writing and in presence of witnesses---In absence of information or statement from a person, accused of an offence and in custody of police officer, discovery of fact alone, would not bring the case of the prosecution under the said Article.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Recovery of crime weapon on disclosure of accused---Inconsequential---According to the prosecution, a dagger used in the commission of the offence was recovered on the disclosure and pointation of the appellant---Surprisingly, the Investigating Officer (IO) did not record the information received from the appellant in writing, in presence of a witness, while he was in police custody---Prosecution had failed to establish any disclosure from the appellant, therefore, recovery of the dagger, in the circumstances was immaterial---Even otherwise, the IO stated that the recovery of the dagger was effected on the pointation of the appellant, in presence of an eye-witness, who was also a nephew of the deceased---According to the said witness, the dagger was wrapped in a black colour shopper, but when it was presented before the Trial Court, it was unsealed and was wrapped in a white colour plastic---None of the recovery witness put any identification mark upon it in order to exclude any possibility of foisting false recovery or substituting the recovered one---Manner in which the dagger was taken into possession and produced in the Court, created doubt regarding its recovery, therefore, the High Court had rightly disbelieved it---Prosecution had failed to establish its case against the appellant beyond a reasonable doubt---Appeal was allowed, and appellant was acquitted of the charges.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Delay in lodging FIR---Probability of false involvement of accused---Injured was shifted to the hospital at about 10:30 a.m. and by that time he was alive; he was under a treatment till 01:35 p.m. and thereafter, succumbed to injuries---This fact was admitted by the Investigating Officer in his cross-examination---According to the prosecution, the FIR was registered at 11:25 a.m., but surprisingly, section 302, P.P.C. was inserted in it when by that time, the injured was alive---This showed that the FIR was actually registered after the death of the deceased, but with mala fide intention, and time of its registration was mentioned as 11:25 a.m. in order to cover the delay in lodging the FIR---Delay in lodging the FIR was a result of deliberation and consultation, therefore, false involvement of the appellant could not be ruled out---Prosecution had failed to establish its case against the appellant beyond a reasonable doubt---Appeal was allowed, and appellant was acquitted of the charges.

Basharat Ullah Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant (in Crl. A. No. 577 of 2019).

Raja Muhammad Farooq, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in Crl. P. No. 596 of 2016).

Mirza Abid Majeed, DPG Punjab for the State.

2024 S C M R 1782

[Supreme Court of Pakistan]

Present: Yahya Afridi, Jamal Khan Mondokhail and Malik Shahzad Ahmad Khan, JJ

REHMATULLAH and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 23-Q and 24-Q of 2020, decided on 29th July, 2024.

(On appeal from the judgment dated 31.7.2018 passed by the High Court of Balochistan, Quetta in Criminal Appeal No.401 of 2017, Criminal Appeal No.415/2017 and Criminal Appeal No.442 of 2017).

(a) Criminal trial---

----Case based on circumstantial evidence---Principle---In a case where there is no direct evidence and the prosecution case hinges upon the circumstantial evidence, utmost care and caution is required for reaching at a just decision of the case---In such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other the neck of the accused---If any link in the chain is missing then its benefit must go to the accused.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. The State 1999 SCMR 1034 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Extra judicial confession of accused before the police---Inadmissible in evidence---There was neither any last seen evidence nor evidence of waj takkar available on the record against the appellants (accused persons)---Prosecution case was based on alleged confession of appellant "MY" before the police while in custody---There was also conflict in the statements of witnesses of extra judicial confession of "MY" regarding the date of making of said confession---Even otherwise confession of an accused before the police while in custody is inadmissible in evidence---Police did not make any effort to produce "MY" before the concerned Magistrate for recording of his judicial confession in accordance with the law---Furthermore complainant was real brother of deceased but he did not enter appearance in the witness box---According to the prosecution, he shifted to some unknown place, therefore, non-bailable warrants of his arrest to compel him to appear before the Trial Court, could not be executed---Prosecution had failed to prove its case against the appellants beyond the shadow of doubt---Appeals were allowed, and the appellants were acquitted of the charges.

Saeed Ahmad v. The State 2011 SCMR 1686 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Medical evidence neither supporting the prosecution case nor the motive for the offence---According to the medical evidence produced by the prosecution through a doctor, the right eye of deceased was missing and the same was removed with a sharp edged weapon but there was no mention of removing the right eye of the deceased with sharp edged weapon in the alleged extra judicial confession of appellant "MY"---No sharp edged weapon had been recovered from any of the appellants during the investigating of this case---According to the prosecution case, the appellants attempted to commit sodomy with the deceased before committing his murder and when the deceased refused and raised hue and cry, the appellants committed the occurrence---There was no mention of presence of any injury on the buttocks or on the anal area of the deceased in the medical evidence and as such the alleged motive of the prosecution had also not been supported by the medical evidence---Prosecution had failed to prove its case against the appellants beyond the shadow of doubt---Appeals were allowed, and the appellants were acquitted of the charges.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Recovery of mobile phone and motorcycle belonging to deceased from the accused---Inconsequential---Insofar as the alleged recovery of mobile phone of the deceased from the possession of "MY", appellant was concerned, no proof of the ownership of said mobile phone in the name of deceased had been brought on record---SIM numbers of mobile phone of the deceased were mentioned in the FIR---Said SIMs of the deceased were not recovered from the possession of the appellants---Police official who was recovery witness of mobile phone of the deceased from the possession of "MY" appellant had candidly conceded during cross-examination that no SIM was present in the recovered mobile phone---No documentary proof was produced in the prosecution evidence to show that the motorcycle allegedly recovered from the possession of "MY" appellant, was owned by the deceased or the same was in the name of his any family member---Even the complainant who was brother of the deceased did not appear in the witness box to identify that the motorcycle allegedly recovered from the possession of "MY" appellant was the same motorcycle, which belonged todeceased---Alleged recoveries of motorcycle and mobile phone of the deceased from the possession of "MY" appellant were not helpful for the prosecution case---Prosecution had failed to prove its case against the appellants beyond the shadow of doubt---Appeals were allowed, and the appellants were acquitted of the charges.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Call Data Record (CDR), production of---Inconsequential---Call Data Record (CDR) of the SIMs of the deceased and appellants (accused persons) were produced in the prosecution evidence but no documentary evidence was produced before the Trial Court to establish that the SIMs mentioned in the call data record were in the name of the deceased or appellants---Moreover, no phone recording or its transcript was produced in evidence to show the nature of the conversation between the appellants and the deceased---Evidence of CDR produced in this case was inconsequential for the prosecution---Prosecution had failed to prove its case against the appellants beyond the shadow of doubt---Appeals were allowed, and the appellants were acquitted of the charges.

Azeem Khan v. Mujahid Khan 2016 SCMR 274 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Pointing out of the place of occurrence and the place of recovery of dead body by the accused persons---Inconsequential---Insofar as the prosecution evidence about the pointing out of the place of occurrence and the place of recovery of dead body by the appellants (accused persons) was concerned, it was noteworthy that no incriminating material like blood stained earth etc was recovered from the place of occurrence allegedly pointed out by the appellants whereas the place of recovery of dead body was already in the knowledge of the prosecution because according to the prosecution case, the dead body was recovered from the place by the police on 07.01.2015 whereas the said place was pointed out by the appellants on 22.01.2015---Under the circumstances, the above-mentioned prosecution evidence cannot be used against the appellants---Prosecution had failed to prove its case against the appellants beyond the shadow of doubt---Appeals were allowed, and the appellants were acquitted of the charges.

(g) Criminal trial---

----Doubt in the prosecution case--- Principle--- Even a single circumstance, which creates reasonable doubt in the prosecution evidence, is sufficient to discard the prosecution case.

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

Gohar Yaqoob Yousafzai, Advocate-on-Record and Inamuallah, Advocate Supreme Court for Appellants (in both cases).

Ameer Hamza Mengal, Additional P.G. Balochistan for the State (in both cases).

2024 S C M R 1791

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Naeem Akhtar Afghan and Aqeel Ahmed Abbasi, JJ

ZAFAR IQBAL and others---Petitioners

Versus

MUHAMMAD RAFIQ and others---Respondents

Civil Appeal No.477-L of 2011, decided on 6th August, 2024.

(On appeal against the judgment dated 13.10.2011 passed by the Lahore High Court, Lahore in Civil Revision No.773 of 2005).

(a) Co-sharer---

----Joint (undivided) khata---Vendee (buyer), right of---Vendee, who buys from a co-sharer, who owns an undivided khata in common with others, is clothed with the same rights as the vendor (co-sharer) has in the property, no more and no less---If the vendor (co-sharer) was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor (co-sharer) qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor (co-sharer) owns in the whole property.

Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 SC (Pak.) 9 and Atta Muhammad v. Manzoor Ahmad 1992 SCMR 138 ref.

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

----Ss. 42, 54 & 55---Suit for declaration, permanent and mandatory injunction---Shamlat land---Claim of ownership---Proof---Plaintiffs were claiming exclusive ownership of the suit land primarily on the basis of their alleged possession without specifying/explaining the nature/status of their alleged possession---Plaintiffs further based their claim upon the statements made by four shareholders on 14 April 1938 in favour of predecessors of the plaintiffs with regard to the suit land---Admittedly statements in writing of those four shareholders were not available on record---Neither the said four shareholders nor their successors had ever affirmed those statements before any forum---In the Roznamcha dated 14 April 1938 neither any reason nor any specification or measurement of the area of Shamlat Deh for its exclusion from the partition had been mentioned---Said vague Roznamcha did not mention as to on what basis the unspecified portion of Shamlat Deh had to be declared as ownership of predecessors of the plaintiffs---Counsel for the plaintiffs failed to explain as to how merely on the basis of their alleged possession, the plaintiffs could be declared as owners of the suit land---Trial Court as well as the Appellate Court had rightly dismissed the suit of the plaintiffs by passing speaking and well-reasoned judgments---By decreeing the suit vide impugned judgment, the High Court had erred in facts as well as in law---Appeal was allowed, and the impugned judgment of High Court was set aside with the direction that the plaintiffs were at liberty to approach the revenue forum for redressal of their grievance, if any, in accordance with law.

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

Imran Muhammad Sarwar, Advocate Supreme Court for Respondents Nos. 1-4 (through video link from Lahore).

2024 S C M R 1796

[Supreme Court of Pakistan]

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

Mst. MUSSARRAT SHAHEEN---Petitioner

Versus

Mst. VERBEENA KHAN AFROZ and others---Respondents

Civil Petition No. 562-K of 2024, decided on 8th August, 2024.

(Against the order dated 17.05.2024/01.08.2024 passed by the High Court of Sindh, Karachi in C. P. No.S-45 of 2023).

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Specific Relief Act (I of 1877), S. 42---Tenant claiming ownership over rented property by filing a suit for declaration---Tenant cannot maintain occupancy of rented premises merely because he/she has initiated a suit for declaration---In instances where the tenant asserts ownership of the property, the legally mandated procedure requires the tenant to vacate the premises, pursue the civil suit, and, upon a favorable judgment by the competent court, regain possession of the property.

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064; Muhammad Nisar v. Izhar Ahmed Shaikh and others PLD 2014 SC 347 and Nasir Khan v. Nadia Ali Butt and others 2024 SCMR 452 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Eviction of tenant---Default in payment of rent---Personal bona fide need of landlady---When a landlord/landlady pursues eviction on the grounds of personal bona fide need and non-payment of rent, such a claim cannot be dismissed simply by challenging the ownership of the property---It is pertinent to consider the substance of the landlord's claim regarding the legitimate need for the property and the alleged default in rent payment---In the case at hand the landlady (respondent) had established the default in payment of rent as well as her personal bona fide need and had also adduced affidavit in this regard---Thus, both the grounds for eviction i.e. default in payment of rent and personal bona fide need had not been disputed by the tenant (petitioner)---Petitioner had not produced any evidence to rebut the claims of the landlady---Petition filed by the tenant was dismissed and leave was refused.

Chaudhary Abdul Rashid, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Petitioner.

Khalid Javed Khan, Advocate Supreme Court, assisted by Yasir Ali, AHC for Respondents.

2024 S C M R 1802

[Supreme Court of Pakistan]

Present: Justice Qazi Faez Isa, Chairman, Justice Naeem Akhtar Afghan, Justice Shahid Bilal Hassan, Dr. Muhammad Khalid Masud and Dr. Qibla Ayaz, Members

SHAMEEM KHAN---Appellant

Versus

The STATE---Respondent

Criminal Shariat Appeal No. 05 of 2018, decided on 8th August, 2024.

(Against the judgment dated 07.03.2017 of the Federal Shariat Court passed in Crl. A. No. 15-I and M.R. No. 02-I of 2016 along with Crl. A. No. 60-I of 2009).

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

----Ss. 302(b) & 392---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, robbery, possession of illegal weapon---Shariat appeal---Reappraisal of evidence--- Sentence, reduction in--- Mitigating circumstances---Co-convict with shared common intention awarded lesser punishment---Effect---Co-convict had abetted the appellant for committing the offence; the vehicle in question was hired/booked by the co-convict and the appellant was picked on the way---Co-convict made search of the driver of the vehicle and snatched money and a cell phone from the driver; he demanded more money from the driver but the driver had no cash---When they tried to snatch the vehicle, the driver stopped the vehicle near a populated area---Due to apprehension of their arrest, the appellant made a fire upon the driver and they both started running towards hills but the people and police chased them and they were apprehended---According to the confessional statement of the appellant recorded under section 164, Cr.P.C., he fired (only) once upon the deceased and only one crime empty was recovered from the place of occurrence, which was from within the said vehicle, therefore, if he had repeated the fire such empty would also have been found---Moreover in his confessional statement the appellant had stated that co-convict persuaded and abetted the appellant for commission of the offence and had fully participated in the crime with the appellant---Either the confessional statement of appellant was to be accepted in its entirety or discarded, therefore, if it contained something beneficial to the appellant that could not be discarded---Having shared common intention with the appellant, the co-convict was vicariously liable for the offence, however he had been awarded the lesser sentence of imprisonment for life under section 302(b), P.P.C. while the appellant had been awarded death sentence---Considering all the above as mitigating circumstances, while maintaining the conviction of the appellant under section 302(b), P.P.C., his sentence of death was reduced to imprisonment for life---Amount of compensation to be paid to the legal heirs of the deceased and the period to undergo in default thereof was maintained---Conviction and sentence of the appellant under section 392, P.P.C. and section 13 of Pakistan Arms Ordinance, 1965 were also maintained---Appeal was partly allowed.

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

----S. 302(b)---Qatl-i-amd--- Sentence, reduction in--- Mitigating circumstances---Non-repetition of fire shot---Firing only once from a firearm is a mitigating factor attracting the alternate sentence of imprisonment for life.

Rizwan Ejaz, Advocate Supreme Court for Appellant.

Noroz Khan, Addl.A.G., KPK for the State.

2024 S C M R 1806

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Athar Minallah and Malik Shahzad Ahmad Khan, JJ

KHALID alias MUHAMMAD KHALID and others---Petitioners

Versus

COLLECTOR OF CUSTOMS (ADJUDICATION), CUSTOM HOUSE, LAHORE and others---Respondents

Civil Petition No.3391 of 2024, decided on 9th August, 2024.

(Against order of the Lahore High Court, Lahore dated 28.06.2024 passed in W.P No.20130 of 2024).

Customs Act (IV of 1969)---

----Ss. 194-A & 194-B---Constitution of Pakistan, Art. 199---Customs Appellate Tribunal---Power of Appellate Tribunal to execute orders passed by it---Customs Appellate Tribunal has the power to execute orders passed in exercise of its appellate jurisdiction under Sections 194-A and 194-B of the Customs Act 1969---Since an adequate remedy is provided by law, the writ jurisdiction of the High Court is not to be invoked for the execution of such orders.

There is no provision in the Customs Act, 1969 that specifically provides for the power of the Customs Appellate Tribunal ('Tribunal') to execute its orders. However, it is a well-established principle of statutory construction that where a statute confers jurisdiction, it also grants, by necessary implication, the powers to do all such acts or employ all such means as are essentially necessary for its execution. An express grant of statutory power carries with it, by necessary implication, the authority to do all such acts that are necessary to make such a grant effective. A statute that expressly confers a substantive power upon a court or tribunal also impliedly grants all incidental and ancillary powers necessary for the effective exercise of that substantive power. These incidental and ancillary powers thus necessarily flow from the express substantive power. [p. 1809] A

Maxwell on Interpretation of Statutes (11th Ed.) p. 350; Commissioner, Khairpur v. Ali Sher Sarki PLD 1971 SC 242 and Sutherland Statutory Construction (3rd Ed.), Articles 5401 and 5402 ref.

There is no doubt that the Tribunal functions as a judicial body within the limits of its jurisdiction. It has all the powers expressly conferred upon it by the statute, i.e., the Customs Act, 1969. Furthermore, being a judicial body, it also possesses all those incidental and ancillary powers necessary for the exercise of the jurisdiction conferred upon it and to make fully effective the grant of statutory substantive powers. Such powers are recognized as incidental and ancillary, not because they are inherent in the Tribunal or because its jurisdiction is plenary, but because it is the legislative intent that the power expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully excercised. [p. 1810] B

Union of India v. Paras Laminates (1990) 4 SCC 453 and Income Tax Officer v. Mohammed Kunhi AIR 1969 SC 430 ref.

A statutory tribunal that has been conferred the power to adjudicate a dispute and pass an order on it also has the power to implement that order. Even if this power has not been specifically spelled out in the statute, it must be deemed to have been impliedly conferred upon the statutory tribunal. Courts and statutory tribunals must be held to possess the power to execute their own orders; for when a court or tribunal is conferred jurisdiction or substantive power to make an order, the power to execute such an order, being ancillary and incidental, is also impliedly conferred by the statute. This is necessary because the jurisdiction or substantive power would be useless if the order passed in exercise thereof could not be executed and enforced. The same principle applies to the jurisdiction and substantive power of the Tribunal under Sections 194-A and 194-B of the Customs Act, 1969. The power to execute an order passed under these express provisions of the Customs Act, 1969 being ancillary and incidental, is also impliedly conferred upon the Tribunal by the Customs Act, 1969. Thus, the Tribunal has the power to execute orders passed in exercise of its appellate jurisdiction under Sections 194-A and 194-B of the Customs Act, 1969. Consequently, since an adequate remedy is provided by law, the writ jurisdiction of the High Court cannot be invoked for executing orders passed by the Tribunal.

State of Karnataka v. Vishwabharathi House Building Coop. Society (2003) 2 SCC 412 and Messrs Hal v. Commissioner of Commercial Taxes 2014 SCC Online Orissa 71 ref.

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

Raja Muhammad Shafqat Abbasi, D.A.G. Saleem Ahmed Malik, Superintendant Customs Enforcement, Lahore, Huriya Fatima, Legal Advisor, FBR Waheed Iqbal Bhatti, Inspector for Respondents.

Nadeem Mehmood Mian, Advocate Supreme Court (for private respondent) (From Lahore via video-link).

2024 S C M R 1811

[Supreme Court of Pakistan]

Present: Justice Qazi Faez Isa, Chairman, Justice Naeem Akhtar Afghan, Justice Shahid Bilal Hassan, Dr. Muhammad Khalid Masud and Dr. Qibla Ayaz, Members

IMRAN alias MANI---Appellant

Versus

The STATE---Respondent

Criminal Shariat Appeal No. 2 of 2018, decided on 8th August, 2024.

(Against the judgment dated 24.01.2012 of the Federal Shariat Court, Islamabad passed in Criminal Appeal No. 164-L of 2004 and Crl. Murder Reference No. 8-L of 2005).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Offence of Zina (Enforcement Of Hudood) Ordinance (VII of 1979), S. 10(2)---Qatl-i-amd, common intention, zina---Material eye-witnesses not testifying---Motive not proved---Unnatural conduct of eye-witnesses in not saving the deceased---Incidentally, all the three stated eye-witnesses were related and were also related to the deceased, however, one of them did not testify as he was given up---Another material witness also did not testify as he too was given up for no reason---Site plan showed the room in which the stated zina was being committed, which was at one end of the house and the room in which the deceased were being killed was at the very opposite end---These two rooms were separated by a courtyard and another room---Placement of the rooms was such that the deceased would not be able to see into the room where the alleged zina was being committed even if the doors of both these rooms were left open---Therefore, the stated motive to kill the deceased, that is, their witnessing the appellant (accused) and co-accused committing zina, did not stand to reason, and, thus, there was no reason to silence them---It was also not the prosecution's case that the deceased were alerted and had come to investigate nor that they were killed at a place other than in their own room---It was also most unlikely, if not wholly unbelievable, that while committing zina the appellant would suddenly be motivated to proceed to kill two elderly persons who lay sleeping---And, assuming that the appellant had been found committing zina by the three eye-witnesses it was but reasonable to presume that the appellant would get dressed and make good their escape or would try to do so---Entire case of the prosecution rested on the testimony of two witnesses, one of whom testified that after he gained entry into the house of the deceased persons, one of them was alive for about fifteen to twenty minutes and the other for about ten to fifteen minutes, however, he did absolutely nothing to save their lives; no first aid was rendered, no attempt was made to shift them to a hospital or send for a doctor or any local medical practitioner---As regards the offence of zina no article was recovered which may have had the appellant's semen which could be his clothing, the bedsheet/mattress, bed or any other place on which the said act was stated to have been committed---And, it did not stand to reason, that zina was being committed in a fully lit room, which could be seen into from the road, nor that immediately after committing zina the appellant would set upon to kill (for no apparent reason) the deceased, who were the co-accused's in-laws---Prosecution had completely failed to establish its case, let alone met the required test of beyond reasonable doubt---Therefore, the convictions and resultant sentences of the appellant could not be sustained and the impugned judgment and that of the Trial Court were set aside by allowing the appeal---Appellant was acquitted of all charges levelled against him.

Humayoun Rashid Ch., Advocate Supreme Court for Appellant.

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for the Complainant.

2024 S C M R 1816

[Supreme Court of Pakistan]

Present: Yahya Afridi, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Defence and another---Appellants

Versus

Messrs RASHID BUILDERS (PVT.) LIMITED---Respondent

Civil Appeal No.296 of 2015, decided on 10th July, 2024.

(Against the judgment dated 10. 12.2014 passed by the Lahore High Court, Lahore in R.F.A. No.67 of 1998).

Specific Relief Act (I of 1877)---

----S. 10---Suit for recovery of money---Contractual liabilities---"But-for" Test---Applicability---Delay caused in completion of project---Determination---Concurrent findings of facts by two Courts below---Misreading and non-reading of evidence---Respondent/plaintiff filed suit for recovery of money along with costs for delay caused in completion of contract due to fault on the part of appellant/authorities---Judgment and decree passed by Trial Court was maintained by High Court---Validity---Nature of delays meant that respondent/plaintiff was eligible for multiple extensions of time, and appellants/authorities granted such extensions---Inclement weather was beyond the control of appellants/authorities and respondent/plaintiff was allowed extension of time---When extensions of time were granted and the project was completed then question was why respondent/plaintiff initiated recovery proceedings---Such recovery proceedings were nothing but an effort to avoid paying the refund that appellants/authorities were rightfully owed by respondent/plaintiff---"But-for" Test, was to ask if delays by respondent/plaintiff were independent of the delays by appellants/ authorities---If delays of respondent/plaintiff were only happening because appellants/authorities had caused delays first, then the delays of appellants/authorities were the root cause---If respondent/defendant had also been causing delays regardless of the actions of appellants/ authorities, then the delays of respondent/plaintiff were independent---Applying the "But-For" Testmeant that the delays of respondent/ plaintiff were independent and he was not entitled to recover amount through the suit---Supreme Court set aside conclusions arrived at by High Court as well as Trial Court which were patently improbable and perverse----Supreme Court dismissed the suit filed by respondent/ plaintiff and set aside the judgments and decrees passed by two Courts below---Appeal was allowed.

Adyard Abu Dhabi v. SD Marine Services [2011] EWHC 848 (Comm); Henry Boot Construction (UK) Limited v. Malmaison Hotel (Manchester) Limited (1999) 70 Con L R 32; De Beers UK Ltd. (formerly Diamond Trading Co Ltd) v. Atos Origin It Services UK Ltd. [2010] EWHC 3276 (TCC); Society of Construction Law Delay and Disruption Protocol, 2nd Edition, Society of Construction Law (UK); https://www.scl.org.uk/sites/default/files/documents/SCL_Delay_Protocol_2nd_Edition_Final.pdf; United Bank Limited v. Jamil Ahmed 2024 SCMR 164; Nazim-ud-Din v. Sheikh Zia-ul-Qamar 2016 SCMR 24 and A. Rahim Foods v. K&N's Foods 2023 CLD 1001 ref.

Malik Javed Iqbal Wains, Addl. Attorney General for Pakistan for Appellants.

Khawaja Hassan Riaz, Advocate Supreme Court for Respondent along with Respondent Muhammad Rashid.

Assisted by Ahsan Jehangir Khan, Law Clerk.

2024 S C M R 1831

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah, Athar Minallah and Malik Shahzad Ahmad Khan, JJ

SUPERINTENDENT OF POLICE, HEADQUARTERS, LAHORE and others---Petitioners

Versus

IJAZ ASLAM and others---Respondents

Civil Petitions Nos. 3105-L to 3114-L and 3119-L to 3122-L of 2023, decided on 7th August, 2024.

(On appeal against the judgment dated 16.05.2023 passed by the Punjab Service Tribunal, Lahore in Appeals Nos. 3482 to 3488, 4259, 4571 of 2022 and 435 to 439 of 2023).

(a) Civil service---

----Service matters---Punishment, award of---Institutional autonomy---Concept of institutional autonomy in matters relating to award of punishment and limited circumstances in which courts/tribunals can interfere in the same.

Courts are tasked with a delicate balancing act: respecting the institutional autonomy of public sector institutions, while ensuring these institutions operate within the bounds of the law and do not infringe upon individual rights or the public interest. The imposition of punishment under the law is primarily the function of the competent authority and the role of the Tribunal or Court is rather 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 underlying rationale is based on the concept of institutional autonomy which provides for a degree of self-governance and independence by a public sector institution. This autonomy is essential for ensuring that such institutions can function effectively, impartially, and according to their legal mandates. The autonomy of public institutions is not just a matter of administrative convenience, but a fundamental requirement for the effective functioning of a democratic society, as public sector organizations are guardians of the public interest. The role of the courts is not to second-guess institutions as certain matters are the province of institutions themselves. Thus, as long as the institutions pursue their institutional purpose and function, and as long as they abide by law, professional norms and best practices, they are largely entitled to regulate themselves. Institutional decisions are, however, subject to judicial oversight and can be corrected if they suffer from any illegality, irrationality or procedural impropriety. Other than that, the courts must give deference to the institutional decisions and desist from second guessing them on the basis of their own subjective standards of leniency, compassion or fairness. Such decisions are best left to the institutions owing to their policy-making prerogatives and expertise.

Divisional Superintendent v. Nadeem Raza 2023 SCMR 803; Secretary Government of Punjab v. Khalid Hussain 2013 SCMR 817; Vice Chancellor Agriculture University v. Muhammad Shafiq 2024 SCMR 527 and Randy J. Kozel, 'Institutional Autonomy and Constitutional Structure' 112 Michigan Law Review 957 (2014)https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1014&context=mlr accessed 21 August, 2024 ref.

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

----R. 4(1)(b)(iv)---Driver constables in police department---Appointments made on basis of fake and bogus driving licenses---Dismissal from service---"Doctrine of unclean hands"---Scope and applicability---Admittedly the respondents were dismissed from service based on an established charge of misconduct after a proper regular departmental inquiry was conducted by the competent authority---Findings in the inquiry report were not only accepted by the competent authority but had also been affirmed by the appellate authority of the same department---In the instant case, the major penalty of dismissal from service was imposed by the competent authority in accordance with law and the relevant rules---Fact that the respondents procured their appointment based on bogus and fake driving licenses could not be condoned---Reasoning given in the impugned judgment justifying their reinstatement on the ground that the respondents worked for 14 years and had subsequently obtained new licenses was not sufficient and did not wash away their act of submitting fake and bogus licenses and thus managing their appointments fraudulently---Once the appointment was sought on the basis of bogus licenses, such appointment could not be legitimized---This was based on the principle referred to as the "doctrine of unclean hands."---This legal doctrine holds that a person who has acted unethically, deceitfully, or with dishonesty should not be entitled to the benefits derived from such actions---When applied to employment, particularly in sensitive roles like the police service, this principle asserts that someone who gains their position through fraudulent means-such as by falsifying documents-cannot be trusted to uphold the integrity and responsibilities of that position---Furthermore, discovering the fraud, even several years after the fact, could still be ground for disciplinary action because the initial appointment was obtained illegitimately---The rationale was that trust and integrity are foundational to public service roles, and a breach of this nature undermined the trust necessary for the role and could potentially have legal and institutional consequences---Said principle maintains that the integrity of the institution and the trust placed in its officials are paramount, and therefore, any breach, regardless of when discovered, must be addressed decisively---Respondents knew that they had submitted fake and bogus licenses during the recruitment process---Thus, the Tribunal had failed to take into consideration the fact that the basic qualification/eligibility to the post of driver constable was a genuine license which the respondents did not meet---In the absence of the same, the Tribunal acted in an arbitrary and whimsical manner overlooking the specific facts and circumstances by granting relief to the respondents in violation of the law---Petition was converted into an appeal and allowed; the impugned judgment was set aside and the dismissal orders of the respondents passed by the department were upheld.

Secretary Education v. Noor-Ul-Amin 2022 PLC (C.S.) 132 and Anwar Ali v. Chief Executive Officer HESCO 2009 PLC (C.S.) 963 ref.

(c) Void order---

----When the basic order is without lawful authority, then the entire superstructure raised thereon falls to the ground automatically.

Vice Chancellor Agriculture University v. Muhammad Shafiq 2024 SCMR 527; Pakistan Peoples Party Parliamentarians v. Federation of Pakistan PLD 2022 SC 574 and Atta-ur-Rehman v. Umar Farooq PLD 2008 SC 663 ref.

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

----S. 5---Service Tribunal---Relief, grant of---Parameters---Grounds of leniency and compassion---No court has the jurisdiction to grant arbitrary relief without the support of any power granted by the Constitution or the law---Any relief granted on the touchstone of subjective standards of leniency and compassion, rather than the law, cannot be sustained---Any such subjective decision disregards the importance of institutional autonomy; which rests on well-thought out values, ethos, policies and internal disciple of the institution.

Divisional Superintendent, Postal Services v. Zafarullah 2021 SCMR 400; Government of Pakistan v. Nawaz Ali Sheikh 2020 SCMR 656; Chief Postmaster v. Muhammad Afzal 2020 SCMR 1029 and Dr. A.Q. Khan Research Laboratories v. Hamid Ullah 2010 SCMR 302 ref.

(e) Constitution of Pakistan---

----Art. 25---Civil service---Discrimination---Relief sought on plea of discrimination---Scope---Article 25 of the Constitution has no application to a claim based upon other unlawful acts and illegalities---It only 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---But where a person gains, or is granted, a benefit illegally, other persons cannot plead, nor can the courts accept such a plea, that the same benefit must be allowed to them also in violation of law.

Muhammad Yasin v. D.G. Pakistan Post Office 2023 SCMR 394 ref.

Baleegh-uz-Zaman, Addl. A.G. and Riasat Ali, D.S.P. for the Petitioners.

Muhammad Arshad Bhatti, Advocate Supreme Court for Respondents (via video link from Lahore).

2024 S C M R 1839

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

MUHAMMAD RIAZ and others---Petitioners/Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.144-L of 2020 and Civil Petition No.282-L of 2024, decided on 22nd May, 2024.

(On appeal against the judgment dated 02.10.2019 passed by the Lahore High Court, Lahore, in Crl. Appeal No.102232-J/2017 and Capital Sentence Reference No.18-T of 2017).

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

----Ss. 302(b), 324 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, unlawful assembly---Reappraisal of evidence---Material inconsistencies and contradictions in the evidence of complainant and alleged eye-witness---Presence of complainant and alleged eye-witness at the scene of occurrence doubtful---While appearing as a witness, the complainant improved his previous statement and categorically described the type of firearm each accused person allegedly carried at the time of occurrence---However, he did not explain how he came to know what type of firearm each accused person, including the appellants, was carrying when, according to his own account, he was sitting in the rear seat of the car, from where it would have been impossible for him to see the whole occurrence---Furthermore, the complainant, during cross-examination, asserted that the application for the registration of the FIR was drafted 10 to 20 minutes after the incident, and the police arrived at the scene within 10 to 15 minutes---However, the complainant expressed ignorance about the person who drafted the said application---Complainant further disclosed that he remained at the scene for 10 minutes before being taken to the hospital for medical treatment---In contrast, the alleged injured eye-witness, made an entirely different statement, contradicting the complainant by stating that the police arrived at the scene 45 to 50 minutes after the incident; he further mentioned that the District Police Officer, also arrived at the scene, a fact not disclosed or alleged by the complainant---Said contradictions between eye-witness statements cast doubt on whether both witnesses were actually present at the scene---This doubt arose because if they had both witnessed the same event, their accounts should reasonably have aligned on key details---Moreover, it was an admitted fact that the prosecution witnesses did not attribute the shots that hit the deceased or injured to any specific accused persons, including the appellants; rather, a general role of indiscriminate firing was attributed to all the accused persons---They also did not describe the exact seating arrangement of the accused persons on the motorbikes while fleeing from the scene---This omission of important details further casted doubt on their presence at the place of occurrence---Appeal was allowed, the impugned judgment passed by the High Court and that of the Trial Court were set aside, and consequently, both the appellants, were acquitted of the charge.

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

----Ss. 302(b), 324 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, unlawful assembly---Reappraisal of evidence---Joint recovery of alleged weapons of offence on pointation of accused persons---Inadmissible in evidence---Investigating Officer acknowledged during cross-examination that both recoveries (of alleged weapons of offence) were made from the same place and on the same date---Even otherwise, it was not the stance of the investigating officer that he conducted the recovery proceedings independently and separately for each appellant (accused)---Besides, the recovery memos were also silent about which appellant first led to the recovery or pointed out the place of recovery---As the police took both appellants together in the same vehicle for the recovery and recovered the weapons from the same place and at the same date and time, it was to be considered a joint recovery for all purposes, irrespective of the fact that the investigating officer prepared two separate recovery memos---Joint recovery was of no evidentiary value and is inadmissible in evidence---Furthermore, the record showed that the above-mentioned weapons, as per the report of the Provincial Forensic Science Laboratory, did not match the crime cartridges allegedly recovered from the scene of the occurrence, even though both weapons were found to be in mechanical operating condition with working safety features---As such, there coveries of the weapons of offence did not support and advance the case of the prosecution---Appeal was allowed, the impugned judgment passed by the High Court and that of the Trial Court were set aside, and consequently, both the appellants, were acquitted of the charge.

Muhammad Mushtaq v. Mustansar Hussain and others 2016 SCMR 2123 and Muneer Malik and others v. The State through P.G. Sindh 2022 SCMR 1494 ref.

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

----Ss. 302(b), 324 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, unlawful assembly---Reappraisal of evidence---Motive---Double edged weapon for false implication---Scope---Prosecution alleged that the motive behind the occurrence was a longstanding blood feud enmity between the parties---Record shows that the defense had not denied the existence of such enmity---When there were open hostilities between two groups, the motive factor may propel one side to commit a crime, and the same factor may possibly induce the other group to implicate their rivals---Even otherwise, motive was a double-edged weapon, which could be used either way and by either side i.e. for real or false involvement---As such merely because of motive, the appellants could not be held responsible for the alleged offence---Appeal was allowed, the impugned judgment passed by the High Court and that of the Trial Court were set aside, and consequently, both the appellants, were acquitted of the charge.

Noor Elahi v. Zafarul Haque PLD 1976 SC 557; Allah Bakhsh v. The state PLD 1978 SC 171; Khadim Hussain v. The State 2010 SCMR 1090; Tahir Khan v. The State 2011 SCMR 646; Tariq v. The State 2017 SCMR 1672 and Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 ref.

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

----Ss. 6(1)(b), 6(1)(c), 6(2) & 7(a)---Penal Code (XLV of 1860), Ss. 302(b), 324 & 149---Act of terrorism, qatl-i-amd, attempt to commit qatl-i-amd, unlawful assembly---Reappraisal of evidence---Multiple murders committed in furtherance of previous enmity---Not an act of terrorism---Alleged occurrence took place at a bridge, which was not in a populated area and was committed due to longstanding personal enmity between the parties---Prosecution had not produced any material or evidence before the Investigating Officer or the court indicating that a sense of fear, panic, terror, or insecurity spread in the area at the time of the occurrence---Any action constituting an offence, however grave, shocking, brutal, gruesome, or horrifying, does not qualify as 'terrorism' if it is not committed with the intent or purpose specified in clauses (b) or (c) of subsection (1) of Section 6 of the Anti-Terrorism Act, 1997 (A.T.A)---Furthermore, the actions specified in subsection (2) of Section 6 of the A.T.A. do not qualify as terrorism if they are committed in furtherance of personal enmity or private vendetta---In the present case the cumulative effect of the evidence on record indicated that the alleged occurrence was not committed with the intent or purpose specified in clauses (b) or (c) of subsection (1) of Section 6 of the A.T.A.---Present case was a simple case of murder due to previous enmity; therefore, it did not fall within the purview of any provisions of the A.T.A.---High Court rightly observed that the provisions of the A.T.A. did not apply to the facts and circumstances of the case and set aside the conviction and sentence of the appellants recorded by the trial court under Section 7 of the A.T.A.---Appeal was allowed and consequently, both the appellants, were acquitted of the charge.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 ref.

(e) Criminal trial---

----Benefit of doubt---Scope---To extend the benefit of the doubt it is not necessary that there should be so many circumstances---If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evidence to procure conviction then the Court can come forward for the rescue of the accused persons.

Daniel Boyd (Muslim Name Saifullah) and another v. The State 1992 SCMR 196; Gul Dast Khan v. The State 2009 SCMR 431; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Abdul Jabbar and another v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State and others PLD 2019 SC 64 and Muhammad Imran v. The State 2020 SCMR 857 ref.

Ch. Zulfiqar Ali Dhudi, Advocate Supreme Court for Petitioner (in C.P. No. 282-L of 2024) (via video link from Lahore).

Hammad Akbar Wallana, Advocate Supreme Court for Appellants (in Crl.A. No. 144-L of 2020) (via video link from Lahore).

Irfan Zia, Addl. Prosecutor General Punjab for the State (in both cases).

2024 S C M R 1852

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar and Shahid Bilal Hassan, JJ

TOWN ADMINISTRATION and another---Petitioners

Versus

MOHAMMAD KHALID and others---Respondents

Civil Petitions Nos. 2697-L and 2698-L of 2016, decided on 28th June, 2024.

(Appeal against the order dated 23.06.2016 passed by the Lahore High Court, Lahore in W.Ps. Nos. 21263 and 21265 of 2016).

(a) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----Sched., S.Os. 1(b), 1(e) & 12---Employees employed for a continuous period exceeding nine months---Dismissal from service without notice through verbal orders---Legality---Standing Order 12 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 ('Ordinance 1968') commands that the services of a workman can neither be terminated, nor a workman can be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken---There is no provision under the Labour Laws or the Service Laws permitting the employer to terminate the services verbally without a written order containing the explicit reasons or cause of termination, even in the case of termination simpliciter---Termination of service by a verbal order is alien to the labour and service laws of the country and also against the principle of good governance---Verbal termination order is also otherwise against the principles of natural justice---Record of the present case reflected that both the respondent employees were performing their duties continuously and the length of their service, notwithstanding the fact that the petitioner (employee department) was calling it temporary or on daily wages basis, exceed much more than the provided nine months' period and both were performing their job against a post of permanent nature---In fact, no plea was taken that the services were terminated due to the completion of a task or temporary project, or due to the abolition of such a post or work, or that both positions became surplus because their assigned job no longer existed in the department to carry on in the future---To continue such arrangement for such a long time was nothing but a circumvention of labour laws and misuse of the category of temporary workman defined in the Standing Order 1 of the Ordinance 1968, wherein the employer was only permitted to engage workmen for the work which was of an essentially temporary nature likely to be finished within a period not exceeding nine months; but in the present case it was proved beyond any shadow of doubt that the respondent employees performed their duties much beyond the period of nine months against permanent posts---Hence, respondents were unlawfully terminated under the garb of so-called daily wages engagement, and they were rightly reinstated as regular employees with back benefits by the Labour Court---Petitions were dismissed and leave was refused.

Chairman Agriculture Policy Institute Ministry of National Food Security and Research, Government of Pakistan v. Zulqarnain Ali 2022 SCMR 636; Muhammad Yaqoob v. The Punjab Labour Court Nos. 1 and 5 and others 1990 SCMR 1539; Executive Engineer, Central Civil Division Pak. P.W.D. Quetta v. Abdul Aziz and others PLD 1996 SC 610 and Government of Punjab and others v. Puniab Appellate Tribunal Lahore and others 2002 SCMR 878 ref.

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

----Ss. 3 & 5---Cases involving Government departments, autonomous bodies and private sector/organizations---Limitation---Condonation of delay---Principle---While considering the grounds for condonation of delay, whether rational or irrational, no extraordinary clemency or compassion and/or preferential treatment may be accorded to Govern-ment departments, autonomous bodies or private sector/organizations, rather their cases should be dealt with uniformly and in the same manner as cases of ordinary litigants and citizens.

Regional Police Officer, Dera Ghazi Khan Region v. Riaz Hussain Bukhari 2024 SCMR 1021 ref.

Muhammad Amjad Pervaiz, Advocate Supreme Court for Petitioners.

Syed Kamil Pervaiz, Advocate Supreme Court for Respondent No.1 (in both Petitions).

2024 S C M R 1862

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Jamal Khan Mandokhail and Naeem Akhtar Afghan, JJ

ABDIL ALI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GOJRA and others---Respondents

Civil Petition No. 2293-L of 2016, decided on 2nd September, 2024.

(On appeal from the judgment dated 24.06.2016 of the Lahore High Court, Lahore passed in W.P. No. 22019 of 2016).

Specific Relief Act (I of 1877)---

----S. 12---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance of agreement to sell immoveable property---Cut-off date stipulated for payment of balance sale consideration---Extention of such date by Court---Scope---Balance sale consideration to be deposited in Court---Scope---Courts are not legally empowered to extend the time for depositing the balance sale consideration contrary to the terms of the agreement---And, if they do so they effectively rewrite the agreement between the parties---Only obligation of a buyer of a property is to make timely payment---However, if the seller does not receive payment the buyer must demonstrate that he was ready, able and willing to pay the same to the seller, failing which he must show that he had offered the payment and upon the seller's refusal to accept it had either prepared a pay order/demand of the said amount or had deposited the same in Court---One exception could be when the balance sale consideration constitutes a small portion of the total sale consideration.

Syed Mansoor Ali Bukhari, Advocate Supreme Court for Petitioner (through video link from Lahore).

Respondents not represented.

2024 S C M R 1864

[Supreme Court of Pakistan]

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

Rao MUHAMMAD RASHID and others---Petitioners

Versus

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

Civil Petitions Nos. 525-K to 527-K of 2024 and Civil Petitions Nos. 477-K to 511-K of 2024, decided on 1st August, 2024.

(Against the Orders dated 19.03.2024 and 30.01.2024 passed by Sindh Service Tribunal, Karachi in Appeals Nos. 58, 59, 61, 760, 862, 902, 774, 805, 820, 776, 821, 864, 755, 803, 829, 742, 841, 804, 901, 759, 766, 831, 806, 822, 794, 761, 840, 747, 764, 746, 749, 817, 748, 744, 830, 743, 740 and 763 of 2023).

(a) Sindh Service Tribunals Rules, 1974---

----Rr. 8(b), 11 & 12---Sindh Service Tribunals Act (XV of 1973), S.5---Departmental appeal, filing of---Limitation, issue of---In the case at hand, all the service appeals were dismissed in limine on the ground that departmental appeals were time barred---Officials of the (employer) department present in court on their tentative assessment of the record submitted that certain departmental appeals were filed within time but they needed to thrash out the entire record which could not be done at the Tribunal stage because neither any notice was issued nor any comments were filed to handle each petitioner/ appellant individually, but the petitioners were non-suited in limine---In these peculiar circumstances of the case, such factual controversy could not be decided summarily, and in order to thrash out the assertion that departmental appeals were preferred-within time, notice to the department ought to have been issued for proper adjudication and verification by the department in each case regarding the exact dates of the different impugned departmental orders, receiving date of such orders by the petitioners, filing of departmental appeals/representations, decision of departmental appeals conveyed individually, if any, and finally, the date of filing service appeals by individuals for which painstaking scrutiny was required by the Tribunal as a first judicial fact-finding forum---Question of limitation apparently in this case did not seem to be in the plainest or purest form but on the face of it, emerged as a mixed question of law and fact which had congregated certain factual controversies that were neither based on facts virtuously nor unreservedly grounded in the law, thus required both legal and factual appraisal and exploration for the proper determination of the appeals---Petitions for leave to appeal were converted into appeals and allowed, the impugned orders of the Tribunal were set aside to the extent of present petitioners, and the matter was remanded to the Tribunal to consider all relevant questions afresh and decide the service appeals of the present petitioners in accordance with the law after affording a fair opportunity of hearing to the parties.

(b) Administration of justice---

----Procedural law---Scope---Procedure is a mere device with the object to facilitate and not to obstruct the administration of justice, therefore, to advance the cause of justice, any technical construction of law or rules that leaves no room for reasonable elasticity of interpretation should be guarded against and any construction which reduces the statute to a futility must be avoided.

Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 ref.

Sadar-ud-Din Buriro, Advocate Supreme Court for Petitioners.

Kafeel Ahmed Abbasi, Addl. A.G., Sindh, Javed Ali Khawaja, Focal Person (Litigation) and Syed Abid Ali, Director (HR), Education and Literacy Department, Government of Sindh for Respondents.

2024 S C M R 1871

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ and Naeem Akhtar Afghan, J

Syed FAIZAN E RASOOL---Petitioner

Versus

The LAHORE HIGH COURT, LAHORE through Registrar---Respondent

Civil Petition No. 2243 of 2024, decided on 29th August, 2024.

(Against the judgment dated 25.04.2024 of the Punjab Subordinate Judiciary Service Tribunal, Lahore passed in Service Appeal No. 15 of 2023).

Civil Service Rules (Punjab)---

----R. 8.129 & Appendix 20, Clause 7---Revised Leave Rules, 1981, Rr. 9 & 15---Civil Judge---Study leave for judicial officers---Policy---Admission in LLM programme at a foreign university---Petitioner, who was a Civil Judge, secured admission to the LLM programme of studies offered by two foreign universities---However, vide Lahore High Court's letter it was conveyed to him that the Administration Judge had declined to grant him requisite permission, and had instead advised that the petitioner may obtain the same degree from a local university---Against the decision of the Administration Judge the petitioner filed Service Appeal before the Punjab Subordinate Judiciary Service Tribunal ('the Tribunal'), which through the impugned judgment maintained the decision of the Administration Judge---Validity---No reason for declining permission to the petitioner was given---If, though it was not stated, his services were required then this was not stated; in any case this could not be a reason because he was advised to obtain the same degree from a local university---Impugned judgment upheld the decision of the Administration Judge, by stating that, "in this case the authority is not persuaded to exercise discretion for a number of reasons."---However, not a single reason was cited in the impugned judgment of the Tribunal nor in the decision of the Administration Judge and none had been cited by the Registrar of the Lahore High Court---Therefore, the said decision and the impugned judgment were not sustainable---Petitioner had been rendering service as a judicial officer for over ten years; he wanted to improve his legal qualification in his field of work by wanting to do an LLM, and had obtained admission and scholarship---Lahore High Court, therefore, would not have incurred any expenditure on his travel, lodging and payment of fees---Petitioner was also not close to retirement and was prepared to sign the requisite undertaking/bond---Undoubtedly, better qualified judicial officers would be an asset to the judiciary, and by utilizing their additional training and the knowledge they acquired, they would be better placed to dispense justice---Petition was converted into an appeal and allowed, and impugned judgment as well as the decision of the Administration Judge were set-aside with the direction that if the petitioner could no longer avail the admission and scholarship in the coming academic year he would be entitled to do so in the next, or any future year---Supreme Court observed that a clear, equitable and transparent policy with regard to study leave of judicial officers may be formulated by the High Court, which should then be applied uniformly, and if a judicial officer secured admission in a reputable foreign university on scholarship basis in the field of law or related discipline and fulfilled the stipulated criteria, including having served for the prescribed minimum number of years, was not close to retirement, there was no financial outlay by the High Court and was not facing disciplinary proceedings then permission should not be withheld, unless there was some good reason which was communicated to him/her.

Petitioner in person.

Shahid Latif, Deputy Registrar, Lahore High Court, Lahore for Respondent.

Muhammad Mumtaz Ali, Additional Advocate-General, Punjab on Court Notice for Government of Punjab.

2024 S C M R 1877

[Supreme Court of Pakistan]

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

WAQAR AHMED and others---Petitioners

Versus

The FEDERATION OF PAKISTAN through Cabinet Secretariat, Establishment Division, Islamabad and others---Respondents

Civil Petitions Nos. 278-K and 279-K of 2022, decided on 2nd August, 2024.

(Against the judgment dated 03.12.2021 passed by High Court of Sindh, Karachi in C.Ps. Nos. D-3081 and D-4120 of 2019).

(a) Constitution of Pakistan---

----Art. 199---Employment---Regularization in service---Constitutional jurisdiction of the High Court---Scope---Claim of regularization of service must be recognized through some law and/or policy across the board with certain parameters and procedure in any organizational and administrative structure for its enforcement---For regularization of service of contractual employees, writ only lies if it is permissible under some law and policy decision across the board, provided that the said organization is amenable to the writ jurisdiction of the High Court under Article 199 of the Constitution.

Faraz Ahmed v. Federation of Pakistan through Secretary, Ministry of Communications, Government of Pakistan 2022 SCMR 1680 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Extraordinary jurisdiction under Article 199 of the Constitution is used to dispense expeditious remedy in cases where the illegality or impropriety of an impugned action can be established without any exhaustive inquisition or recording of evidence, but if some convoluted or disputed question of facts are involved, the adjudication of which can only be determined by the Courts of plenary jurisdiction after recording evidence of the parties, then the High Court cannot embark on such factual controversy.

(c) Constitution of Pakistan---

----Art. 199---Employees engaged through a contractor---Regularization in service sought---Disputed questions of fact---Constitutional petition---Maintainability---In the present case certain fundamental issues were congregated which needed to be established and resolved; that is to say, whether the petitioners (employees) were actually employed by the contractor and, despite this engagement, whether they could claim regularization or permanency in their jobs as employees of Karachi Port Trust (KPT); and whether the outsourcing arrangement between KPT and the contractor was genuine or was based on a sham-arrangement to circumvent the obligations and benefits arising from labour laws; and finally, whether the petitioners, by serving several years against permanent posts, without any gaps, had attained the status of permanent workers by virtue of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---All these crucial disputed questions or factual controversies could not be decided by the High Court in the writ jurisdiction---Petitions for leave to appeal were disposed of.

(d) Constitution of Pakistan---

----Art. 199---Employment---Constitutional petition filed by employee of an organization having no statutory rules of service---Maintainability---Writ does not lie under Article 199 of the Constitution against an organization having no statutory rules of service.

Malik Naeem Iqbal, Advocate Supreme Court and M. Iqbal Chaudhary, Advocate-on-Record for Petitioners.

Khaliq Ahmed, D.A.G. for the Federation.

Ahmed Pervaiz, Advocate Supreme Court and Syed Imtiaz Shah, Legal Head (KPT) for Respondent No.3.

M. Saleem Thapadewala, Advocate Supreme Court for Respondent No.4 (Acquatech).

2024 S C M R 1883

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Munib Akhtar and Shahid Waheed, JJ

LIAQUAT ALI KHAN---Appellant

Versus

MUHAMMAD AKRAM and another---Respondents

Civil Appeal No.431 of 2021, decided on 19th May, 2023.

(On appeal against the judgment dated 10.03.2021 passed by the Islamabad High Court, Islamabad in R.F.A.No.163 of 2018).

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

----S. 12---Suit for specific performance of agreements to sell---Vendee/plaintiff failing to prove his readiness and willingness to perform his obligations under the agreements---Effect---First reason which prevailed with the Trial Court in decreeing the suit of the plaintiff (vendee) was that defendant (vendor) had not obtained a No Demand Certificate for the house, which was held to be a condition for transfer of the house---However there was no clause in the agreements which obliged defendant to obtain such a certificate before the transfer---Regardless to this position, the evidence available on record showed that defendant had in fact obtained a No Demand Certificate from the relevant Authority, regarding property tax, water and allied charges---Defendant also produced the receipt for payment of property tax and a copy of letter from the Directorate of the Authority regarding request for issuance of NOC---Secondly, the plaintiff's claim that he had issued a legal notice to the defendant asking him to obtain an NOC from the Authority and transfer the house to him, appeared to be an abortive attempt to cover up his default because he had not produced any postal receipt showing its dispatch, which was essential particularly when defendant had denied receiving of such notice in his written statement---Thirdly, to prove readiness and willingness to perform an obligation to pay the second installment of Rs.5,000,000/- in terms of agreements, the plaintiff was under burden to adduce evidence to show availability of funds to make such payment in time, or if he did not have sufficient funds to meet his obligation, he had to prove how the funds would be available to him---No such evidence was brought on record by the plaintiff---Therefore, even assuming that defendant had committed breach, since the plaintiff had failed to prove that he was always ready and willing to perform the essential terms of the agreements which were required to be performed by him, there was a bar to specific performance in his favour---Appeal was dismissed accordingly.

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

----S. 22---Specific performance, remedy of---Equitable remedy---Remedy by way of specific performance is equitable and it is not obligatory on the Court to grant such a relief merely because it is lawful to do so---Section 22 of the Specific Relief Act, 1877 expressly stipulates so.

Zulfiqar Ali Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Tariq Mehmood, Sr.Advocate Supreme Court for Respondent No.1.

Mrs. Bushra Qamar, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondent No.2.

2024 S C M R 1887

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Naeem Akhtar Afghan and Aqeel Ahmed Abbasi, JJ

ALL PUBLIC UNIVERSITIES BPS TEACHERS ASSOCIATION (APUBTA) through President---Petitioner

Versus

The FEDERATION OF PAKISTAN through Secretary Federal Education and Professional Training, Islamabad and others---Respondents

Constitution Petition No. 7 of 2024, decided on 29th August, 2024.

Constitution of Pakistan---

----Art. 184(3)---Constitution petition before the Supreme Court---Public Sector Universities---Posts of Vice-Chancellors, Pro Vice-Chancellors, Rectors, Presidents, Vice-Presidents, Registrars, Heads of Faculties and Departments, Controller of Examination, Director Finance and other tenured positions either lying vacant and/or held on acting charge basis---Legality---Public sector universities must comply with their respective laws, and if those in charge of them are disregarding the same for no justifiable reason, then they must demonstrate that they are still competent to hold their respective positions---Laws governing these universities require that the meetings of syndicates, senates, boards of governors and boards of trustees, as applicable, must be periodically held---Universities must not leave vacant important positions of vice-chancellors, presidents, vice presidents, registrars, heads of faculties and departments, controller of examination and director finance as in doing so they contravene the applicable laws---This state of affairs whereby the law is disregarded cannot be allowed to continue---Considerable amount from the public exchequer is spent on public sector universities---These universities must abide by their respective laws---Unfortunately, many are being run in contravention of their laws on the personal whim of those placed in charge thereof---These transgressions adversely affect academics, the reputation and standing of Pakistani universities and also undermine the degrees awarded by them---Supreme Court directed that copies of present order be sent to the respective Vice Chancellors/Rectors and to all those not compliant who shall submit within two weeks of the receipt of the notice their response under their own signatures explaining why they are not complying with the law governing their university and why appropriate actions may not be recommended to be initiated, or be initiated, as the case may be, against them, and they shall also be in attendance on the next date of hearing---Supreme Court observed that Higher Education Commission (HEC) has prescribed an ideal ratio of academic to non-academic staff to be 1:1.5, which nearly all universities are failing to abide by in that the non-academic staff far exceeds the said ratio; that this appears to be one of the reasons for the financial problems being faced by the universities---Supreme Court directed that the Federation, Provinces and the Islamabad Capital Territory shall submit whether directions have been issued to ensure that the universities restrict/stop further employment of non-academic staff.

Umer Ijaz Gilani, Advocate Supreme Court for Petitioner assisted by Muhammad Alee, Advocate.

Malik Javed Iqbal Wains, Additional Attorney-General for Pakistan, Abdul Sattar Khokhar, Sr. Joint Secretary, Ministry of F.E & P.T. and Dr. Agha Haider, Deputy Director, (Legal), Ministry of F.E & P.T. for Respondents Nos. 1-2.

M. Nazir Jawwad, Advocate Supreme Court, Nazeer Hussain, Director-General, Coordination H.E.C., Ahad Mehmood Raza, Assistant Director (Law), H.E.C. for Respondent No. 3.

Waseem Mumtaz Malik, Additional Advocate-General, Punjab and Muhammad Rehman, Sr. Law Officer, HED, Lahore for Respondent No. 4.

Shah Faisal Utmankhail, Advocate-General, KP, Shah Faisal Ilyas, Additional Advocate-General, KP., Ghulam Saeed, Special Secretary, HED, KP and Asif Khan, Litigation Officer, HED, KP for Respondent No. 5.

Hassan Akbar, Advocate-General, Sindh, Jawad Dero, Additional Advocate-General, Sindh and Feroze A. Mahar, Director for Respondent No. 6.

Muhammad Ayaz Swati, Additional Advocate-General, Balochistan, Jehanzeb Mandokhail, Addl. Secretary, Colleges, HED, Balochistan for Respondent No. 7.

Asif Sohail, Director Legal for Ministry of Health.

Najeeb Mandokhail, Section Officer for Ministry of Science and Technology.

Parasmahesar, Section Officer for Ministry of Kashmir Affairs and Gilgit Baltistan.

2024 S C M R 1896

[Supreme Court of Pakistan]

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

JAVED ALI and another---Petitioners

Versus

INSPECTOR GENERAL OF POLICE, SINDH and others---Respondents

Civil Petitions Nos. 499-K and 519-K of 2023, decided on 6th August, 2024.

(Against the order dated 27.02.2023, passed by the Sindh Service Tribunal, Karachi in Appeals Nos. 454 and 455 of 2020).

Civil service---

----Police officials---Dismissal from service---Allegation of being overage at the time of appointment---No opportunity of personal hearing provided---No enquiry conducted to establish deceitfulness on part of dismissed police officials---Admittedly neither any right of personal hearing was afforded nor was any inquiry conducted to prove whether the petitioners secured their appointments lawfully or unlawfully or in a deceitful manner, and whether they were solely responsible without any lapses or slip-ups of the personnel deployed in the recruitment process -- Petitioners were awarded the major penalty of dismissal from service without any individual departmental inquiry and affording any right of audience---Moreover, a specific plea was taken by the petitioners before the Tribunal that their similarly placed colleagues were reinstated afterwards, but this benefit was not afforded to the petitioners who had been discriminated against---Neither this vital contention was appreciated nor the respondents were called upon to verify or comment on it to dislodge or disentangle the plea of discrimination---Petitioners were not appointed through any illegal or fake recruitment process, rather there was an issue of being overage, which was intimated to them after about 4 to 6 years from the date of their induction in service and they had been made the victims of this overage issue without being intimated of any such defect at the time of applying for the job, and after serving 4 and 6 years respectively in the Police Department, the drastic action of dismissal from service was taken without giving any opportunity of personal hearing and conducting enquiry---There was no explanation by the department as to why their own recruitment procedure was so weak and vulnerable that it detected such flaw or deficiency after 4 to 6 years---There was nothing on record with regards to the present petitioners which may show that they managed their appointment through some illegal means or committed any fraud---According to the petitioners, there was also a conflict and disagreement on the exact age of the petitioners at the time of making application for joining the recruitment process and the age intimated by the law officer during the course of arguments which also needed to be resolved---Furthermore, while dismissing the petitioners from service after they served a considerable length of service, the department also failed to advert to the possibility of age relaxation, if any, available under the law, in view of Government Policy or Notification in vogue for any ex-post facto approval---Petitions were converted into appeals and allowed, the impugned order was set-aside and the matter was remanded to the Tribunal to decide the appeals of petitioners on merits after providing equal opportunity of hearing to the parties.

Petitioners in persons (in both cases).

Sibtain Mehmood, Additional Advocate General, Sindh, Mushtaq Ahmed Abbasi, A.I.G. (Legal) and Muhammad Ghaffar, D.S.P. Legal Nawaz Ali, D.S.P. Legal, Benazirabad for Respondents.

2024 S C M R 1902

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Naeem Akhtar Afghan and Aqeel Ahmed Abbasi, JJ

ABDUL REHMAN KHAN KANJU and others---Petitioners

Versus

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

Civil Petitions Nos. 1573, 1673, 1729, 1767 and 2433 of 2024, decided on 12th August, 2024.

(Against the judgments dated 05.03.2024, 16.04.2024, 24.04.2024 and 15.05.2024 of the Lahore High Court, Lahore and Lahore High Court, Bahawalpur Bench passed in Writ Petitions Nos. 1333, 16416, 19091 and 23249/24 and I.C.A. No. 29/24 respectively).

Per Qazi Faez Isa, CJ; Naeem Akhtar Afghan, J. agreeing; Aqeel Ahmed Abbasi, J. dissenting. [Majority view]

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Disputed facts---In respect of disputed facts as a general rule the High Courts do not exercise writ jurisdiction under Article 199 of the Constitution.

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

----S. 95(5)---General Elections 2024---Recounting of ballot papers on orders of the Election Commission of Pakistan---Legality---Returning Officer and Election Commission of Pakistan, powers of---Whether consolidation of results had been completed before the recounting of ballots---Held, that counting and the recounting of ballot papers is not a judicial or even a quasi-judicial act---It is an administrative-ministerial act---Only prerequisite to undertake it is for the Returning Officer to simply determine the percentile/numerical difference between the first two candidates, upon receipt of an application requesting recount---In the present cases/petitions it was admitted that applications seeking recount were submitted in respect of all four constituencies and that the difference in the margin of victory between the first two candidates was well within the stipulated percentile/number as prescribed in section 95(5) of the Elections Act, 2017---Returning Officer did not in any of the present cases state that the consolidation of results had already taken place and, therefore, the application seeking recount of the ballot papers could not take place---Application seeking recount in respect of one constituency was dismissed holding that it was not maintainable without giving any reason for its non-maintainability---In respect of another constituency it was stated that the applicant had failed to substantiate his claim, but it was not stated what he was required to substantiate and later the Returning Officer stated that recounting could not take place because a mob had gathered which had prevented him to recount the ballot papers---In respect of another constituency the Returning Officer rejected the recount application stating that the applicant had failed to establish his claim and that a mob had gathered which had prevented him to recount the ballot papers---In respect of the Provincial Assembly constituency superfluous reasons were given by the Returning Officer in rejecting the application seeking recounting of the ballot papers---Returning Officers cannot surrender their powers to mob rule nor can forego their statutory duty to recount---If this is accepted it would create a very dangerous precedent and render the law regarding recounting meaningless by those resorting to lawlessness---This would also deprive the candidate seeking recount of the ballot papers of this statutory right/remedy---As regards the contesting respondents' contention that the consolidation of results had already taken place when the applications seeking recount of ballot papers were submitted, no proof was tendered to show that this was done pursuant to the law---Section 95(1) of the Elections Act requires the Returning Officer to give to all contesting candidates and to their election agents 'a notice in writing of the day, time and place fixed for the consolidation of the results'---Contesting respondents, who had filed the petitions in the High Court, did not produce the requisite notices given by the Returning Officer, nor did they produce them before the Supreme Court---When the petitioners' allege that the notices were not issued it cannot be assumed that the requisite notices regarding consolidation had been given, as stated by the contesting respondents---Petitions were converted into appeals and allowed by setting aside the impugned judgments and dismissing the writ petitions filed before the High Court.

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

----Ss. 95(5), 139 & 155---Constitution of Pakistan, Art. 199---General Elections 2024---Recounting of ballot papers on orders of the Election Commission of Pakistan---Returning Officer and Election Commission of Pakistan, powers of---Constitutional petition filed before the High Court against the recounting of ballot papers under section 95(5) of the Elections Act, 2017---Maintainability---High Court's jurisdiction under Article 199 of the Constitution can only be invoked if a petitioner is an 'aggrieved' person---It is not understandable how anyone can be stated to be aggrieved if the ballot papers are recounted---Grievance against the administrative-ministerial act of recounting of ballot papers is also not envisaged in Article 199---If a Returning Officer does not do an honest recount or does not do the recount in accordance with the law, then the affected party has available remedies---Depending upon the particular facts of the case this could be by approaching the Election Commission of Pakistan ('the Commission') or filing an election petition before the Election Tribunal---Thereafter, the jurisdiction of the Supreme Court can also be invoked---In present cases the difference in the margin of victory was well within the stipulated percentile/number provided under section 95(5) of the Elections Act, 2017---Nonetheless, the contesting respondents challenged the order of the recount and/or challenged the result of the recount by filing writ petitions in the High Court under Article 199 of the Constitution---High Court overlooked the constitutional preconditions before exercising jurisdiction under Article 199 of the Constitution, which were that the petitioner must be aggrieved and must not have other adequate remedy; on both these counts the writ petitions were not maintainable---Contesting respondents who had invoked the jurisdiction of the High Court could not be considered to be aggrieved by the administrative-ministerial act of recounting---Moreover, they had other adequate remedy---Therefore, the two prerequisites (aggrieved person and absence of adequate remedy) necessary to invoke Article 199 were not met---Election Commission was also not coram non judice nor lacked jurisdiction in ordering the recount---Petitions were converted into appeals and allowed by setting aside the impugned judgments and dismissing the writ petitions filed before the High Court.

Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396; Ghulam Mastafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Bartha Ram v. Mehar Lal Bheel 1995 SCMR 684; Nayyar Hussain Bukhari v. District Returning Officer PLD 2008 SC 487; Muhammad Hussain Babar v. Election Commission of Pakistan PLD 2008 SC 495; Aftab Shahban Mirani v. Muhammad Ibrahim PLD 2008 SC 779; Aurangzeb Khan v. Election Commissioner of Pakistan PLD 2010 SC 34; Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681; Ameer Haider Sangha v. Sumaira Malik 2018 SCMR 1166; Mujib-ur-Rehman Muhammad Hassani v. Returning Officer PLD 2020 SC 718 and Zulfiqar Ali Bhatti v. Election Commission of Pakistan 2024 SCMR 997 ref.

Per Aqeel Ahmed Abbasi, J.; dissenting with Qazi Faez Isa, CJ. [Minority view]

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

----Ss. 8, 95(5) &139---Constitution of Pakistan, Art. 218(3)---General Elections 2024---Recounting of ballot papers on orders of the Election Commission of Pakistan---Legality---Returning Officer and Election Commission of Pakistan, powers of---Whether consolidation of results had been completed before the recounting of ballots---Held, that in all the present petitions/cases, admittedly, the process of conducting the election was completed as the final results were consolidated and the names of the returned candidates were published in the official gazette, therefore, any dispute relating to the election, thereafter, including recount of votes under Section 95(5) of the Elections Act, 2017 ('the Elections Act') could not have been referred or taken cognizance by the Commission under the purported exercise under Article 218(3) of the Constitution read with Section 8 of the Elections Act and, instead, it could have been agitated by filing election petition(s) under Section 139 of the Elections Act before the Election Tribunal already constituted in terms of Section 140 of the Elections Act---After consolidation of the results in terms of Section 95 and on receipt of the final consolidation results from the Returning Officer, and the declaration of results by the Commission in terms of Section 98 of the Elections Act i.e. after completion of the election process, any dispute relating to elections could not have been agitated before or taken cognizance of by the Election Commission which was denuded of such authority and had became functus officio---Similarly, provisions of Section 95(6) of the Elections Act reflect that the Election Commission, for reasons to be recorded, can direct the Returning Officer to recount the ballot paper of one or more polling stations, however, before conclusion of consolidation proceedings and not thereafter, as had been done in the present cases--- Therefore, orders passed by the Election Commission for recount of polls after completion of election process were coram non judice and without jurisdiction, whereas, an alternate remedy was available to the petitioners for filing election petition before the Election Tribunal duly constituted for such purpose under the law---Impugned judgments/orders passed by the High Court did not suffer from any factual error or legal infirmity, therefore, did not require any interference by the Supreme Court---Accordingly petitions were dismissed and leave to appeal was refused.

Zulfiqar Ali Bhatti v. Election Commission of Pakistan 2024 SCMR 997 ref.

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

----Ss. 8, 9, 95(5) & 98---Constitution of Pakistan, Arts. 199, 218(3) & 225---General Elections, 2024---Recounting of ballot papers on orders of the Election Commission of Pakistan after consolidation of results---Constitutional petition filed before the High Court against the recounting of ballot papers---Maintainability---Where no legal remedy is available to an aggrieved party during the process of election or after its completion, against such order of the election functionaries which is patently illegal/without jurisdiction and the effect is to de-franchise a candidate, he can press into service constitutional jurisdiction of the High Court---In the present cases the authority and the jurisdiction of the Election Commission of Pakistan ('the Commission') to entertain the application/petition (for recount of ballot papers) was challenged before the different Benches of the High Court by filing writ petitions under Article 199 of the Constitution, therefore, the High Court was fully justified to examine the jurisdiction and illegality as to whether, the orders passed by the Commission after consolidation of results and issuance of Notification by the Commission, under the purported exercise of Sections 8, 9 and 95 of the Elections Act, 2017 read with Article 218(3) of the Constitution were without jurisdiction and lawful authority or otherwise---While passing the impugned judgments/orders in the writ petitions, the High Court neither entertained nor decided any election petition or dispute as contemplated under the Elections Act---On the contrary, it decided a fundamental question posed for determination relating to the scope and extent of the jurisdiction vested in the Commission, after final consolidation of the results and issuance of Notification of the returned candidate under Section 98 of the Elections Act, and also the forum, wherein, the remedy could have been sought in respect of dispute relating to recount of the ballot papers under Section 95 of the Elections Act, therefore, any objection with regard to maintainability of the constitutional petition before the High Court, while referring to provision of Article 225 of the Constitution, was misconceived---Impugned judgments/orders passed by the High Court did not suffer from any factual error or legal infirmity, therefore, did not require any interference by the Supreme Court---Accordingly petitions were dismissed and leave to appeal was refused.

Aftab Shahban Mirani and others v. Muhammad Ibrahim and others PLD 2008 SC 779; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge and others 1994 SCMR 1299 and Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 ref.

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

----S. 95(5) [as substituted vide the Elections (Second Amendment) Act, 2023]---Recounting of ballot papers---Returning Officer, powers of---Scope---Counsel for the petitioners contended that in view of the amendment in Section 95(5) of the Elections Act, 2017, vide the Elections (Second Amendment) Act, 2023, whereby, while omitting the words "Returning Officer considers such request as not unreasonable" the discretion vested in the Returning Officer for the recount of the ballot papers had been taken away, and, therefore, under the amended provisions, the Returning Officer had no discretion to refuse the recount of poll if the requirements as mentioned under Section 95(5)(a) and (b) were met---Validity---Petitioners had misinterpreted Section 95(5) of the Elections Act as it stood post Elections (Second Amendment) Act, 2023---As an effect of the Amendment brought about in August, 2023, the Returning Officer's discretion to out rightly refuse any application on the basis of it being "unreasonable" was taken away by the legislature, however, he still enjoys the powers to entertain an application and either to accept or reject the same on the basis of the record as well as the merits of each case at hand---Words of Section 95(7) of the Elections Act employ the words "provided where the Returning Officer recounts" clearly show that the Returning Officer has discretion as to whether he will accept or reject the application from a contesting candidate regarding recount of votes---It cannot be the intention of the legislature to treat the office of a Returning Officer as a post office, where, on mere receipt of application(s) for the recount of polls, even without disclosing any valid reasons or instances of malpractice etc., he shall allow the same in a mechanical manner, without any application of mind, whereas, such order is appealable before the Election Tribunal through election petition---If no discretion is left with the Returning Officer, then it will render the whole election process in respect of all the constituencies at thousands of polling stations subject to recount on merely filing application(s) to this effect, and would thus bring the entire election process under serious dispute---Impugned judgments/orders passed by the High Court did not suffer from any factual error or legal infirmity, therefore, did not require any interference by the Supreme Court---Accordingly petitions were dismissed and leave to appeal refused.

Mir Mujib-ur-Rehman Muhammad Hassani v. Returning Officer and others PLD 2020 SC 718 ref.

M. Shahzad Shaukat, Advocate Supreme Court assisted by Raza-ur-Rehman, Advocate High Court for Petitioners (in C.Ps. Nos. 1573 and 1673 of 2024).

M. Ahsan Bhoon, Advocate Supreme Court and Waqas Ahmed Mir, Advocate Supreme Court for Petitioners (in C.P. No. 1729 of 2024).

M. Umer Riaz, Advocate Supreme Court for Petitioners (in C.P. No. 1767 of 2024).

Taimoor Aslam Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No.2433 of 2024).

Hamid Khan, Senior Advocate Supreme Court, Ajmal Ghaffar Toor, Advocate Supreme Court, assisted by Haider Bin Masud, Advocate for Respondent No. 3 (in C.P. No. 1573 of 2024).

Hamid Khan, Senior Advocate Supreme Court, Mian Abdul Rauf, Advocate Supreme Court and Waqar Rana, Advocate Supreme Court for Respondent No. 3 (in C.P. No. 1673 of 2024).

Sh. Usman Karim-ud-Din, Advocate Supreme Court and Arshad Nazir Mirza, Advocate Supreme Court for Respondent No. 1 (in C.P. No.1729 of 2024).

M. Ahmed Pansota, Advocate Supreme Court for Respondent No. 4 (in C.P. No. 1767 of 2024).

M. Taufiq Asif, Advocate Supreme Court for Respondent No. 1 (in C.P. No.2433 of 2024).

M. Arshad, DG (Law), ECP and Falak Sher, Legal Consultant for ECP (in all cases).

2024 S C M R 1945

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan and Naeem Akhtar Afghan, JJ

ALI GOHAR KHAN---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and others---Respondents

Civil Petition No.2477 of 2024, decided on 21st August, 2024.

(On appeal against the order dated 22.05.2024 of the Lahore High Court, Lahore passed in W.P. No. 24978 of 2024).

Elections Act (XXXIII of 2017)---

----S. 95(5)---General Elections, 2024---Recounting of ballot papers on the directions of the Election Commission of Pakistan---Legality---Petitioner-candidate claimed that he had given the application for recounting of the votes to the Returning Officer (RO) on the morning of 9th February 2024 but the computer typed application for recounting of votes, relied upon by counsel for the petitioner did not bear any date and signature/thumb impression of the petitioner and in this regard no cogent reason/explanation was available on record---Counsel for the Election Commission of Pakistan (ECP) stated that the relevant record did not confirm receipt of the above application in the office of the RO before initiating the proceedings for consolidating the results of the count---In his written report/para-wise comments submitted before the ECP, the RO had categorically denied submission of application by the petitioner for recounting of the votes prior to commencement of the proceedings for consolidating the results of the count with the statement that the same was an afterthought---Petitioner had failed to prove that he had submitted application for recount of the votes on 9th February 2024 prior to the commencement of the proceedings for consolidating the results of the count---Hence, one of the pre-requisite for recounting the ballot papers under section 95 (5) of the Elections Act, 2017 i.e. submitting application for recounting before commencement of the proceedings of consolidating the results of the count, was not fulfilled by the petitioner---Thus, there was no occasion for the ECP to accept the representation of the petitioner and to issue directions to the RO for recounting the votes after consolidation of the results of the count on 10th February 2024---Petition was dismissed and leave to appeal was refused.

Abdul Rehman Khan Kanju and others v. Election Commission of Pakistan and others 2024 SCMR 1902 distinguished.

Hassan Raza Pasha, Advocate Supreme Court for the Petitioner.

Muhammad Arshad, D.G. Law and Falak Sher, Legal Consultant for the ECP.

Muhammad Latif Khan Khosa, Senior Advocate Supreme Court Syed Iqbal Hussain Shah, Advocate-on-Record for Respondent No.4.

2024 S C M R 1952

[Supreme Court of Pakistan]

Present: Amin-ud-Din Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Shahid Waheed, Irfan Saadat Khan and Shahid Bilal Hassan, JJ

FEDERATION OF PAKISTAN and another---Applicants

Versus

KARAMAT ALI and others---Respondents

C.M.As. Nos. 597 and 598 of 2024 in I.C.As. Nos. 16 and 24 of 2023, decided on 11th July, 2024.

(For rejection of the appeals on behalf of the Respondents Nos. 1 to 5).

Per Amin-ud-Din Khan, J.

(a) Rules of Business, 1973---

----R. 14(1A)---Supreme Court Rules, 1980, O. IV, R. 6---Federal Government, Provincial Governments and Ministries---Engaging private counsels to plead and conduct cases---Permissibility and legality---Counsel or the applicants argued that in light of judgment of the Supreme Court reported as Rasheed Ahmad v. Federation of Pakistan through Secretary Ministry of Information, Broadcasting and National Heritage, Government of Pakistan Islamabad, etc. (PLD 2017 SC 121) the Federation as well as Ministries cannot engage a private counsel, and simultaneously the Provincial Government also cannot engage a private counsel as in the matter in hand a private counsel had been engaged and appeals had been filed through them---Validity---In the judgment referred there was no closure of door for engaging a private counsel, as there was a way mentioned in the said judgment for engaging a private counsel---Furthermore after insertion of Rule 14(1A) in the Rules of Business, 1973 ('the Rules'), the power to engage a private counsel by a Division had been enhanced, though the Division was bound to follow the procedure provided under Rule 14(1A)---Attorney General for Pakistan ("AGP") apprised the Supreme Court with the record whereby the procedure had been adopted and complied with and the AGP also stated that there was no defect in engaging a private counsel---Supreme Court went through the case record cited by the AGP and found that the procedure provided in the Rules had been complied with---For filing a petition or an appeal before the Supreme Court the procedure for filing of an appeal is provided under Supreme Court Rules, 1980 and that is primarily filed through an Advocate-on-Record ("AOR")---In present appeals the AOR had been appointed by the concerned Division in accordance with the Rules, therefore, there was no defect in filing the same---Present appeals had been filed correctly through AOR and AOR could instruct the counsel to appear---Applications were dismissed.

Rasheed Ahmad v. Federation of Pakistan through Secretary, Ministry of Information, Broadcasting and National Heritage, Government of Pakistan Islamabad and others PLD 2017 SC 121 ref.

Per Shahid Waheed, J.; agreeing with Amin-ud-Din Khan, J.

(b) Rules of Business, 1973---

----R. 14 (1A)---Supreme Court Rules, 1980, O.IV, Rr. 6, 15 & Sixth Sched., Form No. 5---Federal Government, Provincial Governments and Ministries---Engaging private counsels to plead and conduct cases---Permissibility and legality---Compelling reasons for engaging private counsels in the public interest---Counsel or the applicants argued that in light of judgment of the Supreme Court reported as Rasheed Ahmad v. Federation of Pakistan through Secretary Ministry of Information, Broadcasting and National Heritage, Government of Pakistan Islamabad, etc. (PLD 2017 SC 121) the Federation as well as Ministries cannot engage a private counsel, and simultaneously the Provincial Government also cannot engage a private counsel as in the matter in hand a private counsel had been engaged and appeals had been filed through them---Validity---Several petitions were filed in the Supreme Court under Article 184(3) of the Constitution, challenging the lawfulness of sections 2(1)(d)(i) & (ii) and section 59(4) of the Pakistan Army Act, 1952---Federation of Pakistan was arrayed as one of the respondents in these petitions through various Ministries such as Defence, Interior, Law and Justice, etc.---Province of Balochistan was also a respondent in some petitions---After these petitions were allowed, intra-court appeals were filed under section 5 of the Supreme Court (Practice and Procedure) Act, 2023---Rule 15 of Order IV of the Supreme Court Rules, 1980 says that no Advocate other than an Advocate-on-Record is entitled to act for a party in any proceeding in the Supreme Court---For this reason, in the cases at hand, the Government had engaged Advocates-on-Record, and the applicants had not questioned their appointments and their right to act for the Government---Rule 6 of Order IV of the Supreme Court Rules, 1980 enacts that no Advocate other than an Advocate-on-Record shall appear or plead in any matter before the Supreme Court unless an Advocate-on-Record instructs him---In line with this rule, Form No.5 of Sixth Schedule to the Supreme Court Rules, 1980 provides a specimen of the Power of Attorney to Advocate-on-Record, which, among other things, gives power to an Advocate-on-Record "to appoint and instruct counsel"---So viewed, it was under this power that the Advocate-on-Record appointed and instructed private counsel to argue the matter on behalf of the Government---Substantive questions involved in the present appeals were out of the ordinary, with broad implications that would significantly impact the lives and liberties of citizens---These questions partake of the colour of criminal, constitutional and international human rights---Standing at the rostrum in the courtroom, the Attorney General for Pakistan (AGP) stated that although he was conversant with criminal law, he lacked that much expertise which required to address the complex questions of criminal law so raised in present appeals, and therefore, being compelled, private counsels had been engaged to render comprehensive and effective assistance to the Supreme Court in the public interest---Attorney General's honesty and sincerity in admitting his limitations was to be appreciated and his statement showed that he was a thorough professional---Thus, the engagement of private counsel was not for any improper motive---Furthermore, the scope of appeal under section 5 of the Supreme Court (Practice and Procedure) Act, 2023, was also to be settled, and since all the questions raised in present appeals had never been brought before the Supreme Court for consideration, they ought to be discussed extensively to arrive at a sagacious answer---Such a situation constituted a "compelling reason" within the contemplation of Rule 14(1-A) of the Rules of Business, 1973, for engaging private counsel---It also met the test set out in the case reported as Rasheed Ahmad v. Federation of Pakistan through Secretary Ministry of Information, Broadcasting and National Heritage, Government of Pakistan Islamabad, etc. (PLD 2017 SC 121) for engaging private counsel, which held that the engagement of a private counsel could only be sanctioned for compelling reasons and in the public interest and not to protect or save a particular individual or for any other ulterior reason---In the present case there had been no departure from the procedure for engaging private counsel---Private counsel, given the circumstances, could not be restrained from pleading the cause of the Government---Applications were dismissed accordingly.

Rasheed Ahmad v. Federation of Pakistan through Secretary, Ministry of Information, Broadcasting and National Heritage, Government of Pakistan Islamabad and others PLD 2017 SC 121 ref.

Faisal Siddiqui, Advocate Supreme Court for Applicants (in both C.M.As.).

Mansoor Usman Awan, Attorney General for Pakistan for the Federation.

2024 S C M R 1959

[Supreme Court of Pakistan]

Present: Yahya Afridi, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

MUHAMMAD ASJAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 809-L of 2017, decided on 12th August, 2024.

(Against the judgment dated 20.04.2017 passed by the Lahore High Court, Lahore in Criminal Appeal No. 248 of 2016).

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

----Ss. 6(2)(ee), 7(1)(ff) & 27---Explosive Substances Act (VI of 1908), S. 5---Act of terrorism, possession of explosive substance without lawful justification---Re-appraisal of evidence---Presumption of proof against accused for possessing explosives without lawful justification---Sentence, reduction in---Mitigating circumstances---Record showed that the petitioner (convict) was apprehended having in his possession a substantial quantity (2.1 Kilograms) of material, which on examination by the Ballistic Expert was confirmed to be explosive substance, within the contemplation of the Explosive Substances Act, 1908 ('the Act') and the Anti-Terrorism Act, 1997 ("ATA")---Eye-witnesses produced by the prosecution, who testified the veracity of the said recovery, were public servants having no reason to falsely implicate the petitioner in a case of such a grave nature entailing punishment of life imprisonment---Coupled with the recovery, the prosecution witnesses were consistent in their statements regarding the safe custody and transmission of the recovered material in sealed sample parcel to the Forensic Science Agency---Trace Chemistry Analysis Report confirmed that the representative sample of the recovered material sent for forensic analysis was dynamite, a high explosive, thereby bringing the case against the petitioner within the mischief of the Act and the ATA---More importantly, the petitioner failed to provide any lawful justification for having explosive substance in his possession; he also could not establish the possibility of his false implication in the case---Prosecution had been able to prove through reliable evidence the recovery of the explosive substance from the direct possession of the petitioner thereby exposing him to the mischief of Section 27A of the ATA - presumption of a 'purpose of terrorism'---Failure of the petitioner to produce any evidence, leave alone of credence, of his lawful justification for the possession of explosive substance, showed that he was unable to rebut the presumption drawn against him - Guilt of the petitioner to have committed the offence of "terrorism" within the contemplation of Section 6(2)(ee) of the ATA had been proved to the hilt---However prosecution had been able to establish only recovery of the explosive substance without any live electric circuit from the direct possession of the petitioner, while he was present at a road junction, and that too, coupled with the fact that the petitioner lacked any prior criminal history---These were mitigating circumstances that warranted a reduced sentence---Therefore, while upholding petitioner's conviction under Section 7(1)(ff) of the ATA, the Supreme Court exercised its discretion to reduce his sentence of simple imprisonment for life to simple imprisonment for fourteen years under Section 7(1)(ff) of the ATA---Petition was converted into appeal and partly allowed.

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

----Ss. 6(2)(ee) & 27---Possession of explosive substance without lawful justification---Presumption of proof against accused---Possessing explosive substance, without lawful justification, is an act of "terrorism" under Section 6(2)(ee) of the Anti-Terrorism Act, 1997 ("ATA")---There is a clear and deliberate intention on part of the legislature to link the possession of explosives, in the absence of lawful justification, directly to the purpose of committing acts of terrorism---By establishing a rebuttable presumption of the 'purpose of terrorism' in Section 27A of the ATA, the legislature effectively shifted the burden of proof onto the accused, recognizing the inherent danger and potential for harm posed by the unauthorized possession of these destructive materials.

(c) Criminal law---

----Legal presumption in a statute---Scope---Legal presumption, and that too, in a criminal enactment having severe penal punishments, must be viewed and interpreted strictly and with due legal care.

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

----Ss. 6(1)(c) & 27---Possession of explosive substance without lawful justification---Burden of proof---Prosecution must first prove the factum of the accused's possession of explosive substance---Thus, once this fact of the accused's possession of explosive substance is proved by the prosecution, the onus would shift upon the accused to prove that the possession of explosive substance was for lawful justification or for lawful purpose---And in absence of any evidence produced by the accused in justification thereof, it would prove the contrary; an intention aligned with the requirement of purpose of "terrorism", as stipulated in Section 6(1)(c) of the Anti-Terrorism Act, 1997.

(e) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Keeping explosive with intent to endanger life or property, possessing explosives under suspicious circumstances---Re-appraisal of evidence---Sections 4 and 5 of the Explosive Substances Act, 1908 ('the Act')---Distinction---Both Sections 4 and 5 of the Act criminalize the act of possessing explosive substance, but under different circumstances---Joint reading of Sections 4 and 5 of the Act, clearly sets out that: the former relates to possession of explosive substance accompanied with a malicious intent to endanger life or cause serious injury to property; while the latter, on the other hand, criminalizes the mere possession of explosive substance, without there being any condition of the same being with a malicious intent to endanger life or cause serious injury to property---Notably the difference between Section 4 and Section 5 of the Act lies in malicious intent---In the present case, though an electric circuit was recovered from the possession of the petitioner (convict), but the prosecution failed to produce in evidence any ballistic opinion to confirm that the same was functional to trigger an explosive substance---This being so, the prosecution had not been able to establish that the petitioner had a malicious intent to endanger life or cause serious injury to property---Therefore, Section 4 of the Act was not applicable and attracted in the circumstances of the present case against the petitioner, and he could only be convicted for possessing the explosive substance under Section 5 of the Act---Accordingly, as prosecution had proved that the petitioner was in possession of explosive substance under suspicious circumstances and he could not show that he was in possession of explosive substance for a lawful object, the offence under Section 5 of the Act stood established---Petitioner was convicted under Section 5 of the Act and sentenced to simple imprisonment for seven years---Petition was converted into appeal and partly allowed.

Arif Mehmood Rana, Advocate Supreme Court for Petitioner (Via video-link, Lahore).

Muhammad Jaffar, Addl. P.G. Imran Baber, Inspector and Khalid Mehmood, S.I. for the State.

2024 S C M R 1968

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

RIZWAN RASHEED and another---Petitioners

Versus

The STATE---Respondent

J. P. No.193 of 2016, decided on 21st March, 2024.

(Against the judgment dated 04.02.2016 passed by the Lahore High Court, Rawalpindi Bench in C.S.R. No.5-T of 2011, Crl. As. Nos.182 and 186 of 2011).

Per Jamal Khan Mandokhail, J.; Musarrat Hilali, J. agreeing; Syed Hasan Azhar Rizvi, J. partially dissenting. [Majority view]

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

----Ss. 6(1), 6(2)(e), 7(1)(a) & Third Sched.---Penal Code (XLV of 1860), S. 365-A---Abduction or kidnapping for ransom---Whether an act of terrorism---In circumstances where an act of abduction or kidnapping for ransom is designed with a purpose or intent of terrorism, the action shall fall within the meaning of subsection (1) of section 6 of the Anti-Terrorism Act, 1997 ("ATA 1997") and is an offence under subsection (2)(e) of section 6 of the ATA 1997, triable by the ATC and punishable under section 7(1)(a) of the ATA 1997---Where there is no element of a design, purpose or intent of terrorism in the act of abduction or kidnapping for ransom, then irrespective of gravity, heinousness or shocking nature of the offence, committed in pursuance of personal interest, it shall not fall within the meaning of subsection (1) of section 6 of ATA 1997, rather, would be an offence under section 365-A, P.P.C.---However, in view of the fact that this offence has been included in the Third Schedule to the ATA 1997, therefore, it is triable only by the Anti-Terrorism Court (ATC), to the exclusion of any other court, merely for the purpose of speedy trial---Under such circumstances, the accused has to be charged and tried only under section 365-A, P.P.C.---Cases mentioned in Entry No. 4 of the Third Schedule to the ATA 1997 are triable by the ATC because of its heinousness, but cannot be considered as an act of terrorism, unless the ingredients of section 6(1) of the ATA 1997 are fulfilled. [pp. 1973, 1975] A & C

Ghulam Hussain's case PLD 2020 SC 61 ref.

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

----Ss. 6(2)(e), 7(1)(a), 7(1)(e) & 21-I---Penal Code (XLV of 1860), Ss. 302(b) & 365-A---Abduction for ransom, qatl-i-amd---Re-appraisal of evidence---Whether act of terrorism---In the case in hand, the complainant in the FIR and in his statement recorded on oath before the Trial Court, had simply stated that his son was abducted by unknown persons, who contacted him and had demanded ransom---Neither the complainant nor the prosecution witnesses described the act of the petitioners (accused persons) as an act of terrorism---Even there is nothing on the record, connecting the petitioners in any manner with terrorist activities or having any link or nexus with any terrorist organization in order to constitute the offence of terrorism---Moreover, at any stage of the proceedings, the prosecution did not allege that the petitioners abducted the abductee with a design, purpose or intent of terrorism---Without there being mens rea of the petitioners to do an act of terrorism, their action of abduction for ransom simplicitor fell within the ambit of section 365-A, P.P.C., instead of section 6(2)(e) of the Anti-Terrorism Act, 1997 ("ATA 1997")---Fora below had erred in law by mis-appreciating the evidence, hence had wrongly considered the action of the petitioners as an act of terrorism---Jail petition was converted into appeal and partly allowed, the convictions and sentences awarded to the appellants under sections 7(1)(a), 7(1)(e) & 21-I of the ATA, 1997 through the impugned judgment were set aside and they were acquitted of the charge under the said penal heads.

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

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(e), 7(1)(a), 7(1)(e) & 21-I---Qatl-i-amd, abduction for ransom, common intention---Re-appraisal of evidence---Compromise between legal heirs of deceased and accused persons---Prosecution had produced confidence inspiring evidence to bring home the guilt of the petitioners---Complainant reiterated the contents of the FIR---According to two prosecution witnesses they lastly saw the deceased son of the complainant in the company of the petitioners---Statements of last seen witnesses, recovery of the taxi car used for abduction, recovery of the dead body on the pointation of the petitioners and the medical evidence lent support to the prosecution case---Witnesses were thoroughly cross examined by the defence counsel, but they remained firm on all material aspects of the case---Under such circumstances, the prosecution had successfully proved its case against the petitioners to the extent of offence under sections 365- A and 302(b), P.P.C.---Since the prosecution had failed to establish the mens rea of the petitioners for committing the act of terrorism, the provisions of the Anti-Terrorism Act, 1997 were not attracted---Conviction and sentence for life awarded to the appellants under section 365-A, P.P.C. shall remain intact, whereas compromise application filed by the legal heirs of deceased was allowed and the compromise was accepted---Consequently, the convictions and sentences awarded to the appellants under sections 302(b) and 34, P.P.C. were set aside, and they were acquitted of the charge under the said penal heads---Jail petition was converted into appeal and partly allowed.

Per Syed Hasan Azhar Rizvi, J.; partially dissenting with Jamal Khan Mandokhail, J. to the extent of non-applicability of provisions of Anti-Terrorism Act, 1997 [Minority view]

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

----Ss. 6(2)(e), 7(1)(a), 7(1)(e) & 21-I---Penal Code (XLV of 1860), Ss. 302(b) & 365-A---Abduction for ransom, qatl-i-amd---Re-appraisal of evidence---Whether act of terrorism---In the present case a college student was firstly abducted and then brutally murdered and his dead body was thrown away which caused terror amongst all students who leave their homes in early morning to get an education and return home by afternoon---Such offences should be dealt with iron hands by the state---Although ordinary cases of abduction for ransom do not fall within ambit of Anti-Terrorism Act, 1997 ("ATA"), however, present case was not an ordinary one---This was because, firstly a student was abducted in broad day light, then he was brutally murdered and his dead body was thrown away---Abduction and brutal murder of a student is indeed a horrific and tragic event---Such acts not only causes immense sorrow to the victim's family and loved ones but also instill fear and insecurity amongst the public---Applying the ATA sends a strong message that such acts will not be tolerated, and those responsible will be held accountable to the fullest extent of the law---It also reassures the public that authorities are taking decisive action to protect their safety and security---Given the gravity of the situation and the impact it has on society, provisions of the ATA were indeed attracted in the present case---Prosecution had produced sufficient incriminating material against the petitioners---Jail petition was dismissed.

Sh. Muhammad Amjad v. The State PLD 2003 SC 704 ref.

Ghulam Hussain's case PLD 2020 SC 61 distinguished.

(e) Criminal trial---

----Sentence---Purpose---Deterrence---Deterrence is a factor to be taken into consideration while awarding the sentence specially sentence of death.

Hamid Mehmood and another v. State 2013 SCMR 772 ref.

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

Irfan Zia, D.P.G. Punjab for the State.

2024 S C M R 1984

[Supreme Court of Pakistan]

Present: Munib Akhtar and Shahid Waheed, JJ

BASHIR AHMED (deceased) through his L.Rs. and others---Appellants

Versus

NAZIR AHMAD and others---Respondents

Civil Appeal No. 197-L of 2019 and C.M.As. Nos.3759 and 5618 of 2022, decided on 19th August, 2024.

1. C.A. No. 197-L of 2019

(Against the order dated 29.04.2019 passed by the Lahore High Court, Lahore in C.R. No.1657 of 2014).

1. C.M.A. No. 3759 of 2022 in C.A. 197-L of 2019

(For transposition of appellants Nos. 1-b, 2-a and respondents Nos. 3 and 4).

1. C.M.A. No. 5618 of 2022 in C.A. 197-L of 2019

(For impleadment as party)

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

----Ss. 9, 39, 42 & 54---Suit for declaration, cancellation of documents and possession along with perpetual injunction---Dispute between members of a family over distribution of assets---Family settlement---Purpose and significance of a family settlement and principles governing such settlements stated.

Members of a family descending from a common ancestor or a near relation can make an agreement to settle their dispute and divide their property either orally or in writing to foster peace within the family. A family settlement involves members of the same family striving to resolve their differences and disputes to achieve lasting resolution. Through these arrangements, family members aim to bring about harmony and goodwill, settling conflicting claims or disputed titles to promote peace within the family. Courts recognise the special significance of family arrangements and uphold them when made in good faith. This principle has been developed by courts over a long period of time to discourage litigation driven by greed, particularly in cases involving the distribution of family estates.

The principles governing family settlement or arrangements that may be deduced from case law and the law books may be outlined in the following form:

(i) The family settlement has to be genuine, bona fide and must aim to resolve family disputes and conflicting claims by ensuring a fair and equitable distribution or allocation of properties among all family members.

(ii) When an agreement is entered into to preserve the honour of a family and is reasonable, the Court will seize any justifiable reason to enforce the agreement and promote peace within the family.

(iii) The settlement must be made willingly and should not be influenced by fraud, social or familial pressure, and undue influence.

(iv) Like an oral contract, family settlements may well also be oral and if it is, no registration of the settlement is necessary.

(v) It is well established that registration of a family settlement is required only if the terms of the settlement are put into writing. However, it is important to distinguish between a document that includes the terms and details of a family settlement and a simple memorandum created after the arrangement has been made, intended either for record purposes or for informing the Court to effect necessary mutation. In such cases, the memorandum does not create or extinguish any rights in immovable property and, therefore, does not fall under the requirements of the Registration Act, 1908 making it not subject to compulsory registration.

(vi) In cases where the parties are not inclined to divide property permanently, they cannot be forced to do so. The decision to distribute the property is based on their own preferences, and it is considered a personal and family matter. In such situations, there is no requirement for registering such an agreement.

(vii) The members involved in the family settlement must have a pre-existing title, claim, or interest, even a potential claim, in the property that is recognised by all parties to the settlement. If one party lacks a title but, under the arrangement, another party relinquishes all claims or titles in favour of that person and acknowledges them as the sole owner, a preexisting title will be assumed. Consequently, the family arrangement will be upheld, and the Courts will readily endorse it.

(viii) A genuine and bona fide family settlement can resolve disputes, whether current or potential, even if they do not involve legal claims. As long as the arrangement is fair and equitable, it is final and binding on all parties involved.

(ix) Courts tend to favour maintaining the family arrangement rather than disturbing it on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal deficiency or a formal defect, the principle of estoppel is invoked and applied to turn down the plea of the person who, being a party to family arrangement, seeks to set aside a settled dispute, and claims to revoke the family arrangement under which he himself has received some material benefits.

(x) Family settlements are not governed by principles that apply to dealings between strangers. When deciding the rights of party under the family settlement or claims to upset such settlement, the Court considers what, in the broadest view of the matter, is most for the interests of a family. Matters that would be fatal to the validity of a similar transaction between strangers are not objections to the binding effect of a family settlement or arrangement. [pp. 1998, 2000] B & D

Stapilton v. Stapilton (1558-1774) All ER 352; Gordon v. Gordon (1821) 3 Swans 400; Khunni Lal v. Gobind Krithna Narain (1911) 38 Ind. App. 87; Mt. Hiran Bibi v. Mt. Sohan Bibi AIR 1914 PC 44; Lalla Oudh Beharee Lall v. Ranee Mewa Koonwer (1868) 3 Agra HCR 82 at P.84; Mahomed Musa v. Aghore Kumar Ganguli 28 Ind. cas. 930 (1915); Musammat Hardei v. Bhagwan Singh 24 C.W.N. 105(1919) = 50 Ind. Case 812; Martin Cashin and others v. Peter J. Cashin AIR 1938 PC 103; Tek Bahadur Bhujil v. Debi Singh Bhujil AIR 1966 SC 292; Atta Hussain Khan v. M. Siddiqui Jan 1979 SCMR 630; Anwar Khan v. Abdul Manaf 2004 SCMR 1261; Jahanzeb and others v. Muhammad Abbas 1999 SCMR 2182; Allah Dad v. Duhman Khan 2005 SCMR 564; Honourable Mr. Justice Story, Commentaries on Equity Jurisprudence London: Stevens and Haynes (1892) P.79; Dennis Lane McDonnell John George Monroe, Kerr on the Law of Fraud and Mistake London: Sweet and Maxwell Limited (1952) P.168; Lord Mackay of Clashfern, Halsbury's Laws of England Fifth Edition, Volume 91 (2012), Para 903 and 906; Dudley Persse v. Henry Persse (1840) VII Clark and Finnelly 279; Jodrell v. Jodrell (1851), 14 Beav. 397 and Hoblyn v. Hoblyn (1889) 41 Ch. D. 200 ref.

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

----Ss. 182, 214 & 215---Power of Attorney---Principal and agent---Agent transferring/selling principal's property for his own benefit---Agent, duties of---Agent transferring the principal's property is obligated to firstly, in case of difficulty (and it will be a case of difficulty if a power of attorney is susceptible to doubt about its interpretation), use all reasonable diligence in communicating with the principal and seeking to obtain his instructions---Secondly, if the agent deals on his own account with the property under the agency, e.g., if he purchases it himself or for his own benefit, he, in his own interest, should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction.

Fida Muhammad v. Pir Muhammad Khan (Deceased) through Legal Heirs and another PLD 1985 SC 34; Jamil Akhtar v. Las Baba PLD 2003 SC 494; Muhammad Ashraf v. Muhammad Malik PLD 2008 SC 389; Amina Rani v. Ashfaq Ahmad 2008 SCMR 805 and Mst. Naila Kausar v. Sardar Muhammad Bakhsh 2016 SCMR 1781 ref.

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

----S. 17---Qanun-e-Shahadat (10 of 1984), Art. 17(2)(a)---Family settlement---Whether settlement document required registration and attestation by two witnesses---Held, that in the case at hand, a document detailing the distribution of properties was drafted---This document could be categorized as a family arrangement rather than a standard partition deed---Its contents revealed that the brothers initially reached an oral agreement regarding property distribution, which was then recorded in a memorandum---Property division outlined in the memorandum did not involve transferring property from one brother to another, nor did any brother derive their property rights from another---Instead, the arrangement embodied in the memorandum acknowledged the rights of each brother to specific properties listed under their names---How the properties were to be transferred from one brother to another was verbally settled among the four brothers, and general powers of attorneys were exchanged among all the brothers to give effect to this verbal agreement---Since the memorandum did not constitute a deed of transfer, gift, exchange, surrender, etc., it did not fall under the clauses of Section 17 of the Registration Act, 1908, which require registration---It also did not contain any financial or future obligations requiring attestation by two witnesses as per Article 17 of the Qanun-e-Shahadat, 1984---However, if the settlement were used as a document to create or declare rights in immovable property worth more than Rs.100, it would have needed attestation by two witnesses and also registration---It is important to note that, even though the memorandum was not registered, it was open for either party to prove that there had been a family settlement which was acted upon---Appeal was allowed.

Muhammad Akbar and others v. Province of Punjab through DOR, Lahore and others 2022 SCMR 1532 ref.

Mahmood Ahmad Bhatti, Advocate Supreme Court for Appellants/Applicants (in C.M.A. No.3759 of 2022).

Mudassar Khalid Abbasi, Advocate Supreme Court for Applicants (in C.M.A. No.5618 of 2022).

Muhammad Munir Paracha, Advocate Supreme Court, Rana Abid Nazeer, Advocate Supreme Court and Tariq Aziz Advocate-on-Record for Respondent No. 1.

Barrister Umer Aslam Khan, Advocate Supreme Court for Respondent No.2.

Nemo for Respondents Nos. 3 and 4.

2024 S C M R 2004

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

AHMAD ULLAH and others---Petitioners

Versus

DISTRICT EDUCATION OFFICER (MALE), BUNER and others---Respondents

Civil Petition No.6211 of 2021, decided on 27th October, 2023.

(Against the judgment dated 12.10.2021 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat passed in Writ Petition No.562-M of 2020).

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

----S. 3(2)---Constitution of Pakistan, Arts. 199 & 212---Promotion---Eligibility for promotion---Term and condition of service---Ouster of jurisdiction of the High Court---Scope---Eligibility (for promotion) purely relates to the terms and conditions of service, for example the prescribed length of service, quantification of the marks relating to performance evaluation reports (PERs), completion of training programs etc.---Only factor which is excluded from the exclusive jurisdiction and domain of the Tribunal is the decision of a designated authority/forum regarding 'fitness', while eligibility and all other matters relating to the terms and conditions of service are exclusively within the domain of the Tribunal---Exclusive jurisdiction conferred upon the Tribunal, pursuant to the clear constitutional command under Article 212 of the Constitution, ousts the jurisdiction of a High Court while exercising jurisdiction under Article 199 of the Constitution to decide, entertain or adjudicate upon any matter relating to the terms and conditions of service---Bar under Article 212 of the Constitution extends even when an order passed by the departmental authority is without jurisdiction, mala fide, coram non judice, or in breach of the fundamental rights guaranteed under the Constitution.

Superintending Engineer v. Muhammad Khurshid 2003 SCMR 1241; Peer Muhammad v. Government of Balochistan 2007 SCMR 54 and Asadullah Rashid v. Muhammad Muneer 1998 SCMR 2129 ref.

(b) Constitution of Pakistan---

----Arts. 199 & 212---Civil service---Terms and conditions of service---Ouster of jurisdiction of the High Court---Scope---Constitutional petition filed before the High Court by a civil servant---Maintainability---Before taking any decision regarding admission of a constitutional petition brought by a civil servant, the High Court is expected to first decide the question of jurisdiction, having regard to the bar contained under Article 212 of the Constitution---Plea taken by an aggrieved civil servant regarding violation of fundamental rights guaranteed under the Constitution also does not confer jurisdiction on a High Court under Article 199 of the Constitution.

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

Shamsul Hadi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Respondents not represented.

2024 S C M R 2010

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ, Jamal Khan Mandokhail and Naeem Akhtar Afghan, JJ

Civil Review Petition No. 360 of 2024 in C.P.L.A. No.304 of 2022.

(Against the order dated 11.06.2024 passed by this Court in C.P.L.A. No. 304 of 2022).

CAPITAL VIEW POINT RESTAURANT (LA MONTANA), ISLAMABAD---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and others---Respondents

Civil Review Petition No. 361 of 2024 in

C.P.L.A. No.304 of 2022

(Against the order dated 11.06.2024 passed by this Court in C.P.L.A. No. 304 of 2022).

The MONAL GROUP OF COMPANIES, ISLAMABAD---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and others---Respondents

Civil Review Petition No. 362 of 2024 in

C.P.L.A. No.305 of 2022

(Against the order dated 11.06.2024 passed by this Court in C.P.L.A. No. 305 of 2022).

The MONAL GROUP OF COMPANIES, ISLAMABAD---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and others---Respondents

Civil Misc. Application No. 7355 of 2024 in

C.R.P. No. Nil of 2024

(Against the order dated 11.06.2024 passed by this Court in C.P.L.A. No. 304 of 2022).

BRIGADIER RETIRED FALAK NAZ BANGASH---Applicant

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and others---Respondents

Civil Misc. Application No. 8848 of 2024 in C.R.P. No. Nil of 2024

(Against the order dated 11.06.2024 passed by this Court in C.P.L.A. No. 304 of 2022, etc.).

SUNSHINE HEIGHTS PVT. LIMITED, ISLAMABAD---Applicant

versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and others---Respondents

Civil Miscellaneous Application No. 8870 of 2024 in C.R.P. No. Nil of 2024

(Against the judgment dated 21.08.2024 passed by this Court in C.P.L.A. No. 304 of 2022).

Dr. MUHAMMAD AMJAD---Applicant

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and others---Respondents

Civil Review Petitions Nos. 360 and 361 of 2024 in C.P.L.A. No.304 of 2022 Civil Review Petition No .362 of 2024 in C.P.L.A. No. 305 of 2022, Civil Miscellaneous Nos. 7355, 8848 and 8870 of 2024 in C.R.Ps. Nos. Nil of 2024, decided on 10th September, 2024.

(a) Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979)---

----Ss. 21(1), 21(2), 21(4) & Preamble---Islamabad Capital Territory Zoning Regulations, 1992, Regln. 3---Partnership Act (IX of 1932), Ss. 18, 19, 20, 69(2) & 69(3)---Constitution of Pakistan, Art. 188---Review petition---Margalla Hills National Park ('the National Park")---Preservation and conservation---Restaurants operating in the National Park---By way of the judgment under review the Supreme Court declared that any lease, license, allotment or permission granted by Capital Development Authority (CDA), or by the Remount, Veterinary and Farms Directorate ('the Directorate') or any other department/ authority to operate restaurants in the National Park was contrary to the provisions of the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979, therefore, the same were of no legal effect and were set aside---'Capital View Point Restaurant' (a partnership firm) was operating two restaurants under the name of La Montana and Gloria Jeans in the National Park---Plea on behalf of the petitioner (partnership firm) was that the partner who had voluntarily agreed before the Supreme Court to vacate the premises within three months had a minority seventeen per cent share in the partnership firm ('the Firm'), therefore, he could not have made a commitment on behalf of the Firm---Validity---Firm in question was not registered---Effect of the non-registration of a firm is attended to in the Partnership Act, 1932---Subsections (2) and (3) of section 69 of the Partnership Act stipulate that no legal proceedings can be initiated to enforce a right arising out of a contract by or on behalf of a firm unless it is registered and by partners who are shown in the Register of Firms as partners of the firm---Therefore, since the Firm of Capital View Point Restaurant was an unregistered firm it could not have filed the present Review Petition and applications nor could its partners agitate the matter---As regards the contention that an undertaking given to the Supreme Court by a minority partner does not bind the firm was contrary to the law---Partnership Act stipulates that 'a partner is the agent of the firm' (section 18) and that the partner 'binds the firm' (section 19), and also that such authority 'falls within his [partner's] implied authority' and 'binds the firm' (section 20)---Documents filed by the Firm and its partners in the Review Petition and the listed applications confirmed that the Firm and/or its partners were in illegal possession of the land situated in the Margalla Hills National Park ('the National Park') and were illegally running restaurants (La Montana and Gloria Jeans) therein which they could only have done with the help of those in power---Utter disdain and contempt for the laws of Pakistan and the degradation/destruction of the National Park was made possible by the complicity of those who were required to protect, preserve and conserve it; they were in the service of Pakistan, but were unmindful of their duty to serve the people, instead they served moneyed interests---Before the judgment under review was announced an undertaking was given by the petitioner, in the presence of its counsel, to vacate the (restaurant) premises but it now wanted to resile from it---Making a mockery of solemn undertakings and to render them meaningless could not be permitted, and those doing so must suffer the consequences---Due to the petitioner's contemptuous behaviour and misconceived contentions the Supreme Court decided to withdraw/delete from its short order and detailed judgment under review the portion where the Chairman CDA present in Court stated that he would designate an officer to consider the request of the petitioner to give it preference in the leasing/allotting/licensing of premises/land for the running of restaurants if there were premises/ land available for such purpose, and if the law permitted so---Review petition and connected applications were dismissed.

(b) Constitution of Pakistan---

----Art. 188---Consent order---Review---Scope---Review of a consent order cannot be sought.

(c) Constitution of Pakistan---

----Art. 189---Decision of the Supreme Court binding on all courts subordinate to it---Scope---Once a case is decided by the Supreme Court its decision is binding on all courts subordinate to it in terms of Article 189 of the Constitution---Therefore, if there are any intra court appeals pending adjudication (before the High Court) or any other case before the High Court or any other court with regard to the matters attended to in the Supreme Court's judgment the same will be binding thereon, and resultantly the said intra court appeals will be rendered infructuous.

(d) Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979)---

----Ss. 21(1), 21(2), 21(4) & Preamble---Islamabad Capital Territory Zoning Regulations, 1992, Regln. 3---Constitution of Pakistan, Art. 188---Review petition---Margalla Hills National Park ('the National Park")---Preservation and conservation---Restaurants operating in the National Park---By way of the judgment under review the Supreme Court declared that any lease, license, allotment or permission granted by Capital Development Authority (CDA), or by the Remount, Veterinary and Farms Directorate ('the Directorate') or any other department/authority to operate restaurants in the National Park was contrary to the provisions of the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979, therefore, the same were of no legal effect and were set aside---Restaurant under the name of Monal restaurant was operating in the National Park---When judgment under review was passed the petitioner (owner of Monal restaurant), in the presence of his counsel, had voluntarily agreed to vacate the restaurant situated in the protected National Park, but now he was seeking review of the consent order---Held, that the petitioner had no legal right to continue to be in possession of the land and to run a restaurant (Monal) in the National Park---Lease Agreement dated 10 March 2006 executed in favour of petitioner by the Capital Development Authority (CDA) had also expired after fifteen years on 10 March 2021---Though there was a clause in the Lease Agreement which permitted the extension of the lease neither party sought its extension, nor was it extended, therefore, the lease had come to an end---Petitioner got the possession of the land from CDA pursuant to the said Lease Agreement but had the audacity to file a suit against CDA and also contended therein that the amounts he had paid as rent to CDA should be refunded to him because CDA was not entitled thereto---Petitioner had also unilaterally sought to substitute his lessor (CDA) with the Remount Veterinary and Farms Directorate ('the Directorate') which was not a legal entity---Supreme Court in the judgment under review had declared the purported lease entered into with the Directorate to be of no legal effect, and the Federal Government had stated that the same was void ab initio and that the said lease was executed without the permission of the Federal Government---Petitioner had no legal right to continue with the possession of the land and his status was no better than that of a trespasser---Running a restaurant, Monal, in the protected National Park was in total disregard of the provisions of the Islamabad Wildlife (Protection, Preservation and Management) Ordinance, 1979---Operators of these restaurants, and those who permitted them to operate disregarded the integrity of the National Park; ravaged its trees and flora and displaced and disturbed the endemic bird and animal life---Natural environment of the National Park was adversely affected, and so were its resultant benefits, including as a catchment area for rainfall and the recharge of springs and streams---Astronomical environmental cost was also borne by the public and would continue to be borne by future generations---Before the judgment under review was announced an undertaking was given by the petitioner, in the presence of his counsel, to vacate the (restaurant) premises but he now wanted to resile from it---Making a mockery of solemn undertakings and to render them meaningless could not be permitted, and those doing so must suffer the consequences---Due to the petitioner's contemptuous behaviour and misconceived contentions the Supreme Court decided to withdraw/delete from its short order and detailed judgment under review the portion where the Chairman CDA present in Court stated that he would designate an officer to consider the request of the petitioner to give him preference in the leasing/allotting/licensing of premises/land for the running of restaurants if there were premises/land available for such purpose, and if the law permitted so---Review petitions and connected applications were dismissed.

(e) Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979)---

----Ss. 21(1), 21(2), 21(4) & Preamble---Islamabad Capital Territory Zoning Regulations, 1992, Regln. 3---Constitution of Pakistan, Art.188---Review petition---Margalla Hills National Park ('the National Park")---Preservation and conservation---Allotment of land in the National Park by Capital Development Authority (CDA)---By way of the judgment under review the Supreme Court declared that any lease, license, allotment or permission granted by Capital Development Authority (CDA), or by the Remount, Veterinary and Farms Directorate ('the Directorate') or any other department/authority to operate restaurants in the National Park was contrary to the provisions of the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979, therefore, the same were of no legal effect and were set aside---Applicant [Sunshine Heights (Pvt.) Limited ('the Company')] claimed to be allottee of six thousand square yards of land in the National Park for thirty-three years---Held, that purported allotment to the Company made twenty-eight years ago was not in accordance with the law---Requisite payment was also not made by the Company---Allotment letter stated that the allotment was for a period of thirty-three years and construction had to be raised within three years, but no construction had been raised even after twenty-eight years---Company's claim on the basis of allotment letter was not sustainable---In any event the law did not permit the construction of a restaurant, which the Company intended to construct, in the protected area of the National Park, and the Supreme Court had also categorically decided the same in the judgment under review---Application was dismissed.

For the Petitioner/Applicant:

Naeem Bokhari, Advocate Supreme Court (in C.R.P. No. 360 of 2024 and C.M.A. No. 8870 of 2024).

Taimoor Aslam Khan, Advocate Supreme Court (in C.R.Ps. Nos. 361 and 362 of 2024).

In-person (in C.M.A. No. 7355 of 2024).

Khurram Raza, Advocate Supreme Court, Sh. Mahmood Ahmad, Advocate-on-Record assisted by Mouood Fiaz, Advocate High Court (in C.M.A. No. 8848 of 2024).

For the Respondents:

Nemo (in all).

2024 S C M R 2024

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

HASNAIN SALIM alias SUNNY---Petitioners

Versus

The STATE---Respondent

Criminal Petition No. 354-L of 2016, decided on 16th May, 2024.

(Against the judgment dated 25.02.2016 of the Lahore High Court, Lahore passed in Crl. Appeal No. 432 of 2014).

Per Jamal Khan Mandokhail, J.; Musarrat Hilali, J. agreeing; Syed Hasan Azhar Rizvi, J. dissenting.

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

----Ss. 336, 336-B & 337-L---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7(c)---Hurt by corrosive substance (acid)---Re-appraisal of evidence---Acid thrown on a victim---Matter between convict and victim---Not an act of terrorism---[Per Jamal Khan Mandokhail, J. [Majority view]: Prosecution witnesses supported the contentions of the complainant and established contents of the FIR to the extent of throwing acid upon the victim---Courts below after going through the record, reached the correct conclusion that the prosecution had succeeded in proving its case---Conviction and sentence awarded to the petitioner under sections 336-B and 337-L, P.P.C. were just and proper, hence, the same were maintainable---As far as conviction of the petitioner under the Anti-Terrorism Act, 1997 was concerned, though the complainant in his FIR had alleged that the act of the petitioner had created fear and panic in the area, but such fact had not been established by the prosecution---Even, the complainant did not level the allegation of terrorism against the petitioner---Present occurrence was a matter between the petitioner and the victim, which did not fall within the definition of section 6 of the Anti-Terrorism Act, 1997---Courts below had erred by not considering this aspect of the case and had wrongly considered the act of the petitioner as an act of terrorism---Under such circumstances, the conviction and sentence awarded to the petitioner under section 7(c) of the Anti-Terrorism Act, 1997 was not sustainable---Petition was converted into an appeal and was partly allowed; the conviction and sentence awarded to the petitioner under section 7(c) of the Anti-Terrorism Act, 1997 was set aside, however, the conviction and sentence awarded to him under section 336-B, P.P.C. was maintained---[Per Syed Hasan Azhar Rizvi, J. [Minority view]: Acid attacks limit the fundamental freedoms enjoyed by the victim such as right to life, healthcare, education, freedom of movement, enjoyment of highest attainable standard of physical and mental health, amongst various others---Acid attacks have devastating consequences, particularly for women---These attacks result in severe pain, permanent disfigurement, infections, blindness, psychological and economic hardships---In the present case, the criminal act of the petitioner was not motivated by personal vendetta or domestic dispute rather he intended to instill fear in the society---Petitioner sprinkled acid on the victim and her face, neck, and body were burnt---This incident terrorized all girls attending schools/colleges situated in the vicinity and accused did not intent to frighten the victim only---It created a sense of insecurity in the young girls attending schools/colleges---Invoking the Anti-Terrorism Act, 1997 (in cases of acid attack) sends a powerful message that such heinous acts will not be tolerated, and the perpetrators will be held accountable to the fullest extent of the law---High Court had rightly maintained the conviction and sentence of the petitioner under section 7(c) of the Anti-Terrorism Act, 1997].

Noor Muhammad v. State 1999 SCMR 2722; Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530 and Ghulam Hussain v. The State PLD 2020 SC 61 ref.

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

----S. 7(c)---Penal Code (XLV of 1860), S. 336-B---Hurt by corrosive substance (acid)---Acid thrown on a victim---Whether an act of terrorism---Use of coercive substance falls under section 336-B, P.P.C., however, keeping in view its gravity it has been included in Third Schedule to the Anti-Terrorism Act, 1997 ('ATA') for the purpose of expeditious trial---In case, it is proved that the offence/the said act is done with an intention to commit terrorism and the allegation is proved against accused, he shall be convicted under section 7 of the ATA---In case the prosecution fails to prove the allegation of terrorism, but otherwise succeeds in establishing its case, in such a scenario, the case shall still be tried by the Special Judge, Anti-Terrorism Court, and the accused shall be convicted under the normal offence of the PPC, instead of convicting and sentencing him under section 7 of the ATA.

Ghulam Hussain v. The State PLD 2020 SC 61; Imtiaz Latif and others v. The State 2024 SCMR 1069 and Javed Iqbal v. The State 2024 SCMR 1437 ref.

Per Syed Hasan Azhar Rizvi, J. [Minority view]

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

----S. 7(c)---Penal Code (XLV of 1860), S. 336-B---Hurt by corrosive substance (acid)---Acid thrown on a victim---Whether an act of terrorism---Acid attacks can sometimes be classified under the meaning of terrorism, depending on the context and intent behind the act---If an acid attack is intended to create widespread fear or panic amongst a population, it could be seen as an act of terrorism, as terrorism is often defined by the intent to intimidate or coerce a civilian population---Additionally, if the attack is motivated by political, ideological, or religious beliefs and aims to further these objectives through violence or the threat of violence, it could be classified as terrorism---Broader impact on societal order and security is another factor; if an attack disrupts public order, causes significant fear, and undermines confidence in security institutions, it may be seen as an act of terrorism---However, not all acid attacks are classified as such, as many are criminal acts motivated by personal vendettas or domestic disputes---Classification depends on the specific circumstances, motives, and broader impact of the attack---Act of terrorism is to be seen in peculiar facts and circumstances of each case---If act's effect whether actual, intended or potential, is to create fear and insecurity, etc. in the society at large, it qualifies to be act of terrorism---Courts have only to see whether the act was such which would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society---Venue of the commission of a crime, the time of occurrence, the substance used in causing hurt or death, and the sense of fear or insecurity the act created are few of the factors to meet the standard of terrorism.

Aurang Zaib Marl, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Mirza Abid Majeed, DPG Punjab for the State.

2024 S C M R 2034

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

FAROOQ AHMED---Petitioner

Versus

SECRETARY, BALOCHISTAN PROVINCIAL ASSEMBLY, QUETTA and others---Respondents

Civil Petitions Nos. 268 of 2019 and 583 of 2021, decided on 6th December, 2023.

(Against the judgments dated 12.11.2018 the High Court of Balochistan Quetta, passed in C.P. No. 121/2017 and dated 24.12.2020 of the Balochistan Service Tribunal, Quetta passed in Appeal No. 322 of 2017).

(a) Balochistan Provincial Assembly Secretariat (Recruitment) Rules, 2009---

----R. 1(n)---Balochistan Civil Servants Act (IX of 1974), S. 2(1)(b)---Employees of Balochistan Provincial Assembly Secretariat---Not civil servants---Officers and employees of the Balochistan Provincial Assembly Secretariat belong to the Balochistan Provincial Assembly Secretariat Service as defined under Rule 1(n) of the Balochistan Provincial Assembly Secretariat (Recruitment) Rules, 2009 and they do not enjoy the status of a civil servant within the meaning of Balochistan Civil Servants Act, 1974.

(b) Balochistan Provincial Assembly Secretariat (Recruitment) Rules, 2009---

----Rr. 6 & 8(a) & Sched. A---Balochistan Provincial Assembly Secretariat, appointment in---Non-transparency in appointment---Conflict of interest---Petitioner was appointed as Deputy Secretary BS-18 (Legislative Drafting) in the Assembly Secretariat while his father was serving as its Secretary---Mode of appointment adopted by the Secretariat was through initial recruitment---Qualifications and conditions described in the advertisement appear to have been tailored to restrict the eligibility criteria to a limited number of candidates which included the petitioner---High Court had rightly observed that there was no justifiable reason for such restriction and that it violated the principle of transparency---However, the petitioner was one of the very few candidates who met the restricted eligibility criteria described in the advertisement---Selection committee was reconstituted by the Secretary i.e. the petitioner's father, while under the Balochistan Provincial Assembly Secretariat (Recruitment) Rules, 2009 ('Rules of 2009') the Speaker was the competent authority and there was nothing on record to show that the latter's approval was sought---Entire recruitment process i.e. approval for appointment through the mode of initial recruitment, setting out the qualifications and conditions regarding eligibility, reconstitution of the selection committee, failing to place the cases of Assistant Secretaries before the competent forum for assessing their eligibility and, subsequently, the petitioner's appointment were in clear breach of the Rules of 2009---It was not disputed that the method of recruitment explicitly prescribed to fill the post of Deputy Secretary BS-18 under Schedule A of the Rules of 2009 was by promotion from amongst the Assistant Secretaries (BS-17) on seniority cum fitness basis and possessing five years' service as such---No process was undertaken by the competent authority to assess whether Assistant Secretaries (BS-17) were eligible to be considered for promotion in accordance with the qualifications and conditions prescribed under the Rules of 2009---Entire process was adopted to benefit the petitioner who happened to be the son of the Secretary of the Assembly Secretariat---Latter had given approvals for undertaking the recruitment process and had only recused himself belatedly and that too to the extent of chairing the meeting of the selection committee---It thus raised profound questions in the context of conflict of interest---Present case was a classic example of abuse of public power in order to benefit a family member---Petitions were dismissed.

(c) Constitution of Pakistan---

----Arts. 4, 9, 25 & 27---Public sector posts---Appointment---Transparency---Appointments against posts in the public sector are to be made strictly in accordance with applicable rules/regulations and without any discrimination and in a transparent manner---It is essential that all appointments in the public sector are based on the process that is palpably and tangibly fair and within the parameters of its applicable rules---Appointment made in a nontransparent manner and in violation of the law offends the fundamental rights of the general public and the citizens under Articles 4, 9, 25 and 27 of the Constitution---Due diligence must be exercised while making appointments and in doing so a fair and transparent selection process ought to be adhered to---Adherence to a credible and transparent selection process with due diligence is the pre-requisite in order to ensure good governance---It is inevitable to observe highest standards of diligence, transparency and probity in selecting a person for a post---Public authority possessed with powers under the relevant laws can only use them for and to advance the public good---Choosing persons for public service is not just providing a job and the consequent livelihood to the one in need but is a sacred trust to be discharged by the ones charged with it, honestly, fairly, in a just and transparent manner and in the best interest of the public---Individuals so selected are to be paid not out of the private pockets of the ones appointing them but by the people through the public exchequer and not selecting the best as public servants was a gross breach of the public trust and was an offence against the public who had the inherent right to be served by the best.

Syed Mubashir Raza Jafri and others v. Employees Old Age Benefit Institutions (EOBI) and others 2014 SCMR 949; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132 and Chief Secretary Punjab and others v. Abdul Raoof Dast 2006 SCMR 1876 ref.

Ahsan Rafiq Rana, Advocate Supreme Court and Hafiz Hifz-ur-Rehman, Advocate Supreme Court for Petitioner.

M. Ayaz Swati, Addl. Advocate General, Balochistan for the Respondents.

2024 S C M R 2042

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Naeem Akhtar Afghan, JJ

HAZARAY KHAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 502 to 504 of 2019, decided on 24th May, 2024.

(Against the judgment dated 11.02.2015 of the Lahore High Court, Multan Bench passed in Crl. A. No. 23-ATA/2019 and CSR No.11/ 2009, Crl. A. No. 27-ATA/2010, Crl. A. No. 11-ATA/2010 and CSR No.10-ATA/2010).

Penal Code (XLV of 1860)---

----Ss.302(b), 324 & 452---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass after preparation for hurt---Re-appraisal of evidence---Crime empties not sent for forensics---Presence of complainant at scene of occurrence doubtful---Dishonest improvements made by complainant and witnesses---Injured witnesses not produced for evidence---Adverse presumption---Thirty-nine crime empties of Kalashnikov, three crime empties of 12 bore along with the firearms, allegedly recovered from the appellants (accused persons) were not sent to the firearm expert for analysis and in this regard no explanation had been offered by the prosecution at the trial---Surprisingly, complainant did not receive a single firearm injury in the whole occurrence despite indiscriminate firing by the eight nominated accused and despite being in close range, allegedly witnessing the occurrence---Non-receiving of any firearm injury by the complainant during the occurrence and his accurate attribution of each injury of the deceased and injured to each accused with specific firearms casted serious doubt about his presence at the place of occurrence and his plantation as an eye witness of the occurrence due to previous enmity with the nominated accused could not be ruled out of consideration particularly when his testimony was lacking independent corroboration in material aspects---According to the complainant, his deceased father was fired upon by one of the accused while sleeping at the tube well---Admittedly complainant was not present at the tube well with his deceased father---One of the alleged eye-witness of the occurrence and three injured witnesses had not been produced at the trial due to which presumption under Article 129(g) of the Qanun-e-Shahadat, 1984 was to be drawn to the effect that had these witnesses been produced at the trial, they would have not supported the prosecution version---Statements of complainant, eye-witnesses and injured witnesses were suffering from dishonest improvements and material contradictions rendering their testimony doubtful---Prosecution had failed to prove the charge against the appellants as well as the acquitted accused beyond reasonable doubt---Appellants were acquitted of the charge, while the appeal challenging the acquittal of one of the accused and the appeal seeking enhancement of sentence of the convicts were dismissed.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellants (in Crl. A. No. 502 of 2019).

Sardar Ashiq Hussain, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in Crl. As. Nos. 503 and 504 of 2019)

Irfan Zia, Addl. P.G., Punjab for the State (in all cases).

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondent (in Crl. A. No. 503 of 2019).

2024 S C M R 2048

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

GHULAM RASOOL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 56 of 2019, decided on 16th September, 2024.

(Against the judgment dated 21.03.2013 of the Lahore High Court, Lahore passed in Crl. Appeal No. 91 of 2018 ad M.R. No. 54 of 2008).

Per Jamal Khan Mandokhail, J.; Musarrat Hilali, J. agreeing; Syed Hasan Azhar Rizvi, J. dissenting.

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

----S. 302(b)--- Qatl-i-amd--- Re-appraisal of evidence---Sentence, reduction in---Mitigating circumstances---Death sentence reduced to imprisonment of life---[Per Jamal Khan Mandokhail, J. [Majority view]: It could not be said with certainty that out of all the four assailants, how many shots were fired and whose fire shot had resulted into causing death of the deceased---As far as the recovery of a crime weapon was concerned, it was the case of the prosecution that the appellant fired shots with a rifle, however, there was a divergent version on the record qua the recovery of gun 12 bore and a pistol instead of gun 12 bore and that too had not been sent to Forensic Science Laboratory for examination, hence the recovery of crime weapon was inconsequential---Occurrence had taken place all of a sudden without there being any proof of premeditation---It was a free fight, without any motive---All the accused made firing upon the deceased, but it was not established that the appellant alone was responsible for the commission of the murder or the injury caused due to his firing was fatal---Appellant remained in custody w.e.f. May 2006 till date, out of which, he was incarcerated in death cell w.e.f. 2013, almost for more than eleven years, for no fault of his own---Section 302(b), P.P.C. provides a punishment for death or imprisonment for life as Taazir---Appellant had served almost an imprisonment for life, including eleven years detention in death cell---Under such circumstances, executing his death sentence at present stage would be harsh, especially, when there were mitigating circumstances as well---Appeal was dismissed; the conviction awarded to the appellant under section 302(b), P.P.C. on two counts was maintained, however, the sentence of death awarded to the appellant was altered to that of imprisonment for life on two counts]---[Per Syed Hasan Azhar Rizvi, J. [Minority view]: All eye-witnesses were resident of the same area---One of the deceased, was the maternal uncle of both the complainant and an eye-witness, making their presence at the place of occurrence neither unnatural nor improbable---Appellant was named in the FIR with specific role of causing successive firearm injuries on the deceased persons---Ocular account furnished by the eye-witnesses found full corroboration by the medical evidence---Specific injuries attributed to the appellant by the eye-witnesses found corroboration from the post-mortem report---Specific injuries attributed to the appellant were sufficient in ordinary course of nature to cause death---Motive was proved by the witnesses as revealed by their testimonies---Given the evidence and facts of the case, it was impossible, by any stretch of the imagination, to consider the incident as a mere spontaneous fight or an act of unpremeditated murder---Case of acquitted co-accused was fundamentally distinct from that of the appellant, thus, his acquittal held no bearing on the appellant's case---Even if recovery of crime weapon was excluded there was sufficient incriminating material against the appellant in the form of testimony of eye-witnesses corroborated by the medical evidence and motive---Appellant committed murders in a particularly brutal and merciless manner, killing two individuals who were actively pursuing a case against the appellant for a previous murder---Given the gravity of the offence and the appellant's conduct, he was not entitled to any leniency in sentencing---Reducing the punishment based on the long trial or the time the appellant spent in custody did not change the severity of the crime---Appellant was a habitual criminal who committed murder of the innocent persons---Therefore, reducing his sentence would undermine the justice deserved by the victims and the severity of the crime committed---Appeal was dismissed and death penalty imposed by the High Court was maintained]

Ghulam Shabbir v. The State (Crl.R.P. 103 of 2017) ref.

Per Syed Hasan Azhar Rizvi, J; dissenting with Jamal Khan Mandokhail, J. [Minority view]

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

----S.302(b)---Qatl-i-amd---Sentence, quantum of---Delay in conclusion of trial or deciding the appeal---Whether a mitigating circumstance to reduce death penalty to life imprisonment -- Mere length of time taken in concluding the trial and in deciding the appeal filed by the appellant would not by itself constitute an extenuating circumstance justifying the imposition of the lesser penalty.

Muhammad Hassan v. The State 1973 SCMR 344; Samano v. The State 1973 SCMR 162; Shah Muhammad v. The State PLD 1973 SC 332 and Bakshish Elahi v. The State 1977 SCMR 389 ref.

Munir Ahmed Bhatti, Advocate Supreme Court for Appellant.

Shah Khawar, Advocate Supreme Court for the Complainant.

Irfan Zia, D.P.G. Punjab for the State.

2024 S C M R 2061

[Supreme Court of Pakistan]

Present: Yahya Afridi, Syed Hasan Azhar Rizvi and Shahid Waheed, JJ

GOVERNMENT OF THE PUNJAB through Secretary Primary and Secondary Healthcare Department, Lahore and others ---Petitioners

Versus

Dr. MUHAMMAD SHAHID HUSSAIN---Respondent

C.P.L.A. No.2753-L of 2023, decided on 25th September, 2024.

(Against the order dated 27.03.2023 passed by the Punjab Service Tribunal, Lahore, in Appeal No.816 of 2022).

Supreme Court Rules, 1980---

----O. XXIV, R.1, O. XIII, R. 1 & O.I, R. 4---Limitation Act (IX of 1908), S. 12---Punjab Service Tribunals (Procedure) Rules, 1975, R. 21---Constitution of Pakistan, Arts. 212(3) & 10-A---Petition under Article 212(3) of the Constitution, seeking leave to appeal against the judgment of the Punjab Service Tribunal---Filing of---Limitation---Impugned judgment of the Punjab Service Tribunal included a specific direction for its office to send a copy of the order to the relevant departmental authority---However, it is important to note that this direction was given following Rule 21 of the Punjab Service Tribunals (Procedure) Rules, 1975 ("Rules, 1975"), which mandates that a copy of every order of final adjudication on an appeal must be provided by a Tribunal, free of costs, to the competent authority---This direction does not determine the period of limitation---To find out the period of limitation for filing a petition for leave to appeal under Article 212(3) of the Constitution and how it is computed, one needs to consult the relevant law, which is the Supreme Court Rules, 1980 ("Rules, 1980")---Rule 1 of Order XXIV, read with Rule 1 of Order XIII of the Rules, 1980 prescribes a 60-days period for filing a petition for leave to appeal under Article 212(3) of the Constitution---Furthermore, Rule 4 of Order I of the Rules, 1980, states that the computation of any particular number of days should be by the provisions of the Limitation Act, 1908 ("Act, 1908")---This means that Section 12 of the Act, 1908, which governs the computation method of the limitation period for filing a petition for leave to appeal in the Supreme Court, is applicable, inter alia, in service matters---Government of Punjab filed the petition in the present case on the 1st of September 2023, which was 158 days after the announcement of the judgment and 44 days after receipt of the certified copy of the judgment sent by the Tribunal---Based on these facts, the Law Officer unsuccessfully sought to argue that the period of 114 days (spent on receiving the said judgment by the Department) has to be deducted from 158 days as required by Section 12 of the Act, 1908 and as such, the appeal, which was filed after 44 days of the receipt of the certified copy of the judgment, was well within the prescribed time---Period for filing a petition for leave to appeal under Article 212(3) of the Constitution is computed from the date when the Tribunal's judgment is announced in the presence of the parties, not from the date of receiving the certified copy of the judgment---According to Section 12 of the Act, 1908, only the time taken to obtain a certified copy of the judgment appealed from can be deducted---Act, 1908, does not take into account the time it takes for the Tribunal to send a copy of the judgment, which is announced in the presence of the parties, to the Department---It is important to note that Rule 21 of the Rules, 1975 does not specify a time frame for the Tribunal to send a copy of the judgment to the relevant competent authority after announcing it---This means that the Tribunal can send the judgment to the Department after the deadline for applying for leave to appeal has passed---In this situation, allowing this time to be excluded in the computation of the limitation period would potentially give the Department/Competent Authority the ability to create uncertainty about the rights of Civil Servants that have been established by the Tribunal and have become final over time---This could be unwholesome and violate the fair trial rights guaranteed under Article 10-A of the Constitution---Therefore, the provisions of Rule 21 of the Rules, 1975 do not apply to the present case---Consequently, the petitioner cannot benefit from it, especially since the petitioner did not argue that the Tribunal did not announce the judgment in the presence of the parties---Another important aspect of the present matter that needs to be considered is that the Tribunal announced its judgment in the presence of the parties on the 27th of March, 2023---Department applied for a certified copy of the judgment on the 25th of August, 2023, and received it the same day---However, the petition for leave to appeal was filed on the 1st of September, 2023---Based on the timeline, it appears that the petition was filed after the allowable time limit, as it had become barred by time when the petitioner applied for the certified copy of the judgment---Application for condonation of delay was dismissed as lacking merit; consequently, the main petition also stood dismissed due to being filed after the prescribed time.

Baleegh uz Zaman Ch., Addl. Advocate General, Punjab and Ms. Ayesha Yasmeen, Law Officer for Petitioners.

Nemo for Respondent.

2024 S C M R 2066

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, CJ and Naeem Akhtar Afghan, J

ATIF ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No. 513-L of 2024, decided on 30th August, 2024.

(On appeal against the order dated 15.04.2024 of the Lahore High Court, Lahore passed in Crl. Misc. No. 5587-B of 2024).

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 185(3)---Dishonestly issuing a cheque---Ad-interim pre-arrest bail, confirmation of---Further inquiry---It was yet to be established at the trial as to whether the disputed cheque was issued by the petitioner (accused) to the complainant with dishonest intention; as to whether the purpose of issuance of disputed cheque was to repay loan to fulfil an obligation or as to whether the same was handed over (in blank) by the petitioner as guarantee for business transaction with the complainant---On the basis of tentative assessment of the material so far available on record, the apprehension of the petitioner about his arrest by the police at the behest of the complainant with ulterior motives to create humiliation and unjustified harassment could not be ruled out of consideration---Case against the petitioner also fell within the ambit of further inquiry---Petition was converted into appeal and allowed and the ad-interim pre-arrest bail granted to the petitioner was confirmed.

Salman Mushtaq v. The State 2024 SCMR 14; Ahtisham Ali v. The State 2023 SCMR 975; Fahad Hussain v. The State 2023 SCMR 364; Gulshan Ali Solangi v. The State 2020 SCMR 249; Muhammad Sadiq v. The State 2015 SCMR 1394 and Rana Muhammad Arshad v. Muhammad Rafique PLD 2009 SC 427 ref.

Abdul Hameed Rana, Advocate Supreme Court along with Petitioner (via video link from Lahore).

Mirza Abid Majeed, D.P.G., Punjab for the State.

Complainant in person (via video link from Lahore).

2024 S C M R 2069

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Irfan Saadat Khan, Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

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

Versus

TAHIR MUSHTAQ and others---Respondents

Civil Petition No. 288-P of 2015, decided on 12th September, 2024.

(Against the judgment dated 14.04.2015 of the Peshawar High Court, Abbottabad Bench, passed in W.P. No. 468-A of 2013).

Constitution of Pakistan---

----Arts. 25 & 27---Civil service---Appointment---Quota reserved for son of retired employee---Constitutionality---Constitution prohibits discrimination as stated in Article 25 and further stipulates and entrenches the principle in respect of service of Pakistan in Article 27---In preferring the children of a government servant or reserving seats for them offends the Constitution---Same also detracts from a merit based system of employment---Taxpayers hard earned monies pay for the salaries, benefits and pensions of government servants---People's interest lies in having the best person for the job, and not to suffer at the hands of those who secure employment on the basis of a filial relationship.

Shah Faisal Ilyas, Additional A.G., Khyber Pakhtunkhwa for Petitioner.

Syed Rafaqat Hussain Shah, Advocate Supreme Court/Advocate-on-Record for Respondent No.1.

2024 S C M R 2071

[Supreme Court of Pakistan]

Present: Qazi Faez Isa, C.J., Irfan Saadat Khan, Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

FAZLI AKBAR KHAN and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through District Collector, Mardan and others---Respondents

Civil Petition No.14-P/2015, decided on 25th September, 2024.

(Against the judgment dated 07.11.2014 passed by Peshawar High Court, Peshawar in W.P. No.2597-P of 2014).

Land Acquisition Act (I of 1894)---

----Ss. 18, 30 & 31---Land acquisition---Compensation---Reference petition filed before the Collector---Limitation---Barred by time---Petitioners' (land owners) grievance was related to the Order, dated 22.04.2014,of the Referee Court, but instead they impugned the Order of the Collector, dated 02.11.2011---Order of the Collector made it quite clear that the Referee Court was being sent the Reference petition for disposal under sections 30 and 31 of the Land Acquisition Act, 1894 ('Act') only and not under section 18 of the Act, as the reference on the face of it was barred by limitation---Award was passed on 11.10.2010, and the Reference petition was filed before the Collector by the petitioners, on 26.10.2011, exactly a year later---Petitioners were indeed barred by time by virtue of section 18 of the Act and thus the Collector's Order accurately referred the matter to the Referee Court under sections 30 and 31 of the Act only---Moreover, it was a matter of record that notification under section 4 of the Act was duly issued on 06.03.2010 and endorsement to that effect was duly issued on 07.09.2010, whereafter the petitioners filed their objections, which were duly considered by the Collector before passing the award on 11.10.2010---This simple fact alone pointed out that the petitioners took part in acquisition process and that the Reference petition before the Collector filed on 26.10.2011 was merely an afterthought, perhaps intended to get more money for their land---Moreover, it was also an admitted position that no appeal, as required under section 18-B of the Act, was filed by the petitioners against the said award---Petitioners realized the fault in their legal strategy, therefore, impugned the Order dated 02.11.2011 of the Collector rather than that of the Referee Court before the High Court---However, the High Court realized this and quite rightly held that the challenge to the Collector's Order was time barred and attracted the doctrine of laches---Petition was dismissed and leave to appeal was refused.

Fazal Khalid v. National Highway Authority 2014 CLC 465 and Government of West Pakistan (now Government of NWFP) v. Arbab Haji Ahmed Ali Jan PLD 1981 SC 516 distinguished.

Gul Zaman v. Deputy Commissioner/Collector Gwadar 2024 SCMR 481 ref.

Khalid Mahmood, Advocate Supreme Court for Petitioners (via video-link, Peshawar).

Nemo for the Respondents.

2024 S C M R 318

[Supreme Court of Canada]\

Present: Wagner C.J., Karakatsanis, Côté, Rowe, Martin, Kasirer and Jamal, JJ

EMANUEL KAHSAI---Appellant

Versus

HIS MAJESTY THE KING---Respondent

and

DIRECTOR OF PUBLIC PROSECUTIONS, ATTORNEY GENERAL OF ONTARIO, EMPOWERMENT COUNCIL, INDEPENDENT CRIMINAL DEFENCE ADVOCACY SOCIETY, CRIMINAL TRIAL LAWYERS' ASSOCIATION, CANADIAN CIVIL LIBERTIES ASSOCIATION AND CRIMINAL LAWYERS' ASSOCIATION---Interveners

Decided on 28th July, 2023.

(On Appeal from a judgment of the Alberta Court of Appeal 2022 ABCA 12, 39 Alta. L.R. (7th) 12)

Criminal law---

----Criminal trial---Amicus curiae, appointment of---Role of amicus curiae in a criminal trial---Whether guarantee of trial fairness permits or requires trial judge to appoint amicus curiae with adversarial mandate to advance interests of a self-represented accused who constantly disrupts the trial---Where trial judge appointed amicus curiae with limited mandate mid-trial---Whether delayed and limited appointment of amicus led to an appearance of unfairness that rose to the level of miscarriage of justice---Appointment, role and scope of an amicus curiae in a criminal trial and the discretion of the trial judge in such regard stated.

The defendant (appellant) chose to represent himself at trial for two counts of first-degree murder. When given the opportunity to address the court, the defendant failed to cooperate with the trial process or advance any coherent defence. He was repeatedly excluded from the courtroom and trial process because of his chronically disruptive behavior. Partway through the trial, the trial judge determined that the appointment of amicus curiae was necessary to ensure a fair trial. An amicus was appointed to cross-examine State's witnesses, but was instructed not to advocate on behalf of the defence. The defendant resisted the appointment and mostly refused to cooperate with the amicus. The defendant's attempt to deliver his own closing argument was cut short by the trial judge, who did not solicit any supplementary closing argument from trial amicus. The defendant was convicted by a jury on both counts of first-degree murder; he appealed his convictions, arguing, among other grounds, that failing to appoint amicus with an adversarial role at an early stage in the proceedings tainted the perceived fairness of the trial. The Court of Appeal dismissed the appeal, finding there was no miscarriage of justice.

The power to appoint amicus curiae flows from the inherent jurisdiction of courts to manage their own procedure to ensure a fair trial. In specific and exceptional circumstances, a judge may appoint amicus when the judge believes doing so is required for the just adjudication of a case. The role of amicus is highly adaptable and can encompass a broad spectrum of functions, including adversarial functions. However, the role is not without limits, as there are dangers that arise from blending the roles of defence counsel and amicus. The court may not appoint amicus with functions that would interfere with the right of the accused to represent themselves or undermine the duty of loyalty that an amicus owes to the court. Similarly, an amicus may not perform functions that would undermine the impartiality of the court, a provincial legal aid scheme or a judicial decision to refuse to grant state-funded counsel to the accused. These dangers preclude appointing amicus to assume all of the powers and duties of defence counsel, but they do not impose a bar on appointing amicus with defence-like functions when an adversarial perspective is needed to ensure a fair trial.

CLAO, at para. 46; I. H. Jacob, "The Inherent Jurisdiction of the Court" (1970), 23 Curr. Legal Probs. 23, at pp. 27-28; M. Vauclair and T. Desjardins, in collaboration with P. Lachance, Traité général de preuve et de procédure pénales 2022 (29th ed. 2022), at para. 26.6, citing CLAO, at para. 119 and R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259, at para. 65; CLAO, at para. 117 ref.

The proper scope of the roles for amicus is limited by necessary constraints inherent in the nature of the role. First, the role of amicus as a friend of the court means that amicus can never discharge functions that would violate their duty of loyalty to the court or undermine the impartiality of the court, such as by advising on key strategic defence choices. Second, the mandate assigned to amicus should respect the key strategic decisions asserted by the accused while also respecting what is required for trial fairness. Finally, the appointment of amicus cannot be exploited to circumvent the legal aid scheme or judicial decisions to refuse to grant state-funded counsel. While these limits do not preclude amicus from performing any adversarial functions, they do restrict the kinds of assistance that amicus can provide.

R. v. Swain, [1991] 1 S.C.R. 933, at p. 972; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 9, citing Vescio v. The King, [1949] S.C.R. 139, at p. 144; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 2; R. v. White, 2022 SCC 7; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; R. v. Bharwani, 2023 ONCA 203, 424 C.C.C. (3d) 197, at para. 167; R. v. Ledesma, 2020 ABCA 410, 395 C.C.C. (3d) 259; Walker, at para. 35; R. v. Fabrikant (1995), 97 C.C.C. (3d) 544 (Que. C.A.), at p. 574; Law Society of Alberta, Code of Conduct, r. 3.7-5; Law Society of Ontario, Rules of Professional Conduct, r. 3.7-7 and R. v. Whalen, [2009] O.J. No. 6467 (QL) (C.J.) ref.

The discretion to appoint amicus and to determine their mandate is informed by the nature of (Canada's) adversarial system of justice. The adversarial system depends on the ability of parties to advance their own position and to challenge the case presented by an opposing party. A risk of imbalance is particularly acute when an accused is unrepresented. In the vast majority of cases, the duty of the trial judge and State counsel to ensure a fair trial for an unrepresented accused will suffice to prevent a miscarriage of justice. However, appointing amicus with adversarial functions may be required in unusual cases, including when an unrepresented accused displays symptoms of mental health challenges but is fit to stand trial or where the unrepresented accused refuses to participate in the trial process. It may also be required where the nature of the charges or the mode of trial make an adversarial perspective from amicus necessary for the case to be justly adjudicated. Where assistance from the trial judge and the State may not suffice, amicus can be a flexible tool to maintain the integrity of the trial process.

D. Stuart and T. Quigley, Learning Canadian Criminal Procedure (14th ed. 2022), at pp. 593-94; Phillips v. Ford Motor Co. of Canada Ltd., [1971] 2 O.R. 637 (C.A.), at p. 657; R. v. C.M.L., 2016 ONSC 5332, at para. 80 (CanLII), per Molloy J.; P. J. LeSage and M. Code, Report of the Review of Large and Complex Criminal Case Procedures (2008), at pp. 155-56; R. v. Ledesma, 2020 ABCA 410, 395 C.C.C. (3d) 259; Walker, at para. 35) and R. v. Imona-Russel, 2019 ONCA 252, 145 O.R. (3d) 197, at para. 72; Jaser, at para. 35; Walker, at para. 71 ref.

The trial judge is best positioned to determine what help is required and has wide discretion to tailor the amicus appointment to the exigencies of a case. Exceptionally, appointing amicus with an adversarial mandate may be necessary, particularly when imbalance in the adversarial process threatens to create a miscarriage of justice. In determining the scope of an amicus appointment, the trial judge should consider the circumstances of the trial as a whole, including the nature and complexity of the charges; whether it is a jury trial or judge alone; the attributes of the accused; whether assistance is needed to test the State's case or advance a meaningful defence; and what assistance the State and trial judge can provide. In considering whether to appoint amicus, the judge should canvass the parties for their perspectives about the necessity and scope of an amicus appointment. The judge should consider whether an appointment that is limited in duration or scope would suffice. For example, assistance from amicus may only be necessary for cross-examination of certain Crown witnesses or for a particular motion in the proceeding. It would also be helpful to reduce the terms of appointment to writing in a formal order or endorsement, explicitly identifying the nature and scope of the role for the amicus and the specific functions that the court requires. Finally, the trial judge should consider whether the mandate assigned to an amicus will make a confidentiality order necessary for the amicus to effectively discharge their role.

Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 (CLAO); R. v. Samra (1998), 41 O.R. (3d) 434 (C.A.); Imona-Russel, at para. 92; R. v. Borutski, 2017 ONSC 7748; R. v. Chemama, 2016 ONCA 579, 351 O.A.C. 381; C.M.L.); Walker; Jaser, at para. 35; R. v. Ryan, 2012 NLCA 9, 318 Nfld. & P.E.I.R. 15 and R. v. Mastronardi, 2015 BCCA 338, 375 B.C.A.C. 134, at paras. 9-10 and 50; C.M.L.) ref.

In the present case no miscarriage of justice arose. No doubt that there was a striking imbalance in the present case; the defendant was unrepresented and often excluded from participating in the proceeding. When he did participate, he advanced no meaningful defence. Although an amicus assisted at trial, more preparation time and a broader adversarial role could have enhanced his ability to advance the interests of the accused. However, the law imposes a high standard for proving a miscarriage of justice. Any irregularity arising from the amicus appointment in the present case does not rise to the level of a miscarriage of justice.

In the present case, the defendant had not shown that the amicus appointment in his trial created an irregularity so severe that it rendered the trial unfair in fact or in appearance. Although it was open to the trial judge to have instructed amicus to assume a more partial role, the trial judge was under no obligation to do so. Moreover, it was not clear the trial judge would have mandated a broader adversarial role for amicus given the strenuous objections of the accused. There were many troubling aspects to the trial, but the amicus appointment did not create an irregularity so severe that it would the public confidence in the administration of justice. The trial judge was managing an exceedingly difficult trial and took many steps to ensure trial fairness, including enlisting the help of amicus. He appointed amicus with a limited mandate in the context of an accused who repeatedly insisted on representing himself without interference, reflecting respect for the defendant's right to conduct his own defence. This was a highly discretionary decision made in balancing the entire circumstances of the proceeding. In any event, it was not obvious that appointing amicus earlier or with a broader mandate would have provided much value for the defendant given that he resisted the appointment and refused to cooperate with amicus throughout the trial. A reasonable member of the public, considering the circumstances of the trial as a whole, would not find that a miscarriage of justice occurred in the present case. Instead, they would find the trial fairness concerns were sufficiently addressed by the trial judge and the assistance of amicus, such that a new trial was not required. Appeal was dismissed.

Daniel J. Song, K.C., and Katherine E. Clackson, for the appellant.

Julie Morgan and Elisa Frank, for the respondent.

Blair MacPherson and Judy Kliewer, for the intervener the Director of Public Prosecutions.

Avene Derwa, for the intervener the Attorney General of Ontario.

Anita Szigeti, Carter Martell, Cassandra DeMelo and Maya Shukairy, for the intervener the Empowerment Council.

Matthew Nathanson and Rachel M. Wood, for the intervener the Independent Criminal Defence Advocacy Society.

Zachary Al-Khatib and Jennifer Ruttan, for the intervener the Criminal Trial Lawyers' Association.

Sarah Rankin and Heather Ferg, for the intervener the Canadian Civil Liberties Association.

Written submissions only by Ian B. Kasper, for the intervener the Criminal Lawyers' Association.

Solicitors for the appellant: Pringle Chivers Sparks Teskey, Vancouver; Legal Aid Alberta, Edmonton.

Solicitor for the respondent: Alberta Crown Prosecution Service - Appeals and Specialized Prosecutions Office, Calgary.

Solicitor for the intervener the Director of Public Prosecutions: Public Prosecution Service of Canada, Yellowknife.

Solicitor for the intervener the Attorney General of Ontario: Ministry of the Attorney General, Crown Law Office - Criminal, Toronto.

Solicitors for the intervener the Empowerment Council: Anita Szigeti Advocates, Toronto; Martell Defence, Toronto; DeMelo Heathcote, London; Shukairy Law, Ottawa.

Solicitors for the intervener the Independent Criminal Defence Advocacy Society: MN Law, Vancouver; Peck and Company, Vancouver.

Solicitors for the intervener the Criminal Trial Lawyers' Association: Liberty Law, Edmonton; Ruttan Bates, Calgary.

Solicitors for the intervener the Canadian Civil Liberties Association: McKay Ferg, Calgary.

Solicitors for the intervener the Criminal Lawyers' Association: Kapoor Barristers, Toronto.

2024 S C M R 215

[Supreme Court of UK]\

Present: Lord Reed, President, Lord Hodge, Deputy President, Lord Lloyd-Jones, Lord Briggs and Lord Kitchin

LONDON GYPSIES AND TRAVELLERS and others---Appellants

Versus

WOLVERHAMPTON CITY COUNCIL and others---Respondents

Decided on 29th November, 2023.

(On appeal from: [2022] EWCA Civ 13)

Injunction---

----"Newcomer injunction", concept of---Scope and principles---Injunction against persons unknown---Whether the court has the power to grant injunctions against persons who are unknown and unidentified at the date of the grant of the injunction, and who have not yet performed, or even threatened to perform, the acts which the injunction prohibits---Held, that court has power to grant newcomer injunctions---However, it should only exercise this power in circumstances where there is a compelling need to protect civil rights or to enforce public law that is not adequately met by any other available remedies---Furthermore, newcomer injunctions should only be made subject to procedural safeguards designed to protect newcomers' rights---Detailed principles and pre-requisites related to grant of a newcomer injunction stated.

The claimant local authorities successfully applied for a series of injunctions which were aimed at the gypsy and traveller community and targeted unauthorised encampment or use of land. The majority of the injunctions were against "persons unknown", with varying descriptions. In some cases only interim injunctions had been granted and in others final injunctions had been made. Following applications by some of the local authorities to extend or renew their injunctions, a group of 38 claims was identified in which similar issues arose for determination, in particular whether a final injunction granted against persons unknown was subject to the principle that final injunctions would only bind the parties to the proceedings or whether final injunctive relief could be granted to a local authority against "newcomers" who could not be identified as parties by the date when the application for a final injunction was heard. The judge held that, whilst interim injunctions could be made against persons unknown, final injunctions could only be made against parties who had been identified and had had an opportunity to contest the final order sought, so that the court could not grant final injunctions that prevented persons unknown and unidentified at the date of the order (ie newcomers), from occupying and trespassing on local authority land. The Court of Appeal held that the court had the power to grant newcomer injunctions, and allowed the local authorities' appeal.

The court's power to grant injunctions is not limited to pre-existing, established categories. Injunctions may be granted in new circumstances as and when required by the principles of justice and equity which underpin them. This is demonstrated by the courts' development of several new kinds of injunction over the last 50 years, including freezing injunctions, search orders, third party disclosure orders, internet blocking orders, and anti-suit injunctions. Newcomer injunctions are a wholly new form of injunction, which are granted without prior notice against persons who cannot be known at the time the order is made. They therefore potentially apply to anyone in the world. The court has jurisdiction (in the sense of power) to grant an injunction against 'newcomers', that is, persons who at the time of the grant of the injunction are neither defendants nor identifiable, and who are described in the order only as persons unknown. The injunction may be granted on an interim or final basis, necessarily on an application without notice. Such an injunction (a "newcomer injunction") will be effective to bind anyone who has notice of it while it remains in force, even though that person had no intention and had made no threat to do the act prohibited at the time when the injunction was granted and was therefore someone against whom, at that time, the applicant had no cause of action. It is inherently an order with effect contra mundum, and is not to be justified on the basis that those who disobey it automatically become defendants.The court has jurisdiction, or power, to grant newcomer injunctions because its power to grant injunctions is unlimited, subject to any relevant statutory restrictions. The power is equitable in origin, and has been confirmed and restated by Parliament in section 37(1) of the Senior Courts Act 1981.

Spry, Equitable Remedies, 9th ed (2014) ("Spry"), p 333; Broadmoor Special Hospital Authority v Robinson [2000] QB 775, paras 20-21; Cartier International AG v British Sky Broadcasting Ltd [2016] EWCA Civ 658; [2017] Bus LR 1, para 47; Convoy Collateral Ltd v Broad Idea International Ltd [2021] UKPC 24; [2023] AC 389 ("Broad Idea"), para 57; Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, 360-361 and Castanho v Brown & Root (UK) Ltd [1981] AC 557 ref.

The court should, as a matter of principle and practice, grant newcomer injunctions subject to certain safeguards i.e. equitable principles. In deciding whether to grant a newcomer injunction and, if so, upon what terms, the court will be guided by principles of justice and equity and, in particular, that equity provides a remedy where the others available under the law are inadequate to vindicate or protect the rights in issue; that equity looks to the substance rather than to the form; that equity takes an essentially flexible approach to the formulation of a remedy, and that equity has not been constrained by hard rules or procedure in fashioning a remedy to suit new circumstances. In principle there is no reason why newcomer injunctions should never be granted. Newcomer injunctions are a valuable and proportionate remedy in appropriate cases. However, this does not mean that it will be appropriate for the court to grant a newcomer injunction in every case. In deciding whether it should grant a newcomer injunction, the court should have regard to the equitable principles mentioned above, which require that newcomer injunctions should only be granted in certain circumstances, and subject to certain safeguards.

Meux v Maltby (1818) 2 Swans 277, 281-282; Adair v The New River Co (1805) 11 Ves 429, 445; CPR rule 19.8(4)(a) and Parkin v Thorold (1852) 16 Beav 59, 66-67 ref.

In regard to present case concerning gypsies and travellers, newcomer injunctions are generally made in cases where the affected gypsies and travellers are unlikely to have any right or liberty to set up unauthorised encampments on the relevant local authority land. The injunctions therefore seek to enforce the local authorities' legal rights in proceedings where there is no real dispute to be resolved. Experience has shown that the usual processes of eviction, or even injunction, against named gypsies and travellers are inadequate because, by the time the local authority has commenced proceedings, the original group will often have left and been replaced by others, against whom the proceedings are of no effect. Local authorities therefore seek newcomer injunctions because they provide an effective means of vindicating their legal rights. Even when they are interim in form, newcomer injunctions operate in substance against newcomers on a medium to long-term basis, rather than as an emergency short-term measure to protect local authorities' rights pending a later trial process.

The applicable principles and safeguards for grant of newcomer injunctions will evolve over time in the light of the experience of the courts where applications for such injunctions are made. However, newcomer injunctions to prohibit unauthorised encampments by gypsies and travellers are only likely to be justified if, first, the applicant local authority has demonstrated that, on the available evidence, there is a compelling need to protect civil rights or enforce public law that is not adequately met by any other remedies. Secondly, because newcomer injunctions are made without notifying the affected newcomers, procedural safeguards must be built into both the application and the court order. The application for the injunction should be advertised widely so that those likely to be affected by it (or bodies representing their interests like the appellants) are given a fair opportunity to make representations before the injunction is made. Once the injunction has been granted, it must be displayed in a prominent location at the affected site. Newcomers who become aware of it should have notified clearly to them the right to apply to court to have it varied or set aside, without having to show that circumstances have changed. Thirdly, because the interests of gypsies and travellers are not typically represented at the hearings where newcomer injunctions are granted, the applicant local authorities will be obliged to comply with a strict duty which requires them to disclose to the court (after due research) any matter which a newcomer might raise to oppose the making of the order. Fourthly, newcomer injunctions should be limited so that they do not apply for a disproportionately long time period or to a disproportionately wide geographical area. Finally, the court must be satisfied that it is, on the particular facts of the case, just and convenient that a newcomer injunction is granted. Appeal was dismissed.

Richard Drabble KC, Marc Willers KC and Tessa Buchanan and Owen Greenhall (instructed by Community Law Partnership (Birmingham)) for Appellants.

Mark Anderson KC and Michelle Caney (instructed by Wolverhampton City Council Legal Services) for Ist Respondent.

Nigel Giffin KC and Simon Birks (instructed by Walsall Metropolitan Borough Council Legal Services) for 2nd Respondent.

Caroline Bolton and Natalie Pratt (instructed by Sharpe Pritchard LLP and London Borough of Barking and Dagenham Legal Services) for 3rd to 10th Respondents.

Stephanie Harrison KC, Stephen Clark and Fatima Jichi (instructed by Hodge Jones & Allen LLP) for 1st Intervener.

Jude Bunting KC and Marlena Valles (instructed by Liberty) for 2nd Intervener.

Richard Kimblin KC and Michael Fry (instructed by HS2 Ltd Legal Department and the Government Legal Department) for 3rd and 4th Interveners.

2024 S C M R 369

[Supreme Court of UK]\

Present: Lord Reed, President, Lord Hodge, Deputy President, Lord Kitchin, Lord Sales and Lord Lloyd-Jones

CANADA SQUARE OPERATIONS LTD---Appellant

Versus

POTTER---Respondent

Decided on 15th November, 2023.

(On appeal from: [2021] EWCA 339)

Limitation---

----Loan agreement and related payment protection insurance policy ("PPI policy") between claimant and commercial lender (defendant)---Lender receiving secret commission and failing to disclose fact and extent of commission payment---Breach of duty by defendant---Concealment of facts---Whether commencement of limitation period for claimant's statutory remedy would be postponed on the basis that facts were "deliberately concealed" by defendant; whether non-disclosure of commission amounted to concealment, and whether recklessness sufficient to establish requisite mental element of deliberateness---Held, that claimants can bring PPI policy "unfair commission" claims against banks, even after the usual six-year time limit has passed, if the bank has "deliberately concealed" facts essential to the pleading of a claim, which meant that the claimant was unable to bring proceedings within the usual time limit---In this regard, the term "deliberate concealment" means that the bank has kept a secret from the claimant, either by taking active steps to hide it or by failing to disclose it---Words "deliberately" and "concealed" must be given their ordinary meanings---To conceal means to keep something secret, either by taking active steps to hide it, or by failing to disclose it---Addition of the word "deliberately" meant that the concealment must be an intended concealment, whether by positive steps or by a withholding of information, but in either case, where the concealment was an intended result---Recklessness was not sufficient---Nor was a mere failure to disclose, unless that failure was a deliberate breach of a legal duty owed by the defendant to the claimant---Existence and amount of the commission were facts that the claimant in the present case needed to know to bring her claim and, as she did not find out about the commission earned by the defendant until shortly before she issued her claim, her claim was brought in time---Claimant's claim was not time barred because section 32(1)(b) of the Limitation Act, 1980 postponed the commencement of the six-year limitation period until November 2018, when the claimant was advised that the premium was likely to have included substantial commission---Defendant had deliberately concealed those facts by consciously deciding not to tell her about the commission---However, the defendant's conduct did not amount to a "deliberate commission of a breach of duty" for the purposes of section 32(2) of the Limitation Act 1980, as the defendant did not intend its failure to disclose the commission to the claimant to render their relationship unfair within the meaning of section 140A of the Consumer Credit Act 1974---Claimant had succeeded in extending the time limit (for her claim) by virtue of section 32(1)(b) of the Limitation Act, 1980---Defendant's appeal was dismissed.

The Limitation Act 1980 ("the 1980 Act") sets out the time limits (or limitation periods) for bringing different kinds of legal claims. Section 32(1)(b) postpones the commencement of the ordinary limitation period where any fact relevant to the claimant's right of action has been "deliberately concealed" from them by the defendant. Section 32(2) provides that, for the purposes of section 32(1), "deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty."

In 2006 the claimant-lady entered into a loan agreement with the defendant company, which was a commercial lender. The agreement was a pre-printed standard form prepared by the defendant and signed by both parties, and was a credit agreement within the meaning of the Consumer Credit Act 1974 as amended ('the 1974 Act'). It stated that the total amount of credit was £20,787.24, made up of a cash amount of £16,953.00 and a payment protection premium of £3,834.24. The premium related to the claimant's purchase of a payment protection insurance policy ('the PPI policy'). The loan was repayable in instalments over a period of 54 months. As well as being a commercial lender, the defendant was also an insurance intermediary. Over 95% of the amount described in the agreement as the PPI premium constituted the defendant's commission on the PPI policy. The sum paid to the insurer was only £182.50. The Defendant did not inform the claimant that it would receive or retain commission on the policy (commission was paid at a rate of >95% of the PPI premium). The claimant completed the payments under the agreement early, and the agreement came to an end on 8 March 2010. In 2018 the claimant complained to the defendant that the PPI policy had been mis-sold to her. She received compensation in accordance with a redress scheme established by the Financial Conduct Authority for the mis-selling of PPI policies. She subsequently consulted solicitors and proceedings were issued against the defendant, seeking recovery of the sums paid by her, under the terms of the PPI Policy. The defendant argued that the claim was statute barred, as the limitation period of 6 years imposed by section 9 of the Limitation Act 1980, had expired. The claimant sought to rely on section 32 of the Limitation Act 1980, arguing that the six year limitation period did not begin to run until she had discovered the commission being paid to the defendant and that only took place in 2018. At first instance, the County Court decided that section 32 of the Limitation Act 1980 applied and gave judgment in the claimant's favour. The defendant appealed, unsuccessfully, to both the High Court and to the Court of Appeal.

A claimant who wishes to rely on the defence under section 32(1)(b) of the Limitation Act, 1980 must prove that there was a fact relevant to the claimant's right of action, which was deliberately concealed from him/her by the defendant. With regard to the meaning of "concealed", a fact will have been concealed if the defendant has kept it secret from the claimant, either by taking active steps to hide it or by failing to disclose it. The claimant does not need to establish that the defendant was under a legal, moral or social duty to disclose the fact, nor does he/she need to show that the defendant knew the fact was relevant to the claimant's right of action. All that is required is that the defendant deliberately ensures that the claimant does not know about the fact in question and so cannot bring proceedings within the ordinary time limit. Coming to the meaning of "deliberately", the defendant's concealment of a relevant fact will be deliberate if the defendant intended to conceal the fact in question. The Court of Appeal's finding that "deliberately" can also mean "recklessly" in this context is incorrect.

AIC Ltd v ITS Testing Services (UK) Ltd (The Kriti Palm) [2006] EWCA Civ 1601; [2007] 1 All ER (Comm) 667 disapproved.

Cave v Robinson Jarvis & Rolf [2002] UKHL 18; [2003] 1 AC 384 ref.

The existence and amount of defendant's commission on the PPI policy were facts which were relevant to claimant's right of action under section 140A of the 1974 Act, since she could not plead her case without knowing them. The defendant deliberately concealed these facts from the claimant by consciously deciding not to tell her about the commission. Section 140A was not in force when the defendant initially decided not to disclose the commission. However, the defendant continued to withhold the information from the claimant after section 140A was brought into force, even though the agreement between the claimant and defendant remained in force and the commission continued to be paid. The claimant did not find out about the commission until November 2018, shortly before she issued her claim against the defendant. It was not suggested that, with reasonable diligence, she could have discovered the concealment any earlier. Therefore, the requirements of section 32(1)(b) of the 1980 Act were met. The claimant's claim against the defendant was not time barred, because section 32(1)(b) of the 1980 Act postponed the commencement of the ordinary six-year limitation period for bringing her claim until November 2018.

The Court of Appeal concluded that the creation of an unfair relationship within the meaning of section 140A of the 1974 Act amounted to a breach of duty by the defendant for the purposes of section 32(2) of the 1980 Act. Question was whether such breach of duty was deliberate. A claimant who wishes to rely on section 32(2) of the 1980 Act must show that the defendant knew it was committing a breach of duty or intended to commit a breach of duty. Supreme Court rejected the submission that "deliberate" includes "reckless" so that a defendant could be said to commit a breach of duty deliberately if it realised that there was a risk that what it was doing might be a breach of duty and took that risk in circumstances where it was objectively unreasonable for it to do so, for four reasons. First, "deliberate" and "reckless" have different ordinary meanings and are used to mean different things in both judicial decisions and legislation. Secondly, the case law supports the view that that recklessness was not sufficient to establish a deliberate breach of duty for the purposes of section 32(2). Thirdly, section 32 should not be construed as a restatement of the old law of concealed fraud. Fourthly, interpreting "deliberate" to include "reckless" would be likely to result in practical problems. Applying these principles to the facts of the present case, it had not been shown that the defendant knew or intended that its failure to disclose the commission to the claimant would render their relationship unfair within the meaning of section 140A of the 1974 Act. Accordingly, the defendant's breach of duty was not deliberate, meaning that the claimant could not rely on section 32(2) of the 1980 Act to postpone the commencement of the ordinary six-year limitation period for bringing her claim.

Grace v Black Horse Ltd [2014] EWCA Civ 1413; [2015] Bus LR 1; [2015] 3 All ER 223 and Primeo Fund v Bank of Bermuda (Cayman) Ltd ("Primeo") [2019] CICA JO613-1 ref.

The claimant had succeeded in extending the time limit (for her claim) by virtue of section 32(1)(b) of the Limitation Act, 1980, Defendant's appeal was dismissed.

Charles Kimmins KC, Sean Snook and Fiona Whiteside (instructed by Hogan Lovells International LLP (London)) for Appellant.

Robert Weir KC and Jonathan Butters (instructed by HD Law Ltd, Bradford) for Respondent.

2024 S C M R 880

[Supreme Judicial Council]

Present: Qazi Faez Isa, CJP, SCP, Chairman, Sardar Tariq Masood, Judge, SCP, Member-I, Syed Mansoor Ali Shah, Judge, SCP, Member-II, Muhammad Ameer Bhatti, CJ, LHC, Member-III and Naeem Akhtar Afghan, CJ, HCB, Member-IV

In re: JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI, JUDGE, SUPREME COURT OF PAKISTAN

Complaints Nos. 586, 589, 592, 595, 596, 597, 600, 601 and 609 of 2023/SJC, decided on 4th March, 2024.

Constitution of Pakistan---

----Arts. 209(5)(b) & 209(6)---Code of Conduct for Judges of the Supreme Court and High Courts, Arts. II, III, IV & VI---Complaints filed before the Supreme Judicial Council ("SJC") against a sitting Judge of the Supreme Court, who resigned during pendency of the proceedings before the SJC---Misconduct---Violation of the Code of Conduct for Judges of the Supreme Court and High Courts---Removal from the office of Judge---Purchase of properties and construction raised thereon without having sufficient declared income/money in income tax returns/wealth statement---Purchase of property at half its market price to deprive minor co-owners of their share in the property---Misuse of office to exercise influence over government officials---Grant of undue favours to a businessman to buy properties from him at heavily discounted prices---Judge in question ('the accused') bought a property knowing that it was co-owned by children, and that without a Guardian Court granting permission to sell it he could not have bought it---Accused did not produce any notice published in any newspaper, which prudent buyers do by inviting public objections by publishing the same in prominent newspapers---Accused also elected not to testify, and by not doing so an adverse presumption could be drawn against him---Accused did not disclose his tax filings nor came forward to testify; he also did not disclose how much he had earned over the years and/or the income tax paid thereon---It was also not stated when he started filing tax returns and paying income tax---Since the accused did not make the requisite disclosure nor testified the SJC was not in a position to determine whether or not he had sufficient income tax paid/declared money to justify the purchase of the properties bought by him---A property developer through his company, paid Rupees fifty million to the seller as portion of the sale consideration for a property bought by the accused---A judge accepting such largesse from a property developer, who claimed that he hardly knew the accused-Judge, raised very serious questions of propriety---Since no viable explanation for paying the said fifty million rupees was forthcoming the SJC was left to assume that such incomprehensible generosity to a Judge was with the expectation that it would be handsomely recompensed---Furthermore, documents on record established that the accused applied for and was allotted four properties by the Federal Government Employees Housing Foundation ('the Foundation') and the Supreme Court Employees Cooperative Housing Society---Within a period of less than two years after being administered oath as a Judge of the Supreme Court, the accused got four properties, while serving as a Judge of the Supreme Court---Organizations from whom he got the four propertips were set up for providing housing to its members---Accused did not explain why he obtained four properties, surely he could not reside in all of them---Judge of the Supreme Court should not want to deprive others, which would be the result of actions of the accused---Two sons of the accused were given properties at heavily discounted prices in projects owned by a property developer---Said property dealer admitted in his testimony that each of the sons was given the properties of which they only paid ten percent of their price; that he had not given similar allotment to any other judge or his children; and that he had also sent £ 5,000 to the daughter of the accused in a foreign country---Accused violated his oath of office which required him to abide by the Code of Conduct for Judges of the Supreme Court and High Courts ('the Code of Conduct') by violating a number of the provisions of the Code of Conduct---Accused could not be said to be untouched by greed, and so violated Article-II of the Code of Conduct---It also cannot be stated that he was above reproach, and so had violated Article-III of the Code of Conduct---Conduct of accused was also not free from impropriety expected of a Judge in his official and private affairs, and to such extent he also violated Article-III of the Code of Conduct---It is clear that actions of accused were swayed by consideration of personal advantage, and so he violated Article-IV of the Code of Conduct---He knowingly deprived minors of their valuable property, and so violated Article-VI of the Code of Conduct---By receiving substantial unexplained gifts, the accused violated Article-VI of the Code of Conduct; the gifts included receiving fifty million rupees, his sons receiving two commercial plots and two residential plots at a nominal price and his daughter receiving UK pounds £5,000---Accused was guilty of misconduct and should have been removed from the office of Judge---Number of instances of misconduct committed by the accused had damaged the reputation of the judiciary---SJC directed that as the accused should have been removed for having committed serious misconduct, the honorific 'Justice' or 'Judge' should not henceforth be used with the name of the accused.

| | | | | --- | --- | --- | | S. No | Title and No. of Complaint | Date filed on | | 1. | Mian Dawood Against Mr. Justice Sayyed Mazahar Ali Akbar Naqvi, Judge, Supreme Court of Pakistan No. 586/2023/SJC | 24.02.2023 | | 2. | PML (N) Lawyers Forum Punjab, through its General Secretary Zahid Hussain Malik, Additional Secretary Khalid Nawaz Ghumman and Vice-President Rushda Lodhi, Advocates High Court Against Mr. Justice Sayyed Mazahar Ali Akbar Naqvi, Judge, Supreme Court of Pakistan No. 589/2023/SJC | 06.03.2023 | | 3. | Pakistan Bar Council through its Vice-Chairman and Chairman, Executive Committee, Supreme Court Building Islamabad Against Mr. Justice Sayyed Mazahar Ali Akbar Naqvi, Judge, Supreme Court of Pakistan No. 592/2023 /SJC | 10.03.2023 | | 4. | Ghulam Murtaza Khan Against Mr. Justice Sayyed Mazahar Ali Akbar Naqyi, Judge, Supreme Court of Pakistan No. 595/2023/SJC | 21,03.2023 | | 5. | Khyber Pakhtunkhwa Bar Council through its Vice- Chairman and Chairman Executive committee Bar Council Against Mr. Justice Sayyed Mazahar Ali Akbar Naqvi, Judge, Supreme Court of Pakistan No. 596/2023/SJC | 01.04.2023 | | 6. | Balochistan Bar Council through its Vice-Chairman Executive Committee and Member Judicial Commission of Pakistan (Baiochistan) Against Mr. Justice Sayyed Mazahar Ali Akbar Naqvi, Judge, Supreme Court of Pakistan No. 597/2023/SJC | 03.04.2023 | | 7. | Punjab Bar Council through its Vice-Chairman and Chairman Executive Committee Against Mr. Justice Sayyed Mazahar Ali Akbar Naqvi, Judge, Supreme Court of Pakistan No. 600/2023/SJC | 13.04.2023 | | 8. | Islamabad Bar Council through its Vice-Chairman and Chairman Executive Committee Against Mr. Justice Sayyed Mazahar Ali Akbar Naqvi, Judge, Supreme Court of Pakistan No. 601/2023/SJC | 13.04.2023 | | 9. | Sindh Bar Council through its Vice-Chairman, Karachi Against Mr. Justice Sayyed Mazahar Ali Akbar Naqvi, Judge, Supreme Court of Pakistan No. 609/2023/SJC | 27.04.2023 |

Dates of hearing: 27th October, 20th, 21st, 22nd November, 14th December of 2023, 11th January, 15th, 16th, 29th February and 1st March, 2024.

OPINION

(reported under Article 209(6) of the Constitution of the Islamic Republic of Pakistan.)

Qazi Faez Isa, CJ/Chairman. Ten complaints were filed against Justice Sayyed Mazahar Ali Akbar Naqvi ('Justice Naqvi') in February, March and April of 2023. The former Chief Justice, Justice Umar Ata Bandial, on 27 May 2023 referred the complaints to Justice Sardar Tariq Masood for his opinion, pursuant to paragraph 7(1)(a) of the Supreme Judicial Council Procedure of Enquiry, 2005 ('the Procedure'). In Complaints Nos. 585, 589 and 595 of 2023 Justice Sardar Tariq Masood rendered his opinion on 25 September 2023, in respect of complaint No. 586 of 2023 it was given on 21 September 2023, and with regard to Complaints Nos. 592, 596, 597, 600, 601 and 609 of 2023 opinion was rendered on 22 September 2023.

1. The complaints together with the aforesaid opinions were put before the Supreme Judicial Council ('SJC'). On 27 October 2023 the SJC deliberated upon the matter and decided to call upon Justice Naqvi to respond to the allegations which had been levelled in the complaints within fourteen days. Copies of the complaints were provided to Justice Naqvi. Instead of submitting his reply Justice Naqvi sought the minutes, dated 4 March 2020, of the meeting of the Judicial Commission of Pakistan ('JCP'). The Secretary of the SJC vide letter dated 7 November 2023 responded as under:

Dear Sir, With reference to your letter dated 2nd November, 2023, requesting for the minutes of the meeting dated 4th March, 2020 of the Judicial Commission of Pakistan constituted under Article 175A of the Constitution of the Islamic Republic of Pakistan.

Sir, I respectfully submit that it is not within my constitutional and legal jurisdiction to provide you with a copy of the said minutes.

The Judicial Commission of Pakistan has also made rules pursuant to Article 175A(4) of the Constitution. Rule 5(4) of the Judicial Commission of Pakistan Rules, 2010, states that "the proceedings of the Commission shall be held in camera".

Sir, I am confident that you will not want me to act in contravention of the Constitution and the law, and with respect, you may be graciously pleased to withdraw your said request.

I remain, Yours sincerely, (Jazeela Aslam)

Registrar/Secretary'

Through letter dated 10 November 2023, which was titled Preliminary reply to show cause notice dated October 28, 2023...' Justice Naqvi raised a number of 'objections' but he did not submit a reply to the allegations levelled against him in the complaints.

1. The SJC next met on 20 November 2023. Justice Naqvi and his counsel were present and wanted to see the earlier order of the SJC and the opinions which had been rendered on the complaints. The same were shown to them. The SJC adjourned to meet on 21 November 2023 when one of the complainants filed additional documents in support of the allegations which he had levelled in his complaint; copy whereof was provided to Justice Naqvi. On 22 November 2023 the SJC dismissed Complaint No. 585 of 2023. And, after hearing the complainants, in the presence of Justice Naqvi and his learned counsel, the allegations were formulated and a revised show-cause notice was issued and Justice Naqvi was called upon to respond thereto.

2. The show-cause notice, dated 22 November 2023, which was issued to Justice Naqvi enumerated ten allegations, reproduced hereunder:

'Allegation No. 1. That Justice Naqvi is approachable and had cases fixed 'before him and provided relief in such cases. Reference is made to the case of Ghulam Mehmood Dogar Federation of Pakistan (CPLA No. 3988/2022) and the orders passed therein and to three recordings purportedly between: (1) former Chief Minister of Punjab, Ch. Pervez Elahi, and Mr. Jehangir A. Jhoja, Advocate, (2) Mr. Abid Z. Zuberi, Advocate Supreme Court, and Ch. Pervez Elahi, and (3) Ch. Pervez Elahi and Justice Naqvi. And, that in a service matter the Chief Election Commissioner was called for and notice with regard to the holding of elections to the dissolved Provincial assemblies of the Punjab and Khyber Pakhtunkhwa was taken up.

'Allegation No. 2; Justice Naqvi acquired property bearing No. 100, situated at Saint Johns Park, Lahore Cantonment, Lahore, measuring 1983.77 square yards, from Ch. Muhammad Shahbaz son of Allah Ditta and his son, Muhammad Hassan Shahbaz, on 25 June 2022 through registered sale deed showing sale consideration to be 106,842,000 rupees, but its market price was around 500,000,000 rupees; that he did not have sufficient income tax paid/declared money to justify the purchase of the property; that he had thrice revised his income tax/wealth statement in order to justify that he had the money to buy the said property.'

'Allegation No. 3: The owner of property bearing No. 100, Saint Johns Park, Lahore Cantonment, Lahore was Dr. Bisma Warsi who died in the year 2020 leaving behind a husband and three minor sons as her legal heirs, respectively, (1) Ch. Muhammad Shahbaz (husband), (2) Muhammad Hassan Shahbaz (son), whose date of birth is 3 June 2004, (3) Hussain Shahbaz Warsi (son), whose date of birth is 25 March 2007, and (4) Ali Hamza Shahbaz Warsi (son), whose date of birth is 19 August 2008. However, the property was sold by Ch. Muhammad Shahbaz and Muhammad Hassan by depriving two legal heirs, namely, Husain Shahbaz Warsi and Ali Hamza Warsi. That Justice Naqvi had heard Writ Petition No. 26248/2012 as a Judge of the Lahore High Court and had passed order dated 17 December 2012 and learnt of the said property and of Dr. Bisma Waris, and then misused his office to do the following:

(a) Facilitated filing of a suit for declaration by and through Ch. Muhammad Shahbaz wherein only one son of late Dr. Bisma Warsi was arrayed as plaintiff, namely, Muhammad Hassan Shahbaz Warsi, who was a minor, and without disclosing the other two legal heirs, that is sons of Dr. Bisma Warsi. The suit was filed against the public at large seeking a declaration that the plaintiffs were the only legal heirs of Dr. Bisma Warsi.

(b) The suit, filed on 12 February 2021, was decreed on 31 March 2021 with extraordinary speed.

(c) That there is no concept in law of a suit for declaration with regard to the subject matter.

(d) That on the basis of the decree passed in the said suit you exercised your influence with the Military Estate Office and Lahore Cantonment to get the said property put into the names of the plaintiffs, which was done on 24 June 2022.

(e) That on the very next day, that is, 25 June 2022, the said property was purchased by Justice Naqvi.

(f) Non-judicial stamp paper of 1,069,420 rupees on the sale deed was purchased by Justice Naqvi on 23 June 2022, when the property was not in the name of the said sellers.

And, that these facts taken together confirm that extraordinary influence was exercised over the court and government officers/ officials by Justice Naqvi by misusing his office and in doing so had deprived two legal heirs.'

'Allegation No. 4: That Justice Naqvi bought Plot No. 144, Block E-1, situated in Gulberg-3, Lahore, measuring 2 kanals and 4 marlas, for a declared price of 60,000,000 rupees, but since he did not have this amount of income tax paid/declared money, therefore, he showed that he had sold Plot No. 375, Phase-2, DHA, Gujranwala Cantonment, for 60,000,000 rupees though he had purchased it for 4,700,000 rupees.'

'Allegation No. 5: One commercial plot, measuring 100 square yards, and one residential plot, measuring 500 square yards, were given to Justice Naqvi's son, Syed Tasadduq Murtaza Naqvi, respectively, in Lahore Smart City and Capital Smart City, and another commercial plot, measuring 100 square yards and residential plot, measuring 500 square yards, were given to another son of Justice Naqvi, namely, Syed Tasadduq Mustafa Naqvi, at heavily discounted price by the owner of the said projects, namely, Zahid Rafique, for the reason that Justice Naqyi facilitated his business affairs by misusing his office and by granting undue favours to him.'

'Allegation No. 6: Three plots of 1 kanal each, respectively (1) Plot No. 222, Block-B, Park Road, Federal Government Employees Housing Foundation, Islamabad, (2) Plot No. 357, Street No. 9, Block-A, Park Road, Federal Government Employees Housing Foundation, Islamabad, and (3) Plot No. 249, Street No. 11, G-17/1; Supreme Court Employees Cooperative Housing Society, Islamabad, were purchased by Justice Naqvi illegally and without having sufficient income tax paid/declared money.'

'Allegation No. 7: A property known as 'Allied Plaza', situated in Civil Lines, Gujranwala, though owned by Justice Naqvi is not declared by him in his income tax returns and wealth statements.'

'Allegation No. 8: Justice Naqvi's accumulation of properties and the amount that he has spent, and is spending, on his house which he is constructing on Plot No. 100, Saint Johns Park, Lahore Cantonment, Lahore is without known sources of income/savings a Judge, which is evidence of corruption.'

'Allegation No. 9: Office bearing No. 12, situated in Dayal Singh Mansion, Lahore, of the Evacuee Trust Property Board, was rented out to Justice Naqvi's sons well below the market rent and this was done on account of the influence by Justice Naqvi misusing his office.'

'Allegation No. 10: Justice Naqvi misused his office to prevail upon government controlled organizations and statutory corporations, such as the National Highways Authority, to appoint his sons as legal advisors/panel advocates to them.'

1. SJC's order of 22 Novernber 2022 concluded as under:

Therefore, it is decided that Justice Naqvi be called upon to submit his explanation to the above allegations and to explain that he is:

A. Untouched by greed, which Article-II of Code of Conduct issued by the SJC proscribes.

B. Is above reproach as mandated by Article-III of the Code of Conduct.

C. Is free from impropriety as expected of a Judge in his official and private affairs as mandated by Article-III of the Code of Conduct.

D. That he did not decline to act in a case involving his own interest and those of his near relations and close friends as mandated by Article-IV of the Code of Conduct.

E. That he did not refrain from entering into or continuing any business dealing with any party to a case before him as mandated by Article-IV of the Code of Conduct. .

F. That his actions are not swayed by consideration of personal advantage as mandated by Article-IV of the Code of Conduct;

G. That he did not engage in any public controversy as stipulated in Article-V of the Code of Conduct.

H. That he was not involved, either on his own behalf or on behalf of others, in litigation as stipulated in Article-VI of the Code of Conduct.

I. That he did not employ the influence of his position to gain, undue advantage as proscribed in .Article-VI of the Code of Conduct.

J. That he did not receive gifts or favours in consequence of the office of Judge as proscribed in Article-VI of the Code of Conduct.'

The show-cause notice dated 22 November 2023, issued to Justice Naqvi, reproduced the aforesaid from the order of the SJC.

1. Justice. Naqvi was called upon to submit his reply within fourteen days but he did not do so. The SJC next met on 14 December 2023 and its proceedings were noted in the order of the same date, as under:

'1. An application has been submitted today by Justice Sayyed Mazahar Ali Akbar Naqvi (Justice Naqvi) that the proceedings of the Supreme Judicial Council ('SJC') be made open. The Chairman and the Members of the SJC enquired from the complainants whether they have any objection and they said they do not. It was, therefore, unanimously agreed to open the proceedings to the public and the SJC relocated to courtroom No. 1.

2. Show cause notice dated 24 November 2023 was issued to Justice Naqvi requiring him to submit his reply/explanation within fourteen days, however, it has still not been submitted. Learned counsel representing Justice Naqvi stated that the reply was not filed but an application dated 9 December 2023 has been submitted, stating that until the Constitution Petitions filed by Justice Naqvi are first decided the SJC should not proceed, and once the Constitution Petitions are decided only then will a reply to the show cause, notice shall be submitted. The learned counsel states that there are two precedents in this regard, firstly, in the case of Justice Shaukat Aziz Siddiqui and, secondly, in the case of Justice Qazi Faez Isa.

3. The two cited matters are part of the judicial record of the Supreme Court and open to the public. Justice Shaukat Aziz Siddiqui had submitted replies to the show cause notices and Justice Qazi Faez Isa had also done so which was filed in Constitution Petition No. 17/2019; a 59 page reply was submitted in respect of the Special Reference No. 1/2019/SJC on 31 July 2019, within the allotted fourteen days time, and another comprising of 27 pages with regard to Reference No. 417/2019/SJC was submitted on 31 July 2019, which was also filed within fourteen days. The request of the learned counsel is not supported by the Constitution, by any law and is contrary to the cited examples and there is no constitutional or legal requirement that the SJC should stop its proceedings. However, one of the learned Members (Justice Ijazul Ahsan) states that he reserves his opinion till such time that he has heard full scale arguments of the learned senior counsel.

4. The learned counsel submits that Justice Naqvi may be granted one week time to submit his reply, without prejudice to the two Constitution Petitions that he has filed in the Supreme Court. Though the fourteen days time provided in the show cause notice, dated 24 November 2023, has expired, in the interest of justice we deem it appropriate to grant Justice Naqvi further time to submit his reply/explanation to the show cause notice till 1 January 2024, however, it is clarified that no further request for extension of time will be entertained as more than the required time has been given.

5. The learned Attorney-General for Pakistan ('AG') shall conduct the proceedings and the complainants may assist him. Learned AG shall provide a list of witnesses within three days. Justice Naqvi may also provide a list of witnesses along with his reply/explanation to the show cause notice. The list of witnesses should state what the Witness is required to produce or will testify about. The Secretary of the SJC is directed to summon the witnesses along with requisite record.

6. The learned counsel states that he needs certain documents which are part of the record of the SJC. He may submit an application within two days and specify the documents, and if the same are available with SJC, the Secretary to provide them to him. Similarly if the learned AG requires copies of documents, or the complainants through him, the learned AG may also apply for the same.

7. To come up on Thursday, 11 January 2024 at 2.30 pm and may continue on Friday 12 and Saturday 13 January 2024.'

1. Pursuant to the SJC's order dated 14 December 2023 the learned AG submitted List of Witnesses and specified their 'relevance/role'. The SJC did not consider Allegation No. 1 because the subject matter of the same was also under consideration of a Commission of Inquiry appointed by the Government of Pakistan1 and the Supreme Court2 had restrained the said Commission of Inquiry from proceeding. Since the allegations levelled in Allegation No. I were not considered therefore no finding in respect thereof is being given. Justice Naqvi finally submitted his reply on 1 January 2024. His replies to the Allegations Nos. 2 to 10 are reproduced hereunder:

Reply to Allegation No. 2

'This allegation is also absolutely and maliciously false. The property was purchased for a sale consideration of Rs. 130 million. It has been declared as such in the Undersigned's income tax return filed with the FBR. The price mentioned in the sale deed is according to the DC Valuation of the relevant time. Besides, all taxes and charges prevailing at that time were paid by the Undersigned. Thus, it is maliciously and absolutely false to allege that the Undersigned did not have sufficient Income Tax paid/declared money to justify the purchase of the property.

Similarly, it is also absolutely and maliciously false to allege that the Undersigned had thrice revised his Income Tax Return in order to justify that he had the money to buy the said property. No revision of his Tax Return for any such purpose as alleged was made by the Undersigned.

It is submitted that value of a property cannot be determined on mere speculations or oral assertions of the complainants. The document attached with the complaints, which purports to be of Some Real Estate Entity, but does not even bear the name or designation (if any) of the person (if any) allegedly signing it, is evidently a self-manufactured document and in any case has no evidentiary value at all.

It is also to be noted that it is not part of the allegation that any proceedings have been initiated by or are pending with the FBR for any misdeclaration in the Income Tax Return/wealth statement of the Undersigned.

SJC, it is submitted with great respect, has no authority to enter into a fishing expedition for the purpose of inter alia, determining the value of a property regarding which no exception has been taken by the FBR or for that matter any other competent authority. For the same reason, nor does it have any authority to question the valuation of the property given in the registered sale deed or in the Income Tax Return, more particularly when the said valuation stands accepted by the relevant authorities competent to do so under the law.'

Reply to Allegation No. 3

This Allegation, in so far as it purports to attribute misconduct/ misuse of office to the Undersigned is also absolutely and maliciously false.

In this respect, the correct facts are as follows:

(i) The Undersigned was not aware of any missing legal heirs of Dr. Bisma Warsi. This issue was brought up and thus came to his notice for the first time during the meeting of this SJC on November 21st, 2023.

(ii) At the time of pre-contract negotiations, signing and execution of the sale deed, the documents which were shown to the Undersigned, including but not limited to the FRC, Nadra Certificate, documents and record of Cantonment Board, extract of GLR, lease deed and the proclamations in the newspapers published on behalf of Cantonment Board, all indicated only two owners of the property. The Undersigned conducted a reasonable due diligence and did not find any legal impediment in purchasing the property.

(iii) Thus, the Undersigned purchased the property from Ch. Muhammad Shahbaz and the other legal heirs of Dr. Bisma Warsi which were disclosed to the Undersigned by Ch. Muhammad Shahbaz. Hence, in this regard not misconduct or any nature whatsoever can be attributed to the Undersigned.

(iv) In fact, the Uhdersigned is a victim and not a perpetrator of this vital omission to include all the legal heirs of Dr. Bisma Warsi in the Sale Deed relating to this property.

(v) IN this respect it is also noteworthy the Sale Deed executed between the seller and the Undersigned contains clauses to the effect that the property is free from all encumbrances. It is also expressly stated therein that the sellers are absolute owners of the property. Any omission and/or impropriety was committed by the seller.

(vi) As far as the suit for declaration is concerned, the Undersigned had nothing to do with its filing or decision thereof, and this allegation that he had facilitated the filing of this suit or, for that matter, in any manner influenced its decision is again absolutely and maliciously false.

(vii) As per the laws in Punjab, suit for declaration of legal heirs of a deceased owner is filed against the public at large. As per standard practice as proclamation is issued in newspapers. If no one appears in response to the proclamation the court proceeds to decree the suit.

(viii) In any event, judgment of the court reads that the court decreed the suit on the basis of FRC certificate which was available showing only two legal heirs i.e., Ch. Shahbaz and Hassan Shahbaz. Further, the suit related to a declaration of legal heirs. It was not specific to any property.

(ix) As per paragraph 7 of the decree, the relevant departments were directed to incorporate the names of the legal heirs strictly in accordance with law. It was further held that if any legal heir was concealed this decree shall not affect the rights of those legal heirs.

(x) The Undersigned did not know the Seller at the time the suit was decreed. He did not even know about the property at that time.

(xi) The Undersigned did not influence any court for any declaration in favor of the sellers, the declaration in the suit in question contains statements of the plaintiffs to the effect being only two legal heirs. The cantonment board even prior to the entry of the Undersigned was in contact through various letters with only these two legal heirs, which was actually an assurance for the Undersigned that these two are the only legal heirs. The Undersigned never influenced any government department or officials to influence the process, as there was no need for it. The entire process has been completed after fulfilling each requirement as per law.

(xii) As per the record the two minors were not registered with any government department, including NADRA. The Undersigned, on enquiry, has learnt that the two minors were registered for the first time on September 7th, 2022 i.e., over two months after the execution of the sale deed on June 28th, 2022.

(xiii) The Writ Petition mentioned in the allegation has absolutely nothing to do with the property purchased by the Undersigned. Nor did this property of Dr. Bisma Warsi form the subject matter of the Writ Petition. In fact, this Writ Petition was filed by Dr. Bisnia Warsi as far back as in the year 2012, to challenge the refusal by the Justice of Peace to order the registration of a criminal case on her application under sections 22-A, 22- B of the Criminal Procedure Code, pursuant to a dispute relating to three properties situated at Temple Road, Lahore, and, as is evident from the contents of the order dated December 17th, 2012, a copy whereof has been placed on the record by Mr. Mian Dawood, the same was dismissed by the Undersigned.'

Reply to Allegation No. 4

'This allegation is also absolutely and maliciously false and, is therefore, denied as such.

It is also specifically denied as maliciously false that the Undersigned did not have the "amount of Income Tax paid/ declared money, therefore, he showed that he had sold plot No. 375 Phase II, DHA, Gujranwala Cantonment for 60,00,000".

It is accepted that Plot No. 375 was purchased by the Undersigned for Rs.4.7 million. But this was in the year 2006, (even before he took oath as a Judge of the Lahore High Court). Thereafter he had constructed a 2-Storey house on the same plot, and it was this plot along with the 2-Storey house constructed thereon that he sold by for 60 million in the year 2021 i.e., after 15 years of the purchase of the plot. Needless to add, all these facts have been deliberately and maliciously concealed by the so-called "complainants". It may be added here that, the sale consideration for the plot and house was received through two pay orders No. 111246 (Rs. 25 million) and 111248 (Rs. 30 million), while Rs. 5 million was received in cash, and the entire amount was deposited in the Undersigned's official salary account and is also duly declared in his Income Tax Return,'

Reply to Allegation No. 5

'This allegation is also absolutely and maliciously false. The Undersigned has never facilitated the business affairs of any person by the name of Zahid Rafique in any manner whatsoever by misusing his (the Undersigned's) office nor has he ever granted any undue favors to any such person.

As regards the allegation that some commercial plots were given by the said Zahid Rafique to the Undersigned's sons namely Syed Tassadaq Mustafa Naqvi and Syed Tassadaq Murtaza Naqvi, it is submitted that the Undersigned had nothing to do with any of the said alleged transactions. It may be added here that both the sons of the Undersigned are adults and independent practicing lawyers since 2017, and are also regular taxpayers. Moreover, without prejudice to this alone, it is submitted that these allegations pertain to properties allegedly belonging to the Undersigned's sons, and, in view of the dictum laid down by the Hon'ble Supreme Court in Justice Qazi Faez Esa (PLD 2022 SC 119), the said allegation cannot form the subject matter of the proceedings against the Undersigned. In this respect, here is the relevant portion of the majority Judgment in Justice Qazi Faez Esa's Review Petition, wherein, it has been held inter alia, that ".... The role of jurisdiction of the council is limited to the matters relating to the conduct and capability of the superior court judges. It is not mandated to delve into the affairs of someone who is not the judge of the superior court ....".

Reply to Allegation No. 6

'It is again absolutely and maliciously false that the Undersigned had purchased illegally and without having sufficient Income Tax paid/declared money, the three plots mentioned in this allegation.

In this respect, the correct facts are as under:

i. As regards the plot mentioned at serial No. (i), the same has been provisionally allotted to him being a life member of the Supreme Court Bar Association of Pakistan, vide provisional allotment letter dated September 12th, 2022 issued by FGEHA and SCBAP. The said allotment has been made against payment of Rs. 4 million, which has been paid by the Undersigned from his salary account

ii. As regards the plot mentioned at serial No. (ii), the same has been provisionally allotted to him as a member of Federal Government Employees Housing Foundation, (FGEHF), vide provisional allotment letter dated October 5th, 2022 issued by the Federal Government Employees Housing Authority. The Undersigned has so far paid two installments amounting to 30 Lacs from his salary account towards payment of the said plot.

iii. As regards the plot mentioned at serial No. (iii), the same has been provisionally allotted to him as a member of the Supreme Court Employees Cooperative Housing Society, vide provisional allotment letter dated October 7th, 2021 issued by the managing committee of the Housing Society. The undersigned has so far paid Rs. 454,000, from his salary account as cost of land.'

Reply to Allegation No. 8

'This allegation is also absolutely and maliciously false. It is also unfortunate that the term "evidence of corruption" has been employed while formulating this allegation and that for notwithstanding the fact, as is evidence from the record before the SJC, that neither any "evidence" of the known sources of the income/saving of the Undersigned, nor of evaluation of the construction has been made available on the record. In fact, this allegation does not form part of any of the so-called "complaints" filed/entertained in this matter. Thus, the Undersigned takes serious exception to the use of the word "corruption' in the Revised SCN, more so when there is not an iota of "evidence" in any of the complaints to support this allegation. It is improper and discourteous to use such language regarding a Judge of the Supreme Court of Pakistan. More than the Undersigned, the use of such language undermines the sanctity and integrity of the Supreme Court of Pakistan.'

Reply to Allegation No. 9

'This allegation is also absolutely and maliciously false. The rent being charged for the office rented out to the Undersigned sons is neither below the market rent nor the Undersigned used any influence or misused his office for fixing the rent thereof. This is without prejudice to the legal objection that so far as the obtaining of the demised premises by the Undersigned's sons is concerned, that per se does not fall within the jurisdiction of the SJC, as is evident inter alia, even from the dictum laid down in Justice Qazi Faez Esa case, (PLD 2022 SC 119).'

Reply to Allegation No. 10

'This allegation is also absolutely and maliciously false. The Undersigned neither misused the office as alleged therein, nor did he get his sons appointed as legal advisors/panel advocates in any organization/statutory corporation or National Highways Authority (NHA).

Moreover, the letter of the NHA relied upon by one of the "so-called complainants" is an offer letter and not a letter of appointment. Not one of the Undersigned's two sons is a legal advisor/panel advocate for the NHA.'

1. The learned Attorney-General for Pakistan ('AG') said that upon checking there is no evidence to substantiate Allegation No. 7, therefore, it may be disregarded.

2. When the SJC convened on 11 January 2024 we were informed that Justice Naqvi had submitted his resignation to the President of Pakistan, and that it had been accepted.3 It would be appropriate to reproduce the following paragraphs from the order of the SJC dated 11 January 2024:

'3. The question has arisen whether the SJC can continue with the proceedings after the resignation of Justice Naqvi. The learned AG states that once the SJC has taken cognizance it has to give a finding and that the relevant provisions of the Constitution in this regard which are sub-articles (5) and (6) of Article 209 of the Constitution do not envisage that proceedings should stop upon tender of resignation. He submits that in the present case the SJC convened repeatedly, issued show cause notice and Justice Naqvi sought time to submit reply, which was granted and a comprehensive reply to the show cause, categorically denying the allegations has been submitted, and the truth of the matter can only be determined by examining witnesses and documents. He further states that if the allegations are found to be false then the reputation of the Supreme Court, and of the judiciary, will have been unnecessarily sullied, but if the allegations are established then self accountability by the institution will strengthen it and restore the confidence of the people, and if this is not be done then decisions of the Supreme Court will be treated as mere words on paper without requisite legitimacy.

4. The learned AG has also drawn our attention to the case of Afiya Shehrbano Zia v. Supreme Judicial Council (PLD 2023 Supreme Court 510) and submits that though the facts of the case are not mentioned in the judgment he has learnt that it pertains to a complaint submitted against a former Chief Justice of Pakistan which the SJC did not attend and the concerned Chief Justice retired. The petitioners wanted that the SJC should consider their complaint, and had invoked Article 184(3) of the Constitution. The petition was filed in the year 2020, was heard by a two-Member Bench of the Supreme Court on 13 June 2023 and the judgment was announced on 27 June 2023, by overlooking the Supreme Court (Practice and Procedure) Act, 2023 (the Act), which had been enacted on 21 April 2023. The Act provides that a petition under Article 184(3) of the Constitution is to be heard and decided by 'a bench comprising of not less than three judges of the Supreme Court'. He states that when the said petition was heard and decided the said Act had been suspended but by an interim order of the Supreme Court. However, since the matter had not earlier been decided and needed constitutional interpretation it should not have been heard till the constitutionality of the Act was determined. He submits that constitutional validity of the Act, except retrospectivity of appeal against an appeal in respect of a decision under Article 184(3) was upheld by the Full Court, comprising of fifteen Judges of this Court. The requisite notice to the AG under Order XXVII-A of the Code of Civil Procedure, 1908, was also not given nor could the requisite assistance be provided after the issuance of notices, submits the learned AG. The learned AG concludes by submitting that the facts of the cited case were different because the Chief Justice, who was sought to be proceeded against by the SJC, had retired without the SJC having initiated any proceedings against him, which is not the case herein.

5. If a Judge tenders resignation under pressure it does not mean that he has accepted the allegations and if the false allegations have been levelled then action should be taken against the complaint/informant. On the other hand if the Judge had been guilty of misconduct the citizens are entitled to know of this and all the more so when the SJC has convened and public time, money and effort has already been spent. In this case notices to witnesses have also been issued and are in attendance.

6. Therefore, an opportunity is provided to Justice Naqvi to attend to the aforesaid concerns and we issue notice of intimation which should also be sent to learned Khawaja Haris Ahmed, who was representing him before the SJC. In case it is not convenient for Justice Naqvi/his learned counsel to attend tomorrow or they require more time further opportunity will be granted. However, the statements of the witnesses in attendance may be recorded. To come up on Friday 12 January 2024 at 11.30 am, as already scheduled.'

1. A five-Member Bench of the Supreme Court decided two intra court appeals4 and held that, 'if the proceedings have already been initiated by the Supreme Judicial Council ('SJC') against a Judge, the same shall not abate on his resignation or retirement.' Justice Naqvi had submitted his resignation after the SJC had taken cognizance of the allegations levelled against him, SJC had issued show-cause notice to him, Justice Naqvi had sought extention of time to submit his reply and had later submitted his reply. The SJC continued its proceedings against Justice Naqvi and he was informed that the SJC would be convening.5

2. When the SJC met on 15 February 2024 Justice Naqvi's undated letter was placed before us stating that Justice Naqvi had cancelled the power of attorney given by him to his learned senior counsel, Khawaja Haris Ahmed, who was in attendance and confirmed the same. Nonetheless, the SJC had observed that, Justice Naqvi's former counsel or anyone else on his behalf or those present may cross-examine the witnesses [who had testified] but none availed of the opportunity.' And, such opportunity was given on each date when the witnesses came to testify.

3. The following 14 witnesses testified before the SJC and produced documents/material which were exhibited:

| | | | | | --- | --- | --- | --- | | Witness No. | Name | Designation | Exhibit | | W1 | Abdul Ghaffar | Military Estate Officer | W-1/1: Sale-deed. W-1/2: General Land Register. | | W2 | Kashif Shhzad | Cantonment Executive Officer | W-2/1: Building plan, in respect of 100 Saint John's Park, Lahore Cantt. W-2/2: Approval of above. | | W3 | Asif Aziz | Director, bfa (Pvt.) Ltd. | W-3/1: Valuation report of 100 Saint John's Park, Lahore Cantt. | | W4 | Muhammad Kashif Rehman | Director, Excel Services and Engineering (Pvt.) Ltd. | W-4/1: Valuation report of 100 Saint John's Park, Lahore Cantt. | | W5 | Sohail Jehangir | Director General, NADRA | W-5/1: Family details of Chaudhry Muhammad Shahbaz. | | W6 | Jazeela Aslam | Secretary, SJC | W-6/1: Letter of Secretary, SJC W-6/2: Attested copies of suit No.7147/2021. | | W7 | Chaudhry Muhammad Shahbaz | | W-7/1: Agreement to sell. W-7/2: Banker's cheque of Askari Bank Ltd. W-7/3: Banker's cheque of Habib Bank Ltd. W-7/4: Banker's cheque of Askari Bank Ltd. | | W8 | Muhammad Safdar Khan | | W-8/1: Sale deed. W-8/2: Bankeer's cheque of Bank Alfalah. | | W9 | Capt. (R) Muhammad Zafar Iqbal | Director General, FGEHA | W-9/1: Record of plot No. 357, Block A, Park Road Housing Scheme, Islamabad. W-9/2: Record of plot No. 222, Block B, Park Road Housing Scheme, Islamabad. W-9/3: Record of Apartment No.1, Block 2, Chaklala Heights, Rawalpindi. | | W10 | Arman Jalal | Zonal Director ETPB | W-10/1: Record of Shop No.12, Dayal Singh Mansion, Lahore. | | W11 | Muhammad Asim Ejaz | Zonal Director ETPB | W-11/1: Order in W.P. No. 9989/ 2020. W-11/2: Order of Secretary, Government of Pakistan. | | W12 | Ammar Masood | Branch Operations Manager, Askari Bank Ltd. | W-12/1: Banker's cheque of Askari Bank Ltd. | | W13 | Zahid Rafiq | | W-13/1: Appointment letters. W-13/2: Tax deduction certificates. W-13/3: Allotment letters. W-13/4: List of payments to Raja Muhammad Safdar. W-13/5: Payment voucher to Raja Muhammad Safdar. | | W14 | Syed Sher Afgan | President, SCECHS | W-14/1: Record of plot. W-14/2: Record of membership. |

1. Justice Naqvi wanted to see the record of the SJC which was made available to him. He wanted access to the record of the JCP and was told that the JCP is an independent and separate constitutional body, and if he wanted access to JCP's record he should submit a request to the JCP, but he did not do so. Justice Naqvi objected that a show cause notice without detailing the allegations against him was issued, therefore, the show cause notice was revised and specific allegations which had been levelled against him were listed. He requested further time to submit his reply to the show cause notice, and his request was conceded to. Justice Naqvi wanted the proceedings of the SJC to be made public, and this request was also conceded to. Justice Naqvi was invited to the SJC whenever it convened and both he and his learned counsel participated. However, all of a sudden he stopped attending.

2. It may be mentioned that Justice Naqvi had informed the SJC that he had filed two constitutional petitions before the Supreme Court, however, notice was never issued by the Supreme Court to the SJC nor did Justice Naqvi succeed in stopping the SJC from undertaking its work which the Constitution of the Islamic Republic of Pakistan (the Constitution') requires the SJC to undertake. The Chairman and Members of the SJC have taken an oath to discharge their duties and perform their functions in accordance with the Constitution, which includes undertaking examining whether a Judge 'may have been guilty of misconduct,6 to 'inquire into the matter' and to submit its 'report to the President.7 The Constitution requires Judges to abide by the code of conduct issued by the SJC8 and when they take oath on their appointment they swear to 'abide by the code of conduct issued by the Supreme Judicial Council.'9

3. Justice Naqiri participated and raised all sorts of untenable objections, engaged senior counsel to represent him and was fully aware of the proceedings of the SJC, but just before SJC was about to conclude its working Justice Naqvi addressed letter dated 29 February 2024, which concluded by stating that, 'I will not be participating in the SJC proceedings.'

4. We now proceed to examine whether all or any of the allegations levelled against Justice Naqvi were established. Allegations Nos. 2, 3 and 8 are connected, therefore, we shall consider them together. These allegations pertain to the purchase of the immovable property bearing No. 100, situated in Saint John's Park, Lahore Cantonment, Lahore, measuring 1983.77 square, yards ('100 Saint John's Park'), which was owned by Mrs. Bisma Warsi, who died on 6 December 2020. On Mrs. Bisma Warsi's death her legal heirs (as per Islamic law) became the owners of 100 Saint John's Park, who were as under:

| | | | | --- | --- | --- | | Name | Relation | Date of birth | | Chaudhry Muhammad Shahbaz | Husband | | | Muhammad Hassan Shahbaz | Son | 3 June 2004 | | Hussain Shahbaz Warsi | Son | 25 March 2007 | | Ali Hamza Shahbaz Warsi | Son | 19 August 2008 |

All three of Mrs. Bisma Warsi's children were minors, that is, under the age of eighteen years, when she died; they respectively would attain majority on 3 June 2022, on 25 March 2025 and on 19 August 2026.

1. Justice Naqvi wanted to buy 100 Saint John's Park and entered into an Agreement to Sell, on 8 January 2022, with Chaudhry Muhammad Shahbaz and Muhammad Hassan Shahbaz (exhibit W-7/1), the first preamble of which is reproduced hereunder:

WHEREAS, after the demise of Bisma Warsi wife of Chaudhry Muhammad Shahbaz who passed away on 06.12.2020, the sellers were declared legal heirs of Bisma Warsi vide judgment dated 31.03.2021 passed by Mian Muhammad Naeem Sarwar Civil Judge, who are now absolute owners in possession of the Bungalow No. 100, measuring 1988.77 sq yards, situated at Saint John Park, Aziz Bhatti Road, Lahore Cantt.'

The Agreement to Sell stated that the sale consideration for 100 Saint John's Park was one hundred and thirty million rupees (Rs. 130,000,000), of which fifty million rupees (Rs.50,000,000) had already been paid by Banker's Cheque No. 70811710, dated 13 December 2021 and another thirty million rupees (Rs.30,000,000) was paid in cash by Justice Naqvi. The balance sale consideration of fifty million rupees (Rs.50,000,000) Justice Naqvi would pay on or before 8 April 2022 at the time of transfer of 100 Saint John's Park in his name by the Cantonment Board. The Agreement to Sell also stipulated that Justice Naqvi shall pay all costs that are incurred on the sale, including stamp duty and registration dues. There were two witnesses to the Agreement; Muhammad Safdar Khan (Witness No. 8) and Syed Rehmat Shah Bukhari.

1. The above Agreement to Sell is printed on a twelve hundred rupees (Rs.1,200) non-judicial E-Stamp, which was issued on 18 December 2021. That on the date that the advance payment of fifty million rupees was paid (13 December 2021), the date on which the stamp paper was purchased (18 December 2021) and the day the Agreement to Sell was executed (8 January 2022) Muhammad Hassan Shahbaz, who was shown as the second seller, was a minor; he would attain the age of eighteen on 3 June 2022; when he would be able to enter into such an agreement. The other two co-owners of the 100 Saint John's Park, namely, Hussain Shahbaz Warsi and Ali Hamza Shahbaz Warsi, were not mentioned in the Agreement to Sell. Chaudhry Muhammad Shahbaz was only one-fourth owner of 100 Saint John's Park, and Mrs. Bisma Warsi's three sons were three-fourth owners of it.

2. The Agreement to Sell mentioned the judgment and decree dated 31 March 2021 of Mian Muhammad Naeem Sarwar, Civil Judge, Lahore. Therefore, the entire file of the suit was sent for (exhibit W-6/2, comprising 21 pages). The plaint of this suit shows Chaudhry Muhammad Shahbaz and Muhammad Hassan Shahbaz as the plaintiffs and the 'Public at large' as the defendant. The plaintiffs' advocate is Chaudhry Muhammad Shahbaz himself. The plaint was titled 'Suit for Declaration of Legal Heirs' and had sought a declaration that the said plaintiffs 'are only legal heirs of the deceased Bisma Warsi, wife Plaintiff No. 1 and mother of plaintiff No. 2 in respect of Binglow [sic] No. 100 Surrey [sic] No. 201 situated at 100-Saint John Park Lahore Cantt...'. The Civil Judge in his judgment (in paragraph 2) said that, 'Public at large/ defendant was summoned through publication of proclamation in the newspaper "Front" but no one appeared before the court on behalf of the said public at large/defendant. Consequently, ex-parte proceeding as initiated against the public at large/defendant vide order dated 17.02.2021.' We are surprised that the Civil Judge would entertain such a suit, and to do so against the 'public at large' and then consider that publication in an unknown newspaper (Front) would constitute sufficient notice.

3. However, one expects a Judge of the Supreme Court to know better. Justice Naqvi, in his reply to the show cause notice, stated that 'As per the laws in Punjab, suit for declaration of legal heirs of deceased owner is filed against the public at large.' In asserting this preposterously wrong concept to be the law of the Punjab (and to do so without citing the purported law) would be disingenuous of a law student but when a Judge of the Supreme Court states this the only conclusion which can be drawn is that Justice Naqvi was complicit in depriving the said minors of their property.

4. Justice Naqvi's complicity is confirmed by Chaudhry Muhammad Shahbaz (Witness No. 7), who testified that:

'I did not submit any petition or application pursuant to the Guardians and Wards Act, 1890 to have myself declared as the guardian of the property of my minor children. Syed Muhammad Hassan Shahbaz Warsi, who was plaintiff No. 2 in the suit, was a minor at the time of filing of the suit. The suit was filed against the public at large and notice was published in the newspaper by the name of 'Front'. I am however not aware of any such newspaper. I wanted to obtain permission from the guardian judge but Sayyed Tassaduq Mustafa Naqvi, the son of Sayyed Mazahar Ali Akbar Naqvi, advised me to file the suit because after 30 June 2022 the rate of taxes and duties on the transactions would go up. Sayyed Mazahar Ali Akbar Naqvi and his son Sayyed Tassaduq Mustafa Naqvi were informed by me that 1 have three sons from my late wife Bisma Warsi who were the owners of the property. However, Sayyed Mazahar Ali Akbar Naqvi said that get the sale deed registered first and if required permission can be taken from the guardian judge later.'

1. This is not all that was wrong and suspect about the purchase by Justice Naqvi of 100 Saint John's Park. Two property valuators of long standing, both of whom are approved by the Pakistan Bankers Association testified that its price at the relevant time was considerably more. Asif Aziz (Witness No. 3), director of bfa (Pvt.) Limited, testified that at the relevant time the price of 100 Saint John's Park would have been two hundred seventy seven million, nine hundred thousand rupees (Rs.277,900,000) and submitted a comprehensive nine page report (exhibit W-3/1). And, Muhammad Kashif Rehman (Witness No. 4), a director of Excel Services and Engineering (Pvt.) Ltd., testified that its value at the relevant time would have been two hundred fifty seven, eight hundred and ninety thousand and one hundred rupees (Rs.257,890,100) and submitted a six page report in support thereof (exhibit W-4/1). However, Justice Naqvi alleged that he bought 100 Saint John's Park at half its price. Was he extremely lucky in securing a bargain? Or did Justice Naqvi not mention the correct price? Or was it sold for half its price because the co-owners (the children of Mrs. Bisma Warsi) were deprived? Justice Naqvi in his reply stated that he 'is a victim and not a perpetrator of this vital omission to include all the legal heirs of Dr. Bisma Warsi in the Sale Deed relating to this property.' In stating this Justice Naqvi demonstrates extraordinary naivety or utter ignoranee of the law. It was not simply a question of not including all the legal heirs in the said deed. The law with regard to selling the properties of minors has been on the statute books for 134 years. Permission to sell a minor's property has to be obtained from a Guardian Court, and Court must safeguard the interest of the minor if it decides to give permission to sell.10

2. Justice Naqvi asserts that he himself is a victim, despite having got possession and use of 100 Saint John's Park. The minors neither have the property nor the money. It is the minors who are the victims. However, even after learning of the said fraud (assuming Justice Naqvi did not earlier know of it) he has done nothing, which suggests that he bought 100 Saint John's Park knowing that it was co-owned by children, and that without a Guardian Court granting permission to sell it he could not have bought it. Justice Naqvi did not produce any notice published in any newspaper, which prudent buyers do by inviting public objections by publishing the same in prominent newspapers. Justice Naqvi also elected not to testify. By not doing so an adverse presumption can be drawn against him.11 The law safeguards the properties of minors. The Holy Qur'an prescribes the shares that Muslims inherit. The Holy Qur'an castigates those who deprive children of their properties in a number of its verses.12

3. Allegations have also been levelled that Justice Naqvi did not have sufficient income and savings to justify buying 100 Saint John's Park and other properties. Justice Naqvi in his written reply stated that his income tax filings with the Federal Board of Revenue are tax compliant and that he had 'sufficient Income Tax paid/ declared money to justify the purchase of the property,' However, he did not disclose his tax filings nor came forward to testify. Justice Naqvi also did not disclose how much he had earned over the years and/or the income tax paid thereon. It was also not stated when he started filing tax returns and paying income tax. Since Justice Naqvi did not make the requisite disclosure nor testified the SJC is not in a position to determine whether or not he had sufficient income tax paid/declared money to justify the purchase of the properties bought by him. We also want to make it clear that the SJC cannot undertake the work of the income tax officer or of the Federal Board of Revenue ('FBR').

4. There is yet another disturbing aspect to the purchase by Justice Naqvi of 100 Saint John's Park. Fifty million rupees (Rs.50,000,000) was paid to the seller by Lahore Smart City (Private) Limited. The seller, Chaudhry Muhammad Shahbaz (Witness No. 7), testified that he had noted this discrepancy:

'Question from Attorney-General: Is it correct that the payment that you received was paid by Lahore Smart City (Private) Limited?

Answer: I had noted the same and had pointed this out to Sayyed Mazahar Ali Akbar Naqvi but he responded by stating that this has nothing to do with me and that it is an internal matter between him and the said company and you should only be interested in the payment.

Question from Attorney-General: Is it correct that this was part of the sale consideration of No. 100, St. John's Park and it was paid by Lahore Smart City (Private) Limited?

Answer: It is correct.'

1. Justice Naqvi and his friend, Muhammad Safdar Khan (Witness No. 8), put forward an interesting story to justify the said payment of fifty million rupees, which, is also the subject of Allegation No. 4, regarding the purchase and sale of plot No. 144, Block E-1, Gulberg-3, Lahore measuring 2 kanals and 4 marlas ('the Gulberg plot'). Justice Naqvi in his written reply did not disclose how much he had paid for the Gulberg plot. The Gulberg plot was bought' by Justice Naqvi for forty four million, four hundred and ninety thousand rupees (Rs.44,490,000) as per sale deed dated 30 June 2021, but as per the seller, Mrs. Warda Naqvi, she received seventy-two million rupees (Rs.72,000,000) as sale consideration. In any event in less than a year Justice Naqvi sold it to Muhammad Safdar Khan, through sale deed dated 15 June 2022 for forty nine million, six hundred and sixty three thousand rupees (Rs.49,663,000), however, the buyer, Muhammad Safdar Khan, said he paid one hundred and thirty million rupees (Rs. 130,000,000) for it, which he apparently to help Justice Naqvi justify that he had the money to buy 100 Saint John's Park, and also why the payment of fifty million rupees (Rs.50,000,000) was paid by Lahore Smart City (Pvt.) Ltd. Muhammad Safdar Khan stated that the said company had paid fifty million rupees on Justice Naqvi's behalf to Chaudhry Muhammad Shahbaz for 100 Saint John's Park. However, the question which remained unanswered was why the seller, Chaudhry Muhammad Shahbaz, would be paid by Lahore Smart City (Pvt.) Ltd. with whom the said company had no connection.

2. Therefore, an utterly unbelievable story was now put forward by Muhammad Safdar Khan. He said that Lahore Smart City (Pvt.) Ltd. owed him fifty million rupees and that he had instructed the said company to instruct its bank to make out a banker's cheque in the name of Chaudhry Muhammad Shahbaz. However, this story stood exposed by the contradictions in the testimony of Muhammad Safdar Khan himself:

'Question: Why did the said company not directly pay you the money or transfer it to your personal account?

Answer: I requested the company to make out the pay order in the name of Chaudhary Muhammad Shahbaz and they complied. I did not give a written request to the company in this regard. I did not execute any receipt in favour of the said company that I had received fifty million rupees (Rs.50,000,000) from them. I have not shown in my tax returns that the said company owed me an amount of fifty million rupees (Rs.50,000,000). The person I know in the said company is its owner, namely, Mr. Zahid RafIq. I am not an employee of either Mr. Zahid Rafiq or of the said company.'

1. If the above fictional tale is accepted it would mean that the Gulberg plot, which was about half the size of 100 Saint John's Park, and in a less prestigious area of Lahore, was of the same price as 100 Saint John's Park. To cover and support Muhammad Safdar Khan's fictional account Zahid Rafique (Witness No. 13), the owner of Lahore Smart City (Pvt.) Ltd., came to testify. However, in his apparent enthusiasm to assist Justice Naqvi his irreconcilable discrepancies completely demolished this tale as can be seen from the following extract from his testimony:

'Question: Why did Lahore Smart City (Pvt.) Limited instruct its Bank to make out a banker's cheque in favour of Chaudhry Muhammad Shahbaz in the sum of fifty million rupees (Rs.50,000,000)?

Answer: My said company was a debtor of Raja Muhammad Safdar who requested that the money owed to him should be paid to Chaudhry Muhammad Shahbaz from whom he had purchased a house.

Question: Why did you not pay fifty million rupees (Rs.50,000,000) by cheque, do a direct bank transfer or pay cash directly to Raja Muhammad Safdar?

Answer: It is the practice of our company that we make pay orders as directed by the persons we owe money to.

Question: Can you produce any other example of this?

Answer: Today I have not brought any other example of this.

Question: Did you make any other payments on behalf of Raja Muhammad Safdar to others?

Answer: I. cannot say.

Question: Did Raja Muhammad Safdar mention to you to whom he was paying fifty million rupees (Rs.50,000,000)?

Answer: He told us that he was buying a house in Gulberg, Lahore owned by Justice Naqvi, and he was paying it to him.

Question: Then why was the payment not made out in the name of Justice Naqvi?

Answer: I do not know. My staff may have committed a mistake.'

1. Zahid Rafique (Witness No. 13) was asked if he could provide proof of the transaction entered into with Muhammad Safdar Khan and he replied that if an opportunity was provided he could do so. Therefore, such opportunity was given and Zahid Rafique produced some documents to the following questions were put to him; the questions and his answers are reproduced hereunder:

'Question: Neither of these documents disclose why you paid fifty million rupees (Rs.50,000,000) to Raja Muhammad Safdar?

Answer: It is correct.

Question: Yesterday you stated that you will be producing your accounts audited by the Chartered Accountant where such transactions are referred to. Have you brought them?

Answer: I have not brought the same as the said transactions are not reflected in such audited accounts.'

1. Muhammad Safdar Khan and Zahid Rafique had tried their level best to help Justice Naqvi justify the price for 100 Saint John's Park and the payment of fifty million rupees made by Lahore Smart City (Pvt.) Ltd. to acquire it. But they utterly failed to state, let alone justify, why a registered company would settle its liability of a substantial amount (fifty million rupees) which it allegedly owed to Muhammad Safdar Khan by not simply paying him the amount. And, for a long 'standing businessman, which Zabid Rafique claimed he was, and for a well established company, this is not only inexplicable but it is also contrary to rudimentary account keeping and would not be legally compliant. We, therefore, place no credence on the testimonies of Muhammad Safdar Khan and Zahid Rafique. On his part Justice Naqvi offered no justifiable reason in his written reply for doing so and shied away from testifying. In his reply Justice Naqvi did not disclose why a company had paid a substantial amount - fifty million rupees - to buy 100 Saint John's Park. We are therefore left to conclude that Zahid Rafique through his company, Lahore Smart City (Pvt.) Ltd., had paid a considerable portion of the sale consideration of 100 Saint John's Park. A Judge accepting such largesse from a property developer, who claimed that he hardly knew Justice Naqvi, raises very serious questions of propriety. Since no viable explanation for paying the said fifty million rupees was forthcoming we are left to assume that such incomprehensible generosity to a Judge was with the expectation that it would be handsomely recompensed.

2. Allegation No. 8 has two aspects to it. The first is with regard to whether Justice Naqvi had the resources to buy the properties which he had bought. The second is with regard to the amount spent by him on the construction raised on 100 Saint John's Park. The two valuators were not given access to the property but from what they could see from the outside when they visited they testified that construction had been raised. They assessed that the rate of construction at the relevant time would be 'between 5,500 to 8,000 rupees per square foot (as per Witness No. 3) and 'about 7,000 to 8,000 rupees per square foot'. (as per Witness No. 4). The Cantonment Executive Officer of the Lahore Cantonment, Kashif Shahzad (Witness No. 2), testified that Justice Naqvi had submitted building plans to construct a basement, ground floor and first floor comprising of 21,398 square feet of covered area (exhibit W-2/1). If the said lowest rate of construction is applied to the stated area - 5,500 x 21,698 the cost of construction would be Rs. 117,689,000. If the highest rate is applied - 8,0,00 x 21,698 - it would mean that Rs. 171,184,000 was spent in constructing a house on 100 Saint John's Park. Justice Naqvi in attending to this allegation in his reply to the show cause notice stated that, 'this allegation is also absolutely and maliciously false'. He did not disclose the covered area of the house which was constructed, and the amount spent on it. He also did not disclose where he got the money to raise the substantial construction, and did not come forward to testify. Therefore, the said allegation stands established.

3. We wish to clarify that we are not undertaking the work of an income tax officer or of the FBR, nor are we determining whether Justice Naqvi's earnings and expenditure are balanced. We are only cursorily examining whether there is any substance in the allegations and whether a plausible explanation has been offered.

4. Allegation No. 6 records the allegation that Justice Naqvi acquired two properties in the Federal Government Employees Housing Foundation ('the Foundation') and another in the Supreme Court Employees Cooperative Housing Society and did so without having sufficient income tax paid/declared money. We reiterate that the SJC is not concerned with whether Justice Naqvi was tax compliant. However, the SJC can consider the generality of the allegation and whether a plausible or reasonable explanation is offered. Leaving aside whether Justice Naqvi was entitled to apply for and acquire the said properties it is established, through the testimony of Muhammad Zafar Iqbal, the Director-General of the Foundation (Witness No. 9), and the documents exhibited by him, that Justice Naqvi had applied for and was allotted the following four properties:

(1) Plot No, 357, Street No. 9, Block A, measuring 500 square yards, situated in the Park Road Housing Scheme of Islamabad on 5 October 2022 at a price of six million rupees of which Justice Naqvi has paid three million rupees (exhibit W-9/1, comprising of 15 pages);

(2) Apartment No. 1 in category A, measuring 2,130 square feet, in Block 2 of Chaklala Heights, Rawalpindi was allotted on 7 August 2020 to Justice Naqvi who has paid an amount of Rs. 1,295,892 against its price of Rs. 9,968,400 (exhibit W-9/3, comprising of 20 pages);

(3) Plot No. 249, Street 11, Sector G-17/1, Islamabad, measuring 500 square yards, was allotted on 7 October 2021 by the Supreme Court Employees Cooperative Housing Society to Justice Naqvi for Rs.385,000 (exhibit W-14/1, comprising of 15 pages); and, it transpired that a plot was also allotted, as under:

(4) Plot No. 222, Block B, in the Park Road Housing Scheme of Islamabad, measuring 500 square yards, was allotted to Justice Naqvi by the Supreme Court Bar Association of Pakistan on 12 September 2022 (exhibit W-9/2, comprising 30 pages).

1. Justice Naqvi was administered oath on 16 March 2020 by Chief Justice Gulzar Ahmed and (from the above it is gathered that) within a period of less than two years he got four properties (three in Islamabad and one in Rawalpindi), respectively on 7 August 2020, 7 October 2021, 12 September 2022 and 5 October. 2022, while serving as a Judge of the Supreme Court. The organizations from whom he got the four properties were set up for providing housing to its members. Justice Naqvi did not explain why he obtained four properties, surely he could not reside in all of them. A Judge of the Supreme Court should not want to deprive others, which would be the result of Justice Naqvi's actions.

2. Mr. Sher Afgan (Witness No. 14), who described himself as the President of the Supreme Court Employees Cooperative Housing Society Ltd., also produced membership application form submitted by Syeda Huma Fatima Naqvi, who is the wife of Justice Naqvi. Syeda Huma Fatima Naqvi neither is nor ever was an employee of the Supreme Court, for whose benefit the Supreme Court Employees Cooperative Housing Society Ltd. was established, but she too has sought to be allotted a plot. Justice Naqvi's and his wife's membership form have been filled in by hand and it is evident from the handwriting that it was done by the same person. The cost of land was paid by Justice Naqvi through his cheuqe No. 00000532, dated 26 May 2021, but it is not known whether she got a plot.

3. Allegation. No. 9 pertains to Syed Tassadaq Mustafa Naqvi, who is Justice Naqvi's son. While it has come on record that his son is a tenant of Shop No. 12, situated in Diyal Singh Mansion, Lahore, measuring 8 marlas of land, 4 marlas on the ground floor and 4 marlas in the basement. This property is under the administration of the Evacuee Trust Property Board and it was let out to him. Arman Jalal (Witness No. 10) and Muhammad Asim Ejaz (Witness No. 11), respectively, the Zonal Administrator and the Deputy Director of the Evacuee Trust Property Board testified and produced document (exhibits W-10/1, comprising of 44 pages and exhibit W-11/1, comprising of 6 pages). The Witness disclosed that the per foot rental of Shop No. 12 is Rs. 35 per square foot and that of the adjacent, Shop No. 13, which is also let out by the Evacuee Trust Property Board, is Rs.203 per square foot. It has also come on record that Justice Naqvi's son was the petitioner in Writ Petition No. 9989/2020 wherein the High Court had directed that Federal Government to decide the rental. Accordingly, a Federal Secretary had determined the rent, whose order was not challenged. Therefore, since the matter of rent was the subject of judicial proceedings it would not be appropriate to discuss it, and no finding in respect of allegation No. 9 is being recorded.

4. In respect of Allegation No. 10 no evidence has been offered, therefore, Justice Naqvi cannot be held responsible with regard thereto.

5. Allegation No. 5 pertains to the two sons of Justice Naqvi being given properties at heavily discounted prices in projects owned by Zahid Rafique, the owner of different companies, allegedly in return for favours given or to be given later by Justice Naqvi in his capacity as a Judge.

6. Zahid Rafique (Witness No. 13) in his testimony admitted that each of the sons was given a 500 square yards plot in Capital Smart City, Islamabad of which they only paid ten percent of the price, the relevant part of his testimony in this regard is reproduced hereunder:

'I had allotted one plot each to the two sons of Justice Naqvi in the year 2019. The plots measured 500 square yards each and were situated in my project called Capital Smart City, Islamabad. I had given these to them at concessional rate of five million and four hundred thousand rupees (Rs.5,400,000) each. They had paid 10% of the price but did not pay the balance amount. I transferred both the plots to them. Both the plots are still in their names. I produce the allotment letters and other documents in this regard as exhibits W-13/3, comprising of five pages.'

Two commercial plots measuring 100 square yards were also given by Zahid Rafique in Smart City, Lahore to Justice Naqvi's sons. The relevant part of the testimony of Zahid Rafique is reproduced hereunder:

'I also allotted two commercial plots, measuring 100 square yards each, in Lahore Smart City, Lahore to the two sons of Justice Naqvi in December 2021. These were also given on coneessional rate. The price of each plot was eight million rupees (Rs.8,000,000) but we received only ten per cent of their price. These plots were transferred in their name and they sold them in September 2022. This too I did to accommodate Raja Muhammad Safdar. I do not know at what price Justice Naqvi's sons sold these plots.'

Zahid Rafique stated that he had not given 'similar allotment to any other judge or his children'. He offered no plausible reason why the said four properties were given to Justice Naqvi's sons. Zahid Rafique also extended other benefits to the children of Justice Naqvi as reflected from the following part of his testimony:

'Question: Do you know. any other family member of Justice Naqvi?

Answer: I have not met his daughter but Raja Muhammad Safdar said that there was some emergency and she needed money in London, therefore, I sent five thousand pounds (£5,000) to her through a friend from Dubai.

Question: Did Justice Naqvi or his daughter repay you this amount?

Answer: No they did not. We adjusted the amount in our account we maintain with Raja Muhammad Safdar.'

Zahid Rafique stated that for a nominal amount the four properties were given to the Justice Naqvi's sons. He also paid UK pounds 5,000 to Justice Naqvi's daughter. Zahid Rafique stated that he did this because (Raja) Muhammad Safdar Khan had asked him. As if this was not enough Zahid Rafique, also on the suggestion of (Raja) Muhammad Safdar Khan appointed Justice Naqvi's sons at a monthly amount of Rs.150,000 as testified by him, as under:

'I produce letter dated 19 March 2019 issued by Future Developments Holdings (Pvt.) Limited in favour of Syed Tassaduq Murtaza Naqvi and Syed Tassaduq Mustafa Naqvi as exhibit W-13/1, comprising of two pages, which is titled 'Appointment Letter' employing them as legal advisors at a basic pay of ninety thousand rupees (Rs.90,000), house rent allowance of forty five thousand rupees (Rs.45,000) and utility allowances of fifteen thousand rupees (Rs. 15,000), that is, a total of one hundred and fifty thousand rupees (Rs: 150,000) per month.'

1. On his part Justice Naqvi stated that Allegation No. 5 was 'absolutely and maliciously false', but went on to state that the properties belonged to his sons and he had nothing to do with them and placed reliance on the case reported as PLD 2022 Supreme Court 119, however, the said case had no application to the facts of Justice Naqvi's case. No allegation was levelled in the referred to case that anyone had given any favour to the Judge's family or given valuable property at discounted prices, let alone at nominal prices.